url
stringlengths 57
59
| text
stringlengths 0
696k
| downloaded_timestamp
stringclasses 2
values | created_timestamp
stringlengths 10
10
|
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/2440655/
|
508 S.W.2d 80 (1974)
Mario V. RODRIQUEZ, Appellant,
v.
The STATE of Texas, Appellee.
No. 47972.
Court of Criminal Appeals of Texas.
April 3, 1974.
Rehearing Denied May 1, 1974.
*81 Chagra & Chagra, El Paso, for appellant.
Steve W. Simmons, Dist. Atty., Anita Ashton, Asst. Dist. Atty., El Paso, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
DAVIS, Commissioner.
Appeal is taken from a conviction for murder. Punishment was assessed by the jury at twenty years.
At the outset appellant contends the court erred in not granting his motion for an instructed verdict in that the accomplice witnesses' testimony was not corroborated as required by Article 38.14, V.A.C.C.P.[1]
The record reflects that at approximately 2:00 a. m., on October 16, 1971, one Juan Amaro was shot to death in the Fiesta Car Lot in El Paso. Witness Antunez, night watchman at the car lot, testified that he saw deceased leave the Mi Ranchito Bar located across the street from the parking lot and walk to his car. Upon arriving at his car the deceased, who had been working as a special officer at the Mi Ranchito Bar, removed his gun and nightstick and placed them in the trunk of his car. After deceased was inside his car, six men approached the automobile, two going to the driver's side of the vehicle while the other men went to the other side of the car. Antunez, after hearing one of the men say, "This is the way we wanted to catch you," went into the building on the parking lot and called the police. While he was inside the building, Antunez heard a shot fired, looked outside and saw the men running. Antunez went outside and found deceased lying on the ground.
The court instructed the jury that the witnesses Lopez, Juarez and Guevara were accomplice witnesses as a matter of law.
Guevara testified that he met appellant at the Senorial Bar on the evening in question. When they left the bar about 2:00 a. m. they met up with Juarez and Lopez, and appellant asked them to help in beating up a special officer who had done something to his brother. While they were standing outside the Senorial Bar, appellant pointed to a man in front of the Mi Ranchito Bar located across the street and said, "Well, there's the policeman right there." They observed the deceased go to the parking lot, open the trunk of his car and place his gun inside. They followed deceased to his car and Guevara took the keys from the *82 ignition of the car, opened the trunk and removed deceased's pistol. Appellant asked for the gun, Guevara refused and appellant took it from him. Appellant pointed the gun toward the policeman. At this point, Guevara turned around and heard two shots. When Guevara looked back toward appellant he was still "pointing the gun." Guevara grabbed the gun out of appellant's hand and told him to run.
Accomplice witness Lopez testified that he and his brother-in-law Juarez went to the Senorial Bar the evening in question. He stated that he went with appellant and others to the parking lot where the shooting took place. He heard the two shots, but did not know who fired the gun. After the shooting he saw Guevara with a gun. Before the first shot was fired he heard someone tell the officer, "I'm going to get even with you."
Accomplice witness Juarez testified regarding appellant asking him and his brother-in-law Lopez to "help them beat a man up." Appellant then stated, "There he goes," pointing to a policeman who was going to his car in the parking lot. After reaching the car Juarez stated that Guevara removed the deceased's pistol from the trunk and appellant grabbed the pistol from Guevara's hands. After the shots were fired, Juarez observed appellant and Guevara on the driver's side of the car. Guevara had the pistol in his hands. Prior to the shooting, Juarez heard appellant say, "This is the way I wanted you."
Witness Gonzalez was in the Senorial Bar on the night in question and, upon leaving the bar around 2:00 a. m., went to the parking lot diagonally across the street where he saw a "special officer lying dead on the ground." While he was in the bar that evening he had seen appellant and accomplice witness Guevara.
Baltazar Segoviano testified that she saw appellant with other men outside a bar across the street from the parking lot where the shooting occurred about 1:30 a. m. Shortly thereafter, she saw deceased go to his car in the parking lot and place his gun and belt in the trunk of his automobile.
Rosa Maria Segoviano testified that she saw appellant and a group of men, including accomplice witness Guevara, in front of the Mi Ranchito Bar at approximately 1:30 a. m.
John White was returning home from work when he saw men gathered around a car in the parking lot in question. White heard shots and saw men running from the scene. White described one of the men standing on the driver's side of the car as being larger than the others, being about six feet, one inch and weighing about two hundred pounds. This person was further described by White as having long, wavy hair.
Witness Segoviano described appellant as being heavy and having long hair when she saw him on the night in question.
Witness Gonzalez, who had seen appellant in the Senorial Bar, described appellant as having had long hair.
Witness Antunez, the night watchman of the car lot, described one of the men on the driver's side of the car as being larger and having long hair.
In determining the sufficiency of the corroboration, we must eliminate the evidence of the accomplice witness and examine evidence of other witnesses to ascertain if there be inculpatory evidence or evidence of incriminating character which tends to connect the appellant with the commission of the offense. Cherb v. State, Tex.Cr.App., 472 S.W.2d 273; Rogers v. State, Tex.Cr.App., 461 S.W.2d 399; Chambers v. State, Tex.Cr.App., 508 S.W.2d 348 (1974).
Proof that the accused was at or near the scene of the crime at or about the *83 time of its commission, when coupled with suspicious circumstances such as unreasonableness of the hour, lack of apparent reason for such presence, being in the company of accomplice and subsequent flight, furnishes sufficient corroboration to support a conviction. Edwards v. State, Tex. Cr.App., 427 S.W.2d 629.
In the instant case the corroborating testimony places appellant in the presence of an accomplice across the street from the crime shortly before its commission at approximately 2:00 a. m. on October 16, 1971. It is noted that the testimony of Baltazar Segoviano places appellant near the crime very shortly before its commission, since her testimony reflects that she saw deceased walking toward his car shortly after seeing appellant with a group of men. When appellant was observed with an accomplice and other men prior to the crime he was described as a big man with long hair. Among the group of men who surrounded the car of the deceased shortly thereafter was a man described by the car lot employee and the witness White as being larger and having long hair.
We find that the evidence corroborates the accomplices' testimony.
Appellant contends the court erred in not granting an instructed verdict of not guilty in that the evidence was insufficient to support a conviction.
The testimony of the accomplice witnesses reflects that appellant bore ill feelings toward the deceased. He was placed at the scene of the crime with a gun in his hand by Juarez and Guevara shortly before the fatal shots were fired. While no one saw appellant fire the weapon, Guevara testified that he took the gun from appellant immediately after hearing the shots fired.
We find the testimony of the accomplice witnesses, taken with the corroborating evidence, sufficient to support the conviction. See Flores v. State, Tex.Cr. App., 491 S.W.2d 144; Ortega v. State, Tex.Cr.App., 493 S.W.2d 828.
The judgment is affirmed.
Opinion approved by the Court.
NOTES
[1] Article 38.14, V.A.C.C.P., provides:
"A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense."
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2554177/
|
15 A.3d 522 (2010)
COM.
v.
PERKINS.
No. 95 WDA 2010.
Superior Court of Pennsylvania.
October 8, 2010.
Reversed and Remanded.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2440688/
|
385 F. Supp. 2d 534 (2005)
UNITED STATES of America
v.
Samuel WATSON.
No. CRIM.A.04-392.
United States District Court, E.D. Pennsylvania.
August 29, 2005.
*535 Catherine C. Henry, Federal Defenders, Philadelphia, PA, for Samuel Watson.
Karen L. Grigsby, U.S. Attorney's Office, Philadelphia, PA, for United States of America.
*536 MEMORANDUM OPINION
RUFE, District Judge.
On August 15, 2005, Defendant Samuel Watson timely appealed the judgment of sentence in the above-captioned case. The Court submits this opinion in accordance with LAR 3.1 to address the issues it anticipates Watson will raise on appeal.[1]
BACKGROUND
On February 11, 2005, Watson pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). On June 14, 2004, Watson robbed United Bank at 1500 JFK Boulevard, Philadelphia, Pennsylvania. Watson handed the teller a demand note threatening to shoot her if she did not cooperate.[2] He stole $1940.00 from the bank, but was apprehended shortly thereafter in the vicinity, told the police officer "you got me," and cooperated when the police retrieved the stolen money from his pocket. He would not give his name or a further statement to the police officers, but later that day he was transported to the FBI, where he confessed to the bank robbery and the use of the demand note.
Although the United States Sentencing Guidelines (the "Guidelines") are advisory under United States v. Booker, ___ U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), when determining a sentence the Court begins by calculating the sentence under the Guidelines, and then tailors the sentence in light of other statutory concerns. The base offense level for robbery is twenty. Two levels are added for robbery of a financial institution, and an additional two levels are added for threatening the victim with death. The parties agreed that Watson was eligible for a three point downward adjustment to the offense level computation based on his acceptance of responsibility and timely notification of his intention to plead guilty. Under U.S.S.G. § 4B1.1, Defendant is a career criminal, adding eight levels to his offense level, and placing him in Criminal History Category VI.[3] Thus, Watson's adjusted offense level is twenty-nine. The statutory maximum sentence for this crime is twenty years incarceration followed by three years of supervised release and a fine of up to $250,000.[4] The recommended Guidelines sentence is 151 to 188 months imprisonment, followed by two to three years of supervised release, and the recommended fine range is $15,000 to $150,000.[5] The United States Department *537 of Probation recommended a sentence within the prescribed Guidelines range.
At the August 9, 2005 sentencing hearing,[6] the Government argued that the recommended Guidelines range was reasonable as applied to Watson. At age 52, this is Watson's twenty-ninth arrest and sixteenth conviction. He has been a drug addict since age seventeen, and he was addicted to crack cocaine, with an expensive daily habit, when he committed the bank robbery. Tr. at 14. Furthermore, he has committed crimes even during periods when he reports being drug-free. Tr. at 14.
Watson outlined several factors which, he argued, warranted a downward departure from the recommended Guidelines sentence. Specifically, Watson argued that he has cognitive deficits (borderline mental retardation) and severe health problems (HIV). Tr. at 15-16. Additionally, he claimed that his crime was related to his voluntary cessation of Prozac medication, which he was prescribed for depression.[7]
The Court adopted the facts presented in the Pre-Sentence Report, without objection, and sentenced Watson to 120 months imprisonment followed by three years of supervised release. The Court imposed no fine due to Watson's inability to pay. This sentence falls below the recommended Guidelines range, and is within the statutory maximum.
DISCUSSION
A District Court may depart downward from the Guidelines if the court finds a mitigating circumstance is present to an exceptional degree.[8] Since Booker, it is unclear whether the exercise of granting or denying motions for departure is any longer a necessary procedure. What is clear is that the Guidelines are advisory. As such, the Court may impose a sentence outside the Guidelines range if it believes the sentence is "reasonable" given the nature and circumstances of the offense, the personal history and characteristics of the defendant, and the additional factors set forth in 18 U.S.C. § 3553(a).[9]
1. Medical Condition
In this case, the Court found that Watson's medical condition warranted a sentence lower than the advisory Guidelines range, and would so warrant whether the court applied the Guidelines provisions regarding downward departures or simply arrived at a "reasonable" sentence under the guidance of 18 U.S.C. § 3553(a). Because this area of law is unsettled, we *538 discuss the Court's ruling under both procedures.
Under the Guidelines, a downward departure can be granted if an individual has an extraordinary physical impairment.[10] The Court determined that a downward departure was appropriate due to Watson's severe health problems stemming from HIV.[11] Tr. at 18-19. The Court expressed its awareness that even with a sentence of 120 months, Watson may die in prison. Tr. at 18.
Moving to the statutory procedures, after establishing the Guidelines range, the Court considered Watson's serious medical condition and crafted a sentence was sufficient to meet the goals of 18 U.S.C. § 3553(a). Specifically, the Court considered: 1) the seriousness of the offense (Tr. at 17); 2) the Court's need to deter Watson from committing more crimes and to promote his respect for the law (Tr. at 17); 3) the need to adequately punish Watson's conduct (Tr. at 17); 4) Watson's criminal history, including his fifteen prior convictions (Tr. at 10); 5) Watson's failure to learn from prior convictions (possibly due to cognitive limitations, but troubling to the Court nonetheless) (Tr. at 16-17); 6) the need to deter others from committing similar crimes, and to deter others from believing serious illness will excuse criminal conduct (Tr. at 17, 18); 7) Watson's history of substance abuse and of commission of crimes to feed his drug addiction (Tr. at 17); 8) the risk Watson poses to the community and the need to protect the community from further harm[12] (Tr. at 10); and 9) Watson's poor compliance with medical and psychiatric treatment in the community and his obvious need for such treatment, as well as drug and alcohol treatment (Tr. at 11 and 18). The Court is confident that Watson's medical and psychiatric needs can be met by the Bureau of Prisons.
2. Mood Disorder
The Guidelines discourage downward departures based on a defendant's mental and emotional conditions.[13] Only mental and emotional conditions that are established to an exceptional degree or that in some way make the case different from the ordinary case in which the condition is present may be a basis for departure.[14] To grant a downward departure due to mental conditions under the Guidelines, the Court must consider whether the offense was violent or non-violent, whether the Defendant suffered a significantly reduced mental capacity, whether the defendant's mental incapacity contributed to the commission of the offense, and whether the defendant's criminal record indicates a need for imprisonment to protect public safety.[15] The Court found this was a crime of violence, and that Watson's criminal record indicates a need for imprisonment to protect the public. These findings would preclude downward departure under the Guidelines.
*539 Post-Booker, the Court may consider any relevant personal characteristics when imposing a sentence. However, the Court finds that nothing in the record regarding Watson's diagnosed dysthymia, for which Watson has received ongoing treatment with anti-depressant medication, was exceptional or warranted a further reduction in his sentence. The Court did order mental health treatment as a component of Watson's imprisonment and supervised release, and further urged Watson to avail himself of available treatment while incarcerated. Tr. at 21-22.
3. Cognitive Limitations
Dr. Tepper found Watson's intelligence quotient to be 73, placing him in the borderline mentally retarded range. Dr. Tepper noted that past and present factors may have contributed to Watson's current level of cognitive functioning, including his premature birth, his medical condition, and his history of substance abuse. As defense counsel acknowledged, the Court must weight its duty to protect the community against Watson's possible inability to learn from his actions and their consequences, due to his cognitive limitations. Tr. at 16.
The Court found that Watson would not be entitled to a downward departure under the sentencing Guidelines due to his cognitive limitations. To be eligible for a downward departure under the Guidelines, Watson needed to prove, by a preponderance of evidence, that the offense was non-violent, that he suffered a significantly reduced mental capacity, that his mental incapacity contributed to the commission of the offense, and that his criminal history does not indicate a need for imprisonment to protect public safety.[16] The Court found that downward departure due to Watson's borderline intelligence was not warranted, because his intellectual limitations are not extraordinary, his crime was violent, it does not appear that Watson's cognitive limitations contributed to the commission of the offense, and his criminal record indicates a need for imprisonment to protect the public.
Under non-Guidelines procedures, the Court considered whether his sentence was reasonable in light of his cognitive limitations. The Court expressed concern that Watson has failed to develop adequate respect for the law, despite having been convicted, sentenced and punished fifteen times in the past, including once for bank robbery. Tr. at 17. The Court noted that Watson's record normally would warrant a sentence in the high end of the Guidelines range. Nevertheless, finding that Watson was more vulnerable than he appeared based on his criminal record alone, the Court did not impose a Guidelines sentence.
4. Drug Addiction
Watson has a history of drug abuse, specifically heroin and crack cocaine addiction, dating back almost thirty-five years. Watson acknowledges having a very expensive crack cocaine habit at the time he robbed United Bank. United States Sentencing Guideline § 5H1.4 specifically precludes departing from the range mandated by the Guidelines based on drug and alcohol dependence.[17]
The Court did not find any facts in this case that warranted a reduced sentence based on Watson's drug addiction. However, the Court did consider Watson's drug addiction when it imposed sentence, and ordered him to attend an aftercare drug treatment program and comply with drug testing while he is on supervised release, *540 and urged him to avail himself of drug treatment while incarcerated to aid in his rehabilitation. Tr. at 20, 22.
CONCLUSION
For the foregoing reasons, after hearing and addressing all the issues Watson raised, the Court entered judgment of sentence of 120 months imprisonment. Although under the formerly mandatory Guidelines scheme the Court could not grant a downward departure on the grounds of mental health, cognitive limitations, or substance addiction, the Court did, pursuant to 18 U.S.C. § 3553(a), address and consider all of Watson's conditions and characteristics, the nature and circumstances of the offense, and the overall statutory scheme, and imposed a sentence that is "reasonable" under all the facts and circumstances of the case. Watson's age and medical condition were important to the Court's consideration, as were his mental health, cognitive limitations, and substance addiction. The sentence imposed reflects those concerns. It also reflects the minimum sentence sufficient to reflect the seriousness of the offense, promote respect for the law, afford deterrence, protect the public from Watson's future crimes, and provide Watson with needed medical, psychiatric and correction treatment in the most effective manner.
NOTES
[1] The issues raised by Watson's counsel at sentencing are discussed in detail below. At the close of the hearing, Watson, pro se, suggested that it was improper to use his prior convictions as a factor in sentencing. Tr. at 23. It is well settled that the ex post facto clause of the United States Constitution does not preclude imposing a higher sentence on recidivist offenders than on first time offenders. Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 92 L. Ed. 1683 (1948); see also United States v. Bucaro, 898 F.2d 368 (3d Cir.1990).
[2] While the government was unable to produce any of Watson's victims to testify at the sentencing hearing, the Court notes that by its very nature, Watson's crime was a serious and violent offense which would invoke fear and intimidation in victims and witnesses.
[3] Watson has fifteen prior convictions dating back to 1971, when he was eighteen years old. These include another conviction for bank robbery and a conviction for robbery of a state liquor store. His criminal history score, which counted only crimes which occurred within fifteen years of the current offense, was seventeen.
[4] 18 U.S.C. § 2113(a).
[5] See Pre-Sentence Report dated April 8, 2005.
[6] The Court conducted two sentencing proceedings, on May 13, 2005 and August 9, 2005. The proceeding on May 13, 2005 was continued to allow Watson an opportunity to obtain a psychological evaluation and to submit a report to the Court.
[7] According to a psychological evaluation performed by Dr. Allan M. Tepper, J.D., Psy.D., which was carefully considered by the Court, Watson's diagnosis includes dysthymic disorder, cocaine abuse, alcohol abuse, and borderline mental retardation. Dysthymic disorder is a mood disorder characterized by chronic depression for two or more years, but without all the symptoms of depression required for diagnosis with a major depressive episode. D. Satcher, M.D., Ph.D., Mental Health: A Report of the Surgeon General, Chapter 4, Mood Disorders, available at http:// www.surgeon general.gov/ library/ mentalhealth/chapter 4/sec3.html.
[8] U.S. v. McBroom, 124 F.3d 533, 538 (3d Cir.1997).
[9] The sentencing statute advises that sentences must be sufficient to: a) reflect the seriousness of the offense; b) promote respect for the law; c) afford deterrence; d) protect the public from defendant's further crimes; and e) provide the defendant with needed educational and vocational training and other correctional treatment in the most effective manner.
[10] U.S.S.G. § 5H1.4.
[11] Watson has been diagnosed with HIV for over twenty years. When presented with his concerns about his medical treatment at the Federal Detention Center, via a letter dated February 1, 2005, the Court spoke to Assistant Warden Tracey Brown, directed that appropriate evaluation and treatment be provided, and learned the precise nature of Watson's medical condition.
[12] The Court was particularly concerned that Watson did not seem able to consider the effect of his actions on his victims and witnesses. Tr. at 9-11.
[13] See U.S.S.G. § 5H1.3.
[14] McBroom, 124 F.3d at 538.
[15] U.S. v. Vitale, 159 F.3d 810, 816 (3d Cir.1998).
[16] Vitale, 159 F.3d at 816.
[17] See also U.S. v. Hernandez, 89 F. Supp. 2d 612, 617 (E.D.Pa.2000), citing U.S. v. Iannone, 184 F.3d 214, 226 (3d Cir.1999).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2440879/
|
508 S.W.2d 703 (1974)
INSURANCE COMPANY OF NORTH AMERICA, Appellant,
v.
FIRE INSURANCE EXCHANGE et al., Appellees.
No. 5324.
Court of Civil Appeals of Texas, Waco.
April 18, 1974.
Rehearing Denied May 9, 1974.
Thompson, Coe, Cousins, Irons & Porter, Larry L. Gollaher, Robert B. Cousins, Jr., Dallas, for appellant.
Touchstone, Bernays & Johnson, Porter K. Johnston, Lancaster Smith, Dallas, for appellees.
HALL, Justice.
This is a venue matter.
Gene Burks, dba Burks Barn, initiated this lawsuit against appellees, Fire Insurance *704 Exchange and Carl Foote, in Rockwall County. He alleged that he is the insured under a fire policy issued by Fire Insurance Exchange, and that as the result of the destruction of his place of business and its contents by fire on December 24, 1971, he is entitled to benefits under the policy totaling $100,000. Alternatively, he pleaded for recovery of that amount from Foote in the event the property was not covered by fire insurance, asserting that Foote agreed to keep the property insured and that lack of such protection would have been caused by Foote's negligence.
Alleging circumstances which we need not recite, appellees impleaded appellant, seeking contribution or indemnity if Burks should recover from them. Appellant interposed a plea of privilege to be sued in Dallas County, the County of its residence. The plea was controverted by appellees. After a trial without a jury, judgment was rendered overruling the plea of privilege.
Among other grounds for maintaining venue in Rockwall County, appellees relied upon that portion of Subdivision 27 of Article 1995, Vernon's Ann.Civ.St., which provides that foreign corporations doing business within this State may be sued in any county where such company has an agency or representative. In its only point of error relating to this ground, appellant asserts that appellees failed to prove that appellant is a foreign corporation.
The record shows that, in response to requests for admissions under Rule 169, Vernon's Texas Rules of Civil Procedure, appellant admitted it is a foreign corporation. Appellant says the admission was not before the court because it was never read into evidence or otherwise called to the court's attention during the hearing. Without doubt, the better practice would have been to offer the admission into the factual record of the case. Nevertheless, the admission had been filed with the clerk and was a part of the record at the time of trial. It was properly considered. Pacific Finance Corp. v. Ramsey, (Tex.Civ.App., 1957, no writ hist.) 305 S.W.2d 297, 299. Moreover, in their controverting plea appellees alleged that appellant is a foreign corporation. This pleading has not been denied under oath. It is therefore deemed admitted. Rules 52 and 93(g), Vernon's Tex.Rules Civ.Proc.; Beckham Development Co. v. Bruce Clark & Assoc., (Tex.Civ.App., 1973, no writ hist.) 492 S.W.2d 287, 290.
The remaining grounds asserted by appellees to defeat the plea of privilege are not supported by the record.
The judgment is affirmed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2440891/
|
508 S.W.2d 524 (1974)
ALLGEIER, MARTIN AND ASSOCIATES, Plaintiff-Appellant,
v.
Tom D. ASHMORE et al., Defendants-Respondents.
No. 9491.
Missouri Court of Appeals, Springfield District.
April 5, 1974.
L. Thomas Elliston, Myers, Webster, Perry & Elliston, Webb City, for plaintiff-appellant.
No appearance for defendants-respondents.
PER CURIAM:
The sole named plaintiff in this cause is "Allgeier, Martin and Associates." Plaintiff's petition commences: "Comes now the Plaintiff and for its cause of action states: 1. That Plaintiff is a partnership. . ." The balance of this pleading, in two alternative counts, prayed for a money judgment against one corporation and three individuals (Tom, Philip and Michael Ashmore) for the reasonable value of "work, labor and services" rendered by plaintiff at the request of defendants. Sheriffs' returns to issued summons and alias summons attest that service was effected on the corporation and upon Tom and Philip Ashmore; a non est return was filed to the summons issued for Michael Ashmore. Under date of December 3, 1970, the Circuit Court of Jasper County entered a default judgment against the corporation and Tom Ashmore. The judgment correctly stated that Michael Ashmore had not been served with process; it erroneously declared that Philip had not been served and ordered "that this case remain on the active docket pending the *525 service of process on these two defendants." On February 3, 1972, Tom Ashmore filed "Motion to Set Aside Default Judgment" which was sustained on February 5, 1973. Thereafter, on February 13, 1973, "Allgeier, Martin and Associates, the above named plaintiff," filed a notice of appeal "from the order and Judgment entered in this action on the 5th day of February 1973, setting aside the default judgment."
Whether the court nisi erred vel non in setting aside the default judgment as asserted in the points raised by appellant, need not be discussed or decided, for albeit no one except us has raised the subject, the partnership cannot recover in any event and all involved should be spared the effort and cost of prolonging litigation that cannot legally survive. Rule 79.04, V.A. M.R.
Missouri follows the common law or aggregate theory of partnership [Griffin v. Doss, 411 S.W.2d 649, 651 (Mo. App.1967)] rather than the entity theory. Ward v. State Farmers Mutual Tornado Ins. Co. of Mo., 441 S.W.2d 1, 4 [3] (Mo. 1969). The Uniform Partnership Law (Ch. 358 RSMo 1969, V.A.M.S.) did not transform a partnership into a separate or juristic entity [McKinney v. Truck Insurance Exchange, 324 S.W.2d 773, 775 [1] (Mo.App.1959)] and, generally, all partners are necessary parties-plaintiff in actions to enforce an obligation due the partnership. Wittels v. Dubinsky, 343 S.W.2d 644, 645 [1] (Mo.App.1961). Absent statutory authority, a partnership cannot sue in the firm name and a judgment rendered for a partnership so suing will be reversed on appeal [Windisch v. Farrow, 159 S.W.2d 392, 394 [3] (Mo.App.1942)] on the principle that a partnership has no legal existence apart from its members, but is a mere ideal entity. Davison v. Farr, 273 S.W.2d 500, 503 [2] (Mo.App.1954).
To augment the confusion, in its order of February 5, 1973, the trial court not only set aside the default judgment but also granted defendants leave to file an answer and counterclaim or cross bill. Just as plaintiff may not maintain this suit in the partnership name, so too "in a suit [or counterclaim] against a partnership in its firm name only, there is no legal entity before the court against which lawful judgment may be rendered, constitutes a fatal defect not waived by failure to object, and a judgment against the partnership in its firm name alone is void." Davison v. Farr, supra, 273 S.W.2d at 503 [3], and cases there cited. Cf. Barclay Investment Corporation v. Lamkin, 408 S.W.2d 168, 171 (Mo.App.1966).
The situation presented is one in which plaintiff, by default or otherwise, cannot secure a valid judgment against the defendants or any of them, and where the defendants, singularly or collectively, cannot obtain a valid judgment against the plaintiff via a counterclaim or otherwise. In fine, the parties are but caponized litigants whose crowings will gain them neither success nor posterity. We have no choice but to direct the judgment which the trial court should have entered (Rule 84.14), and that is to dismiss the cause in its entirety. Therefore, the order and judgment appealed from is reversed and the cause is remanded with directions to enter a judgment dismissing the cause.
All concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2440907/
|
508 S.W.2d 189 (1974)
L. D. BAYLESS et al., Appellants,
v.
RICHARDSON HOSPITAL AUTHORITY, dba Richardson General Hospital, Appellee.
No. 4681.
Court of Civil Appeals of Texas, Eastland.
March 22, 1974.
Rehearing Denied April 12, 1974.
Thomas H. Hight, Hight & Hight, Dallas, for appellants.
Richard E. Gray, Thompson, Knight, Simmons & Bullion, Bryan J. Maedgen, Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellee.
RALEIGH BROWN, Justice.
Hildreth Bayless and husband, L. D. Bayless, seek damages for injuries she sustained as a result of an intermuscular injection in her left hip. The plaintiffs contend that the injection was so negligently and carelessly administered that the *190 sciatic nerve was affected and Hildreth Bayless' left leg became permanently paralyzed.
The original defendants in the cause were Richardson Hospital Authority, doing business as Richardson General Hospital, where Hildreth Bayless was a patient, Doctor D. L. McKellar, the treating physician and Doctors M. G. Glidewell and B. Kendrick West, consulting physicians. The cause against Doctors Glidewell and West was dismissed for want of prosecution and a plea of privilege was sustained as to Doctor McKellar. A summary judgment decreed that the plaintiff take nothing against Richardson Hospital Authority. From that order, Hildreth L. D. Bayless appeal.
The hospital was created pursuant to the Hospital Authority Act, Article 4437e, Vernon's Ann.Tex.Civ.St. The thrust of appellants' position is that the defendant hospital is not entitled to governmental immunity because such a holding would be against the great weight of precedent in other jurisdictions; that Article 4437e, V.A.T.S., does not grant such immunity; and that the City of Richardson was acting in a proprietary capacity rather than performing a governmental function. These contentions have been rejected in Texas with approval by our Supreme Court.
In a like case, Childs v. Greenville Hospital Authority, 479 S.W.2d 399 (Tex.Civ. App. Texarkana 1972, writ ref. n. r. e.), the Texarkana court stated:
"... this court holds that the Greenville Hospital Authority performs a governmental function and is immune from tort liability."
This opinion of the Texarkana court relied strongly on two opinions by Judge Smedley. City of Dallas v. Smith, 130 Tex. 225, 107 S.W.2d 872 (Tex.Comm.App. 1937); and Gartman v. City of McAllen, 130 Tex. 237, 107 S.W.2d 879 (Tex.Comm. App.1937).
In City of Dallas v. Smith, supra, after reviewing other types of activities that had been held to be governmental rather than proprietary, the court concluded:
"If cities are exercising governmental powers when engaged in sanitation, the prevention of crime, the enforcement of traffic laws and ordinances, the prevention of fires, and the enforcement of quarantine regulations, as the foregoing authorities hold, then certainly they are exercising governmental functions when they maintain and operate hospitals."
We also overrule appellants' point of error to the effect that the hospital's conduct constituted a nuisance. Appellants' cause of action is one of negligence and cannot be converted into a nuisance case merely by pleadings.
In Gonzalez v. City of El Paso, 316 S.W.2d 176 (Tex.Civ.App. El Paso 1958, no writ hist.) the Court said:
"It has often been held that a negligence case cannot be converted into a nuisance merely by so pleading."
See also Sears v. Colorado River Municipal Water District, 487 S.W.2d 810 (Tex. Civ.App. Eastland 1972, writ ref. n. r. e.).
Having considered all points of error, we overrule each.
The judgment is affirmed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2441075/
|
944 S.W.2d 6 (1996)
MEDINA COUNTY COMMISSIONERS' COURT, Jim Jenkins, Individually; Stanley Keller, Jr., Individually; Enrique Santos, Individually; Louis Ehlinger, Individually; Kelly Carroll, Individually; Honorable David E. Campsey, Individually; and Honorable David Montgomery, Individually, Appellants,
v.
The INTEGRITY GROUP, INC., Appellee.
No. 04-96-00019-CV.
Court of Appeals of Texas, San Antonio.
July 10, 1996.
Rehearing Overruled August 12, 1996.
*7 Ricardo J. Navarro, Victoria Guerra, Denton, McKamie & Navarro, P.C., San Antonio, for appellants.
Tyler Scheuerman, Clemens & Spencer, San Antonio, for appellee.
Before RICKHOFF, LOPEZ and STONE, JJ.
OPINION
LÓPEZ, Justice.
This interlocutory appeal arises from the trial court's denial of summary judgment based on official immunity. Appellee, The Integrity Group, Inc. (Integrity), sued Medina County Commissioners' Court and the individual counsel members after the county refused to grant final approval to Integrity's subdivision plan. We affirm the trial court's order regarding the commissioners' court, but we reverse and render regarding the individual commissioners.
Summary of Facts
The Medina County Commissioners' Court approves the subdivision of property within the county according to rules promulgated by the court. The court may grant a plat preliminary approval, but this status "does not constitute acceptance for filing by the Clerk[`]s Office, or approval to begin the sale of lots." Before the court grants a plat final approval, the subdivider must comply with the rule governing lot sizes which provides that "[a]ll subdivision lots shall contain a minimum of 30,000 square feet, except those lots in subdivisions over the Edwards Underground Water District Recharge Zone ... must be a minimum of one acre in size."
*8 In June 1993, Integrity sought, but did not receive, preliminary approval to subdivide 4.843 acres into sixteen lots less than 30,000 square feet. When Integrity decreased the number of lots in May 1994, the commissioners' court granted it preliminary approval to subdivide the property into seven lots of 30,140.147 square feet each, pending additional input by local property owners, the public health officer, and the controlling water district. A month later, the commissioners' court postponed action on the subdivision until Integrity complied with the county's "approval checklist," which indicated that Integrity failed to comply with several rules, including the one governing lot sizes.
On February 13, 1995, Integrity gave the court approval letters from the health officer, the local water district, and the Texas Natural Resource Conservation Commission. At that time, the county attorney noted that the subdivision rules were ambiguous about whether the one-acre size applied to those lots over the recharge zone or applied to the entire subdivision if any lot was located over the recharge zone. The commissioners' court voted unanimously to deny Integrity final approval because its proposed plat did not comply with the county's subdivision rules.
Integrity sued the commissioners' court for injunctive and declaratory relief construing the county's subdivision rules. Integrity also sued the commissioners in their individual capacities for negligence, gross negligence, fraud, conspiracy, and tortious interference with contract.[1] The commissioners' court and its members appeal the denial of their motion for summary judgment based on official immunity. See TEX.CIV.PRAC. & REM. CODE ANN. § 51.014(5) (Vernon Supp.1996) (authorizing interlocutory appeals based on official immunity).
Arguments on Appeal
Three points of error challenge the trial court's ruling. The first point of error refers to the individuals' right to a summary judgment; the second point refers to the commissioners' court; and the third denies the existence of a material fact issue. We address the second point of error first.
1. Commissioners' Court
The second point of error alleges the trial court erred in denying summary judgment to the commissioners' court "to the extent its assertion of immunity is based on the assertion of official immunity by the individual defendants." The argument supporting the second point of error also complains about Integrity's failure to state a cause of action under the Texas Tort Claims Act. We lack jurisdiction over that complaint because it is not based on official immunity. See TEX.CIV.PRAC. & REM.CODE ANN. § 51.014(5) (Vernon Supp.1996); City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex.1993); City of Irving v. Pak, 885 S.W.2d 189, 191-92 (Tex. App.Dallas 1994, dism'd w.o.j.).
Integrity sued the commissioners' court for injunctive and declaratory relief, and it sued the individual commissioners for damages arising from negligence and various intentional torts. Because Integrity did not sue the commissioners' court for the actions of its members, Integrity did not have a "derivative" claim that could be affected by the individuals' assertion of official immunity. See DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex.1995); City of Beverly Hills v. Guevara, 904 S.W.2d 655, 656 (Tex.1995).
Even if the commissioners were entitled to summary judgment, the commissioners' court was not entitled to summary judgment. Thus, the trial court did not err in denying the motion of the commissioners' court. We overrule the second point of error.
2. County Commissioners
In their first point of error, the commissioners contend the trial court erred in denying them summary judgment based on official immunity. In their third point of error, they complain that Integrity's affidavits *9 failed to raise a material issue of disputed fact.
Government employees are entitled to official immunity when sued in their individual capacity for official acts.[2]Gonzalez v. Avalos, 866 S.W.2d 346, 349 (Tex.App.El Paso 1993, writ dism'd w.o.j.). Official immunity arises from the performance of (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). The parties do not dispute that the commissioners were acting within their discretion. We therefore address only whether they were acting within the scope of their authority and in good faith. See Antu v. Eddy, 914 S.W.2d 166, 170 (Tex.App.San Antonio 1995, no writ).
a. Standard of Review
In a motion for summary judgment, the movant has the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). Evidence favorable to the nonmovant is taken as true, and every reasonable inference in favor of the nonmovant will be resolved in its favor. Id. at 548-49. When a defendant moves for summary judgment on an affirmative defense, like official immunity, the defendant must conclusively prove each element of the defense as a matter of law. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984); Chambers, 883 S.W.2d at 653.
b. Authority
Government employees that discharge the duties generally assigned them are acting within the scope of their authority for purposes of immunity. Chambers, 883 S.W.2d at 658; Texas Dep't of Pub. Safety v. Perez, 905 S.W.2d 695, 700 (Tex.App.Houston [14th Dist.] 1995, writ denied). Even if a specific action is wrong or negligent, the employee still acts within the scope of this authority. Harris County v. Ochoa, 881 S.W.2d 884, 888 (Tex.App.Houston [14th Dist.] 1994, writ denied); Koerselman v. Rhynard, 875 S.W.2d 347, 350 (Tex.App. Corpus Christi 1994, no writ).
The commissioners' affidavits detail their involvement in the approval process and several affirmatively state that all actions taken were made as members of the commissioners' court. The summary judgment evidence also includes the official minutes of the court meetings and the applicable subdivision rules. This evidence establishes that the commissioners were acting within the scope of their authority in denying final approval to Integrity's subdivision absent compliance with the subdivision rules.
To controvert this evidence, Integrity relies on the general proposition that government officials are not entitled to immunity when sued in their individual capacities for wrongful unofficial acts. See Washington v. City of Houston, 874 S.W.2d 791, 797 (Tex. App.Texarkana 1994, no writ) (intentional assault during medical exam); Bonham v. Flach, 744 S.W.2d 690, 692-93 (Tex.App. San Antonio 1988, no writ) (evidence of conspiracy precluded claim to official immunity); Bagg v. University of Texas Medical Branch at Galveston, 726 S.W.2d 582, 586-87 (Tex. App.Houston [14th Dist.] 1987, writ ref'd n.r.e.) (eavesdropping in wrongful termination suit).
Integrity's petition alleges that the commissioners refused to grant final approval and misrepresented and concealed information. The affidavits of Integrity's president and vice-president state:
Several of the named Defendants in this lawsuit made representations to me that once preliminary approval had been granted, final approval was merely a formality.... [T]he Defendants had secretly agreed to deny final approval.
....
Certain Defendants have represented to me that a group of "concerned" citizens... met with Commissioner Keller and have entered into a civil conspiracy, of which the other Defendants in this lawsuit *10 have joined, to prevent final approval of the Cave Canyon Subdivision.
Integrity provides no facts supporting the assertions in its affidavits or petition. Furthermore, these statements refer to official actions, that is, the failure to approve the plat (which may or may not be wrongful); the statements do not refer to unofficial actions. We conclude that Integrity did not controvert the commissioners' proof that they acted within the scope of their authority.
c. Good Faith
To establish good faith, the government employee must prove that a reasonably prudent official, under the same or similar circumstances, could have believed that his or her actions were justified. Chambers, 883 S.W.2d at 656. Whether the official is negligent is not dispositive of the good faith element. Id. at 655; City of Beverly Hills v. Guevara, 911 S.W.2d 901, 904 (Tex.App. Waco 1995, n.w.h.).
Good faith can be established as a matter of law when the official's factual recitation is otherwise supported by the evidence. See, e.g., Rhodes v. Torres, 901 S.W.2d 794, 798-800 (Tex.App.Houston [14th Dist.] 1995, no writ); TEX.R.CIV.P. 166b; see also Murillo v. Garza, 881 S.W.2d 199, 202 (Tex.App.San Antonio 1994, no writ) (good faith not established by conclusory statements unsupported by evidence). In addition, good faith can be established as a matter of law, despite an affidavit's failure to use the objective words suggested by Chambers, if reasonable minds could not differ from the conclusion draw from the underlying facts. See, e.g., Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982); Antu, 914 S.W.2d at 172; Barker v. City of Galveston, 907 S.W.2d 879, 888 (Tex.App.Houston [1st Dist.] 1995, no writ).
Each commissioner states that he or she acted in good faith in reviewing Integrity's proposed plat and concluding that it did not meet the county's subdivision rules. These assertions are supported by the subdivision rules, checklist, and commissioners' court minutes that were also supplied as summary judgment evidence. The evidence shows that the commissioners were given authority to review plats for compliance with the rule, and finding noncompliance, voted to deny approval to Integrity's plat. We find that the affidavits meet the requirements stated above and establish the commissioners' good faith as a matter of law.
To controvert summary judgment proof on good faith, the plaintiff must do more than show that a reasonably prudent official could have decided to take a different action; the plaintiff must produce evidence that no reasonable person in the official's position could have thought the facts were such that they justified his or her actions. Chambers, 883 S.W.2d at 656.
Integrity's affidavits, supplied by its president and vice-president, state that "I conclude that the Defendants in this lawsuit have not acted in good faith nor within the scope of their authority." This declaration falls short of the test required by Chambers. We hold that the affidavits fail to controvert the commissioners' good faith.
d. Summary
Finding that the elements of official immunity were established as a matter of law, we conclude the trial court erred in denying the individual defendants' motion for summary judgment. Accordingly, we sustain the first and third points of error.
Conclusion
We affirm that portion of the trial court's order denying summary judgment to the Medina County Commissioners' Court, and we remand Integrity's causes of action against it for injunctive and declaratory relief. We reverse that portion of the trial court's order denying summary judgment to the individual commissioners, and we render a partial summary judgment in their favor that Integrity take nothing by its claims against them.
NOTES
[1] The Medina County Commissioners' Court is comprised of four commissioners and the county judge. This suit involves seven individual defendants because county judge Donald Campsey was succeeded by David Montgomery and commissioner Louis Ehlinger was succeeded by Kelly Carroll.
[2] The county commissioners are "quasi-judicial" and entitled to assert official immunity. Eakle v. Texas Dep't of Human Servs., 815 S.W.2d 869, 876 (Tex.App.Austin 1991, writ denied).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2441003/
|
385 F. Supp. 2d 471 (2005)
In re LORD ABBETT MUTUAL FUNDS FEE LITIGATION
THIS DOCUMENT RELATES TO: ALL ACTIONS
No. 04-CV-0559(WJM).
United States District Court, D. New Jersey.
August 30, 2005.
*472 *473 Jerome M. Congress, Janine L. Pollack, Kim B. Levy, Milberg Weiss Bershad & Schulman, LLP, New York, NY, for Plaintiffs' Lead Counsel and Chair of Plaintiffs' Executive Committee.
Samuel H. Rudman, Lerach Coughlin Stoia Geller Rudman & Robbins LLP, Melville, NY, Marvin L. Frank, Eric J. Belfi, Murray, Frank & Sailer LLP, New York, NY, Joseph H. Weiss, Richard A. Acocelli, Weiss & Lurie, New York, NY, for Member of Plaintiffs' Executive Committee.
Patrick L. Rocco, Jennier A. Sullivan, Shalov Stone & Bonner LLP, Morristown, NJ, Joseph J. DePalma, Lite, DePalma, Greenberg & Rivas LLC, Newark, NJ, for Plaintiff.
Gary S. Graifman, Kantrowitz, Goldhamer & Graifman, Montvale, NJ, for Plaintiff.
Anthony P. LaRocco, Christopher A. Barbarasi, Kirkpatrick & Lockhart LLP, Newark, NJ, Jeffrey B. Maletta, Nicholas G. Terris, Jon A. Stanley, Kirkpatrick & Lockhart LLP, Washington, DC, Andrew Weissman, Sam Broderick, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, Mary Sue Henifin, Tod S. Chasin, Buchanan Ingersoll, PC, Princeton, NJ, for Defendants.
OPINION
MARTINI, District Judge.
This matter comes before the Court on a pair of motions to dismiss the Consolidated Amended Class Action Complaint (referred to herein as "Complaint" or "Compl.") pursuant to Federal Rules of Civil Procedure 8(a), 9(b), 12(b)(6), and 23.1 one filed by Lord, Abbett & Co. LLC, Lord Abbett Distributor LLC, Robert S. Dow, and the persons identified in the Complaint as "the Partners" and the other filed by the remaining persons identified in the Complaint as "the Directors and Trustees." There was no oral argument. Fed.R.Civ.P. 78. For the reasons set forth below, the motions are GRANTED IN PART and DENIED IN PART. Accordingly, Counts One, Two, Five, and Seven through Ten are DISMISSED. Counts Three and Four are DISMISSED WITHOUT PREJUDICE.[1]
*474 BACKGROUND
This consolidated action, before this Court on allegations of subject matter jurisdiction under 15 U.S.C. §§ 80a-43, 80b-14, is brought by six shareholders in seven mutual funds managed by Lord, Abbett & Co. LLC ("Lord Abbett") against Lord Abbett, certain of its "Partners," certain "Directors and Trustees" of Lord Abbett-sponsored Funds, Lord Abbett Distributor LLC (Lord Abbett's wholly-owned broker dealer and principal underwriter), and certain other unnamed "John Doe" Defendants. (See Compl. ¶¶ 14-82.) Also named as nominal defendants are more than fifty separate mutual funds managed by Lord Abbett (referred to herein as "Lord Abbett Funds" or the "Fund(s)"). (See Com pl. ¶¶ 78-81 & Ex. A.) The action, which purports to assert both class and derivative claims, arises out of broker compensation practices employed by Lord Abbett between February 1999 and December 2003 pursuant to which brokers were allegedly compensated excessively as an incentive for them to steer new investors into Lord Abbett mutual funds. The following are the relevant allegations. To provide some necessary context, the following also briefly describes the Funds' and their disclosed fee and broker compensation practices.
The Funds, Their Fees, and Lord Abbett's Broker Compensation Practices
Lord Abbett is investment advisor to a mutual fund complex that, as of September 30, 2003, maintained over $62.1 billion in assets. (Id. ¶ 20.) The 52 nominal-defendant Funds it manages are open-ended management companies consisting of the capital invested by fund shareholders. (Id. ¶ 78.) They share a common board of directors, are all generally managed and administered by officers and employees of Lord Abbett, all share Lord Abbett as their investment adviser and Lord Abbett Distributor LLC as their principal underwriter and distributor, and pool together fees and expenses. (Id. ¶¶ 80-81.)
The Funds prospectuses indicate that Lord Abbett deducts a number of fixed-percentage fees from Fund assets each year. (See March 1, 2003 Prospectus and Statement of Information for the Lord Abbett Affiliated Fund at 6, Ex. G to Decl. of Kim E. Miller [hereinafter "2003 Prospectus & SAI"].)[2] These annual fees, which are distinct from those assessed at the time of purchase, are called "Annual Fund Operating Expenses" and include "Management Fees," "Distribution and Services (12b-1) Fees," and "Other Expenses." (Id.) "Distribution and Services (12b-1) Fees" (referred to herein as "12b-1 Fees") are drawn from fund assets pursuant to a written plan "describing all material aspect of ... financing of distribution" (Compl.¶ 105) and are expended on activities intended to result in the sale of Fund (see 2003 Prospectus & SAI at 7).
The Fund prospectuses' discussion of "Sales Compensation" acknowledges that brokers are compensated for selling Fund shares in part out of 12b-1 Fees: "[T]he Fund and Lord Abbett Distributor pay *475 sales and service compensation to AUTHORIZED INSTITUTIONS that sell the Fund's shares ..., [which] compensation originates from sales charges ... and 12b-1 distribution fees...." (2003 Prospectus & SAI at 15.) 12b-1 Fees may also be used to provide brokers with additional concessions for selling Fund shares: "Additional payments may be paid from Lord Abbett Distributor's own resources or from distribution fees received from the Fund and may be made in the form of cash or ... non-cash payments. The non-cash payments may include business seminars ..., including meals and entertainment...." (Id. at 16 (emphasis added).) Although it is not clear from the allegations in the Complaint, the Fund prospectuses suggest that Lord Abbett Distributor is ultimately compensated out of 12b-1 Fees for any sales compensation or additional concessions it pays to brokers out of its own assets. (See id. at 61 ("Each [12b-1] Plan compensates Lord Abbett Distributor for financing activities primarily intended to sell shares of the Fund.").)
With regard to compensation of brokers for executing portfolio transactions, Fund prospectuses state that "the Fund pays all expenses attributable to its operations ..., including, without limitation, ... expenses connected with executing portfolio transactions." (See id. at 57 (emphasis added).) The Funds generally pay commissions on portfolio transaction above and beyond the lowest possible commission they could otherwise obtain, a fact acknowledged in Fund prospectuses: "Consistent with obtaining best execution, the Fund generally pays ... a higher commission than some brokers might charge on the same transaction.... We pay a commission rate that we believe is appropriate to give maximum assurance that our brokers will provide us, on a continuing basis, the highest level of brokerage services available." (Id. at 58-59.) Elaborating on the circumstances in which Lord Abbett allows the Funds to pay higher brokerage commissions than they could otherwise obtain, the prospectuses state:
Our traders are authorized to pay brokerage commissions in excess of those that other brokers might accept on the same transactions in recognition of the value of the services performed by the executing broker, viewed in terms of either the particular transaction or the overall responsibilities of Lord Abbett, with respect to us and the other accounts they manage. Such services include showing us trading opportunities ..., a willingness and ability to take positions in securities, knowledge of a particular security or market-proven ability to handle a particular type of trade, confidential treatment, promptness and reliability.
(Id. at 59.) For the fiscal years ended October 2002, 2001, and 2000, the Funds paid commissions totaling $27,249,265, $26,213,126, and $13,129,004, respectively. (Id. at 60.)
The Purported Scheme: Undisclosed Revenue-Sharing Payments and Excessive "Soft Dollars"
Against this background, the Complaint alleges that between February 1999 and December 2003 Lord Abbett, unbeknownst to Fund shareholders, compensated brokers excessively as an incentive for brokers to steer unwitting investors into the Lord Abbett Funds. (See generally Compl. ¶¶ 1, 83-93, 103-112.) The Complaint indicates that the broker compensation was "excessive" because it included, above the standard compensation for executing portfolio transaction and for selling Lord Abbett shares, either revenue-sharing payments or "Soft-Dollar" payments. (See id. ¶ 112.) That is, under so-called "Shelf-Space Programs," Lord Abbett entered into undisclosed oral revenue-sharing agreements with brokers pursuant to *476 which Lord Abbett paid brokers "an additional 10 to 15 basis points of compensation from Lord Abbett [for selling Fund shares] as incentive to steer unwitting investors into the Lord Abbett Funds." (See id. ¶¶ 84-91, 93.)[3] Lord Abbett also paid excessive "Soft Dollar" commissions that is, that portion of broker commission that exceeds the broker's execution costs and which, therefore, is permissible only if it compensates "assistance to the money manager in the performance of his investment decision-making responsibilities" on portfolio transactions not for permissible purposes but simply to compensate brokers for "push[ing] unwitting clients into Lord Abbett Funds." (See id. ¶¶ 111-12.)
In addition to making these broker payments, Lord Abbett allegedly treated brokers who steered investors into its Funds to lavish vacations and engaged in "Directed Brokerage," whereby it directed brokerage business to brokers who steered clients into Lord Abbett Funds. (See id. ¶¶ 92, 103.) Fund prospectuses disclaim the existence of brokerage allocation agreements: "No commitments are made regarding the allocation of brokerage business to or among brokers...." (2003 Prospectus & SAI at 59.) However, the prospectuses acknowledge that Lord Abbett favors, when it can, brokers who have previously sold Fund shares: "When, in the opinion of Lord Abbett, two or more broker-dealers ... are in a position to obtain the best price and execution, preference may be given to brokers who have sold shares of the Fund and/or shares of other Lord Abbett-sponsored funds." (Id.)
Lord Abbett allegedly benefitted handsomely from these broker compensation practices: because Lord Abbett collects as its advisory fee a percentage of assets under management and because these broker compensation practices resulted in the enlargement of the fund assets under management, Lord Abbett's advisory fees increased significancy between 1999 and 2002. (See Compl. ¶ 100.) Specifically, the Complaint alleges that Lord Abbett's advisory fees increased between February 1999 and December 2003 from $29 million to $36 million even though the net asset value of the Funds decreased from $16.22 per share to $12.68 per share. (See id. ¶¶ 108-09.)
These undisclosed broker compensation practices, Plaintiffs allege, rendered Fund prospectuses issued between February 1999 and December 2003 false and/or misleading. (See id. ¶¶ 123-135.) Specifically, Plaintiffs allege:
Material Omission Regarding Strategies for Growth. Although Fund prospectuses stated that "[t]he Fund's investment objective is long-term growth of capital and income without excessive fluctuations in market value," they purportedly failed to disclose that one of the Funds' growth strategies was payment of excessive broker compensation (see id. ¶ 127);
Material Omission Regarding Revenue Sharing. Although Fund prospectuses stated under the heading "Sales Compensation" that "Lord Abbett Distributor pays sales and service compensation to AUTHORIZED INSTITUTIONS that sell the funds' shares and service its shareholder accounts" and that "[a]dditional payments may be paid from Lord Abbett Distributor's own resources or from distribution fees received from the Fund," these disclosures were purportedly false and misleading because they failed to disclose: (1) that Lord *477 Abbett used Fund assets to pay brokerages moneys pursuant to revenue-sharing agreements; (2) that the revenue-sharing payments were in excess of what is allowed by Rule 12b-1; (3) that the revenue-sharing payments were not authorized by the Funds' Rule 12b-1 Plans; (4) that Lord Abbett and Lord Abbett Distributor compensated themselves out of investor assets for any payments they made pursuant to the revenue-sharing agreements; (5) that the revenue-sharing agreements created undisclosed conflicts of interest; (6) that the Lord Abbett Funds' 12b-1 Plans were not in compliance with Rule 12b-1 and that any payments made under them were in violation of Section 12 of the Investment Company Act because they were not properly evaluated by the Director Defendants and because there was no reasonable likelihood that the Plans would benefit Fund shareholders; (7) that any economies of scale achieved by bringing in new investors were not passed on to investors; and, finally, (8) that the Director Defendants were not fulfilling their statutory and common law duties and were not monitoring and supervising Lord Abbett (see id. ¶¶ 128-29);
Material Omission Regarding Directed Brokerage Business. Although Fund prospectuses stated under the heading "Brokerage Allocations and Other Practices" that "[t]he Fund's policy is to ... have purchases and sales of portfolio securities executed at the most favorable prices, considering all costs of the transaction, including brokerage commissions" and that "[n]o commitments are made regarding the allocation of brokerage business to or among brokers," these disclosures were purportedly false and misleading because they failed to make the preceding disclosures (see id. ¶¶ 130-31);
Material Omission Regarding 12b-1 Fees. Although Fund prospectuses stated under the heading "Sales Activities and Rule 12b-1 Plans" that "[w]e may use 12b-1 distribution fees to pay Authorized Institutions to finance any activity that is primarily intended to result in the sale of shares" and that "[e]ach Plan compensates Lord Abbett Distributor for financing activities primarily intended to sell shares of the Fund," these disclosures were purportedly false and misleading because they failed to make the preceding disclosures (see id. ¶¶ 132-33); and
Material Omission Regarding Soft Dollars. Although Fund prospectuses stated under the heading "Brokerage Allocations and Other Practices" that "[o]ur traders are authorized to pay brokerage commissions in excess of those that other brokers might accept on the same transactions in recognition of the value of the services performed by the executing brokers," they failed to make the preceding disclosures (see id. ¶¶ 134-35).
Based on these allegations, Plaintiffs purport to assert directly eight claims (Counts One, through Four and Seven through Ten) under either the Investment Company Act of 1940 ("ICA"), 15 U.S.C. § 80a-1 et seq., or pursuant to state law on behalf of the proposed class. Plaintiffs also purport to assert derivatively one claim (Count Five) under the Investment Adviser Act of 1940 ("IAA"), 15 U.S.C. § 80b-1 et seq. Plaintiffs seek, inter alia, compensatory damages, punitive damages, rescission of Lord Abbett's advisory contracts, recovery of all fees paid to Lord Abbett, and an accounting of all fees and *478 broker compensation. (See id. at pp. 55-56.) Defendants now seek to dismiss the Complaint in its entirety. (See generally Memorandum of Law in Support of Defendants' Motion to Dismiss the Consolidated Amended Class Action Complaint [hereinafter "Defs.' Br."]; Independent Director Defendants' Memorandum of Law in Support of their Motion to Dismiss the Consolidated Amended Class Action Complaint [hereinafter "Directors' Br."].)
ANALYSIS
I. Standard of Review
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must set forth sufficient information to outline the elements of its claims or to permit inferences to be drawn that these elements exist. See Fed.R.Civ.P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). A court may dismiss a complaint for failure to state a claim only if, after viewing the allegations in the complaint in the light most favorable to the plaintiff, it appears beyond doubt that no relief could be granted under any set of facts which could prove consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984); Zynn v. O'Donnell, 688 F.2d 940, 941 (3d Cir.1982). In deciding such a motion, a court must take as true and view in the light most favorable to a plaintiff all allegations in the complaint. See Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). A court need not, however, accept legal or unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997).
Because Defendants have raised two overarching bases for dismissal standing and the propriety of Plaintiffs having pled most of their claims as direct (as opposed to derivative) claims this Opinion addresses these bases first before addressing the count-by-count bases for dismissal asserted by Defendants.
II. Plaintiffs Have Standing to Assert Class Claims on Behalf of Shareholders of Funds in Which Plaintiffs Lack an Ownership Interest
Defendants argue preliminarily that all claims in the Complaint asserted on behalf of shareholders of specific Lord Abbett Funds in which the named Plaintiffs lack an ownership interest must be dismissed because the named Plaintiffs lack standing to assert these claims. (See Defs.' Br. at 32-33; Reply Memorandum in Support of Lord Abbett Defendants' Motion to Dismiss the Consolidated Amended Class Action Complaint at 10 [hereinafter "Defs.' Reply"].) Plaintiffs respond that standing is not a ground for dismissal at this stage of the litigation but is an issue properly left for adjudication at the class certification stage of this putative class action. (See Plaintiffs' Opposition to Defendants' Motions to Dismiss the Consolidated Amended Complaint at 26-32 [hereinafter "Pls.' Opp'n"].) In the alternative, Plaintiffs argue that under Haas v. Pittsburgh National Bank, 526 F.2d 1083 (3d Cir.1975), the named Plaintiffs have standing to pursue these putative class claims. (See Pls.' Opp'n at 29.) The Court agrees that the issue of standing is appropriately addressed now, but concludes that Plaintiffs lack of any ownership interest in certain Funds on whose shareholders' behalf they purport to assert class claims provides no basis for dismissal of any claims at this time.
A. The Court Must Address Standing Before Addressing the Merits of The Case
This Court may not defer the issue of standing to the class certification stage of *479 this action. Demonstration of Article III standing is a threshold requirement in any action in federal court, and ordinarily a court must address the issue of Article III standing before addressing the merits of a case. See Ortiz v. Fibreboard Corp., 527 U.S. 815, 830-31, 119 S. Ct. 2295, 144 L. Ed. 2d 715 (1999); O'Shea v. Littleton, 414 U.S. 488, 493-94, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974). Indeed, in O'Shea v. Littleton, the Supreme Court affirmed the dismissal of a class action lawsuit before any class determination had been made because of lack of standing. 414 U.S. at 494 & n. 3, 94 S. Ct. 669. Cf. 1 Newberg on Class Actions § 2:9 (4th ed.) ("Because individual standing requirements constitute a threshold inquiry, the proper procedure when the class plaintiff lacks individual standing is to dismiss the complaint, not to deny the class for inadequate representation. The class issues are not reached in this instance.").
The issue of Rule 23 certification may be treated before standing only where class certification issues are "logically antecedent" to Article III concerns and themselves pertain to statutory standing. See Ortiz, 527 U.S. at 831, 119 S. Ct. 2295. This exception does not apply, however, "if the standing issue would exist regardless of whether the named plaintiff filed his claim alone or as part of a class." Clark v. McDonald's Corp., 213 F.R.D. 198, 204 (D.N.J.2003); see also Ford v. NYLCare Health Plans of Gulf Coast, Inc., 301 F.3d 329, 333 n. 2 (5th Cir.2002) (same). And in this case, the Article III standing issue identified by Defendants (Plaintiff's lack of any ownership interest in certain Lord Abbett mutual funds operated by Defendants) would exist regardless of whether the named Plaintiffs filed their claims alone or as part of a putative class. Thus, the Court addresses in this Opinion the issue of standing.
B. Plaintiffs' Lack of Any Ownership Interest In Certain Funds On Whose Shareholders' Behalf They Purport to Assert Class Claims Does Not Warrant Dismissal of Any Claims at This Time
To satisfy the threshold standing requirement, a plaintiff must allege: (1) personal injury suffered by him/her that is (2) fairly traceable to a defendant's allegedly unlawful conduct (3) that is likely to be redressed by the requested relief. See Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984). As the Supreme Court has stated, "if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class." O'Shea, 414 U.S. at 494, 94 S. Ct. 669; see also 1 Newberg on Class Actions § 2:5 ("[I]ndividual standing must be independently demonstrated, and, with the exception of membership organizational plaintiffs, one cannot acquire individual standing by virtue of bringing a class action.")
In the class action context, however, a named plaintiff's lack of standing to assert each and every putative class claim is not grounds for dismissal of those claims if plaintiff otherwise has standing to sue the defendant against whom these claims are asserted. In Haas v. Pittsburgh National Bank, 526 F.2d 1083 (3d Cir.1975), a defendant contended that summary judgment in its favor on standing grounds was appropriate against a pair of nominal plaintiffs simply because plaintiffs lacked standing to assert some but not all of their putative class claims against the defendant. See 526 F.2d at 1088-89. The Third Circuit rejected the defendant's contention because plaintiffs had standing to bring some (even if not on all) of their claims against the defendant and because *480 the claims over which they lacked individual standing were closely related. See id. In doing so, it distinguished a Ninth Circuit case holding that a nominal plaintiff with a claim against only one defendant could not represent a class of plaintiffs with claims against another defendant:
We believe the situation in La Mar is distinguishable from that in the present case. Whereas in La Mar the representative plaintiffs asserted no cause of action against the dismissed defendants, here Haas had claims against Mellon Bank for other violations of the National Bank Act.... Haas' two claims against Mellon Bank, moreover, are closely related to the commercial transactions claim on which she lacks standing.
Id. (emphasis added) (citing La Mar v. H & B Novelty & Loan Co., 489 F.2d 461 (9th Cir.1973)). Thus, the Third Circuit concluded, "[e]ven though Haas herself does not have standing to challenge the service charge rate imposed on commercial transactions by Mellon Bank, summary judgment is inappropriate if Haas may represent a class of plaintiffs who do have standing." Id. at 1088.
In this case, the named Plaintiffs have standing to bring some claims against all Defendants (that is, Lord Abbett, Lord Abbett Distributors LLC, the Directors and Trustees, and the Partners) based on their ownership interest in seven of the more than fifty mutual funds on whose shareholders' behalf they purport to bring Counts one through Four and Seven through Ten (see Compl. ¶¶ 14-19). Defendants do not contest the named Plaintiffs' standing in this respect. Given the named Plaintiffs' undisputed standing to bring some claim against each Defendant, it is clear that under Haas their lack of standing to assert the other (obviously closely related) claims on behalf of shareholders of specific Lord Abbett Funds in which the named Plaintiffs lack an ownership interest does not warrant dismissal of any claims at this time.[4]
III. Counts One, Two, Four, and Seven Through Ten Do Not Allege Entirely Derivative Injury and Thus Are Not Inappropriately Pled as Direct Claims
Before addressing the merits of each of these Counts, Defendants argue preliminarily that Counts One, Two, Four, and Seven through Ten are improperly pleaded as direct (as opposed to derivative) claims and should, therefore, be dismissed on this basis alone. (See Defs.' Br. at 22-25; Directors' Br. at 9-12). Plaintiffs respond that these claims are not derivative because they have alleged injury distinct from any harm suffered by the Funds themselves. (See Pl.'s Br. at 20-26.) Because the Court finds that Plaintiffs' alleged injuries are at least in part direct, it will not dismiss these Counts as being inappropriately pleaded as direct claims.
The parties agree that this issue is governed by Delaware and Maryland law, as the Funds are incorporated either in Maryland or Delaware. Under Delaware law, this issue "turn[s] solely on the following questions: (1) who suffered the alleged harm (the corporation or the suing stockholders, individually); and (2) who would receive the benefit of any recovery or other remedy (the corporation or the stockholders, individually)?" Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1033 (Del.2004). In making this determination, "a court should look to the nature of the wrong.... The stockholder's claimed direct injury must be independent *481 of any alleged injury to the corporation." Id. at 1039. In other words, "the stockholder must demonstrate that... he or she can prevail without showing an injury to the corporation." Id. Maryland law is substantially the same: "To sue directly under Maryland law, a shareholder must allege an injury distinct from an injury to the corporation, not from that of other shareholders." Strougo v. Bassini, 282 F.3d 162, 171 (2d Cir.2002) (applying Maryland law); see also Tafflin v. Levitt, 92 Md.App. 375, 608 A.2d 817, 819 (1992) ("[T]he cause of action for injury to the property of a corporation or for impairment or destruction of its business is in the corporation, and such an injury, although it may diminish the value of the capital stock, is not primarily or necessarily a damage to the stockholder, and hence the stockholder's derivative right can be asserted only through the corporation.").
With these general rules in mind, the Court must make its determination about the nature of Plaintiffs' alleged injury by looking behind the parties' characterizations and examining the substance of the Complaint. The allegations in the Complaint indicate that Lord Abbett's broker compensation practices allegedly caused several forms of injury to Fund shareholders, specifically: (1) loss of "excessive" fees deducted from Fund assets by Defendants and used to pay excessive broker compensation (see, e.g., Compl. ¶¶ 3, 129(d), 131(e), 133(e), 135(d) 144(f)); (2) payment of advisory fees to Lord Abbett out of Fund assets for services that were of no benefit to shareholders (id. ¶ 100); (3) "diminished marginal returns" on shareholder investment due to poorer Fund performance (id. ¶ 109); and (4) decline in net asset value per share for shareholders (despite the Funds' net asset growth) as a result of new investors joining the funds (id. ¶¶ 2, 4, 108).
The first two forms of alleged injury payment of excessive distribution and advisory fees out of Fund assets are, in the Court's opinion, derivative in nature. That is, the injury they allegedly caused Fund shareholders (depletion of Fund assets) is indistinguishable from injury they caused the Funds themselves: the mere fact that Fund assets ultimately belong to the Fund shareholders does not render depletion of those assets injury suffered by shareholders that is distinct from injury suffered by the Funds. See, e.g., Herman v. Steadman, 50 F.R.D. 488, 489-90 (S.D.N.Y.1970) (holding that mutual fund shareholder alleging, among other things, "excessive and illegal brokerage commissions and advisory fees .... has no individual right of action for alleged wrongs done to the corporation" because "[t]he right of action is that of the corporation and is derivative only"). The same may be said with regard to the third form of injury diminished marginal returns on shareholder investment allegedly caused by Lord Abbett's broker compensation practices: this injury is indistinguishable from injury to the Funds themselves, as each investor's diminished marginal return on investment is merely a reflection of the Funds' overall diminished performance.
The same may not be said, however, with regard to the fourth form of injury decline in net asset value per share allegedly caused by Lord Abbett's broker compensation practices. Defendants do not dispute that shareholders of the Funds are holders of "redeemable securities" which are "any security ... under the terms of which the holder, upon its presentation to the issuer ... is entitled ... to receive approximately his proportionate share of the issuer's current net assets, or the cash equivalent thereof." 15 U.S.C. § 80a-2(a)(32); (see also 2003 Prospectus & SAI at 33-34, 66 (describing redemption of Fund shares)). With respect to mutual *482 funds issuing redeemable securities, any increase in the number of fund shareholders that is not accompanied by a proportionate increase in assets diminishes the value of that fund's redeemable securities. For example, if a fund with a hundred dollars in assets and one hundred shareholders causes ten new shareholders to join but experiences asset growth of only five dollars as a result, existing shareholders suffer a decline in net asset value per share despite overall fund asset growth. Under these circumstances, harm to existing shareholders can be differentiated from corporate injury. That is what is alleged to have happened in this case: the Complaint alleges that Lord Abbett's broker compensation practices, by causing new investors to join the Funds without any corresponding proportionate increase in Fund assets, caused net asset value per share to decrease (despite overall Fund asset growth). (See Compl. ¶¶ 2, 4, 108.) Therefore, because Lord Abbett's broker compensation practices are alleged to have benefitted the Funds generally but to have harmed shareholders individually, Plaintiffs' allegations, if proved, could demonstrate injury without necessarily demonstrating injury to the Funds.
That Plaintiffs' claims are to this extent appropriately asserted as direct claims is not, as the Director Defendants contend, foreclosed by Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727 (3d Cir.1970). (See Independent Director Defendants' Reply Memorandum in Support of Their Motion to Dismiss at 3-4 [hereinafter "Directors' Reply"].) Kauffman merely held that a mutual fund shareholder does not acquire standing to assert a direct claim for conduct resulting in diminution of fund assets simply because that diminution has the effect of causing a corresponding diminution of the redemptive value of his shares. See Kauffman, 434 F.2d at 732-33. This is not what Plaintiffs allege here. Unlike the shareholder injury alleged in Kauffman, the loss alleged by Plaintiffs in this case decline in net asset value per share accompanied by net increase in Fund assets is not merely a reflection of loss suffered by the Funds themselves.
Nor is the Court's conclusion foreclosed, as the Director Defendants further contend (see Directors' Br. at 10-12), by the fact that all Fund shareholders suffer this injury equally: "[A] direct, individual claim of stockholders that does not depend on harm to the corporation can ... fall on all stockholders equally, without the claim thereby becoming a derivative claim." Tooley, 845 A.2d at 1037; accord Strougo, 282 F.3d at 171 n. 6 (Maryland law).
For these reasons, the Court cannot dismiss Counts One, Two, Four, and Seven through Ten as being improperly pleaded as direct claims. See Paskowitz v. Wohlstadter, 151 Md.App. 1, 822 A.2d 1272, 1277 (2003) (applying Delaware law and stating that "[w]hen a shareholder's complaint states a cause of action that is both direct and derivative, the shareholder may proceed with the direct action"); 12B Fletcher Cyclopedia of the Law of Private Corporations § 5908.
IV. Plaintiffs' Surviving State Law Claims (Counts Seven Through Ten) Are Preempted by SLUSA and, Therefore, Must Be DISMISSED
Plaintiffs assert Counts Seven through Ten directly against Lord Abbett, the Lord Abbett Partners, the Fund Directors and Trustees, and/or Lord Abbett Distributor LLC for alleged unjust enrichment and for alleged breaches of fiduciary duties and duties of good faith, loyalty, fair dealing, due care, and/or candor. (See Compl. ¶¶ 184-198.) Defendants argue that these counts should be dismissed because they are preempted by the Securities Litigation Uniform Standards Act *483 ("SLUSA"), 15 U.S.C. § 78bb(f)(1). (See Defs.' Br. at 25-32; Defs.' Reply at 7-9; Directors' Br. at 6-8.) Plaintiffs respond that SLUSA is inapplicable to their state law claims because they do not concern misstatements/omissions or deception in connection with the purchase or sale of a covered security. (See Pltfs.' Br. at 66-71.) Because the Court concludes that Plaintiffs' state law claims are preempted by SLUSA, Counts Seven through Ten must be DISMISSED.[5]
SLUSA mandates dismissal of any: (1) covered class action; (2) based on state law; (3) alleging a misrepresentation or omission of a material fact or act of deception; (4) in connection with the purchase or sale of a covered security. 15 U.S.C. § 78bb(f)(1); Prager v. Knight/Trimark Group, Inc., 124 F. Supp. 2d 229, 231-33 (D.N.J.2000). Several factors bear on whether claims may be deemed "in connection with the purchase or sale" of a covered security:
[F]irst, whether the covered class action alleges a "fraudulent scheme" that "coincides" with the purchase or sale of securities; second, whether the complaint alleges a material misrepresentation or omission "disseminated to the public in a medium upon which a reasonable investor would rely"; third, whether the nature of the parties' relationship is such that it necessarily involves the purchase or sale of securities; and fourth, whether the prayer for relief "connects" the state law claims to the purchase or sale of securities....
Rowinski v. Salomon Smith Barney Inc., 398 F.3d 294, 302 (3d Cir.2005) (citations omitted). These considerations "are not requirements, but [simply] guideposts in a flexible preemption inquiry." Id. at 302 n. 7.
The Third Circuit's application of these four factors in its recent Rowinski opinion informs the Court's application of the factors to the case at bar. Before the court in Rowinski was an action brought on behalf of persons who during the class period relevant to that action maintained Salomon Smith Barney ("SSB") retail brokerage accounts and who paid charges, commissions, or fees to SSB. Plaintiffs alleged that SSB provided the class with biased investment research and analysis. See id. at 296-97. Plaintiffs' first cause of action for breach of contract alleged that SSB breached its contracts with class members by providing biased and misleading analysis that was intended to curry favor with SSB's existing and potential investment banking clients. Id. at 297. Plaintiffs' second cause of action for unjust enrichment sought recovery of the fees and charges paid to SSB in exchange for objective and unbiased investment research and analysis. Id. Plaintiffs' final count brought under a state consumer protection statute sought to recover unnecessary and unwarranted brokerage fees and charges attributable to SSB's failure to disclose material facts to its retail brokerage customers regarding the relationship between its analysts and its investment bankers. Id. As discussed below, the Third Circuit affirmed the district court's *484 conclusion that these claims were preempted by SLUSA. See id. at 305.
A. The Complaint Alleges a "Fraudulent Scheme" that "Coincides" with the Purchase or Sale of Securities
Rowinski concluded that the first factor weighed in favor of preemption because the gist of plaintiffs' complaint was that SSB "systematically misrepresented the value of securities to the investing public in order to `curry favor with investment banking clients and reap hundreds of millions of dollars in investment banking fees.' For this purported scheme to work," the Court reasoned, "investors must purchase the misrepresented securities. Absent purchases by `duped' investors and a corresponding inflation in the share price, [SSB's] biased analysis would fail to benefit its banking clients and, in turn, would fail to yield hundreds of millions of dollars in investment banking fees." Id. at 302. For this reason, the Third Circuit concluded, "[t]he scheme ... necessarily `coincides' with the purchase or sale of securities." Id. The same conclusion may be reached in this case.
The gravamen of Plaintiffs' Complaint in this case is that Lord Abbett made improper, undisclosed, and excessive payments to brokers to induce them to aggressively market the Funds, which practices caused Fund shareholders to suffer a decline in net asset value per share despite also causing overall Fund growth (which growth, coincidentally, boosted Lord Abbett's management fees). (See Compl. ¶¶ 2, 4, 108-09.) For this scheme to work and cause harm to Plaintiffs, however, new investors must purchase shares of the Fund. This scheme, therefore, like the scheme in Rowinski, necessarily "coincides" with the purchase or sale of securities. See Rowinski, 398 F.3d at 302. Thus, this factor weighs in favor of SLUSA preemption.
B. The Complaint Alleges a Material Misrepresentation or Omission "Disseminated to the Public in a Medium Upon Which a Reasonable Investor Would Rely"
Also weighing in favor of SLUSA preemption in this case is the fact that Plaintiffs' Complaint alleges material misrepresentations or omission "disseminated to the public in a medium upon which a reasonable investor would rely." Rowinski, 398 F.3d at 302. In Rowinski, the Third Circuit favored SLUSA preemption in part on this basis because SSB's alleged biased and misleading analyses were disseminated in research reports. See id. Similarly, in this case the Complaint alleges that "Defendants purposely omitted disclosing the nature of improper excessive fees and commissions charged to Plaintiffs and other members of the class" and identifies numerous omissions in Fund prospectuses (discussed in the background section of this Opinion) that rendered them "materially false and misleading." (See Compl. ¶¶ 5, 123-35.) Therefore, this factor also weighs in favor of SLUSA preemption.
C. The Nature of the Parties' Relationship Necessarily Involves the Purchase or Sale of Securities
Further weighing in favor of SLUSA preemption is the fact that Plaintiffs' relationship with Defendants "necessarily involves the purchase or sale of securities." Rowinski, 398 F.3d at 302. In Rowinski, the plaintiffs argued that this factor did not support SLUSA preemption because the putative class was comprised of "holders" of recommended securities. Id. at 303. The Third Circuit rejected this argument, noting that the putative class definition in that case "All persons who maintained a [SSB] retail brokerage account and who paid any charges[,] commissions or fees to Salomon Smith Barney" was *485 not "limited to non-purchasers and non-sellers" and, therefore, necessarily encompassed claims by SSB customers who purchased or sold securities. Id. The Court can reach the same conclusion in this case. Plaintiffs purport to bring this action on behalf of "all persons or entities who held one or more shares or like interests in any of the Lord Abbett Funds listed [in Exhibit A of the Complaint] between February 6, 1999 and December 8, 2003, inclusive." (Compl.¶ 136.) The only entities excluded from the proposed class are "defendants, members of their immediate families and their legal representatives, heirs, successors or assigns and any entity in which defendants have or had a controlling interest." (Id.) Like the class in Rowinski, this proposed class is not "limited to non-purchasers and non-sellers" and, therefore, necessarily encompasses claims by investors who purchased or sold Lord Abbett shares during the class period and thereby became members of the putative class. See Rowinski, 398 F.3d at 302.
* * * * * *
Based on these consideration, it is clear that Plaintiffs' state law class claims concern misrepresentations, omissions, or deceptive acts "in connection with the purchase or sale of any security." Therefore, Counts Seven through Ten, to the extent that they are properly asserted as direct claims, are preempted by SLUSA. They are, therefore, DISMISSED.
V. Counts One and Two Must Be DISMISSED Because There Is No Private Right of Action for Violations of Sections 34(b) and 36(a) of the Investment Company Act
Plaintiffs assert Count One directly against Lord Abbett and the Director Defendants pursuant to Section 34(b) of the ICA, 15 U.S.C. § 80a-33(b), which generally prohibits the making of untrue statements or omissions of material fact in registration statements or reports filed or transmitted pursuant to the ICA. Plaintiffs assert Count Two directly against Lord Abbett, Lord Abbett Distributor LLC, and the Director Defendants for breach of their fiduciary duties under Section 36(a) of the ICA, 15 U.S.C. § 80a-35(a), which generally authorizes the Securities and Exchange Commission to prosecute persons acting as officers, directors, members of any advisory board, investment advisers, depositors, or principal underwriters of a mutual fund for acts or practices constituting a breach of fiduciary duties. Defendants argue that these Counts should be dismissed because, under the reasoning set forth in the Supreme Court's decision in Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001), as well as the Second and Third Circuits' recent decisions in Olmsted v. Pruco Life Insurance, Co. of New Jersey, 283 F.3d 429 (2d Cir.2002), and Three Rivers Center for Independent Living, Inc. v. Housing Authority of the City of Pittsburgh, 382 F.3d 412 (3d Cir.2004), no express or implied private right of action exists under Sections 34(b) and/or 36(a). (See Defs.' Br. at 34 46; Defs.' Reply Br. at 10 11; Directors' Br. at 6 7.) The Court agrees that these Counts must be dismissed because there is no private right of action for violations of Sections 34(b) or 36(a) of the ICA.
Plaintiffs acknowledge that federal law does not expressly provide a private right of action for violations of Sections 34(b) and 36(a) of the ICA. The question, therefore, is whether a private right of action may be implied. Such an inquiry turns on the intent of Congress. Three Rivers, 382 F.3d at 421. Without some indication of congressional intent to create a private right, "a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute." Sandoval, 532 U.S. at 286 87, 121 S. Ct. 1511. *486 The Court's inquiry into legislative intent is guided by the following considerations:
First, is the plaintiff "one of the class for whose especial benefit the statute was enacted," that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?
[Fourth,] is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?
Three Rivers, 382 F.3d at 421 (quoting Cort v. Ash, 422 U.S. 66, 78, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975)). The first two criteria are critical. If they do not point toward a private right, the remaining two criteria cannot by themselves support a finding of an implied private right of action. Id.
Because Plaintiffs rely on numerous pre-Sandoval cases finding implied rights of action under various ICA provisions, the Court notes initially, as the Second Circuit recently has, that although "an overwhelming majority" of earlier decisions interpreting provisions of the ICA had found implied private rights of action, "[w]hen those cases were decided ... courts had more latitude to weigh statutory policy and other considerations than they do now." Olmsted, 283 F.3d. at 434. Indeed, the Supreme Court has recently stated that it has, in general, unambiguously "retreated from [its] previous willingness to imply a cause of action where Congress has not provided one." Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 67 n. 3, 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001); see also Olmsted, 283 F.3d. at 434 ("Past decisions reflecting judicial willingness to `make effective [statutory] purpose' in the context of implied rights of action belong to an `ancien regime.'") (quoting Sandoval, 532 U.S. at 287, 121 S. Ct. 1511).
In addition, because Plaintiffs argue that subsequent legislative history demonstrates that Congress intended for there to be implied rights of action under both sections, the Court points out that subsequent legislative history deserves little weight in the Court's attempt to ascertain the existence of an implied right of action. See Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 185, 114 S. Ct. 1439, 128 L. Ed. 2d 119 (1994) ("But `[w]e have observed on more than one occasion that the interpretation given by one Congress (or a committee or Member thereof) to an earlier statute is of little assistance in discerning the meaning of that statute.'") (quoting Pub. Employees Ret. Sys. of Ohio v. Betts, 492 U.S. 159, 168, 109 S. Ct. 2854, 106 L. Ed. 2d 134 (1989)); see also White v. Heartland High-Yield Mun. Bond Fund, 237 F. Supp. 2d 982, 987 (E.D.Wis.2002) (rejecting attempted use of 1980 legislative history to inject an implied right of action into Section 34(b)). Those cases that have given undue weight to subsequent legislative history were decided under the old regime.
A. There Is No Implied Private Right of Action for Violations of Section 34(b)
In light of the relevant considerations, the Court must conclude that there is no implied private right of action for violations of Section 34(b). Accord In re Merrill Lynch & Co., Inc., Research Reports, 272 F. Supp. 2d 243, 255 59 (S.D.N.Y.2003) (no private right of action under Section 34(b)). Section 34(b) states in its entirety:
It shall be unlawful for any person to make any untrue statement of a material *487 fact in any registration statement, application, report, account, record, or other document filed or transmitted pursuant to this Act or the keeping of which is required pursuant to section 80a-30(a) of this title. It shall be unlawful for any person so filing, transmitting, or keeping any such document to omit to state therein any fact necessary in order to prevent the statements made therein, in the light of the circumstances under which they were made, from being materially misleading. For the purposes of this subsection, any part of any such document which is signed or certified by an accountant or auditor in his capacity as such shall be deemed to be made, filed, transmitted, or kept by such accountant or auditor, as well as by the person filing, transmitting, or keeping the complete document.
15 U.S.C. § 80a-33(b). With regard to the first consideration, the Court notes that this text does not contain "rights-creating language" but instead merely describes prohibited actions. The text of the statute thus weighs against finding an implied right of action. See Sandoval, 532 U.S. at 289, 121 S. Ct. 1511 ("Statutes that focus on the person regulated rather than the individuals protected create `no implication of an intent to confer rights on a particular class of persons.'") (quoting California v. Sierra Club, 451 U.S. 287, 294, 101 S. Ct. 1775, 68 L. Ed. 2d 101 (1981)).
Nor, addressing the second consideration, does the Court see any indication of legislative intent, explicit or implicit, to create such a remedy. On the contrary, Section 42 of the ICA explicitly provides for enforcement of all ICA provisions by the Securities and Exchange Commission. That Section 42 does so is significant, because "[t]he express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others." Olmsted, 283 F.3d. at 433 (quoting Sandoval, 532 U.S. at 290, 121 S. Ct. 1511); accord In re Merrill Lynch, 272 F.Supp.2d at 257 58. Moreover, Congress explicitly provided a private right of action for another section of the ICA Section 36(b). This, too, is significant, because "Congress's explicit provision of a private right of action to enforce one section of a statute suggests that omission of an explicit private right to enforce other sections was intentional." Olmsted, 283 F.3d. at 433; accord In re Merrill Lynch, 272 F.Supp.2d at 258.
For these reasons, the Court finds no basis for implying a private right of action for violations of Section 34(b) of the ICA.
B. There Is No Implied Private Right of Action for Violations of Section 36(a)
Again weighing these considerations, the Court must conclude that there is no implied private right of action for violations of Section 36(a) either. Accord Chamberlain v. Aberdeen Asset Mgmt., Ltd., No. 02-5870, 2005 WL 195520, at *2 *4 (E.D.N.Y. Jan.21, 2005) (no private right of action under Section 36(a)), vacated pursuant to settlement by 2005 WL 1378757 (E.D.N.Y. Apr.12, 2005). Section 36(a) states, in relevant part, that "[t]he [Securities and Exchange] Commission is authorized to bring an action" against persons subject to the provision who have "engage[d] in any act or practice constituting a breach of fiduciary duty involving personal misconduct in respect of any registered investment company." 15 U.S.C. § 80a-35(a). With regard to the first consideration, the Court notes that, like the text of Section 34(b), the text of Section 36(a) does not contain "rights-creating language" but instead merely describes prohibited conduct. To the extent that it mentions investors at all, it is only to say that a court, in awarding relief after the Securities and Exchange Commission has established its allegations of breach of fiduciary *488 duty, should give "due regard to the protection of investors and to the effectuation of the policies declared in section 80a-1(b) of this title." 15 U.S.C. § 80a-35(a). In addition, addressing the second consideration, the Court does not for the reasons articulated above with regard to Section 34(b) see any indication of legislative intent, explicit or implicit, to create such a remedy.
For these reasons, the Court finds no basis for implying a private right of action for violations of Section 36(a) of the ICA.
* * * * * *
The Court must, therefore, DISMISS Counts One and Two.
VI. Count Three Is Pled as a Direct, Not Derivative, Claim and, Therefore, Must Be DISMISSED WITHOUT PREJUDICE
Plaintiffs assert Count Three directly against Lord Abbett, Lord Abbett Distributor, and the Director Defendants for breach of their fiduciary duties under Section 36(b) of the ICA, 15 U.S.C. § 80a-35(b), which provides that "the investment adviser of a registered investment company shall be deemed to have a fiduciary duty with respect to the receipt of compensation for services, or of payments of a material nature, paid by such registered investment company, or by the security holders thereof, to such investment adviser or any affiliated person of such investment adviser." Although the issue was not addressed by the parties, the Court concludes that a Section 36(b) claim can be maintained only as a derivative (as opposed to a direct) claim. Therefore, this Count must be DISMISSED WITHOUT PREJUDICE.
Shareholders do not have a primary or direct right of action under Section 36(b) of the ICA, which states, in relevant part: "An action may be brought under this subsection ... by a security holder of such registered investment company on behalf of such company...." 15 U.S.C. § 80a-35(b) (emphasis added). In Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 104 S. Ct. 831, 78 L. Ed. 2d 645 (1984), the Supreme Court addressed the meaning of the "on behalf of" phrase, stating unequivocally that Section 36(b) confers only a derivative right:
The "on behalf" language in § 36(b) indicates only that the right asserted by a shareholder suing under the statute is a "right of the corporation" a proposition confirmed by other aspects of the action: The fiduciary duty imposed on advisors by § 36(b) is owed to the company itself as well as its shareholders and any recovery obtained in a § 36(b) action will go to the company rather than the plaintiff. See S.Rep. No. 91-184, p. 6 (1970); § 36(b)(3). In this respect, a § 36(b) action is undeniably "derivative" in the broad sense of the word.
464 U.S. 523, 535 n. 11, 104 S. Ct. 831, 78 L. Ed. 2d 645 (emphasis added). To the extent that Fox distinguished a derivative claim under Section 36(b) from a typical derivative claim, the Court did so merely to explain why Rule 23.1 is inapplicable to Section 36(b) actions. Id.[6]
*489 Given the plain language of Section 36(b) and the Supreme Court's subsequent comment on the meaning of the statutory provision, the Court concludes that Plaintiffs' Section 36(b) claim must be pleaded as a derivative (not a direct) claim. Cf. Olmsted, 283 F.3d at 433 ("Congress explicitly provided in § 36(b) of the ICA for a private right of derivative action for investors in regulated investment companies alleging that investment advisors breached certain fiduciary duties.") (emphasis added). The Court raises this issue not to suggest that a shareholder asserting a Section 36(b) claim must satisfy Rule 23.1's pleading requirement or make a precomplaint in order to survive dismissal. Rather, the Court raises this issue merely to point out that Plaintiffs may not maintain Count Three as a class action claim, given the derivative nature of the claim. See Kauffman, 434 F.2d at 734-37 (dismissing notion that fund shareholder can institute a "class derivative action"). Moreover, should Plaintiffs replead Count Three consistent with this Opinion, the Court points out that standing concerns not addressed in this Opinion likely will bear on adjudication of any motion to dismiss the repleaded Count. Cf. Green v. Nuveen Advisory Corp., 186 F.R.D. 486, 493 (N.D.Ill.1999) ("Pursuant to 15 U.S.C. § 80a-35(b), plaintiffs do not have standing to bring a § 36(b) claim on behalf of investment companies other than the Funds in which they are security holders."). In other words, Haas, discussed supra, would not allow Plaintiffs to bring Section 36(b) claims derivatively on behalf of Funds in which they have no ownership interest.
VII. Count Four Is DISMISSED WITHOUT PREJUDICE Because Counts One and Two Have Been DISMISSED and Count Three Has Been DISMISSED WITHOUT PREJUDICE
Plaintiffs assert Count Four directly against Lord Abbett (as control person of Lord Abbett Distributor and the Director Defendants) for violation of Section 48(a) of the ICA, 15 U.S.C. § 80a-47(a), which makes it "unlawful for any person, directly or indirectly, to cause to be done any act or thing through or by means of any other person which it would be unlawful for such person to do under the provisions of this subchapter or any rule, regulation, or order thereunder." The Complaint indicates that Counts One through Three represent the unlawful acts caused by Lord Abbett as the control persons. (See Compl. ¶¶ 165-67.) Defendants argue that this Count should be dismissed because there is no private cause of action for violation of ICA Section 48(a) or, alternatively, because Plaintiffs have no claim under this provision because Counts One through Three have been dismissed. (See Defs.' Br. at 58.)
Counts One through Three have indeed been dismissed. However, Count Three has been dismissed without prejudice. Thus, the Court will dismiss Count Four, which is predicated on Counts One through Three, without prejudice as well.
*490 VIII. Count Five Is DISMISSED Because Section 215 of the Investment Advisers Act Invalidates Unlawful Contracts, Not Unlawful Transactions Made Pursuant to Lawful Contracts
Count Five, asserted derivatively, seeks to rescind Lord Abbett's advisory contracts pursuant to IAA Section 215, which provides for the rescission of contracts that on their face or by their performance violate other provisions of the IAA:
Every contract made in violation of any provision of this subchapter ..., [or] the performance of which involves the violation of, or the continuance of any relationship or practice in violation of any provision of this subchapter, or any rule, regulation, or order thereunder, shall be void.
15 U.S.C. § 80b-15(b) (emphases added). The other IAA provision that Lord Abbett's advisory contracts allegedly violated (as a result of its broker compensation practices) is Section 206, 15 U.S.C. § 80b-6, which makes it unlawful for covered entities "to engage in any act, practice, or course of business which is fraudulent, deceptive, or manipulative." Defendants present several arguments for dismissal. They argue primarily, however, that this Count should be dismissed because the Complaint does not allege that Lord Abbett's advisory contracts are unlawful on their faces or through their performance necessarily result in a violation of some other provision of the IAA. IAA Section 215, they contend, provides a remedy only for allegedly unlawful contracts, not allegedly unlawful transactions made pursuant to lawful contracts. (See Defs.' Br. at 58-61.) The Court agrees that this Count must be dismissed for this reason.
The Third Circuit, in GFL Advantage Fund, Ltd. v. Colkitt, 272 F.3d 189 (3d Cir.2001), recently construed a provision identical to IAA Section 215 Section 29(b) of the Securities Exchange Act. Section 29(b), which tracks nearly word-for-word the language of IAA Section 215, voids contracts that on their face or by their performance violate other provisions of the Exchange Act:
Every contract made in violation of any provision of this chapter or of any rule or regulation thereunder, ... [or] the performance of which involves the violation of, or the continuance of any relationship or practice in violation of, any provision of this chapter or any rule or regulation thereunder, shall be void.
15 U.S.C. § 78cc(b) (emphases added). The plaintiff in GFL sought to invalidate under Section 29(b) certain promissory notes that were neither on their face nor necessarily through their performance in violation of any other provision of the Exchange Act. Plaintiff claimed that the notes were nonetheless voidable under Section 29(b) because they were "part of" defendant's scheme to manipulate the market price of certain stock securing the notes and/or because the notes contained omissions of material facts about defendant's business plans with regard to the stock securing the notes. See GFL, 272 F.3d at 199-200. The Third Circuit rejected plaintiff's theory, pointing out that defendant's allegedly unlawful conduct was too "collateral or tangential" to the parties' respective obligations under the notes. See id. at 202. In reaching this conclusion, the Third Circuit relied on numerous cases declining to void under Section 29(b) contracts that were neither on their face nor necessarily through their performance in violation of any other provision of the Exchange Act. See id. at 200-02. Following GFL, therefore, Section 29(b) invalidates only those contracts: (1) that by their terms violate some other provision of the Exchange Act, or (2) the performance of *491 which necessarily results in a violation of some other provision of the Exchange Act.
The courts have repeatedly acknowledged that Section 29(b) of the Exchange Act and Section 215 of the IAA are "comparable"/"parallel" provisions and that the purposes behind the IAA and Exchange Act are "almost identical." See, e.g., Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18-21, 100 S. Ct. 242, 62 L. Ed. 2d 146 (1979) (observing that Sections 29(b) and 215 are "comparable" provisions and thus construing Section 215 as implying a private right of rescission because of Court's prior holding that Section 29(b) provides such a right); Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 387-88 & n. 10, 90 S. Ct. 616, 24 L. Ed. 2d 593 (1970) (observing that Sections 29(b) and 215 are "counterparts"); SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 195, 84 S. Ct. 275, 11 L. Ed. 2d 237 (1963) (citations omitted) ("Congress intended the [IAA] to be construed like other securities legislation `enacted for the purpose of avoiding frauds.'"); Kahn v. Kohlberg, Kravis, Roberts & Co., 970 F.2d 1030, 1039 (2d Cir.1992) (agreeing that IAA claims are "similar to ... 1933 and 1934 Act claims [because t]he purposes behind the statutes are almost identical"). Plaintiffs acknowledge as much. (See Pls.' Opp'n at 57.) Given the identical language of Sections 29(b) and 215 and the identical purposes of the statutory schemes under which they were enacted, the Court will apply the Third Circuit's construction of Section 29(b) to IAA Section 215 as well.
Because Lord Abbett's advisory contracts are voidable under Section 215 only if by their terms they violate some other provision of the IAA or if their performance necessarily results in the violation of some other provision of the IAA, Plaintiffs' contention that Lord Abbett's advisory contracts are voidable because they were "part of Lord Abbett's overall scheme to defraud the investors and potential investors" (Pls.' Opp'n at 58-59) holds no water.
For these reasons, Count Five is DISMISSED.
CONCLUSION
For the foregoing reasons, Defendants' motions to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 8(a), 9(b), 12(b)(6), and 23.1 are GRANTED IN PART and DENIED IN PART as set forth herein. Accordingly, Counts One, Two, Five, and Seven through Ten of the Consolidated Amended Class Action Complaint are DISMISSED. Counts Three and Four are DISMISSED WITHOUT PREJUDICE.
An appropriate Order accompanies this Opinion.
NOTES
[1] Plaintiffs have withdrawn Count Six of the Complaint. (See Pls.' Opp'n at 5 n. 4.)
[2] The parties do not dispute the Court's authority to consider on this motion the Prospectus and Statement of Information for the Lord Abbett Affiliated Funds (referred to in this Opinion as the "Fund prospectuses" or "prospectuses") referenced in the Complaint and separately attached to Defendants' and Plaintiffs' papers. See Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993). Nor do the parties dispute that the 2003 Fund prospectus attached to Defendants' papers and discussed in this Opinion is representative of the prospectuses issued through the proposed class period with respect to the Funds. Because the prospectus attached by Defendants contains multiple pagination, the Court notes that it cites herein the pagination provided by Thomson Financial at the bottom of each printed page.
[3] The Complaint refers to revenue sharing payments made pursuant to the "Shelf-Space Programs" and "directed brokerage payments" interchangeably. (See, e.g., Compl. ¶ 129.)
[4] The Court notes that it expresses no opinion here as to whether the named Plaintiffs satisfy Rule 23's requirements for serving as class representatives. That determination will be made at a later stage of this action, should the need arise.
[5] The Court notes that it has never rendered any decision on this issue. Contrary to Plaintiffs' suggestion, the Court's February 8, 2005 Letter Opinion and Order upholding Judge Ronald Hedges' December 13, 2004 discovery Order did not adjudicate this issue. The Court merely held at that time that Judge Hedges did not abuse his discretion or commit legal error in "allowing class certification discovery to proceed in this case pending resolution of [Defendants'] motion to dismiss" after concluding that Defendants had not, in connection with their appeal, "identified ... authority to support Defendants' assertion that Plaintiffs' state law claims are preempted by SLUSA." (February 8, 2005 Letter Opinion at 3.)
[6] The Supreme Court's decision in Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 111 S. Ct. 1711, 114 L. Ed. 2d 152 (1991), does not change this conclusion. In dicta, the Court, relying on Fox, imprecisely stated that "a shareholder action `on behalf of' the company under § 36(b) is direct rather than derivative and can therefore be maintained without any precomplaint demand on the directors." 500 U.S. at 108, 111 S. Ct. 1711 (emphasis in original). However, neither Kamen nor Fox, the authority relied on in Kamen for that statement, stands for the broad proposition that an action under Section 36(b) is direct in every sense of the word. Indeed, the very next sentence of the opinion clarified that "[u]nder these circumstances, it can hardly be maintained that a shareholder's exercise of his state-created prerogative to initiate a derivative suit without the consent of the directors frustrates the broader policy objectives of the ICA." Kamen, 500 U.S. at 108, 111 S. Ct. 1711 (emphasis added). Thus, examined in context, this passage in Kamen states nothing more than the incontestable proposition that a shareholder may bring a derivative claim under Section 36(b) without making a pre- complaint demand. However, that suit remains a "derivative" action brought on behalf of the company.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2440943/
|
944 S.W.2d 266 (1997)
STATE of Missouri ex rel., Ivan DRIENIK, Relator,
v.
The Honorable Patrick CLIFFORD, Associate Circuit Judge, and
The Honorable Barbara Ann Crancer, Associate Circuit Judge, Respondents.
No. 72132.
Missouri Court of Appeals, Eastern District, Writ Division Five.
April 15, 1997.
*267 Thomas D. Rodenberg, Blue Springs, Steven E. Ehlmann, St. Charles, for relator.
Jack J. Gilbert, Clayton, for respondents.
Before AHRENS, C.J., GRIMM, P.J., and SIMON, J.
PER CURIAM.
Relator filed a petition for writ of mandamus. He alleges Judge Crancer erroneously failed to transfer a case pending against him to the proper venue. In addition, he alleges Judge Clifford erroneously denied his petition for mandamus filed in St. Louis County. In that petition, relator sought relief identical to that sought from this court. Respondents have filed their suggestions in opposition to the issuance of the writ.
The facts and law are clear concerning the venue issue. In the interest of justice, as permitted by Rule 84.24, we dispense with a preliminary order, answer, further briefing and oral argument, and issue a peremptory writ of prohibition.
In the underlying proceeding, plaintiff Jim Watson alleges that he and defendant Ivan Drienik entered into a contract. Plaintiff's business is in St. Louis County, while defendant resides in Jackson County. Plaintiff was to secure an employee for defendant, for which defendant would pay plaintiff a percentage of the employee's starting salary. Further, plaintiff alleges he secured an employee and defendant owes him $8,000, but defendant refuses to pay.
Plaintiff filed suit in St. Louis County. Defendant was served in Jackson County. He filed a motion to dismiss or in the alternative for transfer. He alleged that he did not reside in St. Louis County and was not found there. Rather, at all times material to the action, he resided in Jackson County.
Plaintiff filed a response. He claimed venue was proper, citing State ex rel. McClain v. Heckemeyer, 741 S.W.2d 734 (Mo.App. S.D. 1987). Judge Crancer denied defendant's motion.
Thereafter, defendant filed a petition for writ of mandamus in the Circuit Court of St. Louis County. The Presiding Judge of St. Louis County Circuit Court assigned the matter to Judge Clifford "for hearing and determination on the record under practices and procedures applicable before Circuit Judges." Judge Clifford dismissed the petition on the basis that he did not have jurisdiction.
Defendant is an individual, and plaintiff's claim is based on contract. In such situations, venue is determined by § 508.010(1).[*] In part, that section provides that when defendant is a resident of the state, suit shall be brought "either in the county within which the defendant resides, or in the county within which the plaintiff resides, and the defendant may be found." Defendant does not reside in St. Louis County and was not found or served in St. Louis County.
Nevertheless, plaintiff argues on behalf of respondents that the breach of contract occurred in St. Louis County. He contends venue is lodged in St. Louis County because the cause of action accrued there. He cites numerous cases concerning where a breach of contract occurs and venue based on where the cause of action accrued. None are applicable because they relate either to tort actions or suits against corporations.
Venue in the county where the cause accrued is proper in tort actions, § 508.010(6), but this is not a tort action. Similarly, in suits against corporations, venue may be in the county where the cause of *268 action accrued. § 508.040. Here, plaintiff's cause of action is for breach of contract and must be brought either in the county (1) where defendant resides or (2) where plaintiff resides and defendant may be found.
Venue is improper in St. Louis County. Peremptory writ is ordered issued. Respondent Judge Crancer is directed to take no further action in the underlying case except to transfer it to Jackson County. See State ex rel. Quest Communications Corp. v. Baldridge, 913 S.W.2d 366, 368 (Mo.App.S.D. 1996).
We turn now to relator's contention that respondent Judge Clifford erred in declining to exercise jurisdiction. Relator contends that when an associate circuit judge refuses to transfer a case to a proper venue, "the proper place for filing a petition for writ of mandamus is with the circuit court." In support, relator cites State ex rel. Bowman v. Block, 620 S.W.2d 69 (Mo.App. E.D.1981).
In Bowman, this court reviewed a circuit court judge's dismissal of a petition for writ of mandamus directed to an associate circuit judge. We observed that the new judicial article created a three tier court system consisting of the supreme court, court of appeals, and circuit court. Id. at 70. However, we commented that associate circuit judges had "less jurisdiction, less authority and less power." Thus, we held that an associate circuit judge was subject to the circuit court's jurisdiction for remedial writs. Id.
Since that decision in 1981, much has changed. When Bowman was decided, § 478.220 RSMo 1986 provided that circuit court judges could "hear and determine all cases and matters within the jurisdiction of their circuit courts." In contrast, associate circuit judges could only hear and determine "cases or classes of cases" enumerated in § 478.225 RSMo 1986.
In 1989, the General Assembly repealed § 478.225 RSMo 1986. 1989 Mo.Laws 1049. In addition, it amended the introductory clause of § 478.220 RSMo 1978 to read, "Circuit judges and associate circuit judges may hear and determine all cases and matters within the jurisdiction of their circuit courts." Thus, any jurisdictional difference between the two categories of judges was abolished. Although other statutes or local court rules may place limitations on what judge is assigned to hear a particular case or class of cases, it is clear that both circuit and associate circuit judges now have statutory jurisdiction to hear and determine all cases within the jurisdiction of their circuit court. § 478.220.
Other significant changes have also occurred. As a result, we conclude that an associate circuit judge is not subject to the circuit court's jurisdiction for remedial writs. Bowman should no longer be followed.
NOTES
[*] All statutory citations are to RSMo 1994 unless otherwise indicated.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2440960/
|
944 S.W.2d 15 (1997)
In the Matter of J.V., a Juvenile.
No. 08-96-00390-CV.
Court of Appeals of Texas, El Paso.
January 30, 1997.
*16 Larry McMillion, Midland, for Appellant.
Mark H. Dettman, County Attorney, Midland, for Appellee.
Before BARAJAS, C.J., and LARSEN and McCLURE, JJ.
OPINION ON APPLICATION FOR RELEASE ON PERSONAL BOND PENDING APPEAL
McCLURE, Justice.
Presently pending before the Court is an application filed by J.V., a juvenile, requesting that a bond be set pending appeal pursuant to Tex.Fam.Code Ann. § 56.01(g)(Vernon 1996). The application is denied.
We abated this appeal to the trial court to conduct an evidentiary hearing with respect to J.V.'s application for bond. At our request, the trial court made written findings of fact, conclusions of law, and a recommendation with respect to J.V.'s request for a personal bond, which have been forwarded to this Court in a supplemental transcript.[1] We have also been provided with the statement of facts from the evidentiary hearing.
The record before us reflects that in December of 1995, J.V., a fifteen-year-old male, was found to have engaged in delinquent conduct by possessing less than two ounces of marihuana, and was placed on juvenile probation for a term of one year. Approximately six months later, the State filed a motion to modify disposition on the ground that J.V. had violated the terms of his probation by possessing a prohibited weapon, a switchblade knife, on school premises in violation of Section 46.03 of the Texas Penal Code. The trial court found that J.V. had engaged in delinquent conduct as alleged and that he was still in need of rehabilitation. The Court also found that placement of J.V. outside of his home was in the best interest of J.V. and the community. Consequently, the court extended J.V.'s probation for a term of one year, and as a term and condition of probation, committed J.V. to a post-adjudication program administered by the Rehabilitation and Corrections Corporation (RECOR) for six months. Subsequently, J.V. gave notice of appeal and filed an application in this Court seeking release on personal bond pending appeal.
Throughout his application, J.V. characterizes his commitment as a criminal incarceration or sentence. In this regard, J.V. is incorrect. With one exception, an order of adjudication or disposition in a proceeding under the Juvenile Justice Code is not a conviction of crime, and does not impose any civil disability ordinarily resulting from a conviction or operate to disqualify the child in any civil service application or appointment. TEX.FAM.CODE ANN. § 51.13(a)(Vernon *17 1996).[2] Consequently, constitutional and statutory provisions relating to bail in criminal cases are inapplicable. Espinosa v. Price, 144 Tex. 121, 188 S.W.2d 576 (1945). Instead, we must look to Section 56.01(g) of the Texas Family Code which governs the release of a juvenile on personal bond pending appeal:
An appeal does not suspend the order of the juvenile court, nor does it release the child from the custody of that court or of the person, institution, or agency to whose care the child is committed, unless the juvenile court so orders. However, the appellate court may provide for a personal bond.
TEX.FAM.CODE ANN. § 56.01(g)(Vernon 1996).[3]
This statute vests discretion in both the juvenile court and the appellate court to allow a juvenile to be released on bond pending an appeal. In re R.A.B., 525 S.W.2d 871, 873 (Tex.Civ.App.Corpus Christi 1975, no writ). The appellate court's jurisdiction to grant the juvenile a personal bond exists independently of the authority of the juvenile court. Id. at 873. The burden is on the juvenile to show that he should be released on bond. Id. Therefore, the only issue before us is whether J.V. has established that this Court should, in the exercise of its discretion, supersede the trial court's judgment and allow J.V. to be released on personal bond pending appeal. The merits of the appeal from the adjudication and disposition orders are not before us.
J.V. maintains in his application that he should be released on bond because: (1) he has significant family ties to Midland; (2) he has a good work record; (3) his prior juvenile record does not justify denial of bail; (4) J.V. and his parents have always cooperated with juvenile authorities; (5) there are no aggravating factors in this case; (6) the commitment is a hardship upon J.V., his parents, and employer; (7) J.V.'s normal schooling has been interrupted; and (8) release on bond would be in J.V.'s best interest. Many of the factors relied upon by J.V. would be appropriate for consideration if we were reviewing the exercise of discretion by the trial court in setting an appeal bond in an adult criminal case. See TEX.CODE CRIM.PROC.ANN. art. 17.15 (Vernon Supp.1997)(providing factors to consider in determining the amount of a defendant's bail); Ex parte Davila, 623 S.W.2d 408, 410 (Tex.Crim.App.1981)(the factors for fixing bail as provided in Article 17.15 remain viable after conviction; additionally, the court should consider the punishment assessed, the nature of the offense, the petitioner's work record, family ties, length of residency, ability to make the bond, and prior criminal record, as well as conformity with previous bond conditions and the existence of other outstanding bonds). There, a primary concern is with assuring the accused's appearance at subsequent proceedings. Because this is a juvenile case, however, our overriding concern must be the welfare and best interest of the child. See TEX.FAM.CODE ANN. § 51.01 (Vernon 1996)(purposes of the Juvenile Justice Code).
We will not dispute that J.V. has significant family ties in Midland or that he has a good work record. However, other considerations related to J.V.'s welfare seriously undermine the significance to be accorded these factors. The record reflects that J.V.'s circumstances steadily worsened during his original probationary term. During this time period, J.V. continued to smoke marihuana and abuse alcohol. Even though J.V. had previously made A's and B's in school, his recurrent truancy resulted in failing grades. *18 J.V. was eventually expelled from school just prior to his commitment to RECOR. Thus, it is unlikely that his commitment has interrupted his "normal schooling" as claimed. In addition to his problems with substance abuse and truancy, J.V. also committed numerous violations of the penal law. In May of 1996, J.V. committed a third-degree felony by entering school premises with a prohibited weapon. TEX.PENAL CODE ANN. § 46.03 (Vernon 1994). Between May and September of 1996, J.V. was arrested for retaliation, resisting arrest, escape, and violation of a court order. As an indication of his alcohol abuse, he was also arrested on three occasions for public intoxication.
The trial court found that the lack of structure in J.V.'s home and his family's resistance to rehabilitative efforts contributed to his downward spiral. J.V.'s juvenile probation officer, who had previously supervised the probation of two of J.V.'s brothers, testified that the juvenile's home is not supportive with respect to rehabilitative efforts. On the other hand, the RECOR program is providing J.V. with a structured environment, counseling, and an educational program based upon a regular public school curriculum. Class credits earned by J.V. at RECOR will be accepted by and transferred to the Midland Independent School District upon his return. We cannot ignore the evidence reflecting a marked improvement in J.V.'s overall circumstances since his commitment to the RECOR program. There is little or no evidence to show that it would benefit J.V. to return him to his home prior to his completion of the RECOR program. Based upon all of the evidence before us, we conclude that it is not in J.V.'s best interest to be released on bond pending appeal. Accordingly, the application is denied.
NOTES
[1] We commend the trial court for providing this Court with extensive and detailed findings. While those findings and the trial court's recommendation are not binding upon this Court, we will give them due deference.
[2] An adjudication under Section 54.03 that a child engaged in conduct that constitutes a felony offense resulting in commitment to the Texas Youth Commission under Section 54.04(d)(2), (d)(3), or (m) or 54.05(f) is a final felony conviction only for the purposes of Section 12.42(a)-(c) and (e), Penal Code. TEX.FAM.CODE ANN. § 51.13(d)(Vernon 1996).
[3] Similarly, Rule 47(g) of the Rules of Appellate Procedure provides: When the judgment is one involving the conservatorship or custody of a minor, the appeal, with or without security shall not have the effect of suspending the judgment as to the conservatorship or custody of the minor, unless it shall be so ordered by the court rendering the judgment. However, the appellate court, upon a proper showing, may permit the judgment to be superseded in that respect also. TEX. R.APP.P. 47(g).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2441018/
|
385 F. Supp. 2d 1004 (2005)
Burton H. WOLFE, Plaintiff,
v.
Ronald M. GEORGE, et al., Defendants.
No. C 00-1047 SBA, Nos. 264, 276, 285.
United States District Court, N.D. California.
August 22, 2005.
*1005 *1006 Burton H. Wolfe, San Francisco, CA, pro se.
David M. Verhey, Sacramento, CA, Tom Blake, CA State Attorney General's Office, Thomas A. Blake, Jonathan U. Lee, City Attorney's Office, San Francisco, CA, for Defendants.
ORDER
ARMSTRONG, District Judge.
This matter comes before the Court on Plaintiff's Motion for Judgment on the Pleadings [Docket No. 264] and Defendants' Cross-Motion for Judgment on the Pleadings [Docket No. 276]. Having read and considered the arguments presented by the parties in the papers submitted to the Court, and having heard the argument of Plaintiff and Defendants' counsel at the June 28, 2005 hearing, the Court hereby DENIES Plaintiff's Motion for Judgment on the Pleadings and GRANTS Defendants' Cross-Motion for Judgment on the Pleadings.
BACKGROUND
A. Procedural Background.
On March 27, 2000, Plaintiff Burton Wolfe ("Plaintiff"), filed a Complaint, in propria persona, under 42 U.S.C. § 1983, challenging the constitutionality of California's *1007 Vexatious Litigant Statute. He named as defendants: (1) Justice Gary Strankman, Chief Justice Ronald George, Deborah Silva, the Judicial Council of California, and State of California (collectively known as the "State Defendants"); and (2) Judge Alfred Chiantelli, Judge David Garcia, and Judge Ronald Quidachay (collectively known as the "Judge Defendants").
On March 29, 2002, this Court dismissed Plaintiff's Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction pursuant to the Rooker-Feldman doctrine after finding that Plaintiff's action appeared to be a de facto appeal of prior state court decisions. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S. Ct. 149, 68 L. Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-86, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983). The Court also dismissed the State Defendants and the Judge Defendants from the lawsuit. Plaintiff subsequently appealed.
On December 14, 2004, the Ninth Circuit held that this Court erred by dismissing the suit under Rooker-Feldman. See Wolfe v. Strankman, 392 F.3d 358, 364 (9th Cir.2004). Specifically, the Ninth Circuit found that Plaintiff's references to his involvement in prior state court actions went to show that Plaintiff had standing, and were not de facto appeals from the decisions in those prior actions. Id. However, the Ninth Circuit affirmed the dismissal of the State of California and the Judicial Council of California on the grounds that they are not "persons" subject to suit under § 1983. Id. at 361. The court further affirmed the dismissal of the Judge Defendants, Justice Strankman, and Chief Justice George in his judicial capacity. Id. Finally, the court reversed the dismissal of Chief Justice George, in his administrative capacity, and Ms. Silva, and remanded to this Court for further proceedings. Id.
On February 8, 2005, Plaintiff filed a First Amended Complaint, in propria persona, on behalf of himself and on behalf of all persons appearing in the courts of California without representation, for Declaratory and Prospective Injunctive Relief. In the First Amended Complaint, Plaintiff alleges that California's Vexatious Litigant Statute, California Code of Civil Procedure §§ 391 et seq., is unconstitutional. On February 23, 2005, Plaintiff filed a Motion for Judgment on the Pleadings or, in the alternative, for Declaratory Judgment. On May 6, 2005, Defendants filed a Cross-Motion for Judgment on the Pleadings.
B. Statutory Background.
California's Vexatious Litigant Statute (the "statute") is codified at California Code of Civil Procedure §§ 391 et seq. The statute defines a vexatious litigant as a person who:
(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.
(2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.
(3) In any litigation while acting in propria persona, repeatedly files unmeritorious *1008 motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.
(4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.
Cal.Code of Civ. Proc. § 391(b)(1)-(4). Pursuant to the statute, a defendant may move the court to require the pro se plaintiff to provide security if the defendant can make a showing that the plaintiff is a vexatious litigant and that there is not a reasonable probability that the plaintiff will prevail in the litigation against the moving party. See Cal.Code of Civ. Proc. § 391.1. Upon making the requisite findings, the court may then order the plaintiff to provide a security[1] that compensates for the reasonable costs and attorney fees of defending the suit. Cal.Code Civ. Proc. §§ 391.1, 391.3. If the plaintiff fails to post the security, the action may be dismissed. Cal.Code Civ. Proc. § 391.4.
Once a plaintiff has been declared a "vexatious litigant" within the meaning of the statute, the court may also enter an order prohibiting that plaintiff from filing new state court litigation absent leave of the presiding judge where the litigation is proposed to be filed. Cal.Code Civ. Proc. § 391.7. This order is referred to as a "prefiling" order. Cal.Code Civ. Proc. § 391.7. After the prefiling order is issued, the presiding judge shall permit the filing of further litigation if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay. Cal.Code of Civ. Proc. § 391.7(b).
LEGAL STANDARD
A. Motion for Judgment on the Pleadings.
Under Federal Rule of Civil Procedure 12(c), any party may move for judgment on the pleadings at any time after the pleadings are closed but within such time as not to delay the trial. Fed.R.Civ.P. 12(c). "For the purposes of the motion, the allegations of the non-moving party must be accepted as true, while the allegations of the moving party which have been denied are assumed to be false." Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1550 (9th Cir.1990). Judgment on the pleadings is proper when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law. Id. When brought by the defendant, a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is a "means to challenge the sufficiency of the complaint after an answer has been filed." New.Net, Inc. v. Lavasoft, 356 F. Supp. 2d 1090, 1115 (C.D.Cal.2004). A motion for judgment on the pleadings is therefore similar to a motion to dismiss. Id. When the district court must go beyond the pleadings to resolve an issue on a motion for judgment on the pleadings, the proceeding is properly treated as a motion for summary judgment. Fed.R.Civ.P. 12(c); Bonilla v. Oakland Scavenger Co., 697 F.2d 1297, 1301 (9th Cir.1982).
*1009 B. Declaratory Judgment.
28 U.S.C. § 2201 provides that "[i]n a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading, 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. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such." 28 U.S.C. § 2201.
Declaratory judgment is appropriate where, as here, an injunction is not available because there are no pending state court proceedings. Steffel v. Thompson, 415 U.S. 452, 463, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974) ("When no state prosecution is pending and the only question is whether declaratory relief is appropriate, the congressional scheme that makes the federal courts the primary guardians of constitutional rights, and the express congressional authorization of declaratory relief, afforded because it is a less harsh and abrasive remedy than the injunction, become the factors of primary significance.")
ANALYSIS
A. Plaintiff's and Defendants' Cross-Motions for Judgment on the Pleadings.
In his Motion for Judgment on the Pleadings, Plaintiff seeks a declaratory judgment from this Court that California's Vexatious Litigant Statute, California Code Civil Procedure §§ 391 et seq., is unconstitutional.[2] Plaintiff asserts the following bases for a finding that the Vexatious Litigant Statute is unconstitutional: (1) it violates the First Amendment; (2) it is overbroad; (3) it is vague; (4) it violates the due process clause of the Fifth and Fourteenth Amendments[3]; (5) it violates the equal protection clause of the Fourteenth Amendment; (6) it violates the double jeopardy clause of the Fifth Amendment; (7) it violates the excessive fines clause of the Eighth Amendment; (8) it is an impermissible ex post facto law or bill of attainder; and (9) it generally conflicts with federal law and violates 42 U.S.C. § 1983. Defendants, on the other hand, move for judgment on the pleadings on the basis that the Vexatious Litigant Statute is not unconstitutional on any of the aforementioned grounds. Additionally, Defendants assert that Plaintiff lacks standing to assert third-party rights.[4]
*1010 1. Constitutionality under the First Amendment.
a. First Amendment Right to Petition for Grievances.
With respect to Plaintiff's First Amendment claim, the Court must first determine whether the Vexatious Litigant Statute actually encroaches upon a right guaranteed by the First Amendment.
The United States Supreme Court has long recognized that the right to petition for a redress or grievance is a liberty safeguarded by the Bill of Rights and is intimately connected both in origin and in purpose with the other First Amendment rights of free speech and free press. United Mine Workers of America, Dist. 12 v. Illinois State Bar Ass'n, 389 U.S. 217, 222, 88 S. Ct. 353, 19 L. Ed. 2d 426 (1967).[5] However, the Supreme Court has also consistently held that "baseless litigation is not immunized by the First Amendment right to petition." Bill Johnson's Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 743, 103 S. Ct. 2161, 76 L. Ed. 2d 277 (1983) ("[S]ince sham litigation by definition does not involve a bona fide grievance, it does not come within the first amendment right to petition."). In fact, as the Supreme Court stated in Bill Johnson's Restaurants, "The first amendment interests involved in private litigation compensation for violated rights and interest, the psychological benefits of vindication, public airing of disputed facts are not advanced when the litigation is based on intentional falsehoods or on knowingly frivolous claims." Id.
Applying the Bill Johnson's Restaurants holding to the Vexatious Litigant Statute, the Court finds that the Vexatious Litigant Statute does not violate the First Amendment. By its very terms, the statute is only implicated once the state court has concluded that there is "no reasonable probability that [the plaintiff] will prevail in the litigation against the moving defendant." Cal.Code Civ. Proc. § 391.3. Further, even when a plaintiff has been declared a vexatious litigant, the statute does not preclude a plaintiff from filing subsequent lawsuits, so long as those lawsuits have merit. See Cal.Code Civ. Proc. § 391.7; see Wolfgram v. Wells Fargo Bank, 53 Cal. App. 4th 43, 60, 61 Cal. Rptr. 2d 694 (1997) ("When a vexatious litigant knocks on the courthouse door with a colorable claim, he may enter.") Thus, to the extent that Plaintiff's argument is premised on his belief that the Vexatious Litigant Statute encroaches upon a First Amendment right because it is a prohibitive ban on meritorious litigation, his argument is fatally flawed. The Vexatious Litigant Statute is not, as Plaintiff contends, an absolute ban on the right to petition for grievances.
2. Vagueness.
Plaintiff has also not proven that the Statute is unconstitutionally vague. "It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). To survive a vagueness challenge, the statute must give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Id. This is particularly important when sensitive areas of First Amendment freedoms are involved; in such cases, the statute must have sufficiently clear terms such that citizens are not led to "steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked." Id. *1011 The statute must also provide explicit standards for those who apply it so that arbitrary and discriminatory enforcement is prevented. Id.
In support of his vagueness challenge, Plaintiff contends that the statute fails to provide warning of what conduct is proscribed because it does not define the terms "finally determined adversely," "unmeritorious pleadings," "unnecessary discovery," or "other tactics that are frivolous." Having considered Plaintiff's arguments, the Court finds that there is absolutely no merit to the contention that words such as "final," "adverse," "unmeritorious," "unnecessary," "tactics," or "frivolous" are incomprehensible to a person of ordinary intelligence. Second, while it may be true that a complete stranger to litigation may not readily understand the correct meaning of the terms "discovery" and "pleadings," Plaintiff's contention that an "ordinary person" would not understand these terms is completely undermined by the fact that the "ordinary person" in this context is a person who either: (1) has engaged in litigation on at least five prior occasions within seven years; (2) is actively involved in current litigation; or (3) has recently been involved in litigation and is reinitiating that litigation. See Cal.Code Civ. Proc. § 391(b). Thus, the argument that such a person is not able to comprehend fairly basic concepts of litigation is tenuous, at best, and defies credibility. The Vexatious Litigant Statute simply has no applicability to a person who is a complete stranger to litigation.
Moreover, even assuming, arguendo, that "sensitive areas of First Amendment freedoms" are involved, the Court does not find that there is any lack of clarity in the statute that would leads citizens to "steer far wider of the unlawful zone" than necessary. The activity "prohibited" by the statute is unmistakeably clear: it is the pursuit of litigation that lacks merit and is instituted solely for the sake of harassment and delay. Indeed, the definition of the term "vexatious litigant" alone contains a considerable amount of detail. See Cal.Code Civ. Proc. § 391. Since this is not "a vague, general ... ordinance, but a statute written specifically for the [court] context, where the prohibited disturbances are easily measured by their impact" the Court finds that the statute gives "fair notice to those to whom it is directed." See Grayned, 408 U.S. at 112, 92 S. Ct. 2294.
Additionally, since the statute provides for actual notice and a hearing before it is even triggered, there is arguably nothing to "steer clear of" at all, as even a person who unjustifiably pursues frivolous litigation is free to continue his activities until his opponent asks the court to intervene. Cal.Code Civ. Proc. § 391.1. Significantly, even then, the person cannot be declared a "vexatious litigant" until after the court has conducted a hearing and given the plaintiff the opportunity to be heard. Id.
Plaintiff's alternative argument, that the alleged "vagueness" of the statute enables judges to interpret the statute in an arbitrary and discriminatory manner, is also unpersuasive. Undisputedly, even outside of the Vexatious Litigant context, judges are regularly called upon to determine what constitutes a "final adverse determination," an "unmeritorious pleading," "frivolous tactics," or "unnecessary discovery." See, e.g., Cal.Code Civ. Proc. 128.5 ("Every trial court may order a party, the party's attorney, or both to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay."); see also Cal. Rule of Court 27(e) (permitting Court of Appeal to "impose sanctions, including the award or denial of costs, on a party or an attorney for (a) *1012 taking a frivolous appeal or appealing solely to cause delay; (b) including in the record any matter not reasonably material to the appeal's determination; or (c) committing any other unreasonable violation of these rules."). The fact that a judge performs this function is one of the most fundamental underpinnings of the judicial system. See, e.g., Ellis v. Roshei Corp., 143 Cal. App. 3d 642, 648, 192 Cal. Rptr. 57 (1983) ("A trial court is empowered to exercise its supervisory power in such a manner as to provide for the orderly conduct of the court's business and to `guard against inept procedures and unnecessary indulgences which would tend to hinder, hamper or delay the conduct and dispatch of its proceedings.'"). Thus, Plaintiff's argument that "a judge can [not] come up with applicable definitions for such terms" is wholly without merit. The case law makes clear that California state court judges are, in fact, consistently and fairly construing the statute. See, e.g., Childs v. PaineWebber Inc., 29 Cal. App. 4th 982, 992, 35 Cal. Rptr. 2d 93 (1994).
Plaintiff's position is also based entirely on the faulty premise that "in a CCP 391 proceeding a First Amendment right is at stake." Again, by definition, a "CCP 391 proceeding" involves only litigation where the plaintiff cannot demonstrate that he has any reasonable likelihood of prevailing. Such frivolous litigation is not protected by the First Amendment.
Finally, Plaintiff's concern that litigants are often required to post securities of varying amounts, or subjected to prefiling orders with varying standards, does not compel the conclusion that judges are enforcing the statute in an arbitrary or discriminatory manner. If anything, it suggests that state court judges are appropriately deciding each matter on a case-by-case basis, after giving careful consideration to the particular facts of the situation. This supports a finding of constitutionality. Grayned, 408 U.S. at 119, 92 S. Ct. 2294 ("[the] decision is made, as it should be, on an individualized basis, given the particular fact situation."). Accordingly, the Court finds that the Vexatious Litigant Statute is not unconstitutionally vague.
3. Overbreadth.
Plaintiff's argument that the Vexatious Litigant Statute is unconstitutionally overbroad is also flawed. Although "[a] clear and precise enactment may nevertheless be `overbroad' if in its reach it prohibits constitutionally protected conduct," there is simply no basis to conclude that the Vexatious Litigant Statute "sweeps within its prohibitions" constitutionally protected activities. Grayned, 408 U.S. at 115, 92 S. Ct. 2294.
First, as set forth above, the Vexatious Litigant Statute is not a prohibitive ban on the general right to petition for bona fide grievances. In fact, the Vexatious Litigant Statute does not prohibit the filing of meritorious litigation or special proceedings, such as the filing of a habeas corpus petition. See, e.g., In re Bittaker, 55 Cal. App. 4th 1004, 1011-12, 64 Cal. Rptr. 2d 679 (1997) (holding that a petition for writ of habeas corpus is not a civil action or proceedings within the meaning of the Vexatious Litigant Statute). Second, the purpose of the Vexatious Litigant Statute is undeniably significant and legitimate. Specifically, the purpose of the statute is to protect courts from "the unreasonable burden placed upon [them] by groundless litigation [which] prevents the speedy consideration of proper litigation and [consumes] tremendous time and effort." First Western Dev. Corp. v. Superior Court, 212 Cal. App. 3d 860, 870, 261 Cal. Rptr. 116 (1989). The Vexatious Litigant also protects the general public, as well, because "[t]he constant suer... becomes *1013 a serious problem to others than the defendant he dogs ... [b]y clogging court calendars, he causes real detriment to those who have legitimate controversies to be determined and to the taxpayers who must provide the courts." Taliaferro v. Hoogs, 237 Cal. App. 2d 73, 74, 46 Cal. Rptr. 643 (1965).
Although Plaintiff does not dispute that the inherent purpose of the Vexatious Litigant Statute is important and legitimate, he argues that the statute must be overturned because there are "many [other] ways of dealing with nuisance litigants that are less drastic than imposing affordable monetary barriers or blacklisting them." However, this argument is entirely insufficient to support an overbreadth challenge to the constitutionality of a statute that (1) serves a substantial and legitimate purpose, and (2) is not aimed at, and does not encompass, constitutionally protected speech or activities. See Virginia v. Hicks, 539 U.S. 113, 118, 123 S. Ct. 2191, 156 L. Ed. 2d 148 (2003) ("[T]here comes a point at which ... [one] cannot justify prohibiting ... enforcement of ... a law that reflects `legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.'"). Since the Vexatious Litigant Statute is specifically aimed at controlling constitutionally unprotected conduct, the "legitimate state interest" standard mandates that the Court uphold its validity.
Even assuming that the statute does affect constitutionally protected speech, however, Plaintiff has not shown that the statute is unconstitutionally "overbroad." A statute affecting constitutionally protected speech is not overbroad if it is narrowly tailored and does not prohibit substantially more protected speech or conduct than necessary. Ironically, here, the very purpose of the notice and hearing requirement of the statute, as well as the "prefiling order" process set forth in the statute, is to ensure that constitutionally protected activities (i.e. the filing of meritorious claims) are not prohibited in any way. Thus, like the ordinance scrutinized and ultimately upheld by the Supreme Court in Grayned, the Vexatious Litigant Statute is constitutional because it is narrowly tailored to further the compelling interest in having a legal system that is not needlessly disrupted by baseless and frivolous litigation. Grayned, 408 U.S. at 121, 92 S. Ct. 2294 ("Far from having an impermissibly broad prophylactic ordinance, ... [the statute] punishes only conduct which disrupts or is about to disrupt normal ... activities."); see also Cox v. State of Louisiana, 379 U.S. 559, 562, 85 S. Ct. 476, 13 L. Ed. 2d 487 (1965) ("Since we are committed to a government of laws and not of men, it is of the utmost importance that the administration of justice be absolutely fair and orderly. This Court has recognized that the unhindered and untrammeled functioning of our courts is part of the very foundation of our constitutional democracy."). As such, Plaintiff's overbreadth challenge fails.
4. Constitutionality under the Fourteenth Amendment.
a. Procedural Due Process.
Next, Plaintiff argues that the Vexatious Litigant Statute violates the fundamental precepts of due process of fair treatment, fair play, decency, and justice guaranteed by the Fourteenth Amendment. It should be noted that this same argument was previously considered by the California Court of Appeals in Wolfgram and ultimately rejected. See Wolfgram, 53 Cal.App.4th at 60, 61 Cal. Rptr. 2d 694.
The Supreme Court has established that due process "requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to *1014 settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard." Boddie v. Connecticut, 401 U.S. 371, 377, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971). Here, the Vexatious Litigant Statute fulfills the requirements set forth in Boddie because (1) the state's interest in controlling the unfettered abuse of the legal system overrides a litigant's personal interest in filing frivolous pleadings, and (2) the statute provides a litigant with an ample and meaningful opportunity to be heard. In fact, it is beyond dispute that the Vexatious Litigant Statute explicitly provides for notice and opportunity to be heard before the plaintiff is subjected to any adverse effects of the statute. Moreover, even when a prefiling order has been entered, there is never a "blanket" prohibition on further filings; a plaintiff deemed to be a vexatious litigant may always file a new action so long as the presiding judge determines that the litigation has merit and has not been filed for the purpose of harassment or delay. Cal.Code Civ. Proc. § 391.7(b). Such determinations are appropriately made on a case-by-case basis. Id. If the plaintiff believes that he has been wrongly denied of the opportunity to pursue meritorious litigation, relief by way of mandamus is immediately available to challenge the presiding judge's abuse of discretion. Cal.Code Civ. Proc. § 1085.
b. Substantive Due Process and the Equal Protection Clause of the Fourteenth Amendment.
Plaintiff also argues that the Vexatious Litigant Statute violates the due process and equal protection clauses of the Fourteenth Amendment because it unfairly discriminates against pro se litigants in that it (1) imposes a financial barrier to the pro se litigant's "right to sue," and (2) creates a disparity between how pro se litigants and represented parties are treated by the courts. These arguments, however, are insufficient to invalidate the statute under the Fourteenth Amendment.
First, the fact that the vexatious litigant may be required to pay a "security" does not violate the Fourteenth Amendment since this so-called "financial barrier" only serves to bar frivolous litigation, which is not protected by the Constitution. See California Code of Civil Procedure § 391.3 (stating that the Court may only order the payment of a security once the court has determined, "after hearing the evidence upon the motion, ... that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant.") (emphasis added); see also Cal.Code Civ. Proc. § 391(c) (the amount of the security is limited to the opposing party's "reasonable expenses... incurred in or in connection with a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant.") (emphasis added).
Relying primarily on the Supreme Court's holding in Boddie, and the District of Columbia Court of Appeals's holding in In re Green, 669 F.2d 779, 785 (D.C.Cir.1981), Plaintiff essentially seeks to have this Court hold that the imposition of any cost associated with civil litigation is unconstitutional.[6] This is not, however, what the Fourteenth Amendment requires, and Plaintiff's reliance on Boddie and Green is utterly misplaced. In fact, in Green, the *1015 District of Columbia Court of Appeals expressly acknowledged that the "right of access to the courts ... is neither absolute or unconditional." In re Green, 669 F.2d at 785. Further, in United States v. Kras, 409 U.S. 434, 446, 93 S. Ct. 631, 34 L. Ed. 2d 626 (1973), the Supreme Court declined to follow this particular holding in Boddie after noting that Boddie's holding was limited to cases involving a state's regulation of a fundamental right, such as marriage. Id. at 446, 93 S. Ct. 631 ("We are... of the opinion that the [bankruptcy] filing fee requirement does not deny [the litigant of] the equal protection of the laws."). Thus, under Kras, in cases where a fundamental right is not implicated, a statute will be upheld if there is a rational justification for it. Id.; see also Ortwein v. Schwab, 410 U.S. 656, 656, 93 S. Ct. 1172, 35 L. Ed. 2d 572 (1973) (upholding validity of appellate filing fee applied to indigents seeking to appeal an adverse welfare decision).
Plaintiff's alternative argument that the Vexatious Litigant Statute unfairly disadvantages pro se litigants is also fundamentally flawed. While Plaintiff may subjectively believe that the statute is a "weapon" hurled against unsuspecting persons who are "unskilled at law," it has long been recognized that the Vexatious Litigant Statute was enacted for the purpose of protecting defendants from overly litigious, vexing, and harassing plaintiffs and protecting the courts from having to expend countless hours dealing with meritless litigation. This is clear not only from the history of the statute but also from the very terms of the statute itself. See, e.g., First Western Dev. Corp. v. Superior Court, 212 Cal. App. 3d 860, 870, 261 Cal. Rptr. 116 (1989) ("The vexatious litigant statutes were enacted to require a person found a vexatious litigant to put up security for the reasonable expenses of a defendant who becomes the target of one of these obsessive and persistent litigants whose conduct can cause serious financial results to the unfortunate object of his attack.")
Additionally, the Vexatious Litigant Statute does not, as Plaintiff's contends, subject pro se litigants to undue burdens that are not equally borne by attorneys and represented parties. Indeed, the Vexatious Litigant Statute is not unique; the California Code of Civil Procedure contains other similar measures intended to control the filing of frivolous litigation. See, e.g., Cal.Code Civ. Proc. § 128.5 (providing for the imposition of sanctions against an attorney or party who litigates in bad faith); Cal.Code of Civ. Proc. § 907 (allowing a Court of Appeals to impose costs on an attorney or party who pursues a frivolous appeal); Cal Code Civ. Proc. § 128.7 (providing for the imposition of sanctions against an attorney who submits papers to the court for the sole purpose of harassing the opposing party or causing delay).
Attorneys are also subject to California Business and Professions Code § 6068, which provides, inter alia, that an attorney must: (1) support the Constitution and laws of the United States and California, (2) maintain the respect due to the courts of justice and judicial officers, (3) counsel or maintain only actions, proceedings, or defenses that appear to him or her legal or just; (4) employ means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law; and (5) not encourage either the commencement or the continuance of an action or proceeding for a corrupt motive of passion or interest. Cal. B & P Code § 6068. Additionally, an attorney's conduct is regulated by the State Bar of California and California's Rules of Professional Responsibility. See Cal. B & P Code § 6068.7 (providing that a court must notify the *1016 State Bar when sanctions in excess of $1,000 are imposed.)
Although Plaintiff attempts to distinguish the Vexatious Litigant Statute by noting that lawyers are not subject to a rule that "disciplines" them for "losing five lawsuits in seven years," Plaintiff conveniently overlooks the fact that a pro se litigant's prior litigation record only becomes relevant when that litigant attempts to pursue a sixth litigation that has no reasonable probability of success. This distinction is significant and Plaintiff's failure to even acknowledge it makes his argument unpersuasive.
Further, in evaluating Plaintiff's argument, the Ninth Circuit's analysis in Rodriguez is instructive. In Rodriguez, the Ninth Circuit considered a Fifth Amendment challenge to 28 U.S.C. § 1915(g) (commonly referred to as the "three-strike rule").[7]Rodriguez, 169 F.3d at 1179. In upholding the three-strike rule, the Ninth Circuit noted that "requiring prisoners to make the same financial decisions as non-prisoners before filing a cause of action does not violate equal protection." Id. The court also stated that "[a]lthough prisoners are entitled to meaningful access to the courts, courts are not obliged to be a playground where prisoners with nothing better to do continuously file frivolous claims. Only after demonstrating an inability to function within the judicial system is an indigent inmate asked to pay for access to the courts." Id. at 1180. Accordingly, the Ninth Circuit concluded that § 1915(g) permissibly "precludes prisoners with a history of abusing the legal system from continuing to abuse it while enjoying IFP status." Id. Thus, under the holding of Rodriguez, neither the security provision of the Vexatious Litigant Statute nor its analogous "six-strike rule" can be considered unconstitutional.
Accordingly, the Court hereby finds that the Vexatious Litigant Statute does not violate the due process or equal protection clause of the Fourteenth Amendment.
5. Double Jeopardy Clause of the Fifth Amendment.
Plaintiff also argues that the Vexatious Litigant Statute violates the double jeopardy clause of the Fifth Amendment. While the double jeopardy clause may be enforced against the states due to its incorporation into the due process clause of the Fourteenth Amendment, see Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), the double jeopardy clause simply does not apply to the Vexatious Litigant Statute.
Specifically, the double jeopardy clause serves to prohibit multiple punishments for criminal conduct. See Abbate v. United States, 359 U.S. 187, 198-99, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959) ("The basis of the Fifth Amendment protection against double jeopardy is that a person shall not be harassed by successive trials; that an accused shall not have to marshal the resources and energies necessary for his defense more than once for the same alleged criminal acts.") (emphasis added). Although the cases upon which Plaintiff relies namely United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989) and United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir. *1017 1994) discuss the fact that a civil fine may be considered "punitive," significantly, both cases involved a predicate criminal offense. See Halper, 490 U.S. at 437, 109 S. Ct. 1892 (defendant initially charged under criminal false claims act statute); see also $405,089.23 U.S. Currency, 33 F.3d at 1213 (defendants initially charged with conspiracy and money laundering arising out of large-scale methamphetamine manufacturing operation). Further, the holding in Halper was later abrogated by the Supreme Court in Hudson v. United States, 522 U.S. 93, 98-99, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997) (holding that the double jeopardy clause "protects only against the imposition of multiple criminal punishments for the same offense."). Thus, the fact that Plaintiff subjectively feels that the Vexatious Litigant Statute operates as a "punishment" is irrelevant. The relevant inquiry under the Fifth Amendment is whether the statute serves as a second punishment for a criminal offense, which it clearly does not. Indeed, in order to reach this conclusion, the Court would have to first accept the utterly preposterous premise that the pursuit of frivolous litigation is criminal conduct. Accordingly, the Court finds that Plaintiff has failed to state a claim under the double jeopardy clause of the Fifth Amendment.
6. Excessive Fines Clause of the Eighth Amendment.
Plaintiff's argument that the Vexatious Litigant Statute violates the excessive fines clause of the Eighth Amendment is equally without merit. Plaintiff's specific contention is that the Vexatious Litigant Statute violates the excessive fines clause of the Eighth Amendment because it punishes, as wells as deters, use of the courts. However, like Plaintiff's double jeopardy clause allegation, Plaintiff's excessive fines clause claim relies entirely upon the assumption that the Vexatious Litigant Statute is somehow related to criminal conduct. This assumption is unjustified under the applicable case law.
The Eighth Amendment reads in its entirety: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Const. Amend. VIII. The Supreme Court has long understood the Eighth Amendment to apply primarily, and perhaps exclusively, to criminal prosecutions and punishments. Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 262, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989); see, e.g., Fong Yue Ting v. United States, 149 U.S. 698, 730, 13 S. Ct. 1016, 37 L. Ed. 905 (1893) (stating that Eighth Amendment is inapplicable to deportation because deportation is not punishment for a crime). "Bail, fines, and punishment traditionally have been associated with the criminal process, and by subjecting the three to parallel limitations the text of the Amendment suggests an intention to limit the power of those entrusted with the criminal-law function of government." Browning-Ferris, 492 U.S. at 263, 109 S. Ct. 2909 (quoting Ingraham v. Wright, 430 U.S. 651, 664-668, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977)).
Although the Supreme Court has held that the Eighth Amendment excessive fines clause extends to civil forfeiture proceedings, see Alexander v. United States, 509 U.S. 544, 559-59, 113 S. Ct. 2766, 125 L. Ed. 2d 441 (1993), Plaintiff's attempt to equate the "security" provision of the Vexatious Litigant Statute with a "civil forfeiture" is wholly without merit. Notably, there are significant differences between a "civil forfeiture" and a "security" which Plaintiff overlooks. First, a civil forfeiture proceeding necessarily relates to prior criminal conduct. See, e.g., United States v. Premises Known as RR# 1, 14 F.3d 864, 869 (3d Cir.1994) ("The Government bears the initial burden of proof in attaching property for trial in civil forfeiture *1018 cases and to do so it must establish some connection between the alleged criminal activity and the ... property the Government seeks to forfeit."); see also United States v. Certain Real Property and Premises, 954 F.2d 29, 33 (2nd Cir.1992) (stating that 21 U.S.C. § 881(a)(7) provides for the forfeiture of real property which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of a violation of the narcotics laws). Second, in a civil forfeiture proceeding, the Government is the entity who retains the money or property. In contrast, under the Vexatious Litigant Statute, the "security" is provided for the exclusive benefit of the opposing party. See Cal.Code Civ. Proc. § 391(c) (defining a security as "an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party's reasonable expenses.") (emphasis added). These distinctions are important, as they are critical features that bring a civil forfeiture within the ambit of the Eighth Amendment. See Browning-Ferris, 492 U.S. at 265, 109 S. Ct. 2909 ("[W]e think it significant that at the time of the drafting and ratification of the Amendment, the word "fine" was understood to mean a payment to a sovereign as punishment for some offense.").
Accordingly, there is no basis upon which this Court can conclude that the Vexatious Litigant Statute violates the excessive fines clause of the Eighth Amendment.
7. The Ex Post Facto Clause and the Bill of Attainder Clause.
Plaintiff's argument that the Vexatious Litigant Statute is an ex post facto law prohibited by the Article 1, Section 10 of the United States Constitution is also baseless. The Supreme Court has expressly held that the ex post facto clause is aimed at laws that "retroactively alter the definition of crimes or increase the punishment for criminal acts." California Dept. of Corrections v. Morales, 514 U.S. 499, 504, 115 S. Ct. 1597, 131 L. Ed. 2d 588 (1995) (emphasis added). For example, the ex post facto clause "is violated if a change in the law creates `a sufficient risk of increasing the measure of punishment attached to the covered crime.'" Himes v. Thompson, 336 F.3d 848, 855 (9th Cir.2003) (quoting California Dep't of Corr. v. Morales, 514 U.S. 499, 115 S. Ct. 1597, 131 L. Ed. 2d 588 (1995)). Since the Vexatious Litigant Statute does not involve penal legislation, the ex post facto clause is simply inapplicable to this case.[8]
Plaintiff has also not demonstrated that the Vexatious Litigant Statute is an unconstitutional "bill of attainder." A bill of attainder is "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 468, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977). As stated by the Supreme Court in Nixon, "Just as Article III confines the Judiciary to the task of adjudicating concrete `cases or controversies,' so too the Bill of Attainder Clause was found to `reflect... the Framers' belief that the Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons.'" Id. (quoting United States v. Brown, 381 U.S. 437, 445, 85 S. Ct. 1707, *1019 14 L. Ed. 2d 484 (1965)). Given that the inherent concern of the bill of attainder clause is the separation of powers doctrine, Plaintiff's attempt to define the Vexatious Litigant Statute as a "bill of attainder" is decidedly strained. However, even assuming, arguendo, that the Vexatious Litigant Statute falls within the ambit of the bill of attainder clause, Plaintiff still fails to demonstrate that it meets the criteria set forth by the Supreme Court in Selective Service System v. Minnesota Pub. Interest Research Group, 468 U.S. 841, 847, 104 S. Ct. 3348, 82 L. Ed. 2d 632 (1984).
In Selective Service System, the Supreme Court noted that, to constitute a bill of attainder, the statute must (1) specify the affected persons, and (2) inflict punishment (3) without a judicial trial. Id. Three inquiries determine whether a statute inflicts punishment on the specified individual or group:(1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes; and (3) whether the legislative record evinces a congressional intent to punish. Id. at 852, 104 S. Ct. 3348. Although Plaintiff vigorously argues that the Vexatious Litigant Statute is a "sadistic" statute that was enacted for the sole purpose of punishing pro se litigants, there is simply no credible support for this conclusion outside of Plaintiff's own speculative theories. As noted previously, it has been consistently recognized that the purpose of the statute was to protect courts and defendants from "the unreasonable burden placed upon [them] by groundless litigation." First Western Dev. Corp. v. Superior Court, 212 Cal. App. 3d 860, 870, 261 Cal. Rptr. 116 (1989). Since this purpose is decidedly legitimate and non-punitive, Plaintiff has not demonstrated that the Vexatious Litigant Statute is a "bill of attainder."
8. Supremacy Clause.
Last, Plaintiff argues that the Vexatious Litigant Statute conflicts with numerous federal laws thereby violating the Supremacy Clause of the United States Constitution. Specifically, he contends that the Vexatious Litigant Statute "conflicts with the right under Title 28 U.S.C. § 1654 to litigate in pro per and the right provided under Title 28 U.S.C. § 1915 ... to conduct a case without prepayment of fees or imposition of `security.'" Additionally, Plaintiff argues that the statute violates 42 U.S.C. § 1983.[9] All of these arguments lack merit.
First, there is no inherent conflict with 28 U.S.C. § 1654, which provides that "parties may plead and conduct their own cases personally" according to the rules of such courts. Id. Nor is there a conflict with 28 U.S.C. § 1915, which explicitly provides that a federal court may dismiss a case filed in forma pauperis if the court determines that the action or appeal is frivolous, malicious, or fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e). As to Plaintiff's § 1983 claim, as previously explained, supra, this is premised on his flawed assumption that a person has an absolute right to file litigation, regardless of its merits. There is no such right under the Constitution. See Bill Johnson's Restaurants, Inc., 461 U.S. at 743, 103 S. Ct. 2161 ("[B]aseless litigation is not immunized by the First Amendment right to petition."). Accordingly, *1020 Plaintiff has failed to state a claim under the Supremacy Clause.
9. Third Party Standing.
Although the Court has concluded that the Vexatious Litigant Statute is constitutional and that Defendants are entitled to judgment as a matter of law on the merits of Plaintiff's Complaint, the Court will briefly address Defendant's objection to Plaintiff's purported third-party standing.
As previously noted, supra, Plaintiff seeks declaratory judgment in this action on behalf of himself and on behalf of "all persons appearing or trying to appear in the Courts of California without benefit of representation by counsel." First Amended Complaint ("FAC") at 1:23-25. Defendants have conceded that Plaintiff has standing to pursue this action on behalf of himself. See Wolfe, 392 F.3d at 364 (finding that Plaintiff's prior state court actions are sufficient to establish that Plaintiff is threatened with actual harm from the future operation of the Vexatious Litigant Statute and therefore sufficient to establish standing). However, Defendants argue that Plaintiff does not have standing to assert constitutional rights on behalf of other persons.
"Article III of the Constitution limits the `judicial power' of the United States to the resolution of `cases' and `controversies.'" Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 471, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982) (citations omitted). Generally, there are three requirements for Article III standing: (1) injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendants, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). The party invoking federal jurisdiction bears the burden of establishing each of these elements. Id.
Courts typically employ a presumption against third-party standing. Singleton v. Wulff, 428 U.S. 106, 113-14, 96 S. Ct. 2868, 49 L. Ed. 2d 826 (1976). However, the presumption may be rebutted in circumstances where: (1) the litigant has suffered an injury in fact and has a close relation to the third party; and (2) where there is some hindrance to the third-party's ability to protect his or her own interests. See Powers v. Ohio, 499 U.S. 400, 411, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). Plaintiff argues that he meets both of these exceptions due to the unique nature and circumstances of this case.[10] The Court *1021 does not find Plaintiff's argument persuasive. First, Plaintiff's contention that "all persons appearing or trying to appear in the Courts of California without benefit of representation by counsel" are subjected to the Vexatious Litigant Statute results from a gross misreading of the Statute. As this Court has observed, supra, the terms of the Statute make it clear that it applies to only a limited class of persons; specifically, it applies only to those persons who have demonstrated a clear inability to pursue meritorious litigation or who have utterly failed to adroitly navigate the California court system. Accordingly, the class of persons that Plaintiff seeks to represent is unnecessarily overbroad and, therefore, Plaintiff has not demonstrated that he has a close relationship with such parties. Second, Plaintiff has not effectively demonstrated that there is any hindrance to the third parties' abilities to protect their own interests. To the contrary, as Defendants correctly note, a person determined to be a "vexatious litigant" can always challenge such determination through the appropriate appellate process. In fact, it appears that Plaintiff's belief that third parties are hindered in pursuing such litigation is premised solely on Plaintiff's subjective belief that other persons are not capable of "proceeding with the level of ability and competence that they now have with Wolfe effectively representing them." Pl's Supp. Reply to Def's Mot. at 12:8-10. This argument has no basis in law or fact. Further, because the Court has concluded that Plaintiff has not raised a cognizable claim under the First Amendment, the Supreme Court's holding in Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973) does not support Plaintiff's position. See id. (finding that the restriction on third-party standing is relaxed when the plaintiff is asserting a First Amendment claim). Accordingly, the Court sustains Defendants' objection to Plaintiff's assertion of standing on behalf of "all persons appearing or trying to appear in the Courts of California without benefit of representation by counsel."
CONCLUSION
IT IS HEREBY ORDERED THAT Plaintiff's Motion for Judgment on the Pleadings [Docket No. 264] is DENIED and Defendants' Cross-Motion for Judgment on the Pleadings [Docket No. 276] is GRANTED.
IT IS FURTHER ORDERED THAT Plaintiff's Request for Judicial Notice [Docket No. 285] is GRANTED IN PART AND DENIED IN PART.
IT IS SO ORDERED.
JUDGMENT
In accordance with the Court's Order denying Plaintiff's Motion for Judgment on the Pleadings and granting Defendants' Cross-Motion for Judgment on the Pleadings,
IT IS HEREBY ORDERED THAT final judgment is entered in favor of Defendants on all of Plaintiff's causes of action. All matters calendared in this action are VACATED. The Clerk shall close the file and terminate any pending matters.
IT IS SO ORDERED.
NOTES
[1] A "security" is defined in the statute as an "undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party's reasonable expenses, including attorney's fees and not limited to taxable costs, incurred in or in connection with a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant." Cal.Code Civ. Proc. § 391(c).
[2] Plaintiff actually contends that the statute is unconstitutional "on its face" and "as applied." However, Plaintiff has not produced any admissible evidence demonstrating that the statute is unconstitutional as "applied" to himself or others. Instead, he relies on vague references to certain "facts" that are clearly outside of his own personal knowledge and "documents" that have not been produced to the Court. See, e.g., Pl's Mot. at 19. Plaintiff has therefore failed on his burden of proof with respect to his "as applied" constitutional challenge and, accordingly, only his facial challenge is discussed below.
[3] Since Plaintiff is challenging a state statute, his due process cause of action is most appropriately characterized as claim brought under the Fourteenth Amendment, not the Fifth Amendment. Thus, hereafter, discussion of Plaintiff's due process claim will refer exclusively to the Fourteenth Amendment. It should be noted, however, that the due process analysis is the same under both the Fourteenth and Fifth Amendment. See Rodriguez v. Cook, 169 F.3d 1176, 1179 n. 4 (9th Cir.1999).
[4] Although it is not clear from the parties' briefing, both parties conceded at the June 28, 2005 hearing that, pursuant to the Ninth Circuit's ruling in Wolfe, Plaintiff's personal standing has been established and is no longer challenged by Defendants. See Wolfe, 392 F.3d at 364 ("We construe Wolfe's references to the prior judicial actions ... as ... part of his demonstration that he is sufficiently threatened with actual harm from the future operation of the Vexatious Litigant Statute that he has standing to bring the present suit.").
[5] The First Amendment is "incorporated" against the states by virtue of the Fourteenth Amendment. Hague v. C.I.O., 307 U.S. 496, 512-13, 59 S. Ct. 954, 83 L. Ed. 1423 (1939).
[6] Plaintiff also relies on Roberts v. LaVallee, 389 U.S. 40, 42, 88 S. Ct. 194, 19 L. Ed. 2d 41 (1967) and Bounds v. Smith, 430 U.S. 817, 825, 97 S. Ct. 1491, 52 L. Ed. 2d 72. However, these cases involve a prisoner's right of access to the courts, which is not applicable in this context. The Vexatious Litigant Statute does not apply to criminal proceedings, see Cal.Code of Civ. Proc. 391(a), or to petitions for writ of habeas corpus, see In re Bittaker, 55 Cal.App.4th at 1011-12, 64 Cal. Rptr. 2d 679.
[7] The three-strike rule provides that "[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding ... [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).
[8] Further, as Defendants correctly note, Plaintiff's reliance on Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1944), and Ralis v. RFE/RL, Inc., 770 F.2d 1121 (D.C.Cir.1985), is misplaced. Both Landgraf and Ralis concern "retroactive" statutory enactments. Landgraf, 511 U.S. at 266-67, 114 S. Ct. 1483; Ralis, 770 F.2d at 1123-24. That is not an issue here.
[9] Plaintiff also argues that the Vexatious Litigant Statute improperly "enables a state court to prohibit and punish a pro se litigant for failing to prevail in five litigations in a federal court under federal standards." However, he fails to articulate how this violates the Supremacy Clause.
[10] Plaintiff has also filed a Request for Judicial Notice [Docket No. 285] asking the Court to take judicial notice of the following documents: (1) a June 30, 1999 copy of the Vexatious Litigant List, (2) an incomplete excerpt from a December 15, 2004 article of the Daily Journal regarding Plaintiff; (3) a copy of the Prefiling Order form used by the California courts; and (4) an April 29, 2005 copy of the Vexatious Litigant List. Plaintiff does not clearly explain why he wants the Court to take judicial notice of these documents. However, it appears to the Court that some of these documents are tangentially related to Plaintiff's third-part standing argument. Accordingly, Plaintiff's Request for Judicial Notice is GRANTED IN PART AND DENIED IN PART. The Court hereby takes judicial notice of the June 30, 1999 copy of the Vexatious Litigant List, the December 15, 2004 Daily Journal article, and the April 29, 2005 copy of the Vexatious Litigant List for the limited purpose of determining whether Plaintiff has third-party standing.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2441006/
|
965 N.E.2d 730 (2012)
Kristine A. and Larry G. DAWSON, Appellants,
v.
FIFTH THIRD BANK, Appellee.
No. 49A02-1107-PL-704.
Court of Appeals of Indiana.
March 30, 2012.
*731 Clifford T. Rubenstein, Maurer Rifkin & Hill, P.C., Carmel, IN, Attorney for Appellants.
Jason A. Mosbaugh, Weltman Weinberg & Reis Co., L.P.A., Cincinnati, OH, Attorney for Appellee.
OPINION
DARDEN, Judge.
STATEMENT OF THE CASE
Kristine A. Dawson and Larry G. Dawson (collectively "the Dawsons") appeal the trial court's order denying the Dawsons' motion for summary judgment and granting Fifth Third Bank's cross-motion for summary judgment.
We affirm.
ISSUE
Whether the trial court erred by granting summary judgment to Fifth Third and by denying the Dawsons' motion for summary judgment.
FACTS
This case arose after the Dawsons responded to a posting on Craigslist and purchased a Harley Davidson motorcycle *732 ("the Motorcycle") from Jacob Magish. Although Magish gave the Dawsons a certificate of title that showed it was free of any lienholders, the Dawsons later learned that Magish had fraudulently obtained this apparent "clean" certificate of title and that the most current certificate of title issued by and on file with the Indiana Bureau of Motor Vehicles ("BMV") listed Fifth Third as a lienholder on the Motorcycle.
The Dawsons subsequently filed a complaint against Fifth Third, arguing that Fifth Third's lien against the Motorcycle should be unenforceable because, under a theory of equitable estoppel, Fifth Third should bear the loss of Magish's fraud on the Dawsons because Fifth Third's acts and omissions made the loss possible. Fifth Third filed a counterclaim, seeking replevin of the Motorcycle.
Thereafter the parties filed cross-motions for summary judgment and stipulated to the following facts:
1) In May 2006, Jacob J. Magish ("Magish") agreed to purchase a certain 2001 Harley-Davidson motorcycle, VIN 1HD1FCW151Y633745 ("Motorcycle"), from Christine and Larry Logsdon ("Logsdons") for $14,635.
2) Also on May 31, 2006, at a Fifth Third branch in Indianapolis, Magish executed a Simple Interest Note and Security Agreement in favor of Fifth Third in order to borrow $15,000 ("Transaction"). The Security Agreement granted Fifth Third a security interest in the Motorcycle. . . .
3) On May 31, 2006 and as part of the Transaction, Magish presented to Fifth Third the Logsdons' original Certificate of Title ("Logsdon Original Title"). . . .
4) On May 31, 2006 and as part of the Transaction, Magish executed, amongst other documents, an Application for Certificate of Title ("May 31 Application") and a Power of Attorney ("Magish File POA"). . . .
5) Pursuant to Fifth Third's procedure at that time, Fifth Third's Closing Representative John Wargel ("Wargel") copied the Logsdon Original Title and then gave the Logsdon Original Title back to Magish and instructed Magish to apply for a new title at the Bureau of Motor Vehicles ("BMV"). Wargel kept the May 31 Application and the Magish File POA in the loan file.
6) Shortly after the Transaction, Magish, using deception, approached the Logsdons and requested that they sign paperwork to obtain a duplicate title. The Logsdons, who had no knowledge that Magish had financed the purchase of the Motorcycle through Fifth Third, unwittingly signed an application to obtain a duplicate title and gave the application to Magish.
7) On or about June 8, 2006, Magish obtained a Duplicate Title from the BMV in the name of the Logsdons ("Logsdon Duplicate Title"). The Logsdons signed the Logsdon Duplicate Title as Sellers. The Logsdon Duplicate Title inactivated the Logsdon Original Title in the BMV records.
8) On or about June 20, 2006, Magish, using the Logsdon Duplicate Title, submitted an application to the BMV for a new title in his name ("June 20 Application"). Magish intentionally omitted Fifth Third from the June 20 Application and did not list a lienholder. Magish concurrently tendered the Logsdon Duplicate *733 Title to the BMV and failed to notate Fifth Third as Lienholder in the Purchaser's Information section. . . .
9) On June 28, 2006, the BMV issued a new title in Magish's name ("First Magish Title"). There was no lien notated on the First Magish Title. The First Magish Title inactivated the Logsdon Duplicate Title in the BMV records. . . .
10) On or about October 16, 2006, Fifth Third[] used the Magish File POA and submitted an application for an amended title ("Fifth Third Application") to the BMV . . . Fifth Third did not have the Logsdon Original Title nor the First Magish Title in its possession and so did not tender to the BMV either with the Fifth Third application.
11) On October 18, 2006, the BMV issued a new title listing Magish as owner and Fifth Third as Lienholder ("Second Magish Title"). The Second Magish Title inactivated the First Magish Title in the BMV records. The whereabouts of the Second Magish Title are unknown and Fifth Third has no record of receiving it. The possible reasons for the missing Second Magish Title are: (1) it was mailed by the BMV but lost in the mail; (2) Fifth Third received it and lost it before making a record of receiving it; (3) the BMV printed the title but did not send it; or (4) the BMV sent it to Magish. The BMV's Title and Lien Record reflects the issuance of the Second Magish Title. . . .
12) In 2008, Magish defaulted under the terms of the Note by failing to make payments as they became due. On September 25, 2008, Fifth Third, by its undersigned counsel, filed a Complaint on Promissory Note and For Replevin under Marion Circuit Court Cause No. 49C01-0808-CC-043604 ("Replevin Case").
13) Magish appeared in the Replevin Case by attorney Steven Crell ("Attorney Crell") and filed a general denial Answer. On January 26, 2009, Fifth Third filed a Motion for Summary Judgment.
14) In response to the Motion for Summary Judgment, on February 24, 2009, Attorney Crell sent Fifth Third's counsel an email letter stating that the Motorcycle had been sold in South Carolina in 2007 after an accident and that, according to Magish, there was no lien on the title at the time the title was transferred ("Email Letter"). . . .
15) Based on the representations made in the Email Letter and without further investigation, Fifth Third and Magish entered into a monthly payment arrangement on the outstanding balance of the note and the Replevin Case was subsequently dismissed via Stipulation, without prejudice.
16) On June 18, 2009, Magish sold and delivered the Motorcycle to the Dawsons after posting an advertisement on Craigslist. The Dawsons paid Magish $13,050.00 for the Motorcycle.
17) At the sale, Magish provided the Dawsons with the First Magish Title. The Dawsons did not check the BMV records prior to the sale to verify the current status of the title to the Motorcycle.
18) After the sale, the Dawsons submitted an application for a new title to the Motorcycle to the BMV. The BMV advised the Dawsons that, according to the BMV records, the *734 title the Dawsons had was not the most current title. For privacy reasons the BMV would not tell the Dawsons exactly what the issue was, but said it was either there was a duplicate title or a lienholder on the title. After discussions with Magish and his wife, the Dawsons determined that Fifth Third was a lienholder. The BMV refused to issue a new title to the Motorcycle to the Dawsons.
19) The Dawsons called Magish (who at the time was terminally ill) and spoke with Magish'[s] wife who said that Magish would "take care" of the problem. Magish died on or about August 5, 2009. No estate was opened.
20) The Dawsons are still in possession of the Motorcycle.
21) The Dawsons filed the within Complaint to have Fifth Third's lien declared unenforceable so that they can get a clear title to the Motorcycle. Fifth Third has filed a Counterclaim for Replevin. Both parties assert a superior interest in the Motorcycle.
(App. 18-20). The parties also stipulated that the question of law before the trial court on summary judgment was the following: "Based on the facts set forth above, and as a result of the fraud of Magish in obtaining multiple titles to the Motorcycle, which party is entitled to possession and title of the Motorcycle, free and clear of all liens and encumbrances?" (App. 20).
The trial court held a hearing on the summary judgment motions on November 22, 2010.[1] The trial court ultimately denied the Dawsons' summary judgment motion, granted Fifth Third's summary judgment motion, awarded permanent possession of the Motorcycle to Fifth Third, and ordered that the Dawsons maintain possession of the Motorcycle pending their appeal.[2]
DECISION
The Dawsons argue that the trial court erred by granting Fifth Third's motion for summary judgment and by denying their motion for summary judgment. Specifically, the Dawsons argue that Fifth Third failed to satisfy all the elements of its counterclaim for replevin and that they are entitled to summary judgment on their claim of equitable estoppel.
The standard of review of a summary judgment is the same as that used in the trial court. Kopczynski v. Barger, 887 N.E.2d 928, 930 (Ind.2008). Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. "[T]he party seeking summary judgment has the initial burden of proving the absence of a genuine issue of material fact as to an outcome-determinative issue. Only then must the non-movant come forward with contrary evidence demonstrating the existence of genuine factual issues that should be resolved at trial." Kroger Co. v. Plonski, 930 N.E.2d 1, 9 (Ind.2010) (citing Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind.1994), reh'g denied). "A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where undisputed facts are capable *735 of supporting conflicting inferences on such an issue." Mahan v. Am. Standard Ins. Co., 862 N.E.2d 669, 675 (Ind.Ct. App.2007), trans. denied. Even if the facts are undisputed, as they are in this appeal, summary judgment is inappropriate where the record reveals an incorrect application of the law. Masten v. AMCO Ins. Co., 953 N.E.2d 566, 569 (Ind.Ct.App. 2011), trans. denied.
The fact that the parties filed cross-motions for summary judgment does not alter our standard of review. Pond v. McNellis, 845 N.E.2d 1043, 1053 (Ind.Ct. App.2006), trans. denied. We consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id.
We first review the trial court's grant of summary judgment to Fifth Third on its counterclaim for replevin. "A replevin action is a speedy statutory remedy designed to allow one to recover possession of property wrongfully held or detained as well as any damages incidental to the detention." United Farm Family Mut. Ins. Co. v. Michalski, 814 N.E.2d 1060, 1066 (Ind.Ct.App.2004). See also Ind.Code § 32-35-2-1 (providing that where property is wrongfully taken or unlawfully detained from the owner or person claiming possession of the property, the owner or claimant may bring an action for possession of the property). To recover in an action for replevin, a plaintiff must prove his title or right to possession; that the property is unlawfully detained; and that the defendant wrongfully holds possession. United Farm Family, 814 N.E.2d at 1067; Deere & Co. v. New Holland Rochester, Inc., 935 N.E.2d 267, 269 (Ind.Ct.App.2010).
The stipulated facts show that Fifth Third obtained a security interest in the Motorcycle in 2006 after Magish signed the Simple Interest Note and Security Agreement ("Security Agreement") and pledged the Motorcycle as collateral for his loan with Fifth Third. The stipulated facts also indicate that the most current certificate of title to the Motorcycle that was issued by and on file with the BMV reflects that security interest, and it indicates that Fifth Third is a lienholder on the Motorcycle. The Dawsons acknowledge that, pursuant to the terms of the Security Agreement, Fifth Third has a right to repossess the Motorcycle upon default by Magish, and the parties stipulated to the fact that Magish defaulted on the Security Agreement in 2008 when he failed to make payments to Fifth Third. The parties do not dispute that Fifth Third has not released its lien on the Motorcycle. At the time the Dawsons purchased the Motorcycle, they did not check with the BMV to verify that the certificate of title that Magish gave them was the most recent one; thus, they were unaware of Fifth Third's lien on the Motorcycle. However, after learning that Fifth Third was a lienholder on the Motorcycle, the Dawsons have not paid Fifth Third to release the lien but have retained possession of the Motorcycle.
"It is black letter law that, upon default, a secured creditor has the right to take possession of the collateral securing its claim and the rights set forth in the agreement with the defaulting party." Deere, 935 N.E.2d at 269 (citing Ind.Code §§ 26-1-9.1-601(a), 26-1-9.1-609(a)(1)).[3]*736 Therefore, when Magish defaulted on his loan, Fifth Third, as the secured party, had a right to take possession of the Motorcycle. See Ind.Code § 26-1-9.1-609(a); see also Allen v. First Nat. Bank of Monterey, 845 N.E.2d 1082, 1085 (Ind.Ct.App. 2006).
The Dawsons do not dispute the fact that Fifth Third had a right to possession of the Motorcycle based on its security interest and lien on the Motorcycle. Instead, they contend that their purchase, and resulting ownership, of the Motorcycle, precludes Fifth Third from being able to prove that the Dawsons wrongfully held possession of the Motorcycle. Fifth Third does not contest the Dawsons' ownership of the Motorcycle but contends that such ownership is subject to Fifth Third's lien, which upon Magish's default, entitles Fifth Third to replevin the Motorcycle. We agree with Fifth Third.
A security agreement is effective against purchasers of the collateral. See I.C. § 26-1-9.1-201; see also Deere, 935 N.E.2d at 269 (holding that a business that had a perfected security interest in farm equipment was entitled to replevin of equipment from third-party purchaser of the collateral equipment when debtor defaulted); Allen, 845 N.E.2d at 1085 (holding that the bank's perfected security interest in farm equipment was superior to the debtor's father who took over payments on the collateral equipment and that bank had right to possession of collateral upon default of the debtor).
The stipulated facts show that Magish pledged the Motorcycle as collateral for his loan with Fifth Third; that the certificate of title, which had been on file with the BMV since October 18, 2006 and was on file when the Dawsons purchased the Motorcycle on June 18, 2009, reflected Fifth Third as lienholder; that Magish defaulted on the loan; and that the lien has not been released. Despite subsequently learning of Fifth Third's lien and acknowledging its right to repossess the Motorcycle, the Dawsons have maintained possession of the Motorcycle. While the Dawsons had an interest in the Motorcycle as purchasers of the collateral, their interest was not superior to Fifth Third's perfected security interest[4] in the Motorcycle. *737 See Allen, 845 N.E.2d at 1085; see also Deere, 935 N.E.2d at 269. Accordingly, we conclude that the trial court did not err by concluding that Fifth Third, as lienholder of the Motorcycle, had a right to replevin of the Motorcycle from the Dawsons. Thus, we affirm the trial court's grant of summary judgment to Fifth Third on its counterclaim for replevin.
We next turn to the Dawsons' argument that the trial court erred by denying their summary judgment motion on their claim for equitable estoppel. The Dawsons argue that, despite Fifth Third's lien, they are entitled to own the Motorcycle free and clear of such lien based on equitable principles. Specifically, the Dawsons assert that the following equitable principles should apply: (1) when one of two innocent parties must suffer a loss, that loss must be borne by the party whose act or omission made the loss possible;[5] and (2) equity aids the vigilant, not those who slumber on their rights. In other words, the Dawsons contend that Fifth Third should bear the loss of the fraud Magish perpetrated on them because Fifth Third's acts or omissions allowed Magish to obtain a certificate of title that did not reflect Fifth Third's lien and thereafter allowed him to sell the Motorcycle to the Dawsons without their knowledge of Fifth Third's lien. In so arguing, the Dawsons list various things that they contend Fifth Third did or did not dosuch as returning the original certificate of title (or the Original Logsdon Title) to Magish so that he could apply for a certificate of title and failing in its duty to protect its own interests in the lienand argue that Fifth Third could have prevented the Dawsons' loss.
The Dawsons do not cite to any authority that Fifth Third was required to retain the Original Logsdon Title or that it was required to apply for the new certificate of title itself. Indeed, the statutes pertaining to procedure for obtaining certificates of title do not require a bank to apply for the certificate of title, and we have explained that "[o]ur law neither requires nor expressly authorizes one lending money on the security of a motor vehicle to take up and hold the certificate of title until the lien has been discharged." Community State Bank v. Crissinger, 120 Ind.App. 25, 29, 89 N.E.2d 78, 80 (1949).
Here, the stipulated facts reveal that on May 31, 2006, when Magish signed the security agreement with Fifth Third and pledged the Motorcycle as collateral, Fifth Third noted its lien on both the Original Logsdon Title and the application for the certificate of title and returned them to Magish so that he could get a new certificate of title, which he never did. Within four and one-half months, after apparently learning that Magish had not obtained a certificate of title that reflected its security interest, Fifth Third applied for an amended *738 certificate of title, and the BMV issued a new title that listed Fifth Third as a lienholder on the Motorcycle. Thus, Fifth Third took appropriate action to protect its lien as well as make others aware of the lien. See Flynn, 716 N.E.2d at 991 ("The requirement that vehicles be titled serves the purpose of protecting the owners of motor vehicles, persons holding liens thereon, and the public in transactions involving vehicles."). It is undisputed that Fifth Third never released its lien, and the Dawsons do not present any evidence or argue that it was required to do so.
Furthermore, contrary to the Dawsons' contention otherwise, the stipulated facts do not show that it was merely Fifth Third's acts that made the Dawsons' losswhich was their purchase of the Motorcycle without knowledge of Fifth Third's lienpossible. To be sure, when looking at the Dawsons' acts and omissions, we cannot say that the trial court erred by denying their summary judgment motion based on equitable estoppel. The record reveals that the Dawsons purchased the Motorcycle after seeing Magish's post on Craigslist, and there is no evidence presented that they knew Magish or had any previous dealings or interactions with him. Despite this apparent lack of familiarity with Magish, the Dawsons did not check the BMV to verify the status of the certificate of title that Magish presented to them. Indeed, there would have been little effort on their part to do so, and the record suggests that the Dawsons were in a better position to protect themselves from a loss. "As a general rule, we find that it is unreasonable to rely on the statements of third partiesor the debtorabout the current status of security interests." Deere, 935 N.E.2d at 270.
Given the stipulated facts presented in this case, we cannot say that the Dawsons have met their burden of proving that they were entitled to summary judgment. Aside from the fact that they have cited little to no caselaw to support their arguments, they have failed to show that Fifth Third's acts or omissions were responsible for their loss by purchasing the Motorcycle without knowledge of Fifth Third's lien to the extent that equity should be granted to them. Accordingly, we affirm the trial court's denial of the Dawsons' motion for summary judgment.[6]
Affirmed.
FRIEDLANDER, J., and VAIDIK, J., concur.
NOTES
[1] The record before us does not contain a transcript of the summary judgment hearing.
[2] The entry of a final judgment and the filing of the notice of appeal were delayed by some procedural irregularities that are not being challenged and are not at issue in this appeal.
[3] Indiana Code section 26-1-9.1-601(a) provides, in relevant part, that "[a]fter default, a secured party . . . may reduce a claim to judgment, foreclose, or otherwise enforce the claim, security interest . . . by any available judicial procedure[.]" Indiana Code section 26-1-9.1-609(a)(1) provides that "[a]fter default, a secured party . . . may take possession of the collateral."
[4] As part of their own motion for summary judgment, the Dawsons suggest that Fifth Third had not perfected its security interest. Specifically, the Dawsons contend that Fifth Third did not comply with Indiana Code section 9-17-2-4 because it failed to submit the previously issued certificate of title with its application for a new certificate of title. Indiana Code section 9-17-2-4 provides that if a certificate of title "has been previously issued for a vehicle in Indiana, an application for a certificate of title must be accompanied by the previously issued certificate of title, unless otherwise provided[.]" (Emphasis added). Indiana Code § 9-17-3-2 provides that a duplicate copy of a certificate of title may be obtained without submitting a previously issued title, such as when the certificate of title is lost. See I.C. § 9-17-3-2. The stipulated facts reveal that when Fifth Third applied for a new certificate of title that would correctly reflect it as the lienholder, it did not have the previously issued certificate of title. Thereafter, the BMV issued a new certificate of title, noting Fifth Third as a first lienholder. Because the certificate of title indicates that Fifth Third has a lien on the Motorcycle, Fifth Third has perfected its security interest. See 26-1-9.1-311(a) (explaining that the filing of a financing statement is not necessary to perfect a security interest in an automobile because the certificate of title statute covering automobiles "provides for a security interest to be indicated on a certificate of title as a condition or result of perfection"); see also Conseco Fin. Servicing Corp. v. Old Nat'l Bank, 754 N.E.2d 997, 1001 (Ind.Ct.App. 2001) (interpreting Indiana Code section 26-1-9.1-311(a)(2) and explaining that perfection occurs when the security interest is indicated on the certificate of title); Sterling v. Capital Fin. Servs., Inc., 480 N.E.2d 605, 606 (Ind.Ct. App. 1985) (suggesting that a security interest in a motor vehicle is perfected when a secured party is identified as a lienholder on a certificate of title submitted to the BMV), reh'g denied, trans. denied. Furthermore, Indiana Code § 26-1-9.1-311(b) provides that once a security interest in goods covered by a certificate of title is perfected, "a security interest so perfected remains perfected notwithstanding a change in the use or transfer of possession of the collateral." Finally, we reject the Dawsons' attempt to raise in this appeal, what is in essence, a challenge to the BMV's discretion to issue a certificate of title. See Flynn v. Ind. Bureau of Motor Vehicles, 716 N.E.2d 988, 992 (Ind.Ct.App. 1999) (explaining that a party may challenge the BMV's discretion to issue a certificate of title by seeking judicial review of an agency action), trans. denied.
[5] The Dawsons fail to cite to any caselaw discussing this equitable principle.
[6] The Dawsons also argue that, pursuant to the Indiana Uniform Fraudulent Transfer Act ("IUFTA"), Magish's sale of the Motorcycle to the Dawsons was not voidable. We need not review this claim because the IUFTA applies to creditors. See Ind.Code §§ 32-18-2 et seq.; see also Rice v. Com'r, Ind. Dep't. of Envtl. Mgmt., 782 N.E.2d 1000, 1005 (Ind.Ct.App. 2003) (explaining that a motion to set aside fraudulent conveyances pursuant to the IUFTA is equitable remedy available to "frustrated creditors").
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2441040/
|
944 S.W.2d 776 (1997)
T.H. ANDERSON, III, Individually and as Next Friend for Robert Anderson, Appellant,
v.
MARKET STREET DEVELOPERS, LTD. d/b/a West End Market Place and Montgomery Elevator Company, Appellees.
No. 11-96-060-CV.
Court of Appeals of Texas, Eastland.
May 1, 1997.
Rehearing Overruled June 5, 1997.
A.D. Clark, III, Law Office of A.D. Clark, III, Deborah J. Race, Ireland, Carroll & Kelley, P.C., Tyler, for Appellant.
Dennis L. Roossien, Jr., Michael R. Buchanan, Gregory Lane Allen, Alan Daughtry, Strasburger & Price, James A. Williams, Douglas R. Lewis, Bailey & Williams, Dallas, for Appellees.
Before ARNOT, C.J., DICKENSON, J., and McCLOUD, Senior Justice.[*]
*777 ARNOT, Chief Justice.
Robert Anderson, age 12, was injured while riding on an escalator at the West End Market Place. Robert alleges that his right leg was cut by a protruding screw. Robert was taken to the hospital. T.H. Anderson, III, Robert's father, brought suit, in an individual capacity and as his son's next friend, against Market Street Developers, Ltd., d/b/a West End Market Place, the operator of the shopping and restaurant area; its manager Paul Klooster; and Montgomery Elevator Company, which maintained the escalator, alleging various acts of negligence. Suit was filed in Smith County but was transferred to Dallas County, the site of the accident. Subsequently, the cause of action against Klooster was dismissed. The trial court entered summary judgment for the remaining defendants. Anderson appeals, complaining in two points of error that the trial court erred in transferring the case from Smith County, a county of proper venue, and in granting the summary judgment. We reverse and remand.
Venue
We will first address Anderson's second point of error. In his second point of error, Anderson claims that the trial court erred in transferring this case from Smith County, where the original action was filed, to Dallas County, the county in which the accident occurred.
In his original petition, Anderson pleaded that venue was proper in Smith County pursuant to TEX. CIV. PRAC. & REM. CODE ANN. § 15.036 (Vernon 1986) because the defendant, Montgomery Elevator Company, a Texas corporation, had an agency or representative in Smith County, the nearest county to plaintiff's county of residence. Anderson lived in Gregg County. In its answer and motion to transfer, Market Street Developers, Ltd., asserted that Montgomery Elevator was a Delaware corporation and that the applicable statute was TEX. CIV. PRAC. & REM. CODE ANN. § 15.037 (Vernon 1986). Montgomery Elevator, in its answer and motion to transfer, stated that the applicable statute was Section 15.037 but, interestingly, never asserted that it was a foreign corporation. Section 15.037 provides that a foreign corporation may be sued in any county in which the company may have an agency or representative. Regardless, the language under consideration, "agency or representative," is the same in both statutes.
Sections 15.036 and 15.037 provide that a suit against a corporation may be filed in any county in which the corporation may have an "agency" or "representative." TEX. CIV. PRAC. & REM. CODE ANN. § 15.064 (Vernon 1986) and TEX.R.CIV.P. 87 require this court to conduct an independent review of the entire record to determine whether venue was or was not proper in the ultimate county of suit. Ruiz v. Conoco, Inc., 868 S.W.2d 752 (Tex.1993).
In his response to the motion to transfer, Anderson filed an affidavit in which he stated:
I have investigated to find the nearest office, agent or representative of Montgomery Elevator Company to my county of residence. There are no offices, agents, or representatives in Gregg County, Texas. I have found an office, agent or representative of Montgomery Elevator Company at 1417 S SE Loop 323, Tyler, Texas 75201, Smith County, Texas. Smith County, Texas is the nearest county to Gregg County, Texas in which Montgomery Elevator Company has an office, agent, or representative.
At the hearing on the motion, it was represented that Montgomery Elevator had an office which had an answering machine and a telephone and that there were no employees there with broad discretion to act for the corporation. The court in Ruiz v. Conoco, Inc., supra at 759, determined that:
[V]enue against a corporation may be predicated upon the presence in a county of either an agencya more or less regular and permanent business operationor a representative with broad powers to act for the corporation.... The missing element in an ordinary employee, essential for both types of persons in the venue *778 statute, is possession of broad power and discretion to act for the corporation.
Anderson had the burden of proof on this issue. Wilson v. Texas Parks and Wildlife Department, 886 S.W.2d 259, 262 (Tex.1994). The venue facts do not show that Montgomery Elevator had any employees at its office which had broad powers to act for the corporation. See GeoChem Tech Corporation v. Verseckes, 929 S.W.2d 85 (Tex.App.Eastland 1996, writ pending); Atchison, Topeka and Santa Fe Railway Company v. Sanchez, 890 S.W.2d 793 (Tex.App.Eastland 1994, no writ). After considering the entire record, we find that venue was proper in Dallas County. Anderson's second point of error is overruled.
Summary Judgment
We will now address Anderson's first point of error in which he claims that the trial court erred in granting a summary judgment.
When reviewing a summary judgment, this court will adhere to the following standards:
(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 a judgment as a matter of law;
(2) In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and
(3) Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.
TEX.R.CIV.P. 166a; Goswami v. Metropolitan Savings and Loan Association, 751 S.W.2d 487, 491 (Tex.1988); Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex.1985); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979).
As summary judgment proof, Montgomery Elevator relies on the affidavits of Ted Marion Hayes, the repair superintendent for Montgomery Elevator; Klooster, the property manager of the West End Market Place; and Leila Amaya, a security guard, to establish that no screw was protruding from the aluminum molding on the base of the escalator when they examined it. Hayes stated that he had personally repaired the escalators at the West End Market Place. On March 28, 1992, the day before the accident, Hayes completed repairs on the escalator handrails, placed the escalator back in service, and did not observe any loose screws. Hayes stated that there was no protruding screw on the escalator and that it was operating properly the day before the accident. Klooster stated that security crews were required to conduct frequent and regular inspections of the escalators and report any problems to maintenance. Also, Klooster stated that each morning cleaning crews polished the aluminum on all of the escalators and were to report any problems. Klooster, in his affidavit, said that no problems were reported from these inspection procedures prior to the accident. In the portions of her deposition offered as summary judgment proof, Amaya testified that she had ridden the escalator about five times each hour on the day of the accident and had not observed the loose screw.
Montgomery Elevator asserts that it has established that there was no genuine issue of material fact concerning its alleged acts of negligence because its expert, Hayes, by his affidavit, clearly established that no act or omission on appellees' part breached any duty owed to plaintiff. We disagree.
First, a movant's right to summary judgment can be proved solely on the uncontroverted testimony of an expert witness if the subject matter is such that a trier of fact would be "guided solely by the opinion of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted." Rule 166a(c). Malone v. Hendrick Medical Center, 846 S.W.2d 951, 953 (Tex.App.Eastland 1993, writ den'd). Hayes stated that he had completed the National Elevator instructional program which trains persons in the industry in the proper maintenance and repair of escalators and that he had taken a mechanic's examination. Consequently, Hayes stated that he was a certified route mechanic on escalators. Hayes' expert opinion was that all repairs to this escalator were done in a *779 good and workmanlike manner and that Montgomery Elevator was not negligent.
Montgomery Elevator relies on Duncan v. Horning, 587 S.W.2d 471 (Tex.Civ. App.Dallas 1979, no writ), for the proposition that mere conclusions of lay witnesses are not competent evidence and cannot be considered for the purpose of controverting expert evidence. We do not disagree with this proposition subject to the exception as set out and discussed in Malone. However, Duncan is not applicable. First, this is not a fact issue, unlike the medical opinion given in Duncan, that can only be established by an expert. This is not a design defect. The risk of injury from a protruding screw next to a moving conveyer belt is something that is within the common knowledge of laymen. Second, Hayes' opinion that Montgomery Elevator was not negligent is not evidence from an interested witness that could have been readily controverted.
Montgomery Elevator asserts that Anderson offered no evidence to controvert its summary judgment evidence of Klooster and Amaya that there were no problems with the escalator before the accident and that they were not put on notice of any problem with the escalator prior to this occurrence. However, it is movant's responsibility to disprove, as a matter of law, one or more of the elements essential to plaintiffs' claim. Delgado v. Burns, 656 S.W.2d 428 (Tex.1983). While it may be prudent for the non-movant to file a controverting affidavit, the non-movant must present summary judgment proof to establish a fact issue only if the movant establishes its entitlement to judgment as a matter of law. See City of Houston v. Clear Creek Basin Authority, supra.
Moreover, the summary judgment evidence in this case raises a material fact issue. In her deposition, Amaya stated that she was contacted by Able Lira, a maintenance person, that the boy had been injured. After calling an ambulance, Amaya and Lira inspected the escalator. In her deposition, Amaya said:
Q: Do you have any knowledge as to what causedhow the boy was injured? What he was injured on specifically on the escalator?
A: We found a screw on the escalator.
Q: Who is "we"?
A: Able, he went and checked for the screw. It was on the side railing. The aluminum part at the bottom where we were talking about.
Q: Now, just to be clear, at the bottom of the aluminum or at the bottom of the escalator, if you know?
A: It was on the aluminum where it mends together, a screw that was sticking out about an inch.
Q: Well, let me ask you: Did you actually see the screw sticking out before it was removed?
A: No. Able removed it before I saw it.
Q: So you don't have any personal knowledge as to how far it was sticking out?
A: No. He just showed me it was sticking out about that far and that was it.
Also attached to Montgomery Elevator's motion for summary judgment was an incident report signed by an Officer Garcia which stated that the boy suffered a cut about five inches long and one inch deep to his right calf muscle. Garcia stated that Able applied direct pressure to the wound until the ambulance arrived. Anderson received an objective injury: a laceration. Amaya's deposition and the incident report created a fact question as to whether there was a protruding screw.
In its motion for summary judgment, West End Market Place argues that, under the live pleadings at the time of the hearing on summary judgment, Anderson urged only causes of actions for premise liability against it.[1]*780 Consequently, West End Market Place argues that the summary judgment evidence conclusively negated any finding of actual or constructive knowledge of the screw allegedly protruding from the escalator. See Keetch v. Kroger Company, 845 S.W.2d 262 (Tex. 1992). We disagree.
Klooster's affidavit revealed that no problem was reported the day before. Amaya's deposition revealed that she did not notice the protruding screw. However, as previously detailed, Amaya testified that a maintenance person for West End Market Place found and removed a protruding screw. There is a material question of fact as to whether West End Market Place had actual or constructive knowledge of the screw. See Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1 (Tex.1996).
Anderson's first point of error is sustained. We reverse the judgment of the trial court and remand this case for trial.
NOTES
[*] Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.
[1] At oral argument, the question arose as to whether an ordinary degree of care or a high degree of care should be imposed on the premise owner operating an escalator. In their supplemental brief, Anderson argues that one responsible for the operating of elevators and escalators owes a high degree of care to invitees. See Mattox v. C.R. Anthony Company, 326 S.W.2d 740 (Tex.Civ.App.Beaumont 1959, writ ref'd n.r.e.), and Dill v. Holt's Sporting Goods Store, 323 S.W.2d 644 (Tex.Civ.App.Houston 1959, no writ). In contrast, Montgomery Elevator asserts that elevators or escalators should be treated by ordinary premise liability standards. See Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953), and University of Texas Medical Branch at Galveston v. Davidson, 882 S.W.2d 83 (Tex.App.Houston [14th Dist.] 1994, no writ). As we discussed in Texas Utilities Electric Company v. Gold Kist, Inc., 817 S.W.2d 749 (Tex.App.Eastland 1991), reversed on other grounds, 830 S.W.2d 91 (Tex.1992), the common-law rule of ordinary care is elastic enough to meet all emergencies, and the amount of care depends upon the exigency confronted. See also DeLeon v. Otis Elevator Company, 610 S.W.2d 179 (Tex.Civ.App.San Antonio 1980, writ ref'd n.r.e.).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2441066/
|
944 S.W.2d 306 (1997)
Billy J. HELTON, Respondent,
v.
DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.
No. WD 52454.
Missouri Court of Appeals, Western District.
Submitted November 15, 1996.
Decided April 29, 1997.
*307 Jeremiah W. (Jay) Nixon, Attorney General, Charles L. Gooch, Special Asst. Attorney General, Jefferson City, for appellant.
William H. Norton, Jr., Kansas City, for respondent.
Before SMART, P.J., and SPINDEN and ELLIS, JJ.
SMART, Judge.
This appeal involves the issue of whether police records introduced pursuant to § 490.680, RSMo 1994, must be regarded as creating a prima facie case of excessive blood alcohol content in a de novo hearing in a license suspension or revocation case under § 302.535, RSMo 1996 Supp.
Billy Helton's driving privileges were suspended on August 26, 1995, for driving with an excessive blood alcohol content level pursuant to § 302.505, RSMo.1994. Helton filed a petition for trial de novo in the trial court. At trial, the Director offered a copy of Helton's arrest file as a business record in accordance with § 490.680, RSMo 1994, and § 490.692, RSMo 1994. The Director presented no live testimony. The trial court ruled that the Director had failed to make a prima facie case, and set aside the suspension of Helton's driving privileges. Because we hold that the Director did make a prima facie case through the arrest records and breath test records, we hold that the trial court's judgment is not supported by the evidence and is against the weight of the evidence. The judgment is reversed and the case is remanded for a new trial.
The Trial
The following is the entire transcript of the hearing in this case:
*308 THE COURT: CV195-6650, Billy Jack Helton versus Director of Revenue. Show that Petitioner appears by attorney Bill Norton, Jr., and Respondent by attorney Leonard Smith.
Are both sides ready to proceed?
MR. NORTON: Yes, we are.
MR. SMITH: No, Your Honor. Respondent is not ready and would request a continuance. Trooper Davis is on vacation. Trooper I think it's Kumme (ph) is here, but he just was with Trooper Davis. He did not actually make the arrest or get the test.
THE COURT: Okay. This matter has already been continued before, so the Court will have to deny any further continuances. This is a civil matter, and which the Court does have to move these matters. So
MR. SMITH: Judge, on that basis I would offer a copy of the Department of Revenue's file under Business Records that I sent to Mr. Norton, marked as Defendant's or Respondent's Exhibit # 1. It contains the Alcohol Influence Report and the attached reports made by the officer, the testing made by the arresting officer.
MR. NORTON: Judge, I'm not even going to object to the admission of the reports as encompassed in that Respondent's Exhibit 1. I am going to object to the weight of the evidence containedI am going to object to the weight of the evidence contained in that report. All of that information would be hearsay without the officer here.
THE COURT: Okay.
MR. SMITH: Judge, the only other thing I would add is I would ask the Court to take judicial notice of the Code of State Regulations, 19 CRS 20-30.
THE COURT: Okay. The Court will show that the evidence is submitted, and in follow up to Mr. Norton's remarks, the Court will show that all issues are not found in the affirmative. Petition sustained all as per entry filed.
Standard of Review
On appeal, the Director argues that the trial court erred in setting aside the suspension because the suspension was proper, in that the uncontroverted evidence showed there was probable cause to arrest Helton for driving while intoxicated and that his blood alcohol concentration ("BAC") exceeded 0.10 percent. Review of this court-tried case is governed by the principles announced in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), which provide that the trial court's judgment will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law.
In order for the Director of Revenue to suspend or revoke a driving privilege for an alcohol-related offense, the Director must show: (1) that probable cause existed to arrest the driver for driving in violation of an alcohol-related offense; and (2) that the driver was driving with a BAC equalling or exceeding the statutory limit. Collins v. Director of Revenue, 691 S.W.2d 246, 252 (Mo. banc 1985).
Business Records
The Director of Revenue, forced to trial without the officer who made the arrest and conducted the breath test, elected to offer in evidence the officer's reports, the alcohol influence report, and the breath test records. These records were offered pursuant to § 490.680, RSMo.1994, which allows records prepared in "the regular course of business" to be admitted in evidence under certain conditions if the custodian or other qualified witness provides the proper testimonial foundation:
A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.
In this case, the Director did not present a custodian of the records or another witness to identify the records and testify as *309 to the mode of preparation and other qualifying characteristics. Instead, the Director relied upon the filing of an affidavit of a custodian of the records prepared in accordance with § 490.692, RSMo 1994, which provides:
1. Any records or copies of records reproduced in the ordinary course of business by any photographic, photostatic, microfilm, micro-card, miniature photographic, optical disk imaging, or other process which accurately reproduces or forms a durable medium for so reproducing the original that would be admissible under sections 490.660 to 490.690 shall be admissible as a business record, subject to other substantive or procedural objections, in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of sections 490.660 to 490.690, that the records attached to the affidavit were kept as required by section 490.680.
2. No party shall be permitted to offer such business records into evidence pursuant to this section unless all other parties to the action have been served with copies of such records and such affidavit at least seven days prior to the day upon which trial of the cause commences.
(Emphasis added). This section allows the foundation to be laid by affidavit. "This provides a practical way to avoid the necessity of a personal appearance by a records custodian. Upon compliance with §§ 490.680 and 490.692, business records may be admitted into evidence without any additional direct testimony." Tebow v. Director of Revenue, 921 S.W.2d 110, 113 (Mo. App.1996) (citations omitted). The business record exception to the hearsay rule allows the introduction into evidence of records qualified as business records without the personal appearance of those who prepared the records. Section 490.692, RSMo 1994 allows the records custodian, as well as the person who prepared the reports in the first place, to avoid a personal appearance. It does not guarantee that statements made out of court by third parties to the person who prepared the report have evidentiary value as competent evidence, when properly objected to. For instance, if the person preparing the report includes in the report a statement made by a third party witness, that statement is not to be considered as substantive evidence of the truth of the statement, if proper objection is made. See Nash v. Sauerberger, 629 S.W.2d 491, 492 (Mo.App.1981). Similarly, if an opinion which would be inadmissible in court is included in the report, it likewise is subject to exclusion upon proper objection.
Waiver of Objection
In this case, the Director presented an affidavit from the records custodian of the Missouri Department of Revenue, Driver's License Bureau, which purported to comply with the requirements set forth in § 490.692, RSMo 1994. Helton's failure to object to the admission of the records removes any issue related to the adequacy of the affidavit and as to whether a proper foundation was laid. Helton also made no contention that the inability to cross-examine the records denied him due process of law. He also did not argue that the police records do not qualify as "business records" which may be admitted in a proceeding against an individual when they are records of a focused criminal investigation directed at that person. Helton simply argued that the records were hearsay, an objection which fails to recognize that § 490.680 amounts to an exception to the hearsay rule. Or perhaps Helton was arguing that the records were not entitled to great weight. If he was, he may have expected to testify in his own behalf, but found it was unnecessary to do so when the trial court summarily ruled against the Director. In Tebow, this court found that, where the Director had laid a proper foundation to admit police records as business records by means of an affidavit of the records custodian regarding the records, and no evidence was offered to contradict the Director's records, a prima facie case was shown by the Director:
While caution should be exercised when a suspension case is submitted on the records alone, it is not prohibited. Because the director laid a proper foundation for admission of the Department's business records which were not contradicted, those documents constituted sufficient evidence to uphold the director's suspension of Tebow's *310 driver's license. Although submission of a case on the records alone may pose some risksincluding the inability to explain discrepancies or to rehabilitate "witnesses"this was not a problem in this case. Tebow presented no evidence and the record does not indicate any discrepancies in the director's evidence.
Id. at 113 (citations omitted). Although it may seem illogical that police reports of a focused criminal investigation may qualify as "business records," the records have been regarded as admissible under § 490.680.[1] When relevant, the reports may be offered to prove the truth of the statements made in the report by the officer recording the information. Id. In view of the fact that there was no evidence to dispute or contradict the records in any way, we must examine the records in this case to determine whether they created a prima facie case.
Prima Facie Case
The arrest records included a printout of breath test results, the alcohol influence report, the arresting officer's investigation report, and the testing equipment maintenance report. The records showed that on August 26, 1995, Trooper Davis observed Helton's vehicle traveling north on Interstate 35, moving erratically. Trooper Davis observed the vehicle cross the center line four times and the shoulder line twice. After stopping the vehicle, the officer smelled a strong odor of intoxicants on Helton's breath and also noted that Helton's speech was slurred, his eyes were glassy, his pupils were dilated, his balance and ability to turn was unsteady and that he staggered when he walked. Trooper Davis administered several field sobriety tests to Helton. On the report, the officer noted that Helton performed poorly on all the field sobriety tests. The reports showed that, after being placed under arrest, Helton consented to a breath analysis test, which indicated a BAC of 0.32 percent.
It is true that the fact finder, where there is a conflict in the evidence, is entitled to believe all, none, or any part of the testimony, including testimonial records. In re Marriage of Scobee, 667 S.W.2d 467, 468 (Mo.App.1984). However, this doctrine is not absolute. The judgment in a court-tried civil case may be reversed when there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32; Hatfield v. Director of Revenue, 907 S.W.2d 207, 208 (Mo. App.1995) (judgment reversed as against weight of evidence where appellate court has "firm belief" that it is against the weight of the evidence and is wrong).
Although this court in Tebow noted that "caution should be exercised when a case is submitted on the records alone," submission on records alone under § 490.680 and § 490.692 has been permitted. 921 S.W.2d at 113. In § 490.680, the legislature has declared that records qualifying under the statute shall be "competent evidence." When records are admitted under § 490.680, such records may create a prima facie case. Of course, there will be instances in which the court is justified in finding that the records do not establish a prima facie case. See Hadlock v. Director of Revenue, 860 S.W.2d 335, 338 (Mo. banc 1993) (records had a number of unexplained inconsistencies).
Based on the fact that the records in this case were admitted without objection, and that the content of the records establish a prima facie case that the officer had probable cause to arrest Helton for a violation of an alcohol-related offense, and that Helton's BAC exceeded the statutory limit, we hold that the trial court's judgment is not supported *311 by the evidence and is against the weight of the evidence.
The judgment is reversed. Since Helton had no opportunity to present evidence in the hearing below, the case is remanded for a new trial.
SPINDEN and ELLIS, JJ., concur.
NOTES
[1] In criminal cases, the admissibility has generally been limited to laboratory reports of experts. See State v. Taylor, 486 S.W.2d 239 (Mo.1972) (trial court did not abuse discretion in burglary case in admitting as a business record a police laboratory report concerning the defendant's clothing). Similar authorities are State v. Rhone, 555 S.W.2d 839 (Mo. en banc 1977) and State v. Hamilton, 612 S.W.2d 141 (Mo.App.1980). Some authorities are concerned that such reports should not be admitted unless the maker of the report is present in court and subject to cross-examination. See McCormick on Evidence § 297 (4th ed.1992); Fed.R.Evid. 803(8)(B), Federal Rules of Evidence (excluding, in criminal cases, matters observed by police officers and other law enforcement personnel).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2465370/
|
401 S.W.2d 150 (1966)
Jeffrey V. MILLER, Appellant,
v.
Bernard ESUNAS, Appellee.
No. 173.
Court of Civil Appeals of Texas, Tyler.
January 27, 1966.
On Rehearing March 17, 1966.
Second Rehearing Denied April 7, 1966.
*151 Wm. Andress, Jr., Andress, Woodgate, Richards & Condos, Dallas, for appellant.
W. S. Barron, Jr., and Bill E. Brice, Geary, Brice & Lewis, Dallas, for appellee.
DUNAGAN, Chief Justice.
This suit was instituted by appellant Miller against appellee Esunas in the 134th Judicial District Court of Dallas County, Texas. The appellant in Paragraphs 1, 2 and 3 of his first amended original petition and as the basis for his cause of action against the appellee alleges:
"1.
"At all times hereinafter set forth defendant was a practising petroleum geologist, holding himself out to the public as qualified to give expert opinions on geological conditions and the advisability of drilling oil wells.
"2.
"In the fall of 1957 plaintiff became interested in procuring a lease on Section 39 in Block 4 of the H & T C Railway Company Surveys in Crane County, Texas, from Republic National Bank of Dallas, Trustee, the owner thereof but before entering into any such lease or undertaking any financial obligations in connection therewith, the plaintiff employed defendant to investigate said property and furnish him a report thereon.
"3.
"Thereafter, prior to 1 March 1958, defendant furnished plaintiff a written report, containing among other data the following statements:
"`The following geological information was secured in order to classify the acreage as a drillable prospect:
"`1. Core Hole Information: (Yates). The Yates Marker was used in contouring this prospect, which resulted in a closed geological feature. At this point the writer wishes to call attention to the importance of a Yates closure in this portion of Crane County, Texas. To date, all structures with a Yates closure have resulted in an oil or gas discovery. For reasons unknown, the Yates structure reflects deeper structures, regardless of the *152 known unconformities that we encountered.'
"Said report also listed the following as possible pay zones:
"` 1. Queens Approx. 2400'
2. San Andres " 2475'
3. Glorietta " 3500'
4. Tubb Zone " 4200'
5. Basal Permian " 4800-5300'
6. Devonian " 5400' (possibly eroded)
7. Silurian-Montoya " 5500'
8. McKee Sand " 6500'
9. Waddell " 6950'
10. Connell " 7150'
11. Ellenberger " 7300''
"Attached to and a part of said report was a map of Block 4 prepared by defendant with overlays, showing two core holes in the adjacent section 40 with elevations of 990 and 1003 feet. Such report contained a recommendation that a well be drilled to test the Ellenberger lime, approximately 7700 feet deep, at a recommended location of the Northeast quarter of the Northeast quarter of Section 39 of the H & T C Railway Company Surveys, Block 4, in Crane County, Texas."
Appellant further alleged in said petition that in reliance on such report, he secured a lease on said Section 39 from the Republic National Bank of Dallas, trustee of the Wirt Davis Estate, and that said lease required as a drilling covenant that the plaintiff should drill a well to the Ellenberger lime at the location recommended by appellee in the Northeast quarter of the Northeast quarter of Section 39. That appellant proceeded to drill said well, penetrating the Ellenberger lime to a depth slightly in excess of 7300 feet, without securing any showing or trace of oil and that there was no Yates closure encountered nor did plaintiff encounter the formation of McKee Sand, Waddell, Connell, Glorietta or Queens. That the well was plugged and abandoned as a dry hole at a depth of 7346 feet. As a result of his failure to encounter the Yates closure or the formations reported by appellee as possible pay zones, he proceeded to investigate and was advised by the Railroad Commission of Texas in February, 1959, that no permits had ever been issued by the Railroad Commission of Texas for the drilling of any core holes on Section 40, and that there was no record in the files of the Railroad Commission of Texas showing that any such core holes had ever been drilled.
Appellant's Paragraph 7 of his first original amended petition alleges that:
"The defendant's report, therefore, purportedly based upon core hole information, and purportedly showing the location of core holes, was false, which fact was and must have been known to the defendant when he prepared and submitted his report to the plaintiff, knowing that the plaintiff would rely thereon and incur substantial expense and obligation as a result of such reliance, which plaintiff did."
In said petition appellant also alleged that in the acquisition of the lease, the arrangements for the financing of the drilling, and the drilling itself, the plaintiff expended the total sum of $102,744.73 which was a total loss to him, and which was caused by the fraudulent misrepresentations of the appellee, and that such sums were reasonably and necessarily expended in such operations, and was the reasonable costs thereof; and *153 that he is entitled to recover such sums, with interest thereon from the time of such expenditure.
This was a jury trial and the case was submitted to the jury on 13 Special Issues. The jury found in its answer to Special Issue No. 1 that appellee did not on or before March 1, 1958, represent to appellant, as a fact, that two core holes existed in Section 40 adjoining the lease in question. This thereby precluded the necessity of answering various conditional Special Issues which were additionally submitted thereon. The jury did further find, however, in its answers to Special Issues 8, 9, 10 and 11 that appellant did not hire or employ appellee to write and compile the geological report, but that they agreed with each other to enter into a joint undertaking for the drilling of the well in question; that such report was furnished by appellee to appellant as a part of such joint undertaking; and that same was not abandoned on or before March 1, 1958.
On the verdict of the jury, the court rendered judgment that appellant (plaintiff below) take nothing by his suit.
At the outset, we are confronted with the question of whether it is disclosed by the transcript that the jurisdiction of this court is invoked.
The judgment disposing of the case on the jury findings was signed on December 2, 1964. If an original motion for a new trial was ever filed and when is not disclosed by the transcript. The transcript does show the filing on December 31, 1964, of an amended motion for a new trial. This was more than 10 days after the judgment complained of by this appeal. The transcript shows that the amended motion was heard, considered and overruled on February 12, 1965.
The notice of appeal appearing in the transcript was filed March 11, 1965. The appeal bond was filed March 11, 1965.
It is elementary that when our jurisdiction is invoked, the transcript must disclose affirmatively that we have such jurisdiction and that if it does not do so, our duty is to dismiss the appeal. 3 Tex. Jur.2d, Section 383, page 641; Needham v. Austin Electric Ry. Co., 127 S.W. 904, (Tex.Civ.App.) 1910, n. w. h.; Selman v. Ross, 302 S.W.2d 752, (Tex.Civ.App.) 1957, n. w. h.
The facts in Selman v. Ross, supra, are on all fours with the facts in the instant case. The facts in that case reveal that the order appealed from was dated May 30, 1956; that the transcript did not disclose the filing of an original motion for new trial but did disclose an amended motion for new trial was filed on June 11, 1956; that the amended motion was heard and overruled on July 19, 1956, and notice of appeal was given in open court on the same day. The appeal bond was filed on August 6, 1956. The court in dismissing the appeal in the Selman case because the transcript failed to disclose affirmatively it had jurisdiction stated:
"It is now well settled that the filing of an original motion for new trial within a ten day period after the rendition of any judgment or order complained of is jurisdictional where the appeal is from an order overruling a motion for a new trial. A later filing is a nullity. Starr County v. Guerra, Tex.Civ.App., 282 S.W.2d 304, albeit such late filing may very well serve as a reminder to the trial court of his power over his own minutes within thirty days after the rendition of any judgment or order. It is true the trial court retains jurisdiction for thirty days after the rendition of any judgment or order to set it aside, with or without the filing of any motion for a new trial, but this fact is not relevant to the requisite steps required to give us jurisdiction even in a nonjury case such as the present, where no motion for a new trial is required for appeal, when the appeal is from the order overruling the motion for new trial as distinguished *154 from the order complained of. * * * (citing cases). It is possible that an original motion for new trial was actually filed sometime before June 11, 1956. It is equally possible that this is not so, or that the original motion, if any, was itself filed as late as June 11, 1956. The facts in this respect, so far as the transcript shows, are speculative.
"* * * If the appeal be considered as one from the order overruling the amended motion for new trial, it is equally evident that there is no affirmative showing that an original motion was filed within the ten day period contemplated by the mandatory provisions of Rule 329-b, Subsection 1, Texas Rules of Civil Procedure, fixing the time allowance for the filing of original motions for new trial."
As additional authorities, we cite Needham v. Austin Electric Ry. Co., supra; and Hartford Accident & Indemnity Company v. Gladney, 335 S.W.2d 792, (Tex.Civ.App.) 1960, writ refused, n. r. e.
Moreover, it has been held in this state that Rule 329b, subd. 2 requires an amended motion for new trial be filed within 20 days of the original motion and the rule is mandatory; and that where an amended motion for new trial is filed more than 20 days after the original motion, the amended motion is ineffective, cannot be considered for any purpose, and is a nullity. Erwin v. Welborn, 207 S.W.2d 124, (Tex.Civ.App.) 1947, writ refused, n. r. e.; Arana v. Gallegos, 279 S.W.2d 491, (Tex.Civ.App.) 1955, n. w. h.; Valley Transit Co., Inc. v. Lopez, 263 S.W.2d 830, (Tex.Civ.App.) 1953, writ refused; Dyche v. Simmons, 264 S.W.2d 208, (Tex.Civ. App.) 1954, writ refused, n. r. e.; Traders & General Ins. Co. v. Scott, 189 S.W.2d 633, (Tex.Civ.App.) 1945, writ refused, w. m.
As the transcript fails to disclose the filing of an original motion for new trial, this court cannot ascertain whether the amended motion was filed in 20 days after the original motion was filed, if one was filed. Therefore, we are unable to determine whether the amended motion has been timely filed so that the assignments therein contained can be considered by this court on appeal.
The transcript fails to disclose affirmatively that we have jurisdiction of the appeal.
Appeal dismissed.
ON APPELLANT'S MOTION FOR REHEARING
Earlier in this term we dismissed this appeal because the transcript failed affirmatively to disclose that we had jurisdiction. Appellant later filed a supplemental transcript from which, in connection with the original transcript, it now appears that we do have jurisdiction. Appellant has moved for rehearing and that we set aside our former order dismissing the appeal. The motion is well taken and our former order is set aside and the appeal reinstated.
The appellant charges the appellee with fraud, alleging that the appellee's geological report, purportedly based upon core hole information and purportedly showing the location of core holes, was false, which fact was and must have been known to the appellee when he prepared and submitted his report to the appellant, knowing that appellant would rely thereon and incur substantial expense and obligation as a result of such reliance, which plaintiff alleges he did.
It is appellant's contention that the significance of a core hole is that it is a geological factor in establishing a geological "high." Significant information in this respect can also be obtained from a well which has been drilled, whether a producer or dry hole, where there is the additional advantage of the information obtained from *155 logs and tests, such as drill stem tests. Appellant testified at one point that the presence of absence of core holes in the report did not mean anything to him; he relied on appellee's conclusions based thereon.
The geological report is based in part on various geological information available to appellee, including logs from other wells, drilled in the area and certain core hole information. At the time appellee Esunas delivered the report to appellant Miller, and at numerous other times both before and thereafter, appellee told appellant that the core hole information had been passed on to him from other geologists; and that he could not prove that such core holes existed or give him any logs on them. Appellant admitted that appellee told him that the information had been given to him by some other geologist or engineer, but appellant maintains that appellee told him that he had to protect such party and could not divulge the source.
The parties were looking for high structure in the Yates Sand, a shallow nonproducing sand which is indicative of closed geological features below in which oil may be trapped. It is shown that the appellee's projections as contained in such report were quite accurate. The sand in which they hoped to find oilthe Ellenberger was encountered in the well at almost the exact depth as projected. Of course, all geological structures do not contain oil, which accounts for why, as the record shows, that there have been numerous geological successes which are oil failures. With appellant's experience in the oil business, he was aware of the obvious fact that no geologist could guarantee the finding of oil and appellee's report in question did not purport to do so.
A geological report is analogous to one who might be seeking the whereabouts of Sam Jones and in so doing receives information that Sam Jones maintains a home at Tyler, Texas, 1420 Oakwood Street, and that he might be found there. Perhaps upon arriving at this address expecting to find Sam Jones, you learn that he is not at home. This would not be evidence that the information given was false or misleading. Even though the informant had pointed out to his inquirer where he would be expected to find Mr. Jones, the only way that it could be ascertained whether or not Mr. Jones was there was by reaching the address previously given. A geologist can only, through his skill, training and knowledge of a particular area, supply information as to where structures, pinchouts, or other traps that may contain oil or gas may be found, but the only way of ascertaining if oil or gas is actually there is by drilling into such structures or formations.
Appellant's first two Points of Error read as follows:
"Point One: Esunas having admitted under Rule 169 that he showed the existence of the core holes on his written geological report furnished to Miller, this was conclusive as a judicial admission, and there was no evidence to sustain the jury's finding to the contrary in answer to Special Issue No. One.
"Point Two: Esunas having admitted under Rule 169 that he showed the existence of the core holes on his written geological report furnished to Miller, there was no issue of fact justifying submission of Special Issue No. One asking whether Esunas did represent as a fact to Miller that two core holes existed."
Appellant by his Points 1 and 2 contends that appellee's answers to appellant's requests Nos. 3 and 4 in his request for admissions, to the effect that appellee furnished appellant a written report containing core hole information and showing core holes, constituted a judicial admission by appellee and that he represented to appellant as a factthat core holes existed. Appellant therefore urges that Special Issue *156 No. One[1] should not have been submitted and that no evidence bearing on such issue should have been heard.
Appellee, by the way of counter points, contends that "The jury found on ample evidence that appellee did not represent to appellantas a factthat certain core holes existed, and the trial court properly rendered judgment in favor of appellee based thereon;" that "Appellee's answers to appellant's request for admissions pursuant to Rule 169 show that appellee fully disclosed to appellant that he was without knowledge as to the actual existence of core holes, and the trial court properly submitted the issue of misrepresentation to the jury." This contention we sustain.
The appellant's position is based upon the erroneous assumption that the questions propounded by him in his requests Nos. 3 and 4 embrace the ultimate issue submitted to and determined by the jury as to whether "On or before March 1, 1958, the defendant, Bernard Esunas, represented to Jeffrey V. Miller, as a fact, that two core holes existed in Section 40 adjoining the lease in question." There is a considerable amount of evidence (some of which came from appellant himself) that appellee repeatedly told appellant in connection with the report that the core hole information was something which he had been told by others and that he could not prove that such core holes existed. This evidence must be considered in answering the ultimate issue of whether appellee made the representation, as a fact.
This is in accordance with settled law on the subject. As stated in 25 Tex.Jur.2d 675, Section 39:
"An action for fraud may not, ordinarily, be based on statements that are expressly declared to be made merely on information. Such statements may, however, amount to positive statements of fact if full responsibility for their truth is assumed. * * *"
See also Foster v. L.M.S. Development Co., 346 S.W.2d 387, 396, (Tex.Civ.App.) 1961, error refused, n.r.e., wherein it is held that:
"* * * Fraud is not to be predicated on statements expressly represented to be made merely on information. * * *"
The appellee in his brief says:
"Actually the ultimate issue of whether appellee represented the existence of core holes as a fact is possibly established by the evidence as a matter of law in favor of appellee rather than appellant."
Be that as it may, such issue was submitted to the jury and was answered adversely to appellant.
The issue as to whether appellee made a misrepresentation as a fact was one which formed a part of appellant's case and on which it devolved upon him to carry the burden. Appellant made no objection to Special Issue No. 1 as submitted by the trial court, either as to form or substance. The trial court properly submitted the ultimate issue, and in so doing he observed the mandate of Rule 279, Texas Rules of Civil Procedure, that "he shall submit the controlling issue[s]" without the necessity of submitting "other and various phases or different shades of the same issue." Neither party objected to such issue.
Appellee does not deny that he furnished the written geological report inquired about in the appellant's requests Nos. 3 and 4, nor did he take a contrary position at trial. The point is, however, that the matters inquired about do not embrace the ultimate issue of whether, under the evidence in this case, the particular representation was in fact made. Appellee's answer to appellant's *157 request No. 5 clearly shows that appellee fully disclosed his lack of knowledge to appellant. Appellant's Points 1 and 2 are without merit and are overruled.
Appellant by his Point No. 3 contends that "Miller having contracted with the landowner to drill the wells, the costs of which he seeks to recover from Esunas as damages for fraudulent misrepresentation, the source of his financing constitutes no defense available to Esunas, and evidence thereof was inadmissible and prejudicial." The jury's finding in response to Special Issue No. 1 that there was no representation as a fact that appellee represented to appellant that two core holes existed in Section 40 adjoining the lease in question, renders this point immaterial. In view of this finding of the jury, the error, if it is error, it is not material to the outcome of the suit, and under Rule 434, T.R.C.P., furnishes no proper basis for a reversal of the judgment. Pride v. Pride, 318 S.W.2d 715, (Tex.Civ. App.) 1958, no writ history. Error in admitting or excluding evidence becomes immaterial where the case does not turn on the excluded or admitted evidence, that is, where it is not material and does not affect the verdict and judgment rendered. Flores v. Missouri-Kansas-Texas Railroad Company, 365 S.W.2d 379, (Tex.Civ.App.) 1963, writ refused, n. r. e.; Gross v. Dallas Ry. & Terminal Co., 131 S.W.2d 113, (Tex.Civ. App.) 1939, writ dismissed, judgment correct. This Point is overruled.
Appellant by his Points 4, 5, 6 and 7 complains that the trial court required the plaintiff to give the defendant the benefit of his self-serving additions to the answer for request for admissions; would not permit the plaintiff to testify that the showing of core holes on the geological report was material and that he relied upon them; would not permit the plaintiff to explain the meaning of the technical exhibit concluding a portion of the geological report while permitting defendant to do so; and would not permit the plaintiff to refresh his memory of exact figures from five years before without cluttering up the record with irrelevant instruments. We have carefully considered these Points and under the record in this case, we believe them to be without merit and each are overruled. We have likewise considered appellant's Points of Error Nos. 8 and 9 and the same are overruled for lack of merit.
Appellant had his day in court before a jury which found against him on the facts and we hold that the testimony was ample to support the jury findings.
The jury finding in response to Special Issue No. 1 alone is sufficient to preclude a recovery of damages by the appellant under the pleadings and evidence in this case.
Finding no reversible error in the record, the trial court judgment is affirmed.
NOTES
[1] Do you find from a preponderance of the evidence that on or before March 1, 1958, the defendant, Bernard Esunas, representing to Jeffrey V. Miller, as a fact that two core holes existed in Section 40 adjoining the lease in question?
Answer "Yes" or "No."
ANSWER: No
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2441192/
|
944 S.W.2d 72 (1997)
LAIDLAW WASTE SYSTEMS, INC., et al., Appellants,
v.
Elmer George WALLACE, et ux., Appellees.
No. 10-96-089-CV.
Court of Appeals of Texas, Waco.
April 23, 1997.
Rehearing Denied May 21, 1997.
*73 J. Frank Kinsel, Jr., David B. Dowell, David A. Palmer, Cantey & Hanger, L.L.P., Fort Worth, James H. Holmes, III, Burford & Ryburn, L.L.P., Dallas, for appellants.
John O. Roark, Law Office of John O. Roark, Temple, for appellees.
Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.
OPINION
DAVIS, Chief Justice.
By writ of error, Laidlaw Waste Systems, Inc. and Cresenciano C. Hernandez (collectively "Laidlaw") challenge a default judgment entered in favor of Elmer George Wallace and Marie L. Wallace, his wife. Laidlaw asserts the trial court erred in rendering the default judgment because the record does not show strict compliance with the rules regarding issuance of citation, the manner and mode of service, and the return of service. Additionally, Laidlaw claims that the trial court lacked personal jurisdiction over it because of the defective service. Finally, Laidlaw alleges that the trial court erred in rendering a default judgment when proof of service had not been on file for ten days prior to such judgment. Because the record fails to show strict compliance with the rules regarding the return of service, we reverse the default judgment and remand.
A garbage truck owned and operated by Laidlaw struck the Wallaces' pick-up truck and injured them. On August 30, 1995, the Wallaces filed suit against Laidlaw alleging various acts of negligence. Thereafter, on December 18, 1995, the Wallaces filed their First Amended Original Petition. The District Clerk issued a citation, which bore the hand-written notation "Pltf's 1st Amended Pet w/request for Admissions, Interrogatories & Request for Prod," and served it by certified mail, return receipt requested, on December 19, 1995. When the return receipt (PS Form 3811) arrived back at the clerk's office, a deputy clerk stamped it with the date and time of receipt, filed-marked the cause-number on it, and initialed it. The return receipt was then attached to the citation. However, no one in the District Clerk's office ever completed the "officer's return" section of the citation. After Laidlaw failed to answer by the calculated answer date, the Wallaces sought and were awarded a default judgment on March 1, 1996, in the amount of $408,434.58, plus costs of suit. Laidlaw filed this writ of error on April 15, 1996.
Upon learning of Laidlaw's writ of error, the District Clerk executed an affidavit dated May 28, 1996, explaining the usual procedures regarding service of process in Johnson County. On her own accord, the District Clerk then designated the affidavit a supplemental transcript and filed it with this Court. Laidlaw thereafter filed a Motion to Strike the supplemental transcript, which the Wallaces opposed. This affidavit did not exist when the trial court granted the default judgment against Laidlaw. Our review is limited to the record as it existed before the trial court at the time the default judgment was rendered. Armstrong v. Minshew, 768 S.W.2d 883, 884 (Tex.App.Dallas 1989, no writ); see also Gerdes v. Marion State Bank, 774 S.W.2d 63 (Tex.App.San Antonio 1989, writ denied) (record cannot be changed after defaulting party has perfected a writ of error). We grant Laidlaw's motion and strike the supplemental transcript.
In its first point of error, Laidlaw complains that the trial court erred in rendering the default judgment because the record does not affirmatively demonstrate strict compliance with the rules regarding issuance of citation, the manner and mode of service, and the return of service. A writ of error that directly attacks a judgment must: (1) be brought within six months after the judgment was signed; (2) by a party to the suit; (3) who did not participate in the actual trial; and (4) the error complained of must be apparent from the face of the record. DSC Finance Corporation v. Moffitt, 815 S.W.2d 551, 551 (Tex.1991). Laidlaw has met the first three criteria; thus, the sole remaining question is whether error is apparent on the face of the record. Laidlaw claims the defective service is such an error.
Strict compliance with the Rules of Civil Procedure relating to the issuance of *74 citation, the manner and mode of service, and the return of process is necessary to sustain a default judgment which is directly attacked by writ of error. Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994); Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990); McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965); Armstrong, 768 S.W.2d at 884. We recognize no presumptions in favor of valid issuance, service, and return of citation in the face of a writ-of-error attack on a default judgment. Primate Const., Inc., 884 S.W.2d at 152; Wilson, 800 S.W.2d at 836; Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884, 885 (Tex.1985); McKanna, 388 S.W.2d at 929; Armstrong, 768 S.W.2d at 884. Moreover, lack of strict compliance with the Rules of Civil Procedure renders the attempted service of process invalid and of no effect. Wilson, 800 S.W.2d at 836; Uvalde Country Club, 690 S.W.2d at 885; Armstrong, 768 S.W.2d at 884.
The issue is whether a postal return receipt can be substituted for a completed officer's return. Rule 107 of the Texas Rules of Civil Procedure provides:
The return of the officer or authorized person executing the citation shall be endorsed on or attached to the same; it shall state when the citation was served and the manner of service and be signed by the officer officially or by the authorized person. The return of citation by an authorized person shall be verified. When the citation was served by registered or certified mail as authorized by Rule 106, the return by the officer or authorized person must also contain the return receipt with the addressee's signature.
TEX.R. CIV. P. 107. (emphasis added). When citation is served using registered or certified mail, the return must: (1) be endorsed upon or attached to the citation; (2) state when citation was served; (3) be signed by the officer officially or the authorized person who served the citation; (4) be verified if served by an authorized person; and (5) have the return receipt with the addressee's signature attached.[1] The officer's failure to complete and sign the return is fatal, even when a postal receipt is included in the record. Retail Technologies v. Palm City T.V., 791 S.W.2d 345, 346-47 (Tex.App.Corpus Christi 1990, no writ); Metcalf v. Taylor, 708 S.W.2d 57, 58-59 (Tex.App.Fort Worth 1986, no writ). By using the postal return receipt in lieu of completing the return, the District Clerk's service of citation on Laidlaw failed to strictly comply with the Rules of Civil Procedure and will not support the default judgment. Primate Const., Inc., 884 S.W.2d at 152; Wilson, 800 S.W.2d at 836; McKanna, 388 S.W.2d at 929; Armstrong, 768 S.W.2d at 884.
The Wallaces argue that the District Clerk substantially complied with the rules by using the postal return receipt in lieu of a completed officer's return. That may be true. However, under a writ of error attack, strict compliance is required. Id. Furthermore, the Wallaces contend the default judgment should stand because Laidlaw received actual notice of the lawsuit. A default judgment is improper against a defendant who has not been served in strict compliance with the rules, even if the defendant has actual knowledge of the lawsuit. Wilson, 800 S.W.2d at 836-37.
The Wallaces also attempt to distinguish the authorities espoused by Laidlaw. They contend Metcalf is distinguishable because in that case the problem arose not from the absence of a separate and completed return of citation, but from the absence of the return receipt and all of the other return information required by Rule 107. However, the Metcalf court noted that the record concerning service by registered mail on Vikki Metcalf included a small card showing that she signed a registered receipt. Metcalf, 708 S.W.2d at 59. The receipt showed no date of signature nor what the signature represented. Id. Although in this case the District Clerk furnished some information on the return receipt, we believe that distinction fails to diminish the prescribed rule requiring that *75 the return receipt be attached to the completed officer's return. Id. at 58-59.
We recognize that some authority supports the Wallaces' argument that the postal return receipt can be used in lieu of a completed officer's return. In Walker v. W.J.T., Inc., 737 S.W.2d 48, 49 (Tex.App.San Antonio 1987, no writ), the court found that a combination of a certificate of service, a certified mail receipt (PS Form 3800), and a return receipt satisfied the requirements of Rule 106 and 107 without the return being completed. However, we disagree with this conclusion. The return of service is not a trivial document. Primate Const., Inc., 884 S.W.2d at 152. We believe good public policy favors strict application because of the dire consequences of a default judgment. Verlander Enterprises, Inc. v. Graham, 932 S.W.2d 259, 262 (Tex.App.El Paso 1996, no writ). The end result of the strict compliance standard is an increased opportunity for a party to receive a trial on the merits. Id.
The party requesting service should carry a heavy burden before its opponent loses the right to be heard on the merits of the lawsuit. It is the responsibility of the one requesting service, not the process server, to see that service is properly accomplished. Primate Const., Inc., 884 S.W.2d at 153. This responsibility extends to assuring that service is properly reflected in the record. Id. The Rules of Civil Procedure allow for liberal amendment of the return of service to show the true facts of service. Id. If the facts recited in the return are incorrect and do not show proper service, the one requesting service must amend the return prior to judgment. Id.
Because the record affirmatively shows a lack of strict compliance with the Rules of Civil Procedure, we sustain Laidlaw's first point. Wilson, 800 S.W.2d at 836; Uvalde Country Club, 690 S.W.2d at 885; McKanna, 388 S.W.2d at 929; Armstrong, 768 S.W.2d at 884. Our disposition of Laidlaw's first point renders it unnecessary to discuss its second and third points. We reverse the default judgment and remand this cause for further proceedings.
NOTES
[1] The Officer's Return by Mailing section of the citation included in the record instructs "[s]ervice upon the Defendant is evidenced by the return receipt incorporated herein and attached hereto." Additionally, the bottom of the return reads: "ATTACH RETURN RECEIPT(S) WITH ADDRESSEE'S SIGNATURE BELOW."
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2441200/
|
944 S.W.2d 279 (1997)
In re ESTATE OF Elza Lunsford ABBOTT, Deceased.
Thurman L. ABBOTT, Personal Representative of the Estate of Elza Lunsford Abbott, Deceased, Plaintiff-Respondent,
v.
Mary ABBOTT, Defendant-Appellant.
No. 20975.
Missouri Court of Appeals, Southern District, Division Two.
April 24, 1997.
*281 Mark A. Kennedy, Kennedy & Kennedy, Poplar Bluff, for defendant-appellant.
Christina L. Kime, L. Dwayne Hackworth, Hackworth, Kime & Bowles, Piedmont, for plaintiff-respondent.
SHRUM, Judge.
Thurman Abbott (Thurman) filed motions in the decedent estate of Elza Lunsford Abbott (Elza) to force Mary Abbott (Mary), conservator of Elza's estate during his incapacity, to make a final accounting of her conservatorship activities and deliver Elza `a remaining assets to Thurman. After an evidentiary hearing, the Probate Division of the Wayne County Circuit Court ordered Mary to remit to Thurman: $73,224.45, a 1994 Chevrolet van, a man's diamond ring, and collateral held on a promissory note. Mary appeals from that judgment.[1]
Mary seeks reversal of the judgment on the theory that the court was without authority to enter it. She first claims that when Elza died, he was domiciled in the State of Washington and had no property in Wayne County, Missouri; therefore, no statutory grounds existed for the issuance of letters testamentary to Thurman and the court was without subject matter jurisdiction. Second, she contends that her filing of a separate suit to contest Elza's will caused an "automatic stay to [all] probate proceedings and that the court could not "proceed with [any] probate proceeding until [the] Will Contest action is [resolved]; consequently, "[a]ny judgment to come from such unlawful proceeding is a nullity."
We affirm in part; we reverse in part, and remand with directions that the trial court amend the judgment so that it is against Mary Abbott and in favor of an administrator pendente lite to be appointed by the court pursuant to § 473.137.[2]
FACTS
On August 17, 1993, Mary filed a petition for appointment of a guardian for Elza and a conservator of Elza's estate. In this petition, Mary alleged that Elza was incapacitated due to "infirmities of old age." Mary requested her appointment as sole guardian and conservator. The petition also said that Elza was domiciled in Wayne County, Missouri. This *282 proceeding was identified as "Estate No. CV-1093-37P."
On June 23, 1994, both Mary and Thurman were appointed as co-guardians ad litem of Elza and co-conservators ad litem for Elza's estate. The court made the appointment in light of statements by counsel and medical reports. This order allowed Mary to take Elza to the State of Washington for a period not to exceed 90 days. It is not clear from the record if Elza was ever returned from Washington.
On September 20, 1994, the court entered a judgment of incapacity and disability. The judgment found Elza totally incapacitated and disabled. The court named Mary as sole guardian of Elza and as conservator of Elza's estate. The court found that Elza "is and has been a resident of Wayne County, Missouri." On the same day, the court issued letters of guardianship and conservatorship to Mary.
On October 14, 1994, Mary filed an inventory and appraisement in the court. The inventory listed monetary assets of $78,710.49. The estate also included a man's ring valued at $1,000.
On March 16, 1995, Elza died. On March 24, Thurman filed Elza's purported last will and testament with the court. At this time, Thurman also filed an application for letters testamentary and a renunciation of the named personal representative. This proceeding was assigned "Estate No. CV 1095-18P."
Mary filed suggestions of death on March 27 in CV 1093-37P, the conservatorship estate. We cannot discern whether she ever filed another document in that estate.
On April 21, 1995, Mary filed objections to the appointment of personal representative in Estate No. CV 1095-18P. In these objections she said that Elza was not a resident of Missouri when he died, that Elza had no property located in Missouri, and that Thurman was not qualified to serve as personal representative. On that same date, April 21, 1995, a hearing was held on Thurman's application for letters testamentary. On that day, Thurman was appointed personal representative of Elza's decedent estate. On May 2, 1995, the court issued letters testamentary to Thurman and sent notice to all interested parties.
On August 9, 1995, Thurman began proceedings in the decedent's estate to make Mary account for Elza's assets under her control.[3] These efforts ultimately compelled Mary to file an accounting with the court in Estate No. CV 1095-18P, the decedent estate.[4]
The accounting showed that the estate had a beginning balance of $78,710.49 (which excluded the ring) and that afterward Mary received $18,513.96 additional funds that belonged to the estate. The accounting credited Mary with expenditures of $64,606.25. The balance of the estate as reflected by this accounting was $32,618.20 and the ring valued at $1,000.
On January 16, 1996, Thurman filed objections to the final accounting. He complained that Mary was not entitled to credit for $62,118.88 of her expenditures. Moreover, he objected to Mary's claim that she was entitled to an additional $27,000 for care and food furnished to Elza.[5] Again, this filing was in the decedent estate, not in the conservatorship estate. Thurman asked that Mary's "[f]inal accounting be surcharged for the sums found due the Estate...."
On March 4, 1996, the court held a hearing on Thurman's objections to the final accounting. *283 Neither Mary nor her counsel made an appearance. In the judgment ultimately entered, the court noted that Mary's counsel had "contacted the Court by telephone on the morning of the hearing to advise ... that he had received notice of the hearing but neither he nor [Mary] would [appear] as they had nothing to add to the proceedings." At the hearing, Thurman testified about the estate assets when Mary started her conservatorship and his objections to the accounting. In its judgment filed on March 30, 1996, the court ordered Mary to pay to Thurman, as personal representative, $73,224.45, a 1994 van purchased for Elza's benefit, the diamond ring, and a watch held as collateral for the loan to Mark Purvis. This appeal followed.
DISCUSSION AND DECISION
The judgment handed down from the court involved the final accounting of Elza's conservatorship estate; yet, this adjudication came in the decedent estate, not in the conservatorship estate. Because of this anomaly, Mary's first point maintains that the court lacked authority to adjudicate her final accounting in the decedent estate because it never had subject matter jurisdiction to probate Elza's will and allow administration of Elza's decedent estate. Specifically, Mary argueswithout evidentiary supportthat Elza was not a domiciliary of Missouri and had no property, real or personal in Missouri. From that premise alone, Mary launches her claim that the court was without subject matter jurisdiction, apparently relying on § 473.010.1(1)-(2).[6]
Fatal to this point is Mary's disregard of § 473.010.1(3). The latter section reads:
"1. The will of any decedent shall be probated and letters testamentary or of administration shall be granted:
....
(3) If the decedent had no domicile in this state and left no property therein, in any county in which the granting thereof is required in order to protect or secure any legal right."
In 1955, the probate laws revision committee stated that § 473.010.1(3) was included to "permit administration on estate of decedent who had no property when necessary to enforce legal rights." State ex rel. McCubbin v. Ginn, 347 S.W.2d 119, 124 (Mo.banc 1961).
Here, the granting of letters testamentary in the county was proper "in order to protect or secure ... [the] legal right" of any person interested in Elza's decedent estate. Interested parties clearly were entitled to an accounting from Mary and to have Elza's assets delivered to the personal representative of his estate. If Mary had filed an accounting in the conservatorship estate, any interested party could have objected to that accounting. However, the availability of such an action in the conservatorship estate was not exclusive and did not preclude Thurman from trying to secure an accounting for and delivery of assets through the appointment of a personal representative in Wayne County. The court was responsible for assuring that Mary not only accounted for Elza's assets, but that she also transferred them from one estate to the other. In this capacity, the Wayne County court was the court best situated to protect the rights and interests of those interested in Elza's decedent estate and, therefore, a proper court to issue letters testamentary. Furthermore, Thurman, a resident and domiciliary of Wayne County, was named the primary beneficiary under the will filed on March 22, 1995.[7] Thurman has a definite protectable right and interest in the administration of Elza's decedent estate and under the circumstances, the court had authority under *284 473.010.1(3) to issue letters testamentary to Thurman. Consequently, even if all of Elza's assets were in the State of Washington and he was domiciled in that state as Mary contends, her argument fails.
We deny Mary's first point for yet another reason. Although Mary argues that Elza was not domiciled in Missouri and had no property in this state, she does not direct us to any evidence in the record that supports such claim. Further, we have searched the record for such evidence and find none. What we do find is that on April 21, 1995, Mary filed objections to Thurman's application. In her written objections, Mary asserted that at Elza's death, he was not domiciled in Missouri and had no property in this state. Documents in the legal file suggest that a hearing was held on Thurman's application for letters testamentary, yet Mary has not filed a transcript of that hearing. The omitted transcript of the April 21, 1995, hearing is essential to our review. Without it we do not know what evidence, if any, was presented at that hearing regarding Elza's domicile at death.
"On appeal, a trial court judgment is presumed valid," Delaney v. Gibson, 639 S.W.2d 601, 604[4] (Mo.banc 1982), and the burden is on appellant to show the incorrectness of the judgment. Id; Shadow Lake v. Supervisor of Liquor Control, 893 S.W.2d 835, 838-39[6] (Mo.App.1995). It is essential that this court have all the evidence necessary to decide the questions presented. Sydnor v. Director of Revenue, 876 S.W.2d 627, 628[3] (Mo.App.1994).
An appellant is responsible for filing transcripts of the evidence and for preparing a legal file so that the record on appeal contains all of the evidence necessary for determination of questions presented to the appellate court for determination. Id., (citing Rule 81.12). Where no transcript is filed, such evidentiary omission will be taken as favorable to the trial court's ruling and unfavorable to the appellant. Delf v. Cartwright, 651 S.W.2d 622, 624[3] (Mo.App.1983); Shadow Lake, 893 S.W.2d at 839[7].
Since Mary filed her objections on April 21, 1995, the domicile issue was squarely placed before the court as part of what it had to decide. We will not convict the court of error in deciding the venue question when we do not know what evidence was before it. See In re The Carl McDonald Revocable Trust, 942 S.W.2d 926, 932-33 (Mo.App.S.D. 1997).
Mary's only effort to show Elza was domiciled in Washington are statements made in her brief that "Decedent had moved to Everett, Washington to live permanently with his daughter...." She follows, "[t]his is evident by the fact that all of his assets were moved to Everett, Washington to be convenient for ... his Conservator and Guardian." Statements in a brief that are unsupported by the appellate record are not evidence and are not sufficient to supply essential matters for review. In re Marriage of Lawry, 883 S.W.2d 84, 89[17] (Mo.App. 1994). While the record suggests that Elza's assets were transferred to Washington, this fact does not show Elza's intent to make Washington his domicile. The omitted evidence is taken as favorable to the determination by the court that when Elza died, he was domiciled in Missouri. For this additional reason, Mary's first point fails.
In her second point, Mary argues that the will contest she filed acted as "an automatic stay" of all probate proceedings; therefore, the court's judgment against her "is a nullity." She broadly contendswithout citation to authoritythat "[w]hen a Will Contest is filed, all probate proceedings must cease until the Will contest is completed." Apparently, her contention stems from the fact that when a will contest is filed, the court order admitting the will and the order granting letters testamentary are vacated until the will is proven by the circuit court. Danforth v. Danforth, 663 S.W.2d 288, 293[1] (Mo.App.1983); Hodges v. Hodges, 692 S.W.2d 361, 365, n. 3 (Mo.App.1985). Based on that principle, Mary asserts that the court's authority to entertain any proceedings concerning Elza's probate estate was stayed, including the objections to final accounting. We disagree.
The subject matter jurisdiction of the probate division is set forth in § 472.020.
*285 This statute states the court has jurisdiction to hear and decide "all matters pertaining to probate business." During a will contest, § 473.137 contemplates the issuance of letters of administration to the personal representative or an administrator pendente lite in the court's discretion.[8] Significantly, the statute mandates that an administrator appointed pursuant to § 473.137 "shall proceed with the administration of the estate until termination of the will contest...." § 473.137.3. As explained in Odom v. Langston, 351 Mo. 609, 173 S.W.2d 826 (1943), "[t]he purpose of the statutes [now § 473.137] is to permit the administration to proceed during a will contest so that creditors may be paid, etc.; but otherwise the status quo ante is maintained." Id., 173 S.W.2d at 837[31]. The fact that the legislature gave probate division courts authority to issue letters of administration during a will contest period and directed that such administrator "shall proceed with the administration of the estate" dispels any notion that the legislature intended to divest such courts of subject matter jurisdiction while a will is being contested. It logically follows that probate division courts retain authority during a will contest period to enter judgments or orders that will bring assets into the estate. If this were not so, then in cases such as this, there would be nothing to administer during the will contest interval and no assets with which to pay "creditors, etc." We hold that the filing of the will contest did not deprive the court of authority to enter a judgment compelling Mary to turn over to Elza's decedent estate assets that properly belong in that estate. To the extent that Mary's second point contends otherwise, it is denied.
Mary is correct when she insists that the order appointing Thurman as personal representative and granting letters was automatically vacated when she filed her will contest. See Danforth, 663 S.W.2d at 293[1]. The record does not reflect that the court granted letters of administration to any person during the contest of Elza's will. See § 473.137.1. The trial court erred in not issuing letters of administration pendente lite; yet, as discussed above, this was not an error that deprived the court of authority to order Elza's assets into his decedent estate.
Although Thurman's authority as personal representative was vacated by the will contest, his status as an "interested party" continued. His interest stemmed from the possibility that he could prevail in the will contest and be entitled to all of Elza's estate.[9] As an interested party, Thurman had standing to seek an accounting from Mary and attempt to bring Elza's assets into the decedent estate. Whether Thurman's "Objections to Final Accounting" and the relief he sought is viewed as an "adversary proceeding," § 472.140.2,[10] or as an action for discovery of assets, § 473.340,[11] is of no consequence. *286 In either event, Thurman could bring the action as an interested party. However, he should not receive the assets nor have the judgment run in his favor, either individually or as a fiduciary. Therefore, we remand with directions to the court to amend its judgment so that it runs in favor of an administrator pendente lite to be appointed by the court pursuant to § 473.137.
The judgment against Mary Abbott for $73,224.15 is affirmed. We also affirm that part of the judgment against Mary Abbott that deals with specific items of personal property. We reverse the judgment to the extent that it is entered in favor of Thurman L. Abbott as personal representative of the Estate of Elza Lunsford Abbott, deceased. We remand with directions that the trial court amend the judgment so that it is entered against Mary Abbott and in favor of an administrator pendente lite to be appointed by the court pursuant to § 473.137.
MONTGOMERY, C.J., and PARRISH, J., concurs.
NOTES
[1] In this opinion, we use the phrase "the court" when referring to the Probate Division of the Wayne County Circuit Court.
[2] All statutory references are to RSMo 1994 unless otherwise indicated.
[3] Inexplicably, it appears that neither the court nor anyone else has ever attempted to make Mary account for Elza's assets via proceedings in the conservatorship estate.
[4] The record filed with this court does not show whether such accounting was ever filed in CV 1093-37P, the conservatorship estate.
[5] Specifically Thurman objected to Mary taking credit for: certain attorney's fees; personal expenses without documentation; certain accounting fees; payment for a motor vehicle bought for Elza but unlisted as an asset of the estate and titled in Mary's name; $13,422 to Mary's sister Carolyn without explanation; loan to Mark Purvis; medical care expenditure without documentation; travel expenses without documentation; travel expenses for grandchildren; household expenses without documentation; and, a request that Mary be paid $27,000 for Elza's care and food without documentation.
[6] "§ 473.010.1. Venue
"1. The will of any decedent shall be probated and letters testamentary granted or administration shall be granted:
"(1) In the county in which the domicile of the deceased is situated;
"(2) If he had no domicile in this state then in any county wherein he left any property; except that when the major part of a nonresident decedent's estate in this state consists of real estate, the will shall be probated and letters testamentary or of administration shall be granted in the county in which the real estate or the major part thereof is located."
[7] Mary Abbott and Carolyn Abbott both received nominal bequests.
[8] In pertinent part, § 473.137 reads:
"1. If the validity of a will is contested ... the court shall grant letters of administration to the executor named in the will, if he has no beneficial interest in the estate....
"2. If, after ... hearing, it appears that the executor named in the will has an interest adverse to any such contestant of the will, the court may, in its discretion, grant letters of administration to some disinterested person....
"3. An administrator appointed pursuant to this section shall proceed with the administration of the estate until termination of the will contest...." (emphasis added).
[9] In pertinent part, § 472.010(15) of the probate code defines "interested party" thusly:
"[D]evisees ... or any others having a property right or claim against the estate of a decedent being administered.... This meaning may vary at different stages and different parts of a proceeding and must be determined according to the particular purpose and matter involved." (emphasis added).
[10] In pertinent part, § 472.140 reads:
"2. `Adversary probate proceeding' as used in this section ... means any proceeding brought pursuant to any provision of chapters 472, 473, 474 and 475, RSMo, which requires, as a condition precedent to an entry of an order or judgment on the merits, notice of hearing to persons interested in the proceeding, except that proceedings ... as to settlements of conservators shall not be deemed to be adversary unless and until an interested person files objections to the action proposed or the account stated. ..." (emphasis added).
[11] In pertinent part, § 473.340 provides:
"1. Any ... person who claims an interest in property which is claimed to be an asset of an estate or which is claimed should be an asset of an estate may file a verified petition in the probate division of the circuit court in which said estate is pending seeking determination of the title, or right of possession thereto, or both...."
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443559/
|
83 F. Supp. 2d 1269 (1999)
Vivian O. CARR, Plaintiff,
v.
STILLWATERS DEVELOPMENT COMPANY, L.P., and AIMCO (formerly Insignia Financial Group, Inc.), Defendants.
No. Civ.A. 98-T-987-E.
United States District Court, M.D. Alabama, Eastern Division.
September 7, 1999.
*1270 *1271 Richard J. Stockham, III, James Herbert Wilson, Stockham & Stockham, P.C., Birmingham, AL, for Plaintiff.
Tara L. Helms, Watson Jimmerson, PC, Alan P. Judge, Alan P. Judge, PC, Hunstville, AL, Patricia Powell Burke, Patrick G. Nelson, Burr & Forman, Patricia Powell Burke, Ashley H. Hattaway, Patrick G. Nelson, Burr & Forman, Birmingham, AL, for Defendants.
ORDER
MYRON H. THOMPSON, District Judge.
Plaintiff Vivian O. Carr, an African-American, brings this lawsuit against defendants StillWaters Development Company Limited Partnership and AIMCO (formerly known as Insignia Financial Group, Inc.) claiming racial discrimination and retaliatory discharge in violation of 42 U.S.C.A. § 1981. She also claims violation of the terms of her employment contract under Alabama state law. Properly invoking this court's jurisdiction under 28 U.S.C.A. §§ 1331 (federal question), 1343(a)(4) (civil rights), and 1367(a) (supplemental), she seeks declaratory and injunctive relief, compensatory and punitive damages, and attorney's fees and costs. This lawsuit is now before the court on the *1272 defendants' motions for summary judgment, which, for the reasons discussed below, are granted in part and denied in part.
I. FACTS
In making its determination on summary judgment, the court must view all evidence and any factual inferences in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). Accordingly, the facts, as gathered from the affidavits, deposition testimony, and other evidence submitted by the parties but viewed in the plaintiff's favor, are as follows.
Vivian O. Carr began working in 1984 as a housekeeper at the StillWaters Resort on Lake Martin in Tallapoosa County, Alabama. The resort is owned by the Arizona-based StillWaters Development Company. Carr was hired by Evergreen, the company with which StillWaters Development had contracted to manage the resort, and she was rehired in late 1996 by Insignia when it won the management contract. Insignia's new management team included the following:
Tom Miller, who is white, was Insignia's Director of Hotel Operations.
Jim Greene, who is white, was General Manager (also known as Property Manager) and reported to Miller.
William Hall, who is white, later replaced Greene.
Deena Davis, who is white, was Rooms Division Manager.
Carr was promoted in June 1997 to the position of Housekeeping Supervisor, with a raise in wage to $7.25 per hour. Rooms Division Manager Davis publicly announced Carr's promotion the next month in a memorandum, writing, "Vivian has worked for StillWaters since 1989 as a housekeeper and has been acting as Housekeeping Supervisor since early June. She has done an admirable job and we appreciate it."[1] So admirable, in fact, that when Davis later appraised Carr's job performance she gave Carr an overall rating of "good" and a rating of "very good" in the areas of dependability, guest relations, paperwork and reporting, cooperation and teamwork, and cost control.[2] Carr's personnel file shows no disciplinary action or negative notes from 1984 through 1997.[3]
The 13 years of a clean employment record ended in January 1998 when Teresa Allen was hired to the newly-created position of Executive Housekeeper. Allen's position in the Insignia hierarchy was supervisory to Carr and subordinate to Davis. The exact nature of Carr's status at this point is unclear: although General Manager Hall says that Carr was demoted to "Inspectoress," a nonsupervisory role, there were no records in her personnel file indicating such a change and, in fact, other records continue to refer to her position as "Housekeeping Supervisor."[4] Still, Hall has admitted that Allen's position was for all intents and purposes the same as Carr's.[5] Whereas Carr was paid $7.25 hourly, Allen was hired with a $20,000 salary.
Allen first reprimanded Carr at the end of April 1998, recording that Carr had been instructed to have the laundry aide wash new linen but, contrary to instructions, sent the staff home at 2:00 and left the linen unwashed.[6] Allen typed a performance *1273 appraisal complaining that Carr's "job performance remain[ed] unsatisfactory" despite "numerous verbal and written warnings" from Allen.[7] A second reprimand followed on May 14 for "poor job performance" and "refusing to do her duties as a supervisor," citing "daily inspections, daily office procedures, handling employee problems."[8] Allen began to leave regular notes in Carr's files, recording every perceived gaffe or omission.
At the end of May, following an informal lunch discussion between Carr and other employees in the housekeeping department about work-related issues, including concerns about racial discrimination and problems with unfair treatment of employees, a group of black housekeeping employees drafted a letter of complaint.[9] Although the letter is difficult to understand because the grammar is poor and the handwriting is at times illegible, and although it does not specifically use the words "racial discrimination" and appears on its face to address only minor specific events with specific employees, it does ultimately complain of unfairness and disparate treatment of black and white employees.[10] The letter concludes, "We feel like [Betty Patterson, who is white] is been discrimination to some of us employees."[11]
One of those employees requested a meeting with General Manager Hall. Hall convened a meeting with the housekeeping staff, commenced it with a discussion of StillWater's direction and history, and then opened it up for discussion of discrimination issues.[12] The staff was not forthcoming; Hall's own description of the meeting explains their reticence: "[A]s far as I was concerned, I was not very pleased with the meeting because I didn't get any response; and I was looking for a response to, you know, feel better about these allegations, and I just felt that there was something being withheld. Either they were intimidated or they just were generally reluctant to respond to anything."[13] The employees may have been reluctant because Hall appeared to want to avoid the subject of complaints about Allen's treatment of Carr or, since Allen herself was there, because the opportunity to complain seemed to be closed before it had even been opened.[14] Even though few complaints were aired at the meeting, much less any direct statement that Carr had incited the request for the meeting, Allen recorded this meeting in Carr's file as another example of insubordination.[15]
Carr's third reprimand came on June 9 in response to her handling of a thunderstorm at the resort. The reprimand cited "poor job performance" and "not ensuring proper safety procedures."[16] Accounts of this incident vary, but apparently Carr sent a van driver, in violation of a policy, to the golf colony during a storm to retrieve *1274 two housekeeping employees who were stranded there.
The final sequence of events occurs over one weekend. On Friday, June 12, Carr delivered a letter to General Manager Hall, headed "Equal Opportunity Complaint," which listed "some ... discriminating facts," "just a few to get the ball rolling," and included observations about disparate treatment of white and black employees as well as a few observations about unfairness to herself directly.[17] The next day, Carr was ushered into a meeting with Allen and the assistant manager (there in place of Hall, who was out of town). There, Carr was given her fourth reprimand, which complained as follows: "Unsatisfactory or careless work, failure to meet quality standards. Inspections of public areas which is her assigned duty are unsatisfactory."[18] Carr was suspended pending further review by the General Manager. The following Monday, according to Hall, he investigated the listed complaints, judged them all to be groundless, and fired Carr.[19]
Carr filed this lawsuit on September 2, 1998, naming Insignia and StillWaters Development Company as defendants. Carr later substituted AIMCO for Insignia as a defendant because Insignia now operates under the name Apartment Investment and Management Company or AIMCO.
II. DISCUSSION
Summary judgment can be granted only if, after viewing evidence and inferences in the nonmovant's favor, the court finds that "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Once the party seeking summary judgment has informed the court of the basis for its motion, the burden shifts to the non-moving party to demonstrate that summary judgment is inappropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). This shifting of the burdens of production and proof is governed by the substantive law of the dispute. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir.1993) (discussing how the movant and nonmovant's respective burdens vary whether the legal issues, to which the facts in question pertain, are ones for which the movant or nonmovant bears the burden of proof at trial).
A. SECTION 1981
Although Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C.A. §§ 1981a, 2000e through 2000e-17), neither preempts 42 U.S.C.A. § 1981 as a basis for litigating claims of employment discrimination, see Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459, 95 S. Ct. 1716, 1719, 44 L. Ed. 2d 295 (1975), nor contributes its jurisdictional prerequisites such as exhaustion of administrative remedies to § 1981 claims, see Hines v. D'Artois, 531 F.2d 726, 734 (5th Cir.1976),[20] the analytical frameworks of Title VII jurisprudence apply to claims of employment discrimination pursued under § 1981. See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.1998) ("Both of these statutes have the same requirements of proof and use the same analytical framework."). For purposes of summary judgment, then, the relative burdens of production and proof shift according to the kind of evidence proffered by the plaintiff to show discriminatory intent: if the plaintiff offers direct evidence, then the employer must prove by a preponderance of the evidence that the same employment decision would have been made regardless of discriminatory intent; if, instead, *1275 the plaintiff offers circumstantial evidence, the plaintiff must first establish a prima facie case of discrimination and, if successful, the employer must respond with legitimate, nondiscriminatory reasons for the adverse employment decision, which the plaintiff finally must discredit as pretextual. See Standard, 161 F.3d at 1330-31.
1. Racial Discrimination
Carr alleges racial discrimination based on three theories: disparate treatment in pay, disparate treatment in the terms of her supervisory position, and discriminatory discharge. For the theory of unequal pay, Carr alleges that Allen was hired in essentially the same position Carr had occupied and that Allen was paid more money in the position. For the theory of disparate treatment in the terms of her supervisory position, Carr alleges that Allen would invite Carr to interview black applicants for housekeeping jobs but not white applicants and that Allen would tell only the black employees not the white employees as well that Carr was their supervisor. For the theory of discriminatory discharge, Carr alleges that she was terminated because she is black and replaced by Betty Patterson, who is white.
Carr argues that, by introducing Hall's purported admission that there were problems with race discrimination or harassment in the housekeeping department, she has proffered direct evidence of discriminatory intent.[21] She has not. Direct evidence is "evidence that establishes the existence of discriminatory intent behind the employment decision without any inference or presumption." Standard, 161 F.3d at 1330. To serve as direct evidence of Carr's claim, the admission of discrimination generally in the housekeeping department requires an additional inference namely, that Carr herself was indeed a victim of that discrimination. Carr's evidence of discrimination is, then, circumstantial, thus subjecting her case to the three-step burden shifting described above.
a. Prima Facie Case
Accordingly, Carr must present a prima facie case. The prima facie case of employment discrimination has the following elements: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for a specific condition or benefit of employment; (3) the plaintiff was denied the condition or benefit despite her qualifications; and (4) that condition or benefit was enjoyed by or given to someone who was not a member of the plaintiff's protected class. These elements have slightly more specific formulations according to the particular theory of discrimination alleged. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n. 13, 93 S. Ct. 1817, 1824 n. 13, 36 L. Ed. 2d 668 (1973) ("The facts necessarily will vary in [employment discrimination] cases, and the specification ... of the prima facie proof required [for a particular theory of discrimination] is not necessarily applicable in every respect to differing factual situations."); see also Walker v. Mortham, 158 F.3d 1177 (11th Cir.1998) (eliminating `relative qualifications' as an element of the prima facie case).
Because Carr is black, she meets the first element for all the theories of discrimination argued. Carr has likewise carried her initial burden of showing that she was qualified for the disputed job conditions. She was a housekeeper at the StillWaters Resort for 13 years prior to the adverse employment decisions; she had a record clean of any negative employment history; and her performance was favorably evaluated by Davis before Allen was ever hired. In fact, although it was Insignia's policy to keep written records of negative performance appraisals and employees' needs for improvement and correction, *1276 none was recorded until the rapid spate of negative comments filed by Allen in the three-month period prior to Carr's termination.
Despite her qualifications, as shown in the plaintiff's initial burden, Carr was denied the ability to apply for or receive pay equal to that given Allen, was denied supervisory authority over employees of all races, and was demoted and discharged. Finally, Carr has also sufficiently proven that persons outside her protected class were accorded the disputed job benefits: Allen, who is white, was given more pay for what William Hall admits was the same position, albeit in a different name; Allen again was given supervisory authority over all housekeeping employees whereas Carr's authority was racially ghettoized; and Patterson, who is white, replaced Carr as Housekeeping Supervisor.
b. Legitimate, Nondiscriminatory Reasons
Because Carr has met the requirements of her prima facie case, the burden shifts to the defendants to proffer legitimate, nondiscriminatory reasons for the disputed job decisions. "This is a burden of production, not persuasion. [The defendants] need only produce evidence that could allow a rational fact finder to conclude that [the adverse employment decisions were] not made for a discriminatory reason." Standard, 161 F.3d at 1331.
The defendants have wholly ignored Carr's disparate treatment theories and addressed only the discharge theory. They have thus failed entirely to meet their burden to provide legitimate nondiscriminatory reasons for the inequality in pay or supervisory authority. These issues therefore continue to present genuine disputes of material fact, and summary judgment on these theories is denied.
As for Carr's theory of discriminatory discharge, the defendants offer several nondiscriminatory reasons. For the most part, the defendants reiterate reasons recorded in Carr's employment file for the four reprimands. The defendants also offer the testimony of Hall that Carr was essentially demoted because she could not motivate the housekeeping department to achieve an acceptably high standard of cleanliness and that Carr was ultimately fired because she was insubordinate, telling Hall before issuance of the fourth and final reprimand that she refused to comply with Allen's directions or recognize Allen's supervisory role over her. All of these reasons are legitimate and nondiscriminatory, and the defendants have thus carried their burden of production.
c. Pretext
The burden shifts finally to Carr to discredit as pretextual the defendants' alternative explanation of her discharge. Carr may satisfy this burden by persuading the court either directly that a discriminatory reason more than likely motivated the employer or indirectly that the proffered reason for the employment decision is not worthy of belief. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207 (1981). "Mere conclusory allegations and assertions will not suffice." Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir.1990).
Carr has offered evidence from which a reasonable jury could conclude that the defendants' proffered alternative explanations are not worthy of credence. The observations recorded in the reprimands are all the observations of Allen; that they are recorded in Carr's personnel file does not necessarily give them more credibility than if they were deposition testimony. The four reprimands were filed in rapid succession in the three-month period leading to termination, following a 13-year history free of reprimands and within a year of a positive job appraisal. The timing alone supports a conclusion of pretext.
There is also very strong evidence that the reprimands were part of a plan conceived in advance to terminate Carr. Allen placed a hand-written note in Betty Patterson's personnel file to recommend Patterson for a raise. The note includes this *1277 telling statement: "I would also like for her to fill the position of Housekeeping Supervisor when it becomes open."[22] Patterson won that raise on April 30, 1998, the same day Allen gave Carr her first written reprimand.[23] Carr has also offered even more direct evidence of pretext, through the statement of Patterson, the white person hired to replace her:
"I have heard Ms. Allen say that she (Ms. Allen) was going to `get rid of that nigger,' (referring to Ms. Carr). She said that to me on several occasions. Ms. Allen let me know that I was going to replace Ms. Carr before she was terminated and that I would get her job. Ms. Davis also confirmed this so that it was clear that no matter what Ms. Carr did they were going to fire her.... I have also heard Ms. Allen use the term `nigger' on numerous occasions. I have heard her say that `those niggers don't know anything,' referring to the women in housekeeping. With regard to Ms. Carr, Ms. Allen kept me informed of the regular write-ups she was putting in Ms. Carr's file in order to terminate her. She even had me do a write-up on Ms. Carr so she could terminate her. In it I wrote that Ms. Carr had an attitude toward me, but it was not unusual given how obvious the efforts by Ms. Allen were to set her up and run her off...."[24]
Because Carr has made a significant showing of pretext, summary judgment is inappropriate on the discharge theory.
2. Racial Harassment
Carr alleged racial harassment in her complaint, but only to claim breach of contract under Alabama law the theory being that she suffered harassment and other discrimination that violated the terms of her employment contract with Insignia. That claim is discussed below. Carr reintroduces a harassment theory in her response brief to the defendants' motions for summary judgment, inserting it for the first time as a constituent of her § 1981 claims. Even if the harassment theory of her § 1981 claim was timely introduced in this litigation, it must be summarily rejected, as Carr makes only the bald assertion that Allen's write-ups constituted harassment and completely ignores her burden of showing that such behaviors amount to unwelcome racial harassment so severe and pervasive as to affect the terms and conditions of employment. If Carr does indeed seek to pursue a claim of racial harassment, it fails summary judgment.
3. Retaliatory Discharge
Title VII's prohibition against discharge and adverse employment actions in retaliation for protected activity applies to claims brought under § 1981. See Andrews v. Lakeshore Rehabilitation Hospital, 140 F.3d 1405, 1409-13 (11th Cir.1998) (finding retaliation claims cognizable under § 1981 after 1991 revisions to the statute). Because Carr has not provided direct evidence of retaliation, the burdens shift as above for the discrimination claims: the plaintiff must establish a prima facie case of retaliation; if the plaintiff is successful, retaliation is presumed, and the burden shifts to the defendant to produce legitimate reasons for the adverse employment action; if the defendant is successful, the presumption of retaliation is rebutted, and the burden shifts again to the plaintiff to discredit the defendants' alternative explanation as pretextual. See Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 919 (11th Cir.1993).
The elements of the prima facie case of retaliation are (1) protected activity, (2) adverse employment action, and (3) a causal link between the protected activity and the adverse action. Id. at 919. Voicing one's concerns about racial discrimination to one's superiors, provided that expression is not unreasonably disruptive *1278 or does not render the employee incapable of doing his or her job, is protected activity. See Holifield v. Reno, 115 F.3d 1555 (11th Cir.1997); Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1142-47 (5th Cir.1981) (discussing kinds of protected and unprotected activity), cert. denied, 455 U.S. 1000, 102 S. Ct. 1630, 71 L. Ed. 2d 866 (1982). For the `causal link,' the plaintiff need only show some relationship between the protected activity and the adverse action. See E.E.O.C. v. Reichhold Chemicals, Inc., 988 F.2d 1564, 1571-72 (11th Cir.1993) (holding the plaintiff "merely has to prove that the protected activity and the negative employment action are not wholly unrelated").
Carr's letter, much like the previous letter of complaint from the housekeeping department, lists specific events that in the aggregate amount to complaints of pervasive discriminatory disparate treatment of white and black employees at StillWater. Thus, Carr complained of discrimination in a letter submitted directly to General Manager Hall; the next day, she was given the last reprimand and suspended; the following Monday, she was officially fired. In essence, immediately after she complained of discrimination, she was fired. The temporal proximity between the complaint and her termination suffices to show the required causal connection for purposes of the prima facie case of retaliation. The defendants reassert as legitimate non-retaliatory reasons the same alternative explanations proffered against the claim of discriminatory discharge. Those reasons have already been shown to be pretextual. Summary judgment on this claim must therefore be denied.
B. BREACH OF EMPLOYMENT CONTRACT
The claim that harassment and discrimination violated the employment contract between Carr and AIMCO (formerly known as Insignia) is governed by Alabama law. Carr complains that she suffered the discrimination and harassment discussed above in violation of the antiharassment policy in the employee handbook. Carr's theory is that the policy violation is a breach of the employment contract established by the handbook and the accompanying implied covenant of good faith.
Under Alabama law, provisions in employee handbooks can indeed establish terms of the employment contract. To do so, the handbook terms must meet the requirements of classic contract law: "First, the language contained in the handbook must be examined to see if it is specific enough to constitute an offer. Second, the offer must have been communicated to the employee by issuance of the handbook, or otherwise. Third, the employee must have accepted the offer by retaining employment after he has become generally aware of the offer. His actual performance supplies the necessary consideration." Hoffman-La Roche, Inc. v. Campbell, 512 So. 2d 725, 735 (Ala.1987). Intent to contract is determined by the parties' outward manifestations; accordingly, "if the employer does not wish the policies contained in an employee handbook to be construed as an offer for a unilateral contract, he is free to so state in the handbook." Id. at 734 (citing McCluskey v. Unicare Health Facility, Inc., 484 So. 2d 398, 400 (Ala.1986)). Thus, the Supreme Court of Alabama "has refused to hold the provisions of a handbook enforceable against an employer where the handbook at issue expressly stated [that handbook terms are not to be construed as contract terms]." Id.
Whether the terms of a handbook meet these requirements is generally a question of law. See Dykes v. Lane Trucking, Inc., 652 So. 2d 248, 250 (Ala. 1994). There are, then, no genuine disputes of material facts in Carr's contract claim, and this court proceeds directly to decide whether the defendants are entitled to judgment as a matter of law.
*1279 The defendants are indeed entitled. The first page of the handbook in question states unequivocally that the handbook's terms do not constitute contract terms:
"This handbook will provide you with an outline of our company policies and procedures and the expectations of our working relationship. The Standards of Conduct outlines [sic] the rules and regulations in effect as a condition of your employment."
"StillWaters Resort endorses and supports all Federal and State employment laws and regulations. We also embrace the doctrine of `employment at will.' Nothing in the policies, procedures or standards of conduct shall constitute an employment contract."
Plaintiff's Exh. 12, at 2. Carr was an at-will employee; the handbook's policies were merely precatory and did not constitute an enforceable agreement.[25] Without a contract, Carr cannot claim breach, and the defendants are therefore granted summary judgment on the state-law claim.
C. LIABILITY OF OWNER
For its part, StillWaters Development asserts only that it cannot be held liable for any discrimination committed by Insignia. StillWaters Development urges that the language of the management contract with Insignia, which expressly disclaims any agency relationship, compels this conclusion. Further, StillWaters Development stresses that the management contract granted Insignia exclusive authority over its employees and that StillWaters Development was ignored the only time a StillWaters Development official urged reconsideration of an employment decision.
Principals can be held liable for the employment discrimination perpetrated by their agents if the latter were aided in the discrimination by the agency relationship itself. See Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1559 (11th Cir.1987). The question whether a party acted as the agent of another for purposes of § 1981 is a question of fact. See Sims v. Montgomery County Comm'n, 766 F. Supp. 1052 (M.D.Ala.1990) (Thompson, J.). Thus, the factual issue of agency is material to this case.
Express disclaimers of agency do not necessarily eliminate the existence of an agency relationship:
"The relation which the law calls agency does not depend upon the intent of the parties to create it, nor their belief that they have done so. To constitute the relation, there must be an agreement, but not necessarily a contract, between the parties; if the agreement results in the factual relation between them to which are attached the legal consequences of agency, an agency relationship exists although the parties did not call it agency and did not intend the legal consequences of the relationship to follow."
Restatement (2d) of Agency § 1 cmt. b (1958). Otherwise, parties could enjoy the benefits of an agency relationship free of legal consequences simply by the insertion of a disclaimer clause in the agency contract.
Agency is the "fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." Id. § 1. The key to finding the existence of an agency relationship is control. See, e.g., id. § 14 ("A principal has the right to control the conduct of the agent with respect to matters entrusted to him."). "If the existence of an agency relation is not otherwise clearly shown, as *1280 where the issue is whether ... an agency has been created, the fact that it is understood that the person acting is not to be subject to the control of the other as to the manner of performance determines that the relation is not that of agency." Id. § 14 cmt. b. That the agreement creates some limits on the amount of control exercised by the principal likewise is not necessarily dispositive:
"The right of control by the principal may be exercised by prescribing what the agent shall or shall not do before the agent acts, or at the time when he acts, or at both times. The principal's right to control is continuous and continues as long as the agency relation exists, even though the principal agreed that he would not exercise it. Thus, the agent is subject to a duty not to act contrary to the principal's directions, although the principal has agreed not to give such directions. Further, the principal has power to revoke the agent's authority, although this would constitute a breach of his contract with him.... The control of the principal does not, however, include control at every moment; its exercise may be very attenuated and, as where the principal is physically absent, may be ineffective."
Id. § 14 cmt. a.
Under this test, Carr has established a genuine issue of material fact as to whether Insignia was acting as an agent of StillWaters Development when the alleged discrimination and retaliation occurred. StillWaters Development did not simply hand over management of its resort to Insignia; it expected Insignia to manage the resort and exercise its best efforts in doing so according to standards set by StillWaters Development in the contract and subject to ongoing approval. The agreement explicitly insists that Insignia was expected to use its "best efforts" to "supervise and direct the management and operation of the Resort in a professional manner and in accordance with the request of the Owner."[26] Although Insignia is indeed deemed the employer of resort staff, Insignia was not allowed to hire anyone in the office of general manager, the office vested with the most discretion in managing the resort, without written approval from StillWaters Development.[27] Insignia's continued enjoyment of the management contract is subject to achieving annually-determined performance standards.[28]
StillWaters Development's continued control over the relationship with Insignia was realized in practice. The parties had "frequent conversations" and created a "continuing relationship as [they] tried to mold and direct the entire operation into a smooth resort operation."[29] Their meetings were not mere formalities:
"We would discuss financial terms, revenues or expenses. We would discuss levels of maintenance or specific projects for maintenance or activities. We would discuss operations for golf, marina, time share.... We had weekly reporting sessions. We had weekly staff meetings via telephone in which an agenda would be established and reporting would occur."[30]
Thus, even though the agreement denies agency, Insignia contracted to perform services for the benefit of StillWaters Development and subject to StillWaters Development's ongoing control. Summary judgment will not therefore eliminate StillWaters Development from this suit.
III. CONCLUSION
For the reasons given above, the court concludes that Carr has established her *1281 claims of discrimination and retaliation but has failed to establish her claims of harassment and contract breach.
Accordingly, it is ORDERED as follows:
(1) The motion for summary judgment filed by defendant StillWaters Development Company Limited Partnership on June 24, 1999, and the motion for summary judgment filed by defendant AIMCO (formerly known as Insignia Financial Group, Inc.) on June 22, 1999, are granted to the extent that judgment is entered for the defendants on the claims against them under 42 U.S.C.A. § 1981 for racial harassment and the claims against them under Alabama law for breach of employment contract.
(2) The motions are denied in all other respects.
NOTES
[1] Plaintiff's Exh. 1.
[2] Plaintiff's Exh. 2.
[3] See Plaintiff's Exh. 5 (personnel file).
[4] See Plaintiff's Exh. B, deposition of William Hall, at 16-17 (Allen was hired to replace Carr), 92 (neither Hall nor Davis had reprimanded Carr before hiring Allen), 100 (describing Carr's demotions); Plaintiff's Exh. 5 (Carr's personnel file); Exh. 6 (termination form that lists Carr's position as "Housekeeping Supervisor").
[5] When asked why Carr was unqualified for the position given to Allen, Hall said, "Because Ms. Carr had that position and she wasn't getting the job done." Defendant AIMCO's Exh. 2, at 78 (deposition of William Hall) (emphasis added).
[6] See Plaintiff's Exh. 5 (Carr personnel file, Corrective Counseling Form dated April 29, 1999, by Allen's signature).
[7] Plaintiff's Exh. 5 (Carr personnel file, Statement of Review, dated May 1, 1998).
[8] Id. (form dated May 14, 1999).
[9] See Plaintiff's Exh. A, deposition of Carr, at 108-11; Plaintiff's Exh. 8 (letter of complaint).
[10] For example, the third section of the letter complains that black and white employees are given different job duties. See Plaintiff's Exh. 8.
[11] Plaintiff's Exh. 8.
[12] See Plaintiff's Exh. A, Carr deposition, at 105-110.
[13] See Plaintiff's Exh. B, Hall deposition, at 71.
[14] See Defendant AIMCO's Exh. 4, deposition of Karen Trimble, at 70, 72 ("They just didn't say nothing.... I don't know was it the point because Teresa was there. I don't know whether everybody didn't want to express their feelings with her sitting right there or not.").
[15] See Plaintiff's Exh. 5 (Carr personnel file, note dated May 29) ("The Housekeepers called a meeting with Mr. Hall. It was derived from a report that was done on Vivan [sic] Carr's job performance. After being told by her Supervisor not to tell her coworkers about the report, she did exactly that, causing an uprising in the department.").
[16] See id. (form dated June 9, 1999).
[17] See Plaintiff's Exh. 9.
[18] See Plaintiff's Exh. 5.
[19] See Plaintiff's Exh. B, Hall deposition, at 40-50.
[20] In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
[21] See Plaintiff's Exh. 13 (affidavit of James Craig); Plaintiff's Exh. B (deposition of William Hall), at 79.
[22] Plaintiff's Exh. 7 (Patterson personnel file).
[23] See Plaintiff's Exh. 7 (personnel file of Betty Patterson).
[24] See Plaintiff's Motion to Supplement Evidentiary Submission, filed July 30, 1999, Exh. A (affidavit of Betty Patterson).
[25] The handbook repeatedly stresses that Carr is an at-will employee. See, e.g., Plaintiff's Exh. 12, at 6 ("In no event shall hiring be considered as creating a contractual relationship between the employee and StillWaters Resort; and, unless otherwise provided in writing by the General Manager, all such employment relationships shall be defined as `employment at will....'"), 13 (listing examples of unacceptable activities and adding, "This list is not an all [sic] inclusive and, notwithstanding this list, all employees remain `employed at will.'").
[26] See Plaintiff's Exh. 16, Management Agreement, § 3.1.
[27] Id. § 1.1(1).
[28] See id. § 3.2.1 ("The failure of Manager to meet the performance standards ser forth in any individual Division in the Annual Plan shall subject Manager, at Owner's option, to termination of [the agreement].").
[29] See Plaintiff's Exh. B (Hall deposition), at 89.
[30] Id. at 90.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443302/
|
83 F. Supp. 2d 713 (2000)
Patricia BRAGG, et al., Plaintiffs,
v.
Colonel Dana ROBERTSON, et al., Defendants.
No. CIV.A. 2:98-0636.
United States District Court, S.D. West Virginia. Charleston Division.
February 17, 2000.
*714 *715 Joseph M. Lovett, Mountain State Justice, Charleston, WV, James M. Hecker, Trial Lawyers for Public Justice, Washington, DC, for Patricia Bragg.
Joseph M. Lovett, Mountain State Justice, Charleston, WV, James M. Hecker, Trial Lawyers for Public Justice, Washington, DC, David L. Grubb, John W. Barrett, The Grubb Law Group, Charleston, WV, for James W. Weekley, Sibby R. Weekley.
Patrick C. McGinley, Morgantown, WV, James M. Hecker, Trial Lawyers for Public Justice, Washington, DC, Suzanne M. Weise, Morgantown, WV, for West Virginia Highlands Conservancy, Harry M. Hatfield, Carlos Gore, Linda Gore, Cheryl Price, Jerry Methena.
Michael L. Keller, Assistant U.S. Attorney, Rebecca A. Betts, United States Attorney, Charleston, WV, Lois J. Schiffer, Asst. Atty. Gen., Steven E. Rusak, U.S. Department of Justice, Environment & Nat. Resources Div., Environmental Defense Section, Washington, DC, Ruth Ann Storey, U.S. Department of Justice, Environment & Nat. Resources Div., General Litigation Section, Washington, DC, Terry Clarke, U.S. Army Corps of Engineers, Office of Counsel, Huntington, WV, for Dana Robertson.
Michael L. Keller, Assistant U.S. Attorney, Rebecca A. Betts, United States Attorney, Charleston, WV, Lois J. Schiffer, Asst. Atty. Gen., Steven E. Rusak, U.S. Department of Justice, Environment & Nat. Resources Div., Environmental Defense Section, Washington, DC, Ruth Ann Storey, U.S. Department of Justice, Environment & Nat. Resources Div., General Litigation Section, Washington, DC, for Joe N. Ballard, Michael D. Gheen.
Thomas L. Clarke, William E. Adams, Jr., Craig B. Giffin, West Virginia Division of Environmental Protection, Office of Legal Services, Charleston, WV, Russell M. Hunter, West Virginia Division of Environmental Protection, Office of Mining & Reclamation, Nitro, WV, Benjamin L. Bailey, Brian A. Glasser, Bailey & Glasser, LLP, Charleston, WV, for Michael Miano, Michael C. Castle.
Roger A. Wolfe, Robert G. McLusky, James R. Snyder, Jackson & Kelly, Charleston, WV, for Hobet Mining, Inc., Catenary Coal Co., Mingo-Logan Coal Co.
W. Warren Upton, M. Shane Harvey, Jackson & Kelly, Charleston, WV, Terry R. Sammons, Jackson & Kelly, Charleston, WV, for West Virginia Mining and Reclamation Association, West Virginia Coal Association.
Robert D. Pollitt, Richard L. Lewis, Richard N. Farmer, Steptoe & Johnson, Charleston, WV, W. Henry Lawrence, IV, Steptoe & Johnson, Clarksburg, WV, for Western Pocahontas Properties Limited Partnership, National Council of Coal Lessors, Inc.
Grant Crandall, James M. Haviland, George P. Surmaitis, Crandall, Pyles, Haviland & Turner, Charleston, WV, for International Union, United Mine Workers of America.
MEMORANDUM OPINION AND ORDER ACCEPTING AND ENTERING CONSENT DECREE
HADEN, Chief Judge.
Pending is the joint motion of Plaintiffs and Defendant Director of the West Virginia Division of Environmental Protection ("WVDEP") to enter a Consent Decree.[1]*716 The Consent Decree proposes resolution of Counts 4 through 10, 14 and 15 of the Second Amended Complaint, which comprise all remaining claims in this civil action.[2] All Intervenor-Defendants and the Federal Defendants[3] now urge the Court's acceptance of the Consent Decree, see Bragg v. Robertson, No. 2:98-636 (S.D.W.Va. Jan. 10, 2000); however, Intervenors have expressed reservations, which are addressed within.
I. PROCEDURAL AND FACTUAL BACKGROUND
Plaintiffs brought this civil action under the citizen suit provision of the Surface Mining Control and Reclamation Act of 1977 ("SMCRA"), 30 U.S.C. § 1270(a)(2), alleging the WVDEP Director engaged in an on-going pattern and practice of violating his non-discretionary duties under SMCRA. Following extensive hearings on a proposed surface mining permit for the construction and opening of the Spruce Fork mine, which the Court considered as an instance of the Plaintiffs' pattern and practice claims, the Court enjoined the Federal Defendants from issuing any further permits for that mine, stayed permits issued by the WVDEP Director, and enjoined any preconstruction or mining activities for the Spruce Fork operation until the case was resolved on the merits. See Bragg v. Robertson, 54 F. Supp. 2d 635 (S.D.W.Va.1999). By Order of June 17, 1999 the Court accepted a settlement agreement which resolved Counts 11, 12, and 13 of the Amended Complaint concerning the Federal Defendants, although the Court retained jurisdiction to interpret and enforce the agreement until fully performed. See Bragg v. Robertson, 54 F. Supp. 2d 653 (S.D.W.Va.1999).
Plaintiffs and the WVDEP Director now proffer the Consent Decree. As previously noted, the WVDEP Director and the Court conducted separate public comment periods. The Court has reviewed all public comments directed to it; the WVDEP Director states his office has reviewed all comments directed to the WVDEP and the Court before moving entry of the Consent Decree. The Court also requested the parties, other than those signatory to the Consent Decree, to file written objections to the Decree, and the Court has reviewed *717 those objections. At the request of the parties, the Court heard testimony from experts working on proposed commercial forestry and approximate original contour ("AOC") spoil placement policy. Finally, on January 7, 2000 the Court conducted a hearing to address issues raised by objectors and question the parties about the Decree. See Bragg, No. 2:98-0636 (Jan. 10, 2000). The motion for entry of the Consent Decree is now ripe for review.
II. DISCUSSION
A. Standard of Review
A consent decree is a negotiated agreement that is entered as a judgment of the court, see Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 519, 106 S. Ct. 3063, 92 L. Ed. 2d 405 (1986), and thus has attributes of both contracts and judicial decrees, see United States v. ITT Continental Baking Co., 420 U.S. 223, 95 S. Ct. 926, 43 L. Ed. 2d 148 (1975). As a negotiated agreement, a consent decree
normally embodies a compromise: in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation. Thus, the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve.
United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S. Ct. 1752, 29 L. Ed. 2d 256 (1971). A consent decree is also a continuing order, one having prospective effect. Where, as here, the parties agree to the Court's continuing jurisdiction to enforce the decree, see Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 381-82, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994), a party aggrieved by the other's noncompliance may apply for an order to show cause why the noncompliant party should not be held in contempt.
A district court's "authority to adopt a consent decree comes only from the statute which the decree is intended to enforce," System Fed'n No. 91, Ry. Emp. Dep't v. Wright, 364 U.S. 642, 651, 81 S. Ct. 368, 5 L. Ed. 2d 349 (1961), so that the focus of the court's attention in assessing the agreement should be the purposes the statute is intended to serve, rather than the interests of the parties to the settlement, see Citizens for a Better Env't v. Gorsuch, 718 F.2d 1117, 1126 (D.C.Cir. 1983). But a trial court approving a settlement need not inquire into the precise legal rights of the parties nor reach and resolve the merits of the claims or controversy. See id. In fact, it is precisely the desire to avoid a protracted examination of the parties' legal rights that underlies entry of consent decrees. Both the parties and the general public benefit from the saving of time and money that results from the voluntary settlement of litigation. See id.
As our Court of Appeals recently affirmed, when considering whether to enter a proposed consent decree, district courts "should be guided by the general principle that settlements are to be encouraged." United States v. North Carolina, 180 F.3d 574, 581 (4th Cir.1999). Additionally, as this Court previously recognized, "where a government agency charged with protecting the public interest has pulled the laboring oar in constructing the proposed settlement, a reviewing court may appropriately accord substantial weight to the agency's expertise and public interest responsibility." Bragg, 54 F.Supp.2d at 660. Nevertheless, a district court should not blindly accept the terms of a proposed settlement, see Flinn v. FMC Corp., 528 F.2d 1169, 1173 (4th Cir. 1975). Approval of a consent decree is a judicial act, committed to the informed discretion of the trial court, which must satisfy itself that the agreement "is fair, adequate, and reasonable" and "is not illegal, *718 a product of collusion, or against the public interest." North Carolina, 180 F.3d at 581. With these general considerations in mind, the Court considers the Consent Decree at hand.
B. Consent Decree Analysis
The first enumerated purpose of SMCRA is to "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations," 30 U.S.C. § 1202(a), and the fourth is to "assure that surface coal mining operations are so conducted as to protect the environment," 30 U.S.C. § 1202(d). Plaintiffs brought this citizen suit to compel the WVDEP Director to abide by the law and carry out his mandatory duties under SMCRA. In particular, Plaintiffs alleged substantial compliance failures regarding the buffer zone rule, water quality standards, disturbance of wetlands and riparian vegetation, hydrologic reclamation plans, AOC and AOC variance approval, post-mining land uses, coordination with the Environmental Protection Agency objection process, and contemporaneous reclamation.
To satisfy Plaintiffs' allegations, the WVDEP Director agrees in the Consent Decree to enforce state surface mining laws regarding the buffer zone rule,[4] pond placement, hydrologic reclamation plans in permits, AOC variances, and contemporaneous reclamation variances. (CD ¶¶ 6-9, 13.) The Director additionally agrees to create policy documents explaining the application of hydrologic reclamation plans and habitat development. (Id. ¶ 9.)
The Director also agrees to propose and submit to the Legislature proposed regulations or statutory provisions allowing commercial forestry and homesteading postmining land uses for operations receiving AOC variances, (id. ¶ 12, 15, 16), and addressing bonding for surface mining operations that receive an AOC variance. (Id. ¶ 19). The Director agrees to propose and submit to the Legislature the AOC variance provision found at 30 U.S.C. § 1265(c)(3)(B)(ii), requiring that the postmining land use be shown to be obtainable according to data regarding expected need and market, (id. ¶ 11), and to coordinate review of approved post-mining land uses with state or local economic development authorities before approving future AOC variances. (Id. ¶ 18.)
The parties agree to develop a plan to meet AOC requirements and to optimize spoil placement for surface mining valley fills. (Id. ¶ 14.) A permitting quality control committee will be created, (id. ¶ 20), and two new personnel positions are to be added at WVDEP to oversee implementation of the to-be-adopted AOC and postmining land use rules and to participate in permit quality control. (Id. ¶ 21.) This summary is not intended to be comprehensive or explicit on every proposal of the Consent Decree, but only to suggest the comprehensive scope and depth of the agreement.
Both Plaintiffs and the WVDEP Director characterize the Decree as fair, reasonable and adequate, pointing out that extensive negotiations have been required to produce this agreement. Those negotiations took place after discovery was complete. Having observed the parties and heard their contentions throughout the extensive preliminary injunction hearings and briefing, particularly on the buffer zone issue, the Court knows the process *719 leading to this agreement was fair and full of adversarial vigor, revealing the strengths and weaknesses of each side's case. Thus "the results come before the court with a much greater assurance of substantive fairness." United States v. Telluride Co., 849 F. Supp. 1400, 1402 (D.Colo.1994) (citations omitted).
Discovery was complete when the Consent Decree was first presented to the Court, a week before this action was set for trial. Since that time, further negotiations have occurred and substantial drafts of the policy documents and proposed statutes and regulations contemplated in the Decree have been produced, finalized, and presented to the West Virginia Legislature. The WVDEP, the agency charged with administration of the law and, presumably the party most knowledgeable about its application, has worked long and hard with Plaintiffs to bring this decree to the Court. "Respect for the agency's role is heightened in a situation where the cards have been dealt face up and a crew of sophisticated players, with sharply conflicting interests, sit at the table." United States v. Cannons Eng'g Corp., 899 F.2d 79, 84 (1st Cir.1990). The Court finds and concludes the adversarial process has produced a consent decree that is fair and reasonable.
This settlement proposal addresses virtually point by point Plaintiffs' allegations. The WVDEP Director commits his agency to enforce major portions of the surface mining laws, where lax enforcement was assailed by Plaintiffs; to support strengthening the regulations and statutes governing surface mining in West Virginia; and to add oversight personnel assuring the effectiveness of these changes. Federal surface mining law was enacted to provide social and environmental protections from the adverse effects of surface coal mining. This Consent Decree carries out that program, strengthening the application and oversight of surface mining law in West Virginia. That purpose and program are clearly in the public interest.
By signing this Consent Decree, the Director commits the WVDEP to a state surface coal mining program that will uphold the law according to its spirit and its intent. In the Decree, the Director explicitly promises to enforce surface mining law in areas where Plaintiffs alleged prior enforcement failures caused environmental degradation. The Director urges the Court to accept the Decree and rely on these promises. It is a basic presumption of our system of government that public servants abide by the law and their sworn duty to uphold it. In accepting this Decree the Court relies, as it must, on the Director's acknowledgment of his statutory duties and his promises to carry out these obligations. The public interest would be ill-served by any failure to fulfill this agreement or any falling away from the high standards the Director voluntarily has undertaken and set for WVDEP in signing this Decree to end this litigation. The Court finds and concludes the Consent Decree is in the public interest. The Court retains jurisdiction to ensure, insofar as is judicially possible, that the promises made herein will be fulfilled.
Before approving and entering the Consent Decree, however, the Court considers the concerns expressed by Intervenors.
C. Intervenors' Concerns and Objections
Early in this litigation, Hobet Mining, Inc., Catenary Coal Company, and Mingo-Logan Coal Company ("Permittees") and the West Virginia Coal Association and West Virginia Mining and Reclamation Association ("Associations") were allowed to intervene. In March 1999 the United Mine Workers of America ("UMWA") were permitted to intervene as well. These parties have participated fully in hearings and briefing on every issue. The Court also has been informed that Intervenors, their lawyers, and technical experts participated fully in drafting proposed policies and rules to effectuate the Consent Decree.
*720 As discussed, a consent decree is a method of settling differences to avoid the costs and uncertainties of litigation. The Supreme Court observed,
It has never been supposed that one party whether an original party, a party that was joined late, or an intervenor could preclude other parties from settling their own disputes and thereby withdrawing from litigation. Thus, while an intervenor is entitled to present evidence and have its objections heard at the hearings on whether to approve a consent decree, it does not have power to block the decree merely by withholding its consent.
Local Number 93, 478 U.S. at 529, 106 S. Ct. 3063 (citations omitted). By the same token, intervenors are not bound by the agreements of others. See id. Nor may a court enter a consent decree that imposes obligations on a party that did not consent to the decree. See id.
Intervenor Permittees, Associations, and the UMWA do not question the overall fairness and reasonableness of the Consent Decree, nor do they question whether the Decree is consistent with the public interest. Rather, as the Associations put it, in objections joined by Permittees: WVDEP and Plaintiffs "have not yet resolved all ... issues in a manner agreeable to all of the participants." (Comments and Objections of Associations, 2.) The Court can do no more than note that enigmatic and amorphous complaint.
Intervenors' primary concern is that the proposed policies, rules, and statutes, particularly those regarding to AOC, AOC-variance bonding requirements, and post-mining land uses, might bypass statutorily-required rulemaking and legislative processes, becoming law with the Court's entry of the Consent Decree. See W. Va.Code §§ 29A-4-2, 22-3-4. The Decree and this Court, however, recognize the realities of rulemaking and lawmaking. Illustratively, the Decree provides "the Director shall propose and submit" e.g., revised AOC variance bonding requirements. (CD ¶ 19.) Recognizing legal reality, under the Decree the Director promises to propose, but the Legislature disposes. The Director does not agree, nor could he agree, to create final regulations or statutes. Intervenors particularly object to language specifying the bonding requirements "shall be as follows," and setting out particular bonding requirements, (CD ¶ 19), as requiring a final rule. However, while the proposal is mandated by the Director's agreement to end this lawsuit, legislative acceptance cannot be mandated, nor could the Director bind the Legislature to accept his proposals without changes.[5] For this reason, the public should understand that agreements in the Consent Decree to change rules and regulations are proposed modifications only. Good faith efforts by the WVDEP Director and a willing undertaking by the West Virginia Legislature will be required to carry out this WVDEP-approved program.
Intervenors also object to the Consent Decree provisions under which the parties will develop an AOC plan to optimize spoil placement and implement the plan as agency policy, (CD ¶ 14), arguing the Court lacks jurisdiction to enforce such non-discretionary duties. While the *721 dispute a consent decree resolves must be within the court's subject-matter jurisdiction, see Local Number 93, 478 U.S. at 525, 106 S. Ct. 3063, not only the law, but also the parties' consent, "animate[] the legal force of a consent decree." Id. (citations omitted). "Therefore, a federal court is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after a trial." Id. (citations omitted). The Court does not examine the Decree to determine whether the agreement of the parties affords relief the Court could or would have chosen to award. See Telluride, 849 F.Supp. at 1402 ("[The jurist's] role, however, is not to substitute [his] judgment of what constitutes an appropriate settlement or to reform the decree.") Rather, "it is the agreement of the parties, rather than the force of the law upon which the complaint was originally based, that creates the obligations embodied in a consent decree." Local Number 93, 478 U.S. at 522, 106 S. Ct. 3063.
The Consent Decree, however, is a voluntary agreement by the Director, an exercise of the full range of his discretion and statutory responsibility to administer the state surface coal mining regulation program. Under the Decree, the Director simply agrees to carry out his discretionary duties regarding AOC policy within certain parameters. The Court does not mandate the Director's agreement, but rather stands ready to enforce the agreement at the parties' request.
To the extent Intervenors disagree with the substance of the proposals embodied in the Decree, they are free to participate in the legislative and rulemaking processes. The Court notes, however, that the Associations and the UMWA have joined the motion to enter the Consent Decree. (Comments and Objections of Ass'ns at 1.) Regarding development of the AOC/fill optimization plan, Permittee Hobet told the Court that it "has participated in this lengthy process, applauds the efforts of all involved and endorses the plan as it now stands[.]" (Permittees' Mem. at 5 (July 29, 1999).) Hobet allows that it "expects that it will participate in the review and preparation of future plans and proposals that are designed to discharge DEP's duties under the Decree" and that it "anticipates supporting these changes as well." Id. The Associations assert they "embraced the concepts contained in the original draft Consent Decree and their representatives have spent many hours providing constructive suggestions to the West Virginia [DEP] and the plaintiffs in their ongoing negotiations over draft policies and rules." (Comments and Objections of Ass'ns at 1.)
The Court and the public must rely on this good faith participation by Intervenors and their assertedly sincere support of the Consent Decree. The public interest would be ill-served were Intervenors to repudiate those proposals or deny their own substantial contributions to them before the cock crows thrice.
D. Spruce Fork Permit
The Consent Decree agrees to dismissal of all Plaintiffs' claims with prejudice, "except as those claims are asserted against the Director's approval of S-5013-97, Hobet's Spruce Mine." (CD ¶ 5.) However, all provisions of the Consent Decree "shall also apply to any revision to the Spruce Mine permit." (CD ¶ 22 (emphasis added).)
The Court entertained briefing on the issue of whether it could retain jurisdiction over the Spruce Fork state surface mine permit, under the citizens' suit provision of SMCRA. Behind Plaintiffs' desire that the Court retain jurisdiction over the Spruce Fork permit was disagreement among the parties as to the precise status of the Spruce Fork permit, particularly whether any revisions to the permit would be "significant revisions" so as to prompt public comment and review. See 38 C.S.R. § 2-3.28.b.1 (1998). The parties disagreed also whether the Consent Decree would *722 bind any future Spruce Fork permit process, or portion thereof.
After this final briefing closed, however, on February 3, 2000, the West Virginia Surface Mine Board entered an Agreed Order between Hobet Mining, Inc. and the WVDEP Director providing:
1. Hobet shall not conduct any surface mining operations under Permit S-5013-97 or any previously issued revision thereto until such time as it has obtained a revision to that permit from WVDEP which addresses the claims advanced by the plaintiffs in [the Bragg civil action].
2. Hobet agrees that WVDEP shall, in its review of any revision application that Hobet submits to meet the conditions of paragraph 1, above, require that it be subjected to the public notice, comment and hearing procedures for significant revisions to permits as provided in 38 C.S.R. 2 § 3.28.b.1 (1998).
(Hobet Mining, Inc.'s Resp. to Plfs.' "Notice of Activities," Ex. 5.)
Permittees assert this Surface Mine Board action moots the issues requiring the Court's continued jurisdiction over the Spruce Fork surface mine permit. The standard for mootness is a stringent one: "A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Serv. (TOC), Inc., ___ U.S. ____, 120 S. Ct. 693, 708, 145 L. Ed. 2d 610 (2000) (citing United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203, 89 S. Ct. 361, 21 L. Ed. 2d 344 (1968)). The "heavy burden of persua[ding] the court that the challenged conduct cannot be reasonably be expected to start up again lies with the party asserting mootness." Id.
Here, the permittee and the permitting agency jointly agree in an Order issued by the administrative review agency that there will be no surface mining under Permit S-5013-97 unless there is first a significant revision to the permit, which is subject to the claims advanced by the Plaintiffs. Therefore, all operable provisions of the Consent Decree will apply to any revised or new Spruce Fork permit application. (CD ¶ 22.) Accordingly, it is no longer necessary to carve out and except the Spruce Fork permit process from the remainder of the Complaint because all claims against that permit are mooted by the Decree, the agreement of Hobet and WVDEP, and the confirmatory Order of the Surface Mine Board.[6]
III. CONCLUSION
The Court ORDERS the Second and Joint Revision to the Consent Decree be incorporated in and ENTERED as part of this Memorandum Opinion and Order. Pursuant to Federal Rule of Civil Procedure 41(a)(2) and the parties' agreement,[7] all remaining counts in the Second Amended Complaint are DISMISSED with prejudice. The Court retains jurisdiction to enforce the Consent Decree, pursuant to its terms, until all policies and rules required by the Decree have been promulgated or until, with the Court's concurrence, the parties to the Decree jointly inform the Court its oversight is no longer necessary, whichever comes first. The parties shall provide reports to the Court every six (6) months on performance of the Decree. The Preliminary Injunction issued March 3, 1999 is LIFTED.
NOTES
[1] The motion to enter the Consent Decree was originally filed July 26, 1999; however, at that time the WVDEP Director informed the Court he was required to submit the Consent Decree for public comment, pursuant to W. Va.Code § 5-3-2a. Additionally, the Court established its own public comment period ending September 30, 1999. The original Consent Decree, as proposed, has undergone several modifications, including one pursuant to the Order of December 22, 1999, requesting the parties make pertinent portions of the Decree congruent with the Court's Memorandum Opinion and Order of October 20, 1999 regarding the so-called "buffer zone rule." The Second Joint and Agreed Revision to the Consent Decree, filed January 3, 2000 is the final version proposed, and it is that to which this Memorandum Opinion and Order refers.
[2] In a Memorandum Opinion and Order of October 20, 1999, the Court granted summary judgment for Plaintiffs on Counts 2 and 3. See Bragg v. Robertson, 72 F. Supp. 2d 642 (S.D.W.Va.1999).
When permission was granted to amend the initial amended complaint, producing the Second Amended Complaint, Count 1, based on the same allegations as Count 12, was deleted. See Bragg v. Robertson, 54 F. Supp. 2d 653, 672 (S.D.W.Va.1999). Counts 11, 12, and 13 were also deleted, pursuant to a settlement agreement between Plaintiffs and the Federal Defendants. Id.
At the same time, Counts 16 and 17 were added, challenging the Army Corps of Engineers' ("Corps'") Clean Water Act Section 404 authorization regarding Hobet's Spruce No. 1 ("Spruce Fork") mine. Id. On June 25, 1999 Plaintiffs moved to dismiss voluntarily Counts 16 and 17 as moot in light of the Corps' June 24, 1999 decision not to authorize Spruce Fork mining activity under Nationwide Permit 21, and Hobet's withdrawal of its nationwide permit application and subsequent submission of an individual permit application. No party objects to the voluntary dismissal and, accordingly, the Court GRANTS Plaintiffs' motion to dismiss Counts 16 and 17 of the Second Amended Complaint.
Thus, the Consent Decree settles all claims remaining in this civil action, except it proposes the Court retain jurisdiction over claims relating only to the Spruce Fork mine. Consent Decree ("CD") ¶¶ 4, 5. However, a recent Order by the West Virginia Surface Mine Board that would allow a Spruce Fork surface mining permit only after significant revision, subject both to the Consent Decree and to public notice and comment, makes such continuing jurisdiction unnecessary. See infra part II.D.
[3] The Federal Defendants are Dana Robertson, Colonel, District Engineer; Joe N. Ballard, Lieutenant General, Chief of Engineers and Commander; and Michael D. Gheen, Chief of the Regulatory Branch, Operations and Readiness Division, all of the Corps.
[4] See W. Va.Code St. R. ("C.S.R.") tit. 38 § 25.2 (1999). The parties agree to enforce the buffer zone rule "downstream from the toes of downstream faces of embankments of sediment control structures (including fills in intermittent and perennial streams)." CD ¶¶ 5, 6. The Court's ruling on Counts 2 and 3 concerned the footprint of valley fills in these streams, that is, the portion upstream of the toe. The Court found valley fills in intermittent and perennial streams violated the SMCRA buffer zone rule and could not meet state water quality standards. See Bragg, 72 F. Supp. 2d 642. Essentially, the parties agree to continue litigating that ruling, now under appeal, while the Director agrees to enforce the buffer zone rule downstream.
[5] Similarly, West Virginia cannot independently adopt changes to its approved surface mining regulatory program without prior approval of the Office of Surface Mining ("OSM"). See State ex rel. West Virginia Highlands Conservancy v. West Virginia Div. of Env'l Protection, 191 W.Va. 719, 447 S.E.2d 920 (1994). SMCRA and federal regulations require state regulatory authorities to provide OSM prompt notification of all program changes or significant events affecting program implementation, administration, or enforcement. See 30 U.S.C. §§ 1253-55, 30 C.F.R. § 732.17(g). OSM provided extensive public comments to the Court and the parties (Comment No. 01588), which resulted in the parties' responsive alteration of the original consent decree. However, nothing in that process or in the Decree itself purports to avoid or end-run this procedural requirement of OSM approval.
[6] There is no need to amend the Consent Decree to recognize this point. Paragraph 5, excepting the Spruce Fork permit, is simply overridden by paragraph 22, because now the Spruce Fork permit necessarily will be a revision, covered by the provision that the Consent Decree applies to any revision to the Spruce Fork permit.
[7] Once the Court approves the Consent Decree, the Plaintiffs "shall dismiss with prejudice" Counts 4 through 10, 14 and 15. CD ¶ 4. Counts 16 and 17 are also dismissed. See supra n. 2.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2441178/
|
964 N.E.2d 646 (2012)
357 Ill. Dec. 967
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Roy E. HUBBARD, Defendant-Appellant.
No. 2-10-1158.
Appellate Court of Illinois, Second District.
January 9, 2012.
*647 Roy E. Hubbard, Pontiac, appellant pro se.
Scott L. Brinkmeier, State's Attorney, Mt. Carroll (Lawrence M. Bauer, Gregory L. Slovacek, and Scott Jacobson, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
OPINION
Justice BIRKETT delivered the judgment of the court, with opinion.
¶ 1 Defendant, Roy E. Hubbard, appeals from the dismissal of his petition under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)). He asserts that his 1998 conviction of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(1)(a) (West 1996)) was void as a violation of his due process rights, the voidness of the conviction exempting his claim from the two-year limitations period of section 2-1401(c) of the Code (735 ILCS 5/2-1401(c) (West 2010)). He further argues that the trial court erred when it failed to recognize that the conviction was void and consequently dismissed his petition. We conclude that, notwithstanding a broader voidness standard in federal law and an obiter dictum in People v. Williams, 188 Ill. 2d 365, 242 Ill. Dec. 260, 721 N.E.2d 539 (1999), under Illinois law a judgment is void solely when the court entering the judgment lacked jurisdiction. We therefore hold that the conviction was not void, meaning that defendant cannot escape the effect of the two-year limitations period. The court did not err in dismissing the petition; we affirm the dismissal.
¶ 2 I. BACKGROUND
¶ 3 Defendant was charged with one count of predatory criminal sexual assault of a child. On September 15, 1997, he entered a blind plea of guilty to that charge. The court advised him that the sentencing range for his offense, a Class X felony, was 6 to 60 years. The State presented *648 the factual basis for the plea. It said that, on April 5, 1997, defendant, who was older than 17, and a 12-year-old girl had twice had vaginal sexual intercourse in the basement of defendant's home. The girl had acted in a way that, but for her age, would have indicated consent. The case was continued for sentencing and defendant remained on bond.
¶ 4 Before the court sentenced him, defendant moved for leave to withdraw the plea. The basis on which he sought this leave is unclear from the record, which is incomplete.
¶ 5 After defendant moved to withdraw his plea, the State charged defendant with the burglary of a vehicle on October 24, 1997. The State and defendant then negotiated an agreement that covered both charges. Defendant agreed to withdraw his motion to withdraw the plea. The State agreed that defendant should receive the minimum sentence of six years' imprisonment for the predatory criminal sexual assault of a child and a consecutive five years' imprisonment for the burglary. At a February 3, 1998, hearing, the court accepted the agreement. It advised defendant of the sentencing range for the burglary charge but not the charge of predatory criminal sexual assault of a child.
¶ 6 On July 1, 2010, defendant filed his section 2-1401 petition; he asserted that his predatory criminal sexual assault of a child conviction was void because the trial court had initially misadvised him of the sentencing range, rendering his guilty plea involuntary.
¶ 7 The State moved to dismiss the petition. It asserted that the petition was untimely and further argued that a judgment is void only if it was entered by a court lacking jurisdiction. It did not challenge defendant's claim that the admonitions were improper.
¶ 8 Defendant responded, conceding that his petition was filed beyond the two years permissible for a standard section 2-1401 petition, but arguing, among other things, that a section 2-1401 petition alleging the voidness of a judgment cannot properly be dismissed for untimeliness.
¶ 9 The court granted the State's motion, ruling that the conviction was not void and that the two-year limitations period therefore barred any relief. Defendant timely appealed.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant asserts that the incorrect admonishment about the sentencing range for his offense rendered his guilty plea involuntary, void, and subject to attack at any time (without regard to the two-year limitations period of section 2-1401(c)). In support of his claim that an involuntary plea produces a void conviction, he cites Williams:
"A defendant who pleads guilty waives several constitutional rights, including the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers. Due process of law requires that this waiver be voluntary and knowing. If a defendant's guilty plea is not voluntary and knowing, it has been obtained in violation of due process and, therefore, is void." (Emphasis added.) Williams, 188 Ill.2d at 370, 242 Ill. Dec. 260, 721 N.E.2d 539 (citing Boykin v. Alabama, 395 U.S. 238, 243 n. 5, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969) ("if a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void")).
Defendant further cites federal cases that hold that an involuntary guilty plea is void; he thus implies that the federal standard is binding on this court.
*649 ¶ 12 Under Illinois's voidness doctrine, a judgment is void only if it was entered by a court lacking jurisdiction. In other words, defendant's reliance on Williams and federal cases is misplaced. Voluntariness or involuntariness of a guilty plea has no bearing on jurisdiction, so that an involuntary plea cannot render a conviction void. Because defendant's conviction was not void, the trial court did not need to further consider his claim. As defendant conceded, but for the claim of voidness, his petition was subject to dismissal as untimely.
¶ 13 Our supreme court, in Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104, 267 Ill. Dec. 58, 776 N.E.2d 195 (2002), held that petitions under section 2-1401(f) of the Code (735 ILCS 5/2-1401(f) (West 2010)) are proper vehicles for attacking judgments as void and that such petitions are not subject to the general requirements for section 2-1401 petitions. In particular, such petitions are not subject to the two-year limitations period of section 2-1401(c). Sarkissian, 201 Ill.2d at 104, 267 Ill. Dec. 58, 776 N.E.2d 195. However, once a court has properly ruled that a voidness claim is meritless, nothing in Sarkissian (or its progeny) prevents a court from applying the limitations period of section 2-1401(c) to dispose of any remaining matters raised by the petition. Therefore, once the trial court here had concluded that defendant's conviction could not be void regardless of the merits of his argument that his plea was involuntary, it needed to proceed no further. Similarly, we need address only defendant's voidness claim; we need not examine the voluntariness of his guilty plea.
¶ 14 The parties here disagree about the appropriate standard of review. Defendant quite properly cites People v. Vincent, 226 Ill. 2d 1, 14, 312 Ill. Dec. 617, 871 N.E.2d 17 (2007), for the proposition that "[w]hether a trial court [has] correctly *** dismisse[d] a complaint is subject to the *** de novo standard of review on appeal."[1] The State cites Rockford Financial Systems, Inc. v. Borgetti, 403 Ill. App. 3d 321, 327-28, 342 Ill. Dec. 691, 932 N.E.2d 1152 (2010), for the proposition that, in the State's words, "the more deferential abuse-of-discretion standard of review would continue to be applied" despite the holding of Vincent. The State acknowledges that, in Borgetti, we specifically commended Vincent's holding that a dismissal based on a ruling that subject matter jurisdiction existed should be reviewed de novo. See Borgetti, 403 Ill. App.3d at 328, 342 Ill. Dec. 691, 932 N.E.2d 1152. However, the State fails to consider our more general comment in Borgetti that "[t]he Vincent court was correct to relate that, when a section 2-1401 petition requests relief based upon a void judgment, equitable principles are not involved," so that de novo review, as specified by Vincent, is logical in such cases. Borgetti, 403 Ill.App.3d at 327, 342 Ill. Dec. 691, 932 N.E.2d 1152. Here, the court dismissed defendant's petition on the grounds that the judgment was not void and that the petition was otherwise untimely. We see nothing in that ruling implicating the court's discretion and see no sound way that we could review what was, in essence, a ruling on pure matters of law for an abuse of discretion.
¶ 15 Turning to the merits of defendant's voidness claim, we start by explaining Illinois's voidness doctrine as it is set out in People v. Davis, 156 Ill. 2d 149, 189 Ill. Dec. 49, 619 N.E.2d 750 (1993), but add to that discussion a clarification of the *650 meaning of the phrase "collateral attack." Next, we explain why, under the proper voidness principles, defendant's conviction was not void. Finally, we explain why neither Williams nor federal law mandates modification of the principles of Davis.
¶ 16 When the voidness of a judgment has been specifically at issue, the Illinois Supreme Court has consistently held that a judgment is void if and only if the court that entered it lacked jurisdiction. The classic statement of that doctrine occurs in Davis. Notably for our purposes, the Davis court started its discussion of voidness by noting a persistent carelessness in courts' usage of "void": "[t]he term `void' is so frequently employed interchangeably with the term `voidable' as to have lost its primary significance." Davis, 156 Ill.2d at 155, 189 Ill. Dec. 49, 619 N.E.2d 750. It therefore warned that, "when the term `void' is used in a judicial opinion it is necessary to resort to the context in which the term is used to determine precisely the term's meaning." Davis, 156 Ill.2d at 155, 189 Ill. Dec. 49, 619 N.E.2d 750. After disparaging such sloppy usage, it made clear that the term "void" should be reserved for judgments rendered by courts that lacked jurisdiction:
"Whether a judgment is void or voidable presents a question of jurisdiction. [Citation.] Jurisdiction is a fundamental prerequisite to a valid prosecution and conviction. Where jurisdiction is lacking, any resulting judgment rendered is void and may be attacked either directly or indirectly at any time. [Citation.] By contrast, a voidable judgment is one entered erroneously by a court having jurisdiction and is not subject to collateral attack." Davis, 156 Ill.2d at 155-56, 189 Ill. Dec. 49, 619 N.E.2d 750.
The supreme court continues to adhere to this formulation of the voidness doctrine. See In re M. W., 232 Ill. 2d 408, 414, 328 Ill. Dec. 868, 905 N.E.2d 757 (2009) (stating when a judgment is void in the same terms as Davis).
¶ 17 A brief discussion of the meaning of "collateral attack" is necessary to avoid later confusion. When we address defendant's suggestion that federal cases that hold that involuntary guilty pleas are void are binding on Illinois courts, we will take into account that Illinois law provides, through the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)), for a defendant to collaterally attack a guilty plea as involuntary. How can that be if an involuntary plea does not result in a void conviction and if, as Davis states, judgments that are merely voidable are not subject to collateral attack? The apparent contradiction arises as a result of the existence of two formulations of the definition of the phrase "collateral attack."
¶ 18 In Buford v. Chief, Park District Police, 18 Ill. 2d 265, 271, 164 N.E.2d 57 (1960), the supreme court defined "collateral attack" so as to limit the phrase's application to wholly independent cases:
"A collateral attack on a judgment is an attempt to impeach that judgment in an action other than that in which it was rendered. Although the overturning of the judgment or decree may be important, or even necessary, to the success of the action or proceeding, an attack on a judgment or decree is collateral where that action or proceeding has an independent purpose and contemplates some other relief or result." (Emphasis added.)
Because the sole purpose of petitions under the Act and section 2-1401 is the overturning of an existing judgment, they are not collateral attacks by this definition.
¶ 19 By contrast, in People v. Partee, 125 Ill. 2d 24, 35-36, 125 Ill. Dec. 302, 530 *651 N.E.2d 460 (1988), the supreme court used a truncated version of the definition in Buford: a "collateral attack upon a judgment is [one made in] a case separate and apart from the case in which the judgment has been [rendered]," and explicitly included petitions under the Act and section 2-1401 as vehicles for collateral attack.
¶ 20 The holding in Davis is consistent with existing practice, which obviously does allow the use of petitions under the Act and section 2-1401 to attack voidable judgments, only if one assumes that the Davis court was using the extended definition in Buford. In other words, in spite of Davis, a voidable judgment may be attacked under the Act or section 2-1401, provided that the procedural prerequisites are met. But only a void judgment may be attacked in a fully independent proceeding. (As we proceed, we will use the definition of "collateral attack" that includes petitions under the Act and section 2-1401.)
¶ 21 Returning to our primary analysis, we now consider the Davis court's discussion of the aspects of jurisdiction. The court recognized three "element[s] of jurisdiction": (1) personal jurisdiction, (2) subject matter jurisdiction, and (3) "the power to render the particular judgment or sentence."[2]Davis, 156 Ill.2d at 156, 189 Ill. Dec. 49, 619 N.E.2d 750. Of the third element, the court warned that "jurisdiction or power to render a particular judgment does not mean that the judgment rendered must be the one that should have been rendered, for the power to decide carries with it the power to decide wrong as well as to decide right." Davis, 156 Ill.2d at 156, 189 Ill. Dec. 49, 619 N.E.2d 750. Moreover, "once a court has acquired jurisdiction, no subsequent error or irregularity will oust the jurisdiction thus acquired"; "[a]ccordingly, a court may not lose jurisdiction because it makes a mistake in determining either the facts, the law or both." Davis, 156 Ill.2d at 156, 189 Ill. Dec. 49, 619 N.E.2d 750.
¶ 22 Under these principles, the facts here as represented by defendant do not result in a void judgment. Defendant has raised no suggestion of a lack of personal or subject matter jurisdiction. Further, the court unquestionably had authority to accept defendant's guilty plea, to enter a judgment of conviction of predatory criminal sexual assault of a child, and to sentence defendant to six years' imprisonment. In defendant's account, the court made a mistake of law in explaining the sentencing range and a mistake of fact in deciding the voluntariness of the plea. As Davis tells us, such mistakes do not cause the court to lose jurisdiction.
¶ 23 To be sure, defendant's argument is not that his conviction was void under the Davis standard, but rather that the proper voidness standard is broader, encompassing judgments entered in violation of due process. He has two lines of support for that proposition: federal cases that say that involuntary guilty pleas are violations of due process rights and therefore void, and Williams, which, citing the United States Supreme Court, says the same thing. We first explain why the federal standard need not be a part of Illinois law. We then explain why Williams did not adopt it as a part of Illinois law.
*652 ¶ 24 Defendant is correct that federal courts frequently say that involuntary guilty pleas are void because they violate due process standards; the footnote in Boykin from which the Williams court drew the statement on which defendant relies is a fair example of federal law. However, nothing in the United States Constitution requires that Illinois courts, in considering Illinois's own laws, use the same definition of "void" as do the federal courts. To state the same point more specifically, no reason exists to use a federal definition of "void" to decide whether a particular petition under section 2-1401 of Illinois's Code is subject to a two-year limitations period.
¶ 25 Of course, Illinois courts are bound by the United States Supreme Court's decisions on the United States Constitution's due process clauses. We thus cannot doubt that an involuntary guilty plea violates due process. However, that conclusion does not imply any particular procedure to remedy that violation.
¶ 26 Any thought that the United States Constitution mandates the remedies that Illinois law grants when it deems a conviction void is dispelled by comparing Illinois's remedies for void judgments with federal remedies for involuntary guilty pleas. Defendants whose federal guilty pleas were involuntary do not have a right to anything like what Illinois voidness doctrine would afford them. Federal law allows a claim of an involuntary guilty plea to be procedurally defaulted if not raised on direct appeal (Bousley v. United States, 523 U.S. 614, 621, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998)); Illinois voidness doctrine will not allow the forfeiture of a voidness claim (see, e.g., People v. Arna, 168 Ill. 2d 107, 113, 212 Ill. Dec. 963, 658 N.E.2d 445 (1995)). Moreover, involuntariness challenges to federal convictions are, at least when the defendant is a federal prisoner, necessarily brought under title 28, section 2255, of the United States Code (28 U.S.C. § 2255 (2006)). E.g., United States v. Ayala, 894 F.2d 425, 430 (D.C.Cir.1990). That section has a one-year limitations period that specifies three conditions that toll or trigger the running of the period. 28 U.S.C. § 2255 (2006). The only condition that is even theoretically relevant in a case such as this one is the last, that the period runs from "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255(f)(4) (2006). Compare this with the unlimited time a party has to seek vacatur of a void judgment in Illinois. Thus the federal provisions give a defendant claiming an involuntary guilty plea essentially the same remedies that an Illinois defendant has under the Act and section 2-1401. In sum, voidness in federal law is a broad concept with weak procedural effects, voidness in Illinois law is a narrow concept with strong procedural effects, and the application of the federal standard would not provide that defendant have the ability to attack his plea at any time.
¶ 27 Constitutional mandates aside, in Williams, the Illinois Supreme Court did not voluntarily adopt the federal voidness standard. The Williams court stated, "If a defendant's guilty plea is not voluntary and knowing, it has been obtained in violation of due process and, therefore, is void." (Emphasis added.) Williams, 188 Ill.2d at 370, 242 Ill. Dec. 260, 721 N.E.2d 539. As we have shown, that formulation is inconsistent with Davis. Two things can be said about this inconsistency. First, Williams is a purest obiter dictum on the issue of voidness and therefore is not binding. In Williams, the question was whether the defendant's guilty plea to attempted murder was admissible *653 as evidence of murder when the State's theory was that the victim had died as a result of the original attack. Williams, 188 Ill.2d at 366-67, 242 Ill. Dec. 260, 721 N.E.2d 539. The Williams court recognized as a well-established rule that only a voluntary plea would be admissible (Williams, 188 Ill.2d at 369-70, 242 Ill. Dec. 260, 721 N.E.2d 539) and held that the defendant's plea was voluntary (Williams, 188 Ill.2d at 373, 242 Ill. Dec. 260, 721 N.E.2d 539). Whether or not an involuntary plea would produce a void conviction was not relevant to the evidentiary issue that the court decided and was not part of the reasoned discussion of the issuethus, the statement that the plea was void is an obiter dictum. To be sure, supreme court obiter dicta can be binding in the absence of a contrary decision of the supreme court. E.g., Woodstock Hunt Club v. Hindi, 305 Ill.App.3d 1074, 1076, 239 Ill. Dec. 293, 713 N.E.2d 824 (1999). But the holdings in Davis and M.W. both are contrary, so they are the binding law. Second, this stray comment in Williams stands as a good example of why the Davis court warned of courts' tendency to be careless in the use of the term "void."
¶ 28 III. CONCLUSION
¶ 29 The Illinois voidness doctrine holds that judgments are void only if they are entered by a court lacking jurisdiction. An involuntary guilty plea such as that which defendant alleged is not an error that could deprive the court of jurisdiction. Therefore, the trial court properly ruled that the conviction was not void. Having so ruled, it could and did properly rule that the petition was untimely and dismiss it without examination of the voluntariness of defendant's plea.
¶ 30 For the reasons stated, we affirm the dismissal of defendant's section 2-1401 petition.
¶ 31 Affirmed.
Presiding Justice JORGENSEN and Justice BURKE concurred in the judgment and opinion.
NOTES
[1] Defendant should note that material is bracketed to show words or letters inserted into the quoted material by us, and not, as in his idiosyncratic style, to show emphasis.
[2] The particular issues in this case do not require us to discuss how much of the requirement for this third kind of jurisdiction survived following the watershed decisions in People ex rel. Graf v. Village of Lake Bluff, 206 Ill. 2d 541, 553, 276 Ill. Dec. 928, 795 N.E.2d 281 (2003), Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 335-36, 264 Ill. Dec. 283, 770 N.E.2d 177 (2002), and Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 529-30, 259 Ill. Dec. 729, 759 N.E.2d 509 (2001).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2441202/
|
944 S.W.2d 123 (1997)
57 Ark.App. 179
ESTATE OF James SABBS, et. al., Appellants,
v.
Bernice COLE, Appellee.
No. CA 96-461.
Court of Appeals of Arkansas, Divisions III and IV.
April 30, 1997.
*124 John Ogles, Jacksonville, for Appellant.
Sheila F. Campbell, Little Rock, for Appellee.
MEADS, Judge.
This is an appeal from an order of the Pulaski County Chancery Court, which dismissed appellants' amended complaint to quiet title. Appellants, Paris Sabbs and Betty Frazier, are the co-administrators of the estate of James Sabbs. Appellee Bernice Cole is the decedent's oldest daughter.
In an amended complaint, appellants alleged that at the time of his death, the decedent James Sabbs possessed certain property on Valentine Road, North Little Rock, and other property located in Lonoke County, and that appellee's claim of ownership of these properties is invalid.
At trial, appellant Paris Sabbs contended the Valentine Road property was an asset of the estate. He testified that the reason his father put the deed in appellee's name was to protect the property from an impending third marriage; that if the marriage did not work out the deed would be put back in his name; and if he died appellee would share the property with her siblings. He said he first discovered a problem with removing appellee's name from the deed around 1987, and he was present in 1992 when his father requested the property be changed back to his name, but appellee refused.
He testified further that his father kept up the premises, paid for repairs, paid the property taxes and insurance, and always acted like the owner. He also testified that he did not consider his father to need assistance in taking care of his business affairs, and he was happy his father was able to look after *125 his own affairs. He said his father told him he did not sue appellee when she refused to remove her name from the deed, because he believed she would eventually do the right thing and deed the property back to him or share the property with her siblings upon his death.
Appellant Betty Sabbs Frazier testified that she saw the deed in 1992 with appellee's name on it and asked her father why he had done this. He said he thought appellee would deed it back to him, and he trusted her. She said she asked him if he wanted her to get legal help and he said, "No."
Irma Aaron, who had a courtship with James Sabbs, testified that he told her that he put the property in appellee's name so nobody would take his property, but they weren't getting along, and he had asked for the property back.
The decedent's nephew testified that he lived with the decedent for six months in 1989, paid rent to him, and was not aware of any dispute between him and appellee. He said the decedent never mentioned any problem in regard to the property, but he had damaged the property to make it hard on the children. He also testified that his uncle took care of his affairs "real good," and he never saw anyone exert any influence on him or cause him to do something he did not want to do.
Elouise Garrett, who married James Sabbs in January 1973 and subsequently divorced him, testified that he told her appellee owned the Valentine Road property and that he had given her a deed. She said that during the time she was married to him, appellee visited her father practically every weekend, and he never indicated he did not want appellee to have the property. She further testified she was not aware of any dispute between appellee and her father concerning the property, and he told her he had deeded the house to appellee and "it was hers."
Appellee testified that her father deeded her the property on Valentine Road. She said he called her at work, told her he had something he wanted to give her, and he would come by and pick her up. When he arrived, he said he was giving her his property on Valentine Road because she would not share in any of his other property. They went to a law office where the deed was already prepared, and he signed it. Later the deed was mailed to appellee by certified mail, and she recorded it. Appellee testified that she held the recorded deed for awhile and later gave it to her father because he was executor of her will and the documents would be together. Her father returned the deed to her in 1985, and she returned it to him in 1990 when she married Aldolphus Cole. The deed and appellee's will were in the decedent's safe deposit box when he died.
Appellee testified her father did not request that she deed the property back to him; did not discuss it with her in the presence of her brothers and sisters; and that her father was present when appellee Paris Sabbs asked her to return the deed. She said her father did not agree with Paris's request and denied that her father asked her to remove her name from the deed.
Appellee testified further that the agreement with her father was that he could continue to live there, maintain the property, and collect the rent as long as he lived, and she considered him to have a life estate. She testified further that she has maintained insurance on the property, paid the real estate taxes, and collected the rents. Appellee admitted not claiming the property as an asset when she tried to obtain a bank loan and not listing it as an asset when she was divorced.
Documentary evidence included appellee's 1989-1992 Federal Income Tax Schedule A, which showed no rental income or depreciation deduction on the property; real estate tax receipts for 1989-1992 reflecting that appellee paid the property tax; application for property insurance listing the deceased and appellee as the insureds on the Valentine Road property; a declarations page from the policy addressed to appellee; the decedent's 1988 income-tax return showing he declared the rents as income; and lists of expenses of the decedent allegedly for repairs to the property.
In an order entered January 8, 1996, the chancellor found that the witnesses gave conflicting testimony regarding the decedent's statements; that she did not place much *126 weight on alleged statements made by the deceased to the witnesses; that Irma Aaron and Elouise Garrett were credible witnesses; that the most telling testimony was that of the decedent's nephew; and that neither Paris Sabbs nor appellee were credible witnesses. The chancellor considered it significant that the decedent took no action, after a discussion regarding the property, to set aside the conveyance. Most important no attempt was made to reclaim the property, and there was nothing in writing to show that the decedent intended a disposition which conflicted with the deed. The chancellor held further that although appellee was not particularly credible, it appeared that she and her father had an agreement that he would live on the property during his lifetime, as she had testified, because that is, in fact, what happened.
The chancellor held that appellants failed to prove the decedent intended a different disposition of his property than the recorded deed and dismissed the complaint.
On appeal, appellants argue the trial court erred in dismissing the complaint. Specifically, appellants contend that the decedent neither intended nor completed delivery of the deed to the Valentine Road property, and that title was not transferred because he retained possession and control of the property, retained the rental income, and paid taxes on the property. Appellants also argue that the decedent did not make a gift of the Lonoke property to appellee.
In order for an inter vivos gift to transpire it must be proven by clear and convincing evidence that (1) the donor was of sound mind; (2) an actual delivery of the property took place; (3) the donor clearly intended to make an immediate, present, and final gift; (4) the donor unconditionally released all future dominion and control over the property; and (5) the donee accepted the gift. Wright v. Union National Bank, 307 Ark. 301, 819 S.W.2d 698 (1991). Although we hear chancery cases de novo, the test on review is not whether there is clear and convincing evidence to support the trial judge's findings, but whether we can say the judge was clearly wrong; whether the findings of the trial judge are clearly erroneous. Akin v. First National Bank, 25 Ark.App. 341, 758 S.W.2d 14 (1988). In addition, where the pivotal issue is credibility of interested parties whose testimony is in direct conflict, we defer to the chancellor's judgment. Rector-Phillips-Morse, Inc. v. Huntsman Farms, Inc., 267 Ark. 767, 590 S.W.2d 317 (App.1979). Finally, when a deed reserves a life estate in the grantor there is no requirement that the instrument has passed beyond the grantor's control and dominion, and the fact that the deed is found among the effects of the grantor at his death raises no presumption against delivery, and the grantor's retention of possession and control over the property conveyed is not inconsistent with delivery. Grimmett v. Estate of Beasley, 29 Ark.App. 88, 777 S.W.2d 588 (1989).
Here, the chancellor heard conflicting testimony of several witnesses. The chancellor found Elouise Garrett and Irma Aaron to be credible witnesses. Ms. Garrett testified that she was not aware of any dispute between appellee and her father, and Ms. Aaron testified that the decedent voluntarily executed the deed giving the property to appellee, and although he said he wanted it back, she never saw appellee "over there for him to ask her." The chancellor also relied on the testimony of appellant's nephew that the decedent did not mention any problems with the property or appellee.
Moreover, there is no evidence that the decedent was of unsound mind. Indeed, Paris Sabbs testified that the decedent was able to take care of his own business affairs. Further, there was evidence that the deed was prepared by an attorney, signed by the decedent, and mailed to appellee by certified mail. Although the deed was found in the decedent's safe-deposit box and did not specifically reserve a life estate in the decedent, the chancellor found there was an agreement that the decedent would live on the property during his lifetime. We think this is analagous to a life estate, and as we have already stated, in the case of a life estate there is no requirement that a deed pass beyond the grantor's control, and the grantor's retention of possession and control over the property is not inconsistent with delivery. Moreover, *127 Ms. Garrett testified the decedent told her appellee owned the property and that he gave her a deed, and Ms. Aaron said he voluntarily executed the deed.
Finally, there is evidence that appellee paid the 1989-1992 property taxes and was listed as a co-insured on the property, and given appellee's testimony that her father gave her the property, we do not think it can be seriously contended that appellee refused the gift of the property.
Recognizing that the testimony was in dispute, but giving deference to the chancellor's opportunity to judge the credibility of the interested parties, we cannot say the chancellor erred in dismissing appellants' complaint as to the Valentine Road property.
One other matter remains for our discussion. Appellants also alleged that the decedent owned certain lands in Lonoke County; on appeal they argue that the decedent did not make a gift of this property to appellee and that it should be included in the estate for distribution to his heirs. Suffice it to say, if the effect of a decree is to reach and operate upon the land itself, then it is a proceeding in rem and a local action and must be brought in the county where the land is situated. Dowdle v. Byrd, 201 Ark. 775, 147 S.W.2d 343 (1941).
Affirmed.
STROUD, ROGERS and BIRD, JJ., agree.
PITTMAN, J., dissents.
COOPER, J., not participating.
PITTMAN, Judge, dissenting.
I respectfully dissent because I disagree with the result reached by the prevailing judges.
In the order of dismissal the judge stated: This case is a good example of the reason for the hearsay rule. Assuming the veracity of the sworn witnesses (which will be discussed later), most gave conflicting testimony regarding statements made by the deceased. In many instances, it appeared to the court that the deceased was less than candid, telling the witnesses whatever was expedient. The hearsay rule assumes that since the declarant is not under oath, he may not be making truthful statements. Therefore, the statements should be excluded. Each side freely allowed testimony about statements given by the deceased. However, the court has not placed much weight on alleged statements made by the deceased to the witnesses.
* * * * * *
It is clear that the deceased's children were fighting over the property. That fact does not mean the deceased intend [sic] any other result for the property than the conveyance to defendant. Both parties agree that a discussion occurred between the deceased, Paris Sabbs and the defendant [appellee] in 1992. The account is simply different. Neither the plaintiff, Paris Sabbs, nor the defendant, Bernice Cole presented as credible witnesses, and they both had vested interests in the outcome of the trial. The significant thing to the court is that the deceased took no action after his discussion until his death in 1993 to set aside the conveyance. Even if he had intended another result, his failure to act after that discussion, at the very least, indicates an acquiescence to the deposition [disposition]. His failure to act cannot now be transferred to representatives of his estate when he clearly had the opportunity to act and chose not to.
* * * * * *
The deceased deeded the Valentine property to the defendant on September 8, 1972, and filed the deed of record. The plaintiff continually argues that the defendant did not prove that she owned the property. The burden of proof is not on the defendant, since she is the record title holder.
The Arkansas Dead Man's Statute was repealed when the Revised Uniform Rules of Evidence were adopted in 1976. Since its repeal, courts determine the admissibility and proof of the deceased's words and dealings on the basis of its relevance and reliability, just as the admissibility of all unprivileged evidence is determined. The chancellor's comment that the decedent's *128 statements should be excluded as hearsay is incorrect.
I believe the chancellor's focus on the 1993 discussion is misplaced. The focus should have been on Sabbs's intent to make the gift at the time of the grant as the delivery of a deed is not valid unless the grantor intended to pass title immediately. Johnson v. Ramsey, 307 Ark. 4, 817 S.W.2d 200 (1991).
Additional factors that evidence that appellee did not receive the property as a gift are as follows:
After the deed was recorded, it was returned to the residence of James Sabbs. Appellee did not list the property as an asset in a mortgage application for her current residence nor designate the property as an asset in her 1978 divorce. Appellee did not claim any appreciation for the property nor report any rental income from the property on her income tax returns. The property was insured in the names of appellee and her father. Appellee testified that she received the rent from the property; however, the only rental receipts in the record that were signed by the appellee were dated after Mr. Sabbs's death. Although appellee testified that the rental income was for her personal use, she testified that she never withdrew monies from the joint account in which the rental income was deposited. Appellee could only produce 1991 and 1992 real estate tax receipts and 1989 through 1992 income tax returns showing payment of real estate taxes.
An asserted gift, whether causa mortis or inter vivos, must be established by evidence which is "clear and convincing." Boling v. Gibson, 266 Ark. 310, 584 S.W.2d 14 (1979); Smith v. Clark, 219 Ark. 751, 244 S.W.2d 776 (1952); Lehman v. Broyles, 155 Ark. 593, 245 S.W. 24 (1922); Lowe v. Hart, 93 Ark. 548, 125 S.W. 1030 (1910). The required elements for an effective inter vivos gift, which must be proven by clear and convincing evidence, are that the donor knew and understood the effect of his act and intended that effect; that the donor made actual delivery to the donee; that the donor intended to pass title immediately; and the donee accepted the gift. O'Flarity v. O'Flarity, 42 Ark.App. 5, 852 S.W.2d 150 (1993).
In Bennett v. Miles, 212 Ark. 273, 205 S.W.2d 451 (1947), we said:
In the more recent case of Baugh v. Howze, 211 Ark. 222, 199 S.W.2d 940 [(1947)], we said: "To constitute a valid gift inter vivos, certain essential elements must be present, these include actual delivery of the subject-matter of the gift to the donee or to some one as agent or trustee for the donee, with a clear intent to make an immediate present and final gift beyond recall, and at the same time unconditionally releasing all future dominion and control by the donor over the property so delivered."
When these well-settled rules are applied to the facts of this case, I find that two of the essential elements necessary to a valid gift are absent in that Sabbs did not give the deed to appellee with the intention at the time of passing title to her and that appellee did not accept the gift as her own, but only as agent for Sabbs, or as a trustee, and therefore, there was no valid gift inter vivos.
The existence of a confidential relationship between the parties raises a rebuttable presumption that the gift was obtained by undue influence or other improper means. The burden is on the alleged donee to rebut this presumption and to establish that the claimed gift was fairly and properly made to him. Mohr v. Hampton, 238 Ark. 393, 382 S.W.2d 6 (1964); Burns v. Lucich, 6 Ark. App. 37, 638 S.W.2d 263 (1982).
I do not believe the appellee has met the burden of proof necessary to establish the asserted gift inter vivos by the required standard of clear and convincing evidence. I believe that the chancellor's decision is clearly against the preponderance of the evidence and should be reversed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2442580/
|
524 F. Supp. 2d 1327 (2007)
Samuel K. LIPARI, Plaintiff,
v.
US BANCORP NA and U.S. Bank NA, Defendants.
Civil Action No. 07-2146-CM.
United States District Court, D. Kansas.
November 16, 2007.
*1328 Ira Dennis Hawver, Law Office Of Dennis Hawver, Ozawkie, KS, for Plaintiff.
Andrew M. Demarea, Jay E. Heidrick, Shughart Thomson & Kilroy, Overland Park, KS, Mark A. Olthoff, Shughart Thomson & Kilroy, PC, Kansas City, MO, for Defendants.
MEMORANDUM AND ORDER
CARLOS MURGUIA, District Judge.
Plaintiff Samuel K. Lipari brings this action against defendants U.S. Bancorp NA and U.S. Bank NA. This matter is before the court on defendants' Motion to Dismiss Plaintiff's Complaint (Doc. 22).
*1329 I. Factual Background
Plaintiff filed the instant action in Jackson County Circuit Court on November 28, 2006 (Jackson County Case No. 0616-CV-32307). On December 13, 2006, defendants removed the action to the United States District Court for the Western District of Missouri, Western Division, on the basis of diversity. On April 11, 2007, the United States District Court for the Western District of Missouri transferred the case to this court. Plaintiff brings the following five claims against defendants, each under Missouri state law: (1) breach of contract; (2) fraud; (3) trade secret misappropriation; (4) breach of fiduciary duty; and (5) prima facie tort.
II. Standing
Defendant argues that plaintiff lacks standing to bring claims on behalf of Medical Supply Chain, Inc. ("Medical Supply") because under Missouri law (1) a corporation continues business in its name in order to wind up its business affairs; (2) dissolution does not transfer the corporation's property; and (3) the claims alleged in the complaint are not assigned to plaintiff merely by reason of the dissolution. Plaintiff argues that he has standing because Medical Supply assigned him all of its interests and rights, including the claims in this lawsuit.
As the party bringing this lawsuit, plaintiff has the burden to establish that he has standing to bring these claims. Standing "must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of litigation." Quik Payday, Inc. v. Stork, No. 06-2203-JWL, 2006 WL 2792317, at *2 (D.Kan.2006) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)) (discussing the elements of Article III standing). At the motion to dismiss stage, general factual allegations may suffice, "for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim." Thompson v. Jiffy Lube Int'l., Inc., 505 F. Supp. 2d 907, 923 (D.Kan.2007). On a motion to dismiss, the court must accept as true all material allegations of the complaint, and must construe the complaint in favor of plaintiff. Ward v. Utah, 321 F.3d 1263, 1266 (10th Cir.2003) ("For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.'") (quoting Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975)).
Under Missouri law, a shareholder does not have standing to sue in his individual capacity for damages to the corporation. Hutchings v. Manchester Life and Cas. Mgmt. Corp., 896 F. Supp. 946, 947 (E.D.Mo.1995). Corporate dissolution does not transfer standing to a shareholder. A dissolved corporation's existence continues in order for the corporation to wind up its business affairs. Mo.Rev.Stat. § 351.476. Dissolution does not transfer title to the corporation's property or prevent commencement of a proceeding by or against the corporation in its corporate name. Id. A dissolved corporation retains the legal claims it had prior to dissolution. Even after dissolution, the corporation, not its shareholders or trustees, is the proper party to sue or be sued. Cf. Mabin Constr. Co., Inc. v. Historic Constructors, Inc., 851 S.W.2d 98, 103 (Mo.Ct.App.1993) (recognizing that Mo.Rev.Stat. § 351.476 precludes statutory trustees from being brought into suits against an administratively dissolved corporation). Thus, plaintiff cannot bring Medical Supply's claims as a shareholder.
*1330 Missouri law does, however, allow a dissolved corporation to assign its claims to a third-party. See, e.g., Smith v. Taylor-Morley, Inc., 929 S.W.2d 918 (Mo. Ct.App.1996) (upholding dissolved corporation's written assignment of rights to a purchase contract). The assignee may sue to recover damages for the dissolved corporation's claims. Id. (holding assignee of dissolved corporation's rights under a purchase contract could sue for injuries to dissolved corporation for breach of the purchase contract). Here, plaintiff alleges that he is the assignee of all rights and interests of Medical Supply, including the claims in this lawsuit. Accepting as true all material allegations of the complaint and construing the complaint in favor of plaintiff, the court finds that plaintiff has met his burden at this stage of the proceeding. Defendant's motion is denied with respect to standing.
III. Res Judicata
As Medical Supply's assignee, plaintiff has no greater rights than Medical Supply had at the time of the assignment. Citibank (S.D.), N.A. v. Minks, 135 S.W.3d 545, 556-57 (Mo.Ct.App.2004)." And any defense valid against Medical Supply is valid against plaintiff. Id. Defendant argues that res judicata bars plaintiff's claims because Medical Supply raised or could have raised these claims in Medical Supply Chain, Inc. v. U.S. Bancorp, NA, et al., Case No. 02-2539-CM (Medical Supply I) and Medical Supply Chain, Inc. v. Neoforma, Inc., et al., Case No. 05-2299-CM (Medical Supply II).
Res judicata "`prohibits a party from asserting any matter that might have been asserted in the previous cause of action, even if it was not actually asserted.'" Prospero Assocs. v. Burroughs Corp., 714 F.2d 1022, 1025 (10th Cir.1983) (citation omitted) (emphasis supplied); see also Wedow v. City of Kan. City, Mo., 442 F.3d 661, 669 (8th Cir.2006).[1] For the doctrine to apply, three conditions must be satisfied: (1) the parties must be identical or in privity; (2) the suit must be based on the same cause of action; and (3) a final judgment on the merits must have been made in the prior action. Yapp v. Excel Corp., 186 F.3d 1222, 1226 (10th Cir.1999) (citing King v. Union Oil Co. of Cal., 117 F.3d 443, 445 (10th Cir.1997)); Baker v. Chisom, 501 F.3d 920, 925 (8th Cir.2007).
The defendants in this case were defendants in Medical Supply I and Medical Supply II. And, as Medical Supply's assignee, plaintiff is in privity with Medical Supply. The claims in this case arise from the same operative facts as the claims raised in Medical Supply I and Medical Supply II and are based on the same cause of action as the claims the previous cases. See, e.g., Landscape Props., Inc. v. Whisenhunt, 127 F.3d 678, 683 (8th Cir. 1997) (recognizing "that if a case a rises out of the same nucleus of operative fact, or is based upon the same factual predicate, as a former action, that the two cases are really the same `claim' or `cause of action' for purposes of res judicata."). The court reached final judgments on the federal claims in both Medical Supply I and Medical Supply II.
Under the doctrine of res judicata, plaintiff is prohibited from asserting claims that *1331 Medical Supply could have raised in Medical Supply I or Medical Supply II. Because the state law claims alleged in this case are based on the same cause of action as the claims in the prior lawsuits, Medical Supply could have brought these state law claims in either of its previous lawsuits. Res judicata bars the claims that could have been, but were not, asserted in Medical Supply I or Medical Supply II. See, e.g., Jones v. City of Kan. City, Mo., 143 Fed.Appx. 735 (8th Cir.2005) (affirming that res judicata bars claims that arise out of the same nucleus of operative facts as those in a prior lawsuit and that could have been raised in the prior lawsuit).
But res judicata does not bar the state law claims that were raised in Medical Supply I or Medical Supply II. In both cases, the court declined supplemental jurisdiction over the state law claims and dismissed the state law claims without prejudice. A dismissal without prejudice "is a dismissal that does not `operat[e] as an adjudication upon the merits,' Rule 41(a)(1), and thus does not have a res judicata effect." Santana v. City of Tulsa, 359 F.3d 1241, 1246, n. 5 (10th Cir.2004) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990)). Thus, there has been no final judgment on the merits of the state law claims raised in Medical Supply I and Medical Supply II, and those claims are not barred by the doctrine of res judicata.[2]
The record before the court does not clearly delineate which of plaintiff's claims were raised in the previous lawsuits and which are being raised for the first time. Plaintiff is ordered to file a brief within ten days of this order setting forth which of its state law claims were dismissed without prejudice in Medical Supply I, which were dismissed without prejudice in Medical Supply II, and which are being raised for the first time. Defendant shall file a response within ten days of the date plaintiff's brief is filed.
The remainder of defendant's motion is denied without prejudice. Defendants may refile their motion to dismiss once the record clearly identifies which claims are barred by res judicata and which remain pending.
IT IS THEREFORE ORDERED that defendants' Motion to Dismiss Plaintiff's Complaint (Doc. 22) is granted in part, denied in part, and denied without prejudice in part.
NOTES
[1] The parties cite to both Tenth and Eighth Circuit law to support their res judicata arguments, and neither cites to Missouri state law. At this point, the court need not determine which law is applicable because the principals of res judicata are identical under each jurisdiction. See Bannum, Inc. v. City of St. Louis, 195 S.W.3d 541, 544 (Mo.Ct.App.2006) ("Missouri law tracks the Eighth Circuit in defining the prerequisites for res judicata."). But the court suggests that the parties properly brief the issue of which law applies on issues raised in the future.
[2] The court recognizes that "denial of leave to amend constitutes res judicata on the merits of the claims which were the subject of the proposed amended pleading." Landscape Props., Inc., 127 F.3d at 683. But here, plaintiff's motion to amend in Medical Supply II was stricken from the record, not denied on the merits of the proposed amendment. The court finds that the order striking the motion to amend does not prevent plaintiff from raising the state law claims because those claims were specifically dismissed without prejudice.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2441294/
|
972 S.W.2d 479 (1998)
STATE of Missouri, Respondent,
v.
William NASH, Appellant.
No. WD 54494.
Missouri Court of Appeals, Western District.
May 5, 1998.
Motion for Rehearing and/or Transfer to Denied June 30, 1998.
Application for Transfer Denied August 25, 1998.
*480 Anita Burns, Liberty, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Loren T. Israel, Asst. Atty. Gen., Kansas City, for respondent.
Before LAURA DENVIR STITH, P.J., and HANNA and RIEDERER, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Denied June 30, 1998.
RIEDERER, Judge.
On January 14, 1981, William Nash, Appellant, was charged by indictment with the crime of burglary in the second degree, a class C felony. Appellant pled not guilty by reason of mental disease or defect and was committed to the Missouri Department of Mental Health on November 17, 1981. In December of 1981, Appellant was granted a conditional release, during which he was convicted for delivery of marijuana and spent five years in the Moberly Correctional Center in Moberly Missouri. On February 23, 1990, Appellant was released on parole and was returned to the St. Joseph State Hospital for violating his conditional release. Appellant received another conditional release in October of 1990. On April 14, 1991, Appellant's release was revoked for a curfew violation and a positive urine test. On November 4, 1993, Appellant was charged with sexual assault of another patient at St. Joseph State Hospital. Following this charge, Appellant spent approximately nine months at St. Joseph State Hospital. Appellant was then sent to the Buchanan County Jail until the case was dismissed in January 1997. He then returned to St. Joseph State Hospital. In March of 1997, Appellant filed an application for unconditional release. A hearing was held on April 30, 1997. At the hearing, Dr. Rintu, Dr. Williams, and Dr. Suthikant testified. All of the doctors are from St. Joseph State Hospital and have treated Appellant. Appellant also testified. Dr. Kahn was the first witness. Dr. Kahn stated that Appellant's original diagnosis of schizophrenia has been removed from Appellant's records and that he does not think the diagnosis is appropriate. Dr. Kahn also testified that his most recent diagnosis of Appellant is 1) alcohol abuse and cannabis abuse; and 2) *481 anti-social personality disorder.[1] Dr. Kahn testified that anti-social personality is not a mental disease under Chapter 552.[2] Dr. Kahn stated that while he did not believe Appellant was a danger to himself, he did feel that Appellant's diagnosis of anti-social disorder could cause him to get into trouble with the law if Appellant did not address some of the issues that have caused him to get into trouble in the past. Dr. Kahn also said Appellant did not appear to be a violent person but if Appellant continued to exhibit behaviors such as the sexual assault of a patient, he would be a danger to society. Dr. Kahn also said that the Department of Mental Health has a policy where they would like to see at least two successful conditional releases or prior releases prior to supporting an unconditional release.
The second witness was Dr. Williams. Dr. Williams testified that the last time he evaluated Appellant was in June of 1995. Dr. Williams said after the evaluation he determined that Appellant had anti-social personality disorder, and that while Appellant had originally been diagnosed in the past as being schizophrenic, that diagnosis of schizophrenia in 1981 was not a correct diagnosis. Dr. Williams stated he did not find any psychosis. He concluded that Appellant was competent and that he did not need to stay in a state hospital.
The third witness was Dr. Suthikant. Dr. Suthikant testified that he treated Appellant from 1991 to 1993. Dr. Suthikant evaluated Appellant in December of 1991 and determined that Appellant had anti-social personality disorder, and that this disorder was not a mental disease or defect under Chapter 552. Dr. Suthikant testified that Appellant's original diagnosis of schizophrenia should have been induced psychosis. Dr. Suthikant further testified that he did not believe that Appellant was a violent person and that in his opinion, Appellant would not suffer from a mental disease or defect in the reasonable future.
The final witness to testify was Appellant. When Appellant was asked if he understood what his problem was, Appellant stated that he was gaining a better understanding of what anti-social personality disorder was. Appellant also stated that he did not have any concerns about his own safety as long as he is careful and follows the rules.
After taking the matter under advisement, the court denied Appellant's application for unconditional release. The court issued findings of fact and conclusions of law. The court determined that defendant offered no direct evidence of Appellant's mental condition in the reasonable future; Appellant does not have a mental disease or defect as defined by § 552.010 at the present time, but he is likely to commit crimes as a result of his anti-social personality disorder; Appellant has not successfully completed a conditional release; and that Appellant's antisocial personality disorder renders him dangerous to himself and others. This appeal ensued.
Standard of Review
A trial court's decision will be reversed only if there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Marsh v. State, 942 S.W.2d 385, 388 (Mo.App.1997) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976 )). We accept as true the evidence, and all reasonable inferences drawn therefrom, favorable to the trial court's judgment and disregard all evidence to the contrary. Woolsey v. Bank of Versailles, 951 S.W.2d 662, 666 (Mo.App.1997).
I.
Appellant claims in his sole point on appeal that the trial court erred in denying his application for unconditional release because evidence adduced during Appellant's hearing established that he met his burden of proof pursuant to § 552.040.7. Appellant also maintains that he was misdiagnosed and committed for schizophrenia, even though he never had schizophrenia and will not have it in the *482 reasonable future, and that the actions of the trial court denied him his rights to due process and equal protection.
Section 552.040.5 allows a person committed to the Missouri Department of Mental Health, after being found not guilty of a crime by reason of mental disease or defect, to file an application for unconditional release. Under § 552.040.7:
The burden of persuasion for any person committed to a mental health facility under the provisions of this section upon acquittal on the grounds of mental disease or defect excluding responsibility shall be on the party seeking unconditional release to prove by a clear and convincing evidence that the person for whom unconditional release is sought does not have, and in the reasonable future is not likely to have, a mental disease or defect rendering the person dangerous to the safety of himself or others.
Therefore, Appellant had the burden of proving, by clear and convincing evidence, that 1) he does not have a mental disease or defect rendering him dangerous to the safety of himself or others; and 2) he, in the reasonable future, is not likely to have such a mental disease or defect. Clear and convincing evidence is evidence that "instantly tilt[s] the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind is left with an abiding conviction that the evidence is true." Marsh, 942 S.W.2d at 390.
"The determination of whether the evidence satisfies the conditions for release is made by the courts not the treating physicians." Grass v. Nixon, 926 S.W.2d 67, 70 (Mo.App.1996). The trial court properly found that Appellant "does not presently have a mental disease or defect." However, the trial court also found that no direct evidence was offered on Appellant's mental condition in the reasonable future and concluded Appellant did not prove by clear and convincing evidence that in the reasonable future he is not likely to have a mental disease or defect rendering him dangerous to himself or others. Thus, release was denied. This is error. Once the trial court found that the Appellant "does not presently have a mental disease or defect," the trial court was bound to release Appellant.
The United States Supreme Court held in Foucha v. Louisiana, 504 U.S. 71, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992), that it violates the Constitution to hold an individual who was dangerous to himself or others if that individual did not suffer from a mental disease or defect. The Missouri Supreme Court acknowledged the Foucha opinion and further determined that the burden placed upon insanity acquitees to prove that they no longer suffer from a mental disease or defect rendering them dangerous to themselves or to others under § 552.040 does not violate the Constitution. State v. Tooley, 875 S.W.2d 110, 113-14 (Mo.1994). Likewise, if it is determined that the acquittee is not suffering from a mental disease or defect, then he or she may no longer be confined. Foucha, 504 U.S. at 77-79, 112 S. Ct. at 1784. The due process rights of a person are violated if the state holds a person in a psychiatric facility when the person is no longer suffering from a mental disease or defect. Id. at 79-80, 112 S. Ct. at 1785.
The court in its conclusions of law found "in the present case, the evidence has shown that the defendant does not presently have a mental disease or defect." The evidence was clear and convincing that the Appellant no longer suffered from a mental disease or defect of any kind. As Dr. Kahn testified, Appellant may be a danger to others because of his abuse of alcohol and cannabis, and his anti-social personality; however, applicable law prohibits denying unconditional release unless a danger is tied to a mental disease or defect. All three doctors agreed that the original diagnosis of paranoid schizophrenia was wrong, and Dr. Kahn testified that this diagnosis had been removed from the Appellant's records. The testimony was unequivocal that the current diagnosis is alcohol and cannabis abuse, and antisocial personality disorder. These are not considered mental diseases or defects under Chapter 552. Dr. Williams testified that he did not find any psychosis present and concluded that Appellant did not need to stay in a *483 state hospital. Dr. Suthikant testified that he believed that in the reasonable future the Appellant would not suffer from a mental disease or defect as defined in Chapter 552. There was no testimony to counter the testimony of the three doctors that the Appellant does not now suffer from a mental disease or defect, nor is it likely in the reasonable future that he will suffer from a mental disease or defect. Therefore, the conclusion of the trial court that the defendant does not presently have a mental disease or defect is in conformity with all the evidence. This should have ended the matter.
In addition, however, the court found that Appellant had failed to prove by clear and convincing evidence that Appellant will not suffer a mental disease or defect in the future and found that there was no direct evidence on this issue. This finding has no bearing on the outcome of the case, and the denial of release on this basis is an erroneous application of the law.
This is not a case where the acquitee had a mental disease or defect upon admission to the state hospital. And this is not a case where the mental disease or defect was in remission or was currently asymptomatic. Rather, this is a case where the acquitee never did have a mental disease or defect and the evidence was clear and convincing that the acquitee, at the time of the hearing, did not have a mental disease or defect. In fact the court so found. Once the trial court concluded that the Appellant does not have a mental disease or defect, the trial court should have then ordered the unconditional release of the defendant. We conclude that the Appellant did prove by clear and convincing evidence that he does not have a mental disease or defect rendering him dangerous to the safety of himself or others. We therefore reverse the judgment of the trial court and remand this case to the trial court for the entry of a judgment granting the Appellant unconditional release.
LAURA DENVIR STITH, P.J., and HANNA, J., concur.
NOTES
[1] There were some other incidental medical findings which are irrelevant to the issues of the appeal.
[2] All statutory references are to RSMo 1994, unless otherwise indicated.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2441360/
|
972 S.W.2d 933 (1998)
333 Ark. 561
Mary Chavers CARSON, Appellant,
v.
Richard WEISS, Director, Arkansas Department of Finance and Administration; and Jimmie Lou Fisher, Treasurer, State Of Arkansas, Appellees.
No. 97-984.
Supreme Court of Arkansas.
June 11, 1998.
Thomas D. Deen, Dermott, for Appellant.
Beth B. Carson, Little Rock, for Appellee.
THORNTON, Justice.
This appeal from an order denying class certification is specifically permitted as an interlocutory appeal under the provisions of Ark. R.App. P.Civil 2(a)(9). Appellant Mary Chavers Carson, a resident of Louisiana who is employed in Arkansas, brings this illegal-exaction claim, challenging a provision of a state income tax statute, the former section 26-51-301(d) (Repl.1992) of our Code, that denied her the same exemption from taxation that was granted to residents of Arkansas. She paid her Arkansas state taxes without protest from 1991, when the exemption was first granted to Arkansas residents, until 1994, when this complaint was filed. The State repealed the challenged exemption in 1995.
Appellant seeks, under the provisions of Rule 23 of our Rules of Civil Procedure, to represent a class of similarly situated taxpayers. However, because she has not complied with statutory refund requirements, the *934 chancellor applied the sovereign-immunity provision of the Arkansas Constitution, which provides that the State may not be made a defendant in its own courts, to deny class certification. The chancellor based this decision on this court's decision on rehearing in State v. Staton, 325 Ark. 341, 942 S.W.2d 804 (1996), where we held that each individual taxpayer must comply with statutory requirements before sovereign immunity is waived. From the chancery court's decision denying class certification, appellant brings this interlocutory appeal. We find error and reverse.
As an interlocutory appeal from the trial court's denial of class certification, we review the trial court's decision under an abuse-of-discretion standard. State v. Tedder, 326 Ark. 495, 496, 932 S.W.2d 755, 756 (1996); Cheqnet Sys. v. Montgomery, 322 Ark. 742, 748, 911 S.W.2d 956, 958 (1995). However, we also consider whether sovereign immunity has been waived because it is a jurisdictional issue that may be raised at any time or on our own motion. Newton v. Etoch, 332 Ark. 325, 331, 965 S.W.2d 96 (1998); see also Tedder, 326 Ark. at 496, 932 S.W.2d at 756.
Our constitution generally prohibits suits against the State. Ark. Const. art. 5, § 20; Jacoby v. Arkansas Dep't of Education, 331 Ark. 508, 513, 962 S.W.2d 773 (1998). We have held that this sovereign-immunity provision fully protects the State absent a waiver or consent by the State to be sued. Id.
The chancery court found that the members of the proposed class in this case could not be certified because they had not filed a claim for refund, which the Staton court held to be required under our statute dealing with refunds for overpayments, Ark. Code Ann. § 26-18-507 (Repl.1997). Appellant argues that section 26-18-507 does not apply to this illegal-exaction claim. This argument is well taken.
In recent cases involving tax statutes, this court has noted that our legislature has waived its sovereign immunity in enacting a refund statute, Ark.Code Ann. § 26-18-507, which permits a taxpayer to sue the State for an improperly collected sales tax after a refund has been sought and refused or the Commissioner has not acted on the request. Tedder, 326 Ark. at 496, 932 S.W.2d at 756; Staton, 325 Ark. at 344, 942 S.W.2d at 806. The statute provides, in pertinent part:
Any taxpayer who has paid any state tax to the State of Arkansas, through error of fact, computation, or mistake of law, in excess of the taxes lawfully due shall, subject to the requirement of this chapter, be refunded the overpayment of the tax determined by the director to be erroneously paid upon the filing of an amended return or a verified claim for refund.
Ark.Code Ann. § 26-18-507(a). It was under this statute that we determined in State v. Staton that the taxpayers were required to file either an amended return or a verified claim for refund prior to initiating a suit, in order to waive sovereign immunity. Staton, 325 Ark. at 347, 942 S.W.2d at 807; see also ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997) (citing Ark.Code Ann. § 26-18-507(e)(2)(A)).
In this case, appellant argues that section 23-51-301(d), providing an exemption from state income taxes for Arkansas residents, was unconstitutional on its face, not in its application. Therefore, she does not assert that her excessive payment was due to an "error of fact, computation, or mistake of law," as contemplated under section 23-51-507. Instead, appellant asserts that her claim is based on the premise that the State illegally exacted this payment from her based on an unconstitutional distinction in the statute. See, e.g., Taber v. Pledger, 302 Ark. 484, 791 S.W.2d 361, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990) (determining that a taxpayer's suit did not fall under this section because the taxpayer paid under protest rather than through error).
Appellant argues that the proper method of challenging this unconstitutional tax is via the Arkansas Constitution's illegal-exaction clause, and we agree. The clause reads as follows:
Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants *935 thereof against the enforcement of any illegal exactions whatever.
Ark. Const. art. 16, § 13.
This court has observed the inherent conflict in our constitution between our illegal-exaction clause and our sovereign-immunity provision, art. 5, § 20. Streight v. Ragland, 280 Ark. 206, 209-10 n. 7, 655 S.W.2d 459, 461 n. 7 (1983). Our sovereign-immunity provision provides that the State shall not be a defendant in her own courts, and this court in Streight noted that this provision was general in nature. Id. We stated that in the face of this conflict, we would employ the well-known rule of construction holding that the more specific provision controls the general. We concluded that the more specific provision was the one that grants the taxpayer standing, the illegal-exaction clause. Id.
In City of Little Rock v. Cash, 277 Ark. 494, 510, 644 S.W.2d 229, 236 (1982), we recognized that our common law makes an illegal-exaction suit under Article 16, section 13, of the Arkansas Constitution a class action as a matter of law. However, we also specifically held in Cash that Rule 23 does not conflict with the constitutional illegal-exaction provision; rather, it serves as a rule of procedure in a class-action case of this nature. Id. In this regard, we also noted that, while our illegal-exaction provision is self-executing, "the legislature may regulate the procedure so long as the Constitutional guarantee is not abridged." Id. (quoting Garner, Sloan, and Haley, Taxpayers Suits to Prevent Illegal Exactions in Arkansas, 8 Ark. L. REV. 129, 135 (1954)).[1]
In the case before us, the chancellor was correct that Rule 23 cannot override the constitutional principle of sovereign immunity and that strict compliance with statutory waivers of sovereign immunity is required. However, having previously held that the provisions of this illegal-exaction clause are self-executing and that it overrides the constitutional provision for sovereign immunity, we now further conclude that it provides for a constitutionally established class of interested persons. While the formation of this class is subject to well-established commonlaw legal principles and is neither limited nor expanded by the provisions of Rule 23, we have determined that the procedural elements of that rule may be useful in managing the conduct of the class action.
Accordingly, we reverse the decision of the chancellor and remand the matter for further action consistent with this opinion.
NOTES
[1] This issue was revisited in Union Nat'l Bank v. Barnhart, 308 Ark. 190, 823 S.W.2d 878 (1992), where Justice Glaze stated, in a concurring opinion, that illegal-exaction claims had historically not been governed by the restrictions imposed on class actions and that illegal-exaction claims should not be subject to Rule 23.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1136511/
|
11 Ariz. App. 263 (1970)
463 P.2d 847
SPUR FEEDING COMPANY, an Arizona corporation, Appellant and Cross-Appellee,
v.
Juan H. FERNANDEZ, surviving father of Carlos Fernandez, Deceased, Appellee and Cross-Appellant.
No. 1 CA-CIV 814.
Court of Appeals of Arizona, Division 1. Department B.
January 19, 1970.
Rehearing Denied February 6, 1970.
Review Granted March 24, 1970.
*264 Jennings, Strouss & Salmon, by Charles R. Esser, Phoenix, for appellant and cross-appellee.
Tupper, Rapp & DeLeon, by Edward Crehan Rapp, Phoenix, for appellee and cross-appellant.
JACOBSON, Judge.
In this appeal from a jury verdict and judgment of the Superior Court of Maricopa County, the court is asked to review the tragic consequences resulting from children trespassing on land containing dangerous equipment.
Plaintiff-appellee and cross-appellant, Juan H. Fernandez, surviving father of Carlos Fernandez, brought a wrongful death action against appellant-defendant and cross-appellee, Spur Feeding Company and defendant Atchison, Topeka and Santa Fe Railway Company, seeking damages for the death of Carlos Fernandez, a child of the age of three years and eleven months. The trial court directed a verdict in favor of Atchison, Topeka and Santa Fe Railway Company and it is not a party to this appeal. The term defendant as used in this opinion shall therefore refer to Spur Feeding Company.
The defendant, for some 15 months prior to the date of the accident in question, by agreement with Santa Fe Railway, operated and maintained an unloading site for grain at 115th Avenue and Olive Road in Maricopa County. This site is in a rural area with practically no habitation within one mile in any direction of the site. The unloading site was on a spur line of the Santa Fe Railway which brought boxcars of grain to the site. This grain was used by defendant in its cattle feeding operation located approximately three and one-half miles east of the unloading site. At the unloading site was a grain auger which is a power-driven continuous screw approximately 24-feet long and 14 inches in diameter set below ground level. The auger runs from approximately ten inches south of the railroad track, under the railroad track, and then to a pit approximately 24-feet north of the track where the grain is carried by a continuous belt to a tower. The grain is then discharged from the tower into waiting trucks to be delivered to defendant's cattle feeding operation.
When the unloading process is in operation a boxcar is spotted over the auger channel and the grain is shoved out of the north side of the boxcar into a hopper which funnels the grain into the turning auger. The grain is then carried into the pit and ultimately into the tower and the waiting trucks. At the time the accident in question occurred, defendant had been operating at the unloading site eight to twelve hours a day, six days a week.
Immediately prior to commencing operations at the unloading site, defendant had given written permission to Mr. Presentacion Rodriquez or his designee to remove spilled grain from the unloading site. The paper containing this written permission was given by Rodriquez to Elias Cabazos, a 74-year-old man. Mr. Cabazos would come regularly to the unloading site to remove the grain that was left over after the boxcars had been unloaded, clean the boxcars, place the leftover grain in sacks and use this grain to feed his chickens and other livestock. Mr. Cabazos had been coming to the site for approximately one year prior to the accident and was usually driven there by Cleofas Gutierrez. Mr. Gutierrez, an 80-year-old man, would drive Mr. Cabazos to the site early in the morning, leave him there and return at approximately 4:00 p.m. to pick him up. On the occasions when Mr. Gutierrez transported Mr. Cabazos to and from the unloading site, Mr. Gutierrez never left his truck and had never brought anyone else to the site other than Mr. Cabazos. The evidence is uncontradicted that no small children had been observed at the unloading site during the prior 15 months that defendant operated the same.
On March 8, 1965, the date of the accident, there were four boxcars at the unloading site. When Mr. Gutierrez arrived on the premises at approximately 4:00 p.m., *265 one of these boxcars was in the process of being unloaded and the auger was in operation. At this time all of defendant's employees were inside the boxcar. On this particular day Mr. Gutierrez brought with him four minor children and Sarah Hernandez, an aunt of the deceased. Three of these children including the deceased, Carlos, were riding in the back of Mr. Gutierrez' pickup. The oldest of these children was six years old. Mr. Gutierrez parked his pickup at the usual spot near the unloading site and, almost immediately after he stopped, the three children in the back of the pickup jumped out and disappeared from Sarah's view. Sarah immediately started looking for the children and in her search she discovered that the deceased had gone around the boxcars to the south of the track, opposite the unloading operation, had either stepped or fallen into the channel containing the turning grain auger and had been killed. None of defendant's employees were aware of the arrival of Mr. Gutierrez and Sarah or of the presence of any children on the premises until after the accident occurred.
While it is disputed as to whether the auger channel was covered in its entirety, it is undisputed that the small area of the channel south of the railroad tracks had been uncovered for approximately fifteen minutes prior to the accident because of a squeaking bearing. It is apparent from the testimony that this uncovered portion of the auger south of the track is where the child had fallen into the auger channel. The premises themselves did not contain any "no trespassing" signs nor were there any guards or safety rails around the auger channel.
A motion for a directed verdict was made by the defendant at the close of the plaintiff's case which was denied. The trial court submitted the case to the jury on the theory of "attractive nuisance." The jury returned a verdict in favor of the plaintiff and against the defendant and assessed damages in the sum of $20,000.00. On appropriate post-trial motions the trial court directed the plaintiff to accept a remittitur of $2,500.00 or it would grant a new trial. The plaintiff accepted the remittitur and now cross-appeals from this action of the trial court. All other post-trial motions of the defendant were denied.
The defendant contends on appeal that the trial court erred in failing to grant its motion for a directed verdict on the grounds that the deceased was a trespasser and that the facts here do not justify the application of the "attractive nuisance" doctrine. Defendant also contends that if this doctrine is applicable, the trial court erred in its instructions on the same and further, that counsel for plaintiff was guilty of improper closing arguments to the jury.
The plaintiff counters, first, with the argument that defendant has no standing to take advantage of the deceased's status as a trespasser, or any other status of the deceased since defendant is not the owner of the land at the unloading site but rather a mere licensee. It is clear that the property in question is actually owned by Santa Fe Railway. There was testimony that no lease existed between Santa Fe and defendant but that defendant had permission to use the site for its unloading operation. The evidence also discloses that all the equipment located at the site was the property of defendant, and that defendant had been in operation at this site for fifteen months prior to the accident for eight to twelve hours per day, six days a week. There is sufficient evidence here to show that defendant fell within the definition of "possessor" as that term is defined by Restatement (Second) of Torts sec. 328E(a) (1965): "a person who is in occupation of the land with intent to control it." Moreover plaintiff's complaint alleges that defendant "was in the exclusive possession" of the property in question which allegation was admitted by the defendant. In view of such an allegation, plaintiff cannot now urge the contrary. Therefore defendant is entitled to avail itself of any defenses applicable to owners or possessors of land.
*266 Plaintiff next contends that the deceased in this case was not a trespasser, but a licensee, and therefore defendant's first contention is without merit. Plaintiff arrives at this conclusion by arguing that Mr. Cabazos was a licensee with permission to come on the premises to remove spilled grain. Mr. Gutierrez, who drove Mr. Cabazos to the property, was neither told to get off the property nor was informed by "no trespassing" signs that he was not allowed on the property and was therefore a licensee by consent. Since Mr. Gutierrez was a licensee, then persons he brought onto the premises were also licensees, including the deceased. Plaintiff's reasoning in this regard is incorrect. "Trespasser", as that term is used in defining the duty of a possessor of land, is defined as "a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise." Restatement (Second) of Torts sec. 329 (1965). Since defendant did not even know of the presence of the deceased on the premises this consent could not have been expressly given. Nor does the fact that Mr. Gutierrez was allowed to come on the premises for the limited purpose of delivering or picking up Mr. Cabazos give rise to any inference of implied consent that other persons could come on the premises. We therefore hold that the deceased was a trespasser, insofar as defining the legal duty owed to him by the defendant.
This, then, brings us to the crux of defendant's argument on appeal. The duty of a possessor of land to trespassing children has been delineated in Arizona as that duty set forth under Restatement (Second) of Torts sec. 339 (1965) entitled "Artificial Conditions Highly Dangerous to Trespassing Children." Marble v. Parham, 3 Ariz. App. 585, 416 P.2d 1006 (1966); MacNeil v. Perkins, 84 Ariz. 74, 324 P.2d 211 (1958). While courts and counsel continue to refer to this duty imposed upon possessors of land as the doctrine of "attractive nuisance", the more recent cases make it apparent that this is a misnomer. The requirement that before liability may attach the child must be attracted to the premises by the instrument (nuisance) which causes him harm, has been all but abandoned. MacNeil v. Perkins, supra; Buckeye Irrigation Co. v. Askren, 45 Ariz. 566, 46 P.2d 1068 (1935). In the interests of judicial clarity, and if labels must be attached, we prefer to use the term "doctrine of trespassing children."
In order for liability to attach to the possessor of land for harm befalling trespassing children, the Restatement requires that "the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass." Restatement (Second) of Torts sec. 339(a) (1965). Defendant contends that there is no evidence in this case that defendant knew or had reason to know that children were likely to trespass on the property in question and therefore, since the requirement of the Restatement is not met, no liability attaches. Inasmuch as the transcript is completely silent as to any small children being on the premises prior to this accident, it is obvious the plaintiff failed to prove the defendant "knew" of children trespassing on the property. Whether the defendant "had reason to know" that children were likely to trespass presents a closer question. Merely because children have not trespassed in the past does not relieve the possessor of land from liability if there is some reasonable expectation that children might trespass. For example, liability has been imposed where the property is in close proximity to a public place, Clark v. Pacific Gas & Electric Co., 118 Cal. App. 344, 5 P.2d 58 (1931), petition for rehearing denied, 118 Cal. App. 344, 6 P.2d 297 (1931); or in close proximity to a housing development, Long v. Standard Oil Co. of California, 92 Cal. App.2d 455, 207 P.2d 837 (1949); or in close proximity to a park or playground, Wytupeck v. City of Camden, 25 N.J. 450, 136 A.2d 887 (1957); or where the property is leased to a family with small children, Marble v. Parham, supra.
*267 In our opinion the question of "reason to know", is in actuality a question of foreseeability of trespassers. While the question of foreseeability is normally one for the jury, Sefert v. Owen, 10 Ariz. App. 483, 460 P.2d 19 (1969), the question of foreseeability can be one of law where the evidence is such that reasonable men cannot differ as to its application. See Ray v. Tucson Medical Center, 72 Ariz. 22, 230 P.2d 220 (1951).
In this case the only circumstance which could possibly give rise to any inference that the defendant should have foreseen the possibility of trespassing children is the location of the property adjacent to a public road. However, this particular public road is located in the middle of a farming area and the evidence is silent as to the amount of traffic on such road. Conversely, because of the isolated position of the property, the lack of habitation in the immediate surrounding area, the lack of evidence of children on the premises in the past, the fact that both Mr. Cabazos and Mr. Gutierrez were elderly gentlemen and the probability of them having small minor children in their care being remote, all weigh overwhelmingly in favor of the contention that defendant could not reasonably have foreseen the likelihood of children trespassing on its premises. In this case we hold, as a matter of law, that there was not sufficient evidence to submit to the jury the question of the foreseeability of trespassing children. The plaintiff having failed to sustain its burden of proof under the doctrine of trespassing children, the trial court should have directed a verdict in favor of the defendant at the close of plaintiff's case.
The plaintiff also requests this court to abolish the common law defenses available to owners or possessors of land. We feel that in the case of trespassing children this has already been effectively accomplished. The five elements set forth in Restatement (Second) of Torts sec. 339 (1965) under the doctrine of trespassing children are, in our opinion, merely elements of general negligence law.
Because of our determination in this matter, we need not consider the other contentions raised by defendant or by plaintiff's cross-appeal.
Judgment reversed with directions to enter judgment in favor of the defendant.
EUBANK, P.J., and HAIRE, J., concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1136519/
|
463 P.2d 888 (1970)
KIELY CONSTRUCTION COMPANY, A Corporation, Plaintiff and Respondent,
v.
STATE of Montana, Acting by and Through the STATE HIGHWAY COMMISSION of the State of Montana, Defendant and Appellant.
No. 11637.
Supreme Court of Montana.
Submitted December 11, 1969.
Decided January 20, 1970.
John A. Alexander (argued), George P. Sarsfield (argued), Butte, for appellant.
Corette, Smith & Dean, Kendrick Smith (argued), Butte, for respondent.
JOHN C. HARRISON, Justice.
Plaintiff brought this suit for two different claims arising out of the performance of a highway construction project. The trial court directed the verdict for the plaintiff as to liability on one of the claims and the jury awarded the verdict for the plaintiff on the other claim. Damages were awarded in the amount of $25,000 for each claim. Defendant appeals from judgment and a denial of a motion for a new trial.
Kiely Construction Company (hereinafter referred to as Kiely) was the successful bidder on the "Butte East Project" on Interstate 90. Kiely was to subsurface and pave with concrete approximately 2.8 miles of the road east out of Butte over Pipestone Pass toward Bozeman. When the project was completed Kiely had expenses greatly in excess of estimates on two particular parts of the job, first the crushing operations in a rock quarry, and the second, the added expense of obtaining concrete aggregate sand for paving the road. Believing that the additional expense was attributable to actions and errors on the part of the highway department rather than just a failure to properly bid the project, Kiely *889 filed a claim for additional compensation. The highway department refused to pay and Kiely sued.
The Montana State Highway Department as a matter of regular practice provides prospective bidders on road construction projects with an "Available Surfacing Materials Report", a report that describes the condition and site of rock quarries and gravel pits obtained for use on the project. The purpose of providing this report is to assist the contractor in preparing his bid and to obtain a lower bid.
Approximately twelve days before bids on the "Butte East Project" were to be let Kiely received an Available Surfacing Materials Report from the State Highway Department. The first page consists of a graph showing the percentages by weight of various sizes of crushed rock that passed through screens ranging in size between four inches and number 200. It also has two columns showing that 80% of the rock is over 6 inches in size and 5% of the rock is between 4 and 6 inches in size.
The second page of the report contains a sketch of the quarry site beside the road and has 8 locations on it numbered in sequence. Below the map there is a "Test Hole Log"
"TEST HOLE LOG
LAB. NO. TEST HOLE
252536 1 30.0' Granite
252537 2 30.0' Granite
252538 3 30.0' Granite
252539 4 30.0' Decomposed Granite
252540 5 30.0' Decomposed Granite
252541 6 30.0' Granite
252542 7 30.0' Granite
252543 8 30.0' Granite
This form is a standard lab report form used by the highway department and it is the same form that was used in the contract litigated in Haggart Const. Co. v. State Highway Comm'n, 149 Mont. 422, 427 P. 686.
Highway Department geologists testified they followed standard procedure in making their analysis of the quarry site. They climbed up the steeply sloping hill and took surface samples of about 50 pounds from each of the locations marked with numbers on the second page of the report. The samples were broken off rock ledges with a sledge hammer and a pick and placed in sacks. All samples taken were surface samples even though the appellant included in its bid information the "Test Hole Log". The appellant's geologists testified that it was their practice, where there was a steeply sloping area, to only make surface reports, but no explanation was given why this practice was not communicated to bidders. During the pleading stage of the case the highway department amended their answer to remove their previous denial of the failure to drill holes, and admitted that no holes were in fact drilled to 30.0 feet, or to any other depth.
Mr. Kiely testified that his company relied on the materials report in preparing their estimates on the job. One of his employees testified that they worked directly from the report in preparing the estimates and they made only a cursory examination of the quarry site during the twelve day period they had to prepare their estimate.
The quarry site was filled with great boulders interspersed with sand and gravel. The rock was not a type of granite which would fracture when blasted or crushed. When the rock was blasted the boulders did *890 not break up enough to be put into the crusher, and when the rock was crushed it would pulverize to form a coarse sand called fines, instead of the rough crushed gravel that was needed for the road subsurface.
Mr. Kiely testified that during crushing operations approximately one load of sandlike fines was hauled away from the crusher and dumped for each load of usable crushed rock produced. When highway engineers measured the principal pile of dumped fines they estimated it contained 23 to 25% of the total production of the crusher. Additional fines were deposited around the quarry site, and some of the fines were hauled away for use by the highway department in winter sanding operations. This sand was not intended to be used and could not be used in the concrete surfacing that was placed on the road.
As a result of the above described problems Kiely filed a claim for additional costs. The amount of the claim was based upon the highway department's determination of 25% reject fines even though Kiely's claim was higher. The claim included increased costs for additional crushing and blasting operations, for increased labor and machinery costs necessary to remove the fines allegedly caused by the highway department's misleading Test Hole Log information.
The plaintiff claimed that the highway department either through neglect or faulty practice misrepresented the actual condition of the quarry site, causing him to rely on a clear statement that test holes which had been drilled to 30 feet showed the presence of solid granite. His reliance on the report resulted in great additional expense to him when the quarry did not contain 30 feet of solid granite, but did contain large amounts of conglomerated boulders interspersed with sand, and great amounts of decomposed granite which did not crush properly.
Concerning this claim the highway department contends there is no proof that Kiely relied on the report, and that the report accurately represents the condition of the quarry because two of the 8 holes or 25% of the quarry contained decomposed granite which will produce excessive fines when crushed.
The other phase of the project for which Kiely filed an additional cost claim with the highway department arose out of the rejection by highway engineers of 5,796 yards of concrete aggregate sand Kiely had purchased from Tri-City Products in Anaconda and had hauled to Butte and stockpiled.
Shortly after the contract was awarded Kiely ordered all of the 9,000 yards of sand that would be required to make the concrete surfacing for the road. This sand was ready for Kiely on July 31, 1964 and he hauled about 2,000 yards of the 9,000 yards ordered. The sand was stockpiled and approved by the highway engineers for use in the project.
All sand used in the concrete surfacing was required to have a Fineness Modulus (F.M.) not in excess of 3.00. This measurement is based on the coarseness of the sand. Sand finer than 3.00 has a higher F.M. number.
Due to the fact Kiely would not need to use the sand until the spring of 1965, and because he did not have to pay for it until it was hauled away from the Tri-City plant he discontinued hauling sand to Butte in 1964. In the spring of 1965 Kiely again hauled sand from the Tri-City plant at Anaconda. This sand had been manufactured later than the sand that had been hauled in 1964 because it was the practice of Tri-City Products to continuously pile sand of the same size on their stock piles rather than to make separate piles for each separate order they received.
Three thousand eight hundred yards of this additional sand were hauled to Butte in the spring of 1965 and were piled on top of the sand that had been hauled in 1964. On July 12, 1965 Kiely stopped hauling sand from Tri-City because he had received notice from the highway engineers that the 3,800 yards of 1965 sand exceeded the F.M. limits and were unacceptable. Five days *891 later on July 17, 1965 Tri-City hired E.A. Nurse, President of Foundations and Materials Consultants, to test the sand pile at Butte. July 21, 1965 Kiely ordered 4,000 yards of sand from M & S Ready Mix Concrete in Missoula, some 100 miles distant. On July 22, 1965 Tri-City received the reports on the tests at the Butte sand pile but Kiely was not notified of the test results. Three of the samples had a F.M. number below 3.00 and indicated acceptable sand. The average F.M. number for all of the samples taken in the test indicated that the sand was acceptable.
After Kiely had ordered the sand from M & S Concrete at Missoula he began to bulldoze the 1965 sand off the pile and into a separate pile. By this action he hoped to salvage the previously accepted 1964 sand.
July 26, 1965 Foundations & Materials Consultants at Helena who had just made the report to the Tri-City Plant were hired by the highway department to test the sand at Butte and at the Tri-City Plant at Anaconda. The sand at Butte was in two piles. The pile designated Kiely North contained principally 1964 sand, and the Kiely South pile was composed primarily of sand hauled in 1965. The tests were made by E.A. Nurse and a highway engineer. They collected samples and split each of them for testing. All samples tested by the highway department had F.M. numbers below 3.00, and only one sample tested by Nurse which came from the North pile composed principally of previously accepted sand had a F.M. number over 3.00.
E.A. Nurse testified that on July 28, he hand carried the report of the tests to Lewis Chittim, the chief right of way engineer of the highway department, because "there was a big rush for it." On July 30, 1965 Chittim wrote a letter to Tri-City telling them the sand at both the Anaconda plant and in Butte was acceptable. On July 28 when Chittim received the results of the tests Kiely had not received any sand from Missoula, but Kiely was not notified of the results of the tests until September 23, 1965 when the project was almost completed.
Due to the fact that railroad cars were not immediately available to haul sand from M & S Concrete in Missoula and Kiely was not informed that the highway department had accepted the sand stock pile in Butte, the lack of suitable sand delayed the start of paving operations. All of these problems caused Kiely to import special cement finishers because there were not enough local people who could do this special work, and in addition he had to lease several large expensive pieces of special concrete paving equipment. Both men and equipment were essentially waiting in idleness for the sand to arrive and the paving operations to begin.
On July 29, 1965 Kiely hired Northern Testing Laboratories to test the sand piles in Butte. Their report dated July 30, 1965 indicates that 4 of the 8 samples they took had an F.M. number in excess of the acceptable 3.00. The other four samples were below 3.00. The average F.M. number was 2.97. Apparently the dozing operation which separated the two piles had blended the sand enough to make it acceptable although Kiely was not notified that the highway would accept the sand until September 23, 1965.
At the trial it was demonstrated that if the average F.M. ratings were taken for the different piles of sand at Butte, and the stockpile at Tri-City in Anaconda and these ratings were averaged together in their relative proportions of the total 9,000 yards required for the job, the whole amount of sand would have had an acceptable F.M. rating and could have been used. The sand at Butte was blended with the Missoula sand and eventually used in the project.
In response to a request of the highway department Kiely sent a breakdown of additional costs arising out of the sand pile debacle to Richard Dundas, district engineer for the state highway commission. This breakdown, dated April 14, 1966, contained a claim for freight in the amount of $6,200, a claim for equipment use of $7,259.85, *892 a claim for standby time for special leased equipment of $20,089.90 and standby labor costs of $1,705.81. With incidental costs the entire claim amounted to $38,439.04 for the additional sand costs.
The appellant presents five issues for consideration on this appeal. For our purpose they will be consolidated into two main issues: (1) Did the court err in granting a directed verdict on claim one? (2) Is there sufficient evidence to support the jury verdict in the claim for additional funds for the sand?
Considering first the issue raised by appellant as to the sufficiency of the evidence to support the verdict on the quarry site claim we find that appellant failed to come forward with substantial evidence sufficient to overcome the trial court's action in granting a directed verdict. Over the past 4 years this Court, in three cases, Sandkay Const. Co. v. State Highway Comm'n, 145 Mont. 180, 399 P.2d 1002 (1965); Hash v. R.J. Sundling & Sons, Inc., 150 Mont. 388, 436 P.2d 83 (1967); Haggart Const. Co. v. State Highway Comm'n, 149 Mont. 422, 427 P.2d 686 (1967), has tried to set forth guidelines for these type of cases disputes between the State Highway Commission and those who contract with it. The Haggart and Sandkay cases, supra, were similar cases in that there as here, the state highway commission furnishing respondent with a materials report was to "induce bidders to submit a lower bid." Here the evidence clearly shows the respondent, who had but 12 days to prepare his bid, relied on the State's Materials Report to his detriment and the trial court properly followed our holding in the Haggart case. The crucial question is one of justifiable reliance; and for the state to contend, as it did here, that the respondent had no reason to rely on its report that in its 8 test holes was 30 feet of granite is not reasonable. See also Wunderlich v. State ex rel. Dept. of Public Works, 65 Cal.2d 777, 56 Cal. Rptr. 473, 423 P.2d 545.
The second issue presented attacks the sufficiency of the evidence presented to support the respondent's verdict on the sand claim. Again we find appellant's claim without merit. A brief resume of the respondent's evidence indicates that the appellant notified the respondent that its sand did not meet specifications. The contract was awarded December 18, 1963; February 20, 1964 the respondent ordered 9,000 cubic yards of sand from Tri-State Products, Inc., and hauled 1,996 yards to project site early in 1964; beginning on July 1, 1965 respondent began hauling some 3,800 cubic yards from Anaconda to the project site and piled it onto the previously hauled 1,996 yards; on July 12, 1965 the appellant's district engineer Dundas notified respondent Kiely that the 3,800 yards hauled in 1965 did not meet the specifications, that it was contaminated, that it could not be mixed with other sand, and that the state would not accept it. On July 17, 1965 upon being notified by respondent that the state had turned down the sand the president of Tri-City hired a private testing laboratory, Foundations and Materials Consultants, to make tests of respondent's sand at the project site at Anaconda, and the tests showed the sand at the project site was within specifications, however, the appellant was not notified of such fact. On July 21, 1965, the respondent, ready with equipment and men to use the sand in concrete, located another source for sand and ordered 4,000 yards to be shipped to the project from Missoula. In the meantime, back at the state highway commission, the appellant through its chief of right of way engineer, on July 26 hired the same Foundation and Materials Consultants who had as previously reported on July 17 been hired by Tri-City, to make tests, and at the same time a representative of the state made tests and when completed all samples tested both by the private foundation and the state showed all samples under the 3.0 specification limit, and last but not least, a report was rushed to appellant's representative on July 28, 1965 with no copy to respondent who did not learn of the testing done or the results *893 until September 23, 1965 when the job was practically done. It is interesting to note that nowhere in the appellant's case is there any explanation of the action taken by the district engineer Dundas in rejecting the sand nor was the man or men who made the tests on or before July 12th ever produced. On this record this Court is requested to find an insufficiency of evidence to support the verdict.
This Court will not upset a jury verdict if there is substantial evidence to support the verdict. Sumner v. Amacher, 150 Mont. 544, 437 P.2d 630; Greenup v. Community Transit Co., 145 Mont. 39, 399 P.2d 418; Wyant v. Dunn, 140 Mont. 181, 368 P.2d 917.
Judgment of the district court is affirmed.
JAMES T. HARRISON, C.J., HASWELL and CASTLES, JJ., and LeROY L. McKINNON, District Judge,[*] concur.
NOTES
[*] Sitting in place of Mr. Justice BONNER.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2441523/
|
4 A.3d 199 (2010)
COM.
v.
ALLEN.
No. 408 EDA 2008.
Superior Court of Pennsylvania.
May 21, 2010.
Affirmed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2441486/
|
511 F. Supp. 2d 460 (2007)
Vickie SMITH, Plaintiff
v.
CENTRAL DAUPHIN SCHOOL DISTRICT, Barbara Hasson, Yvonne Hollins, and Richard Mazzatesta, Defendants.
Civil No. 1:05-CV-01003.
United States District Court, M.D. Pennsylvania.
June 22, 2007.
*461 *462 Andrew J. Ostrowski, Don Bailey, Sheri D. Coover, Bailey, Stretton & Ostrowski, Harrisburg, PA, for Plaintiff.
James Edward Ellison, Stephanie E. Divittore, Rhoads & Sinon LLP, Harrisburg, PA, for Defendants.
MEMORANDUM
SYLVIA H. RAMBO, District Judge.
Before the court is Defendants' motion for summary judgment on Plaintiff's claim of employment retaliation in response to her exercise of her First Amendment right to free speech. Plaintiff alleges numerous acts of retaliation taken by Defendants because she investigated and made public her concerns about the air quality in certain school buildings within Central Dauphin School District. Plaintiff was a teacher within the School District for the times pertinent to this suit. Her claims revolve around her teaching position and her position as an assistant coach for the cross-country team at Central Dauphin High School. For the reasons that follow, summary judgment will be denied in part and granted in part.
I. Background
A. Facts
The following facts are undisputed, except where noted. Defendants Dr. Barbara Hasson, Yvonne Hollins, and Richard Mazzatesta were employed by Defendant Central Dauphin School District ("School District"). Defendant Hasson was the District Superintendent from 1996 through July 7, 2005. (Hasson Dep. I 10:8-21, May 17, 2006.) Defendant Hollins was Assistant Superintendent for Secondary Education through July 12, 2004. (Hollins Dep. I 15:5-14; 59:21-24, May 26, 2006.) Defendant Mazzatesta was, and is, Principal of Central Dauphin High School. (Mazzatesta Dep. I 6:19-22, May 17, 2006.) Plaintiff Vickie Smith is a teacher in the Central Dauphin School District.
2. Teaching
a. Old Central Dauphin High School[1]
Plaintiff Vickie Smith was first hired by the School District as a long-term substitute *463 teacher in 1988. (Defs.' Stmt. of Mat'l Facts ¶ 1; Pl.'s Counter-Stint. of Mat'l Facts ¶ 1.) She became a full-time, permanent employee of the School District in school year 1989-90, teaching at old Central Dauphin High School ("CDHS"). (Defs.' Stmt. of Mat'l Facts ¶ 3; Pl.'s Counter-Stmt. of Mat'l Facts ¶¶ 3, 11.)
In August 2001, while still teaching at old CDHS, Plaintiff began experiencing symptoms of illness, including shortness of breath, fatigue, and joint problems. (Defs.' Stmt. of Mat'l Facts ¶ 13; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 13.) She spoke to other teachers and the school nurse, some of whom were having similar chronic symptoms of illness. (Defs.' Stmt. of Mat'l Facts ¶ 19; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 19.) Plaintiff also contacted her union representative, Tom Ferguson. (Ferguson Dep. 59:16-24, May 26, 2006.) In response to many complaints, the teachers' union circulated a survey to the teachers asking about their health concerns. (Defs.' Stmt. of Mat'l Facts ¶ 14; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 14.) The results of the survey, completed in October 2001, plus complaints from students and parents, indicated that old CDHS was adversely affecting the health of its occupants. (Defs.' Stmt. of Mat'l Facts ¶ 15; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 15.) The union shared the results of the testing with Defendant Hasson in December 2001 and January 2002. (Smith Dep. I 50:10-52:18, Sept. 22, 2006.)
In or after February 2001, Defendant Hasson met with the teachers' union co-presidents and other administrative personnel to talk about Plaintiff's health concerns. (Hasson Dep. I 55:5-56:8.) Defendant Hasson agreed to have the old CDHS building tested. (Id. at 56:18.) The School District contracted with Analytical Laboratory Services, Inc. ("ALSI") to perform testing at old CDHS to determine the source of the problems. Testing began on or about February 15, 2001.
Plaintiff's symptoms worsened over the course of the 2001-02 school year. She saw physicians and specialists to determine the cause of her illness. (See Pl.'s Counter-Stmt. of Mat'l Facts ¶ 19.) On February 7, 2002, Plaintiff went on sick leave. (Smith Dep. I 66:17-21.) On the same date, she notified the School District's human resources office that her symptoms were caused by old CDHS. (See Pl.'s Counter-Stmt. of Mat'l Facts ¶ 19.) She, also filed a worker's compensation claim.[2] (Smith Dep. I 54:3-15; Pl.'s Ex. 8.) Dr. Bogdon, Plaintiff's family doctor, advised her to go on a medical leave of absence from work. Dr. Bogdon suspected that Plaintiff's respiratory problems resulted from exposure to mold at old CDHS (Pl.'s Ex. 13), but her condition was not concretely diagnosed (Defs.' Stmt. of Mat'l Facts ¶ 36; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 36). Plaintiff began medical leave as of February 22, 2002. (Decl. of Vickie Smith ¶ 9.)
Plaintiff filed a complaint regarding the environmental conditions at old CDHS with the Department of Labor on March 11, 2002. (See Smith Dep. I 73:22-74:16) She filed a similar complaint with the Department of Health on March 12, 2002. (See id.; Gostin Dep. 6:11-21, Oct. 23, 2006.) Judith Gostin, an industrial hygienist and occupational health program director at the Department of Health, spoke *464 with Plaintiff. (Gostin Dep. 6:11-21.) Ms. Gostin contacted Defendant Hasson soon after. (Id. at 9:4-12.) In their phone conversation, Ms. Gostin and Defendant Hasson set a time to meet and discuss the health concerns at old CDHS within a few weeks. (Id. at 9:21-25.)
During. March and April, Defendant Mazzatesta informed the Parent-Teacher-Student Organization at old CDHS that the testing showed normal results and there was nothing wrong with the building. (Hoachlander Dep. 8:13-9:2, May 26, 2006.) On March 16, 2002, following a report in the Harrisburg Patriot-News that mold was found at old CDHS, Defendant Hasson appeared on the local news and stated that the school was safe. (Pl.'s Counter-Stmt. of Mat'l Facts ¶ 21.)
On March 18, 2002, Plaintiff requested a copy of the "initial findings" produced by ALSI after testing on old CDHS from Bill Irwin of the School District human resources department. (Id.) She was seeing a doctor on or about that date and hoped to bring information about the environment at old CDHS with her to the appointment. (Pl.'s Ex. 14.) Plaintiff then called the office of the superintendent to request a copy of the report. Dr. Bogdon was faxed a copy of the preliminary report on the same day. On March 29, 2002, Plaintiff discovered that three pages, which included the test results and ALSI's recommendations to the School District, were missing from the preliminary report faxed to Dr. Bogdon. Later, Plaintiff learned that the pages were missing because ALSI "asked that those be left out until a more conclusive report [was] available." (Pl.'s Ex. 29.)
Defendant Hasson met with Ms. Gostin, Mr. Ferguson, Defendant Mazzatesta, a representative from ALSI, and other administrators on March 26, 2002, to discuss the teachers' concerns about the environment at old CDHS and the information produced by ALSI. (Gostin Dep. 10:1-13:2.) It appears that the final report from ALSI was not publicly available until on or about the date of this meeting, March 26, 2002. (Id.; see Pl.'s Ex. 17.) The same day, Ms. Gostin toured old CDHS with Mr. Ferguson to visually inspect the building. (Gostin Dep. 13:2-14:18.) Mr. Ferguson testified that when they first arrived, Defendant Mazzatesta would not let them in to the building to inspect the problem areas. (Ferguson Dep. 15:1-17.) After consulting Defendant Hasson, Defendant Mazzatesta allowed them to tour the school independently. (Id.) Ms. Gostin did not recall Defendant Mazzatesta impeding their inspection. (Gostin Dep. 14:11-18.)
In April 2002, Plaintiff saw Dr. Shoemaker, a specialist in chronic fatigue (Pl.'s Ex. 36), and Dr. Bascom, a specialist in pulmonary, allergy, and critical care (Pl.'s Ex. 58). The advised Plaintiff to return to work as a test. They sought to determine whether her return to old CDHS would aggravate her condition. (Defs.' Stmt. of Mat'l Facts ¶ 37; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 37.) In advance of her return, Defendant Hasson issued a memorandum to Defendant Mazzatesta, with a copy to Defendant Hollins, requesting that Defendants Mazzatesta and Hollins meet with Plaintiff before she returned to the classroom. (Pl.'s Ex. 31.) It was Defendant Hasson's "understanding that [Plaintiff] was teaching about the environmental conditions in the building and her interpretation of the air problems." (Id.) She asked them to advise Plaintiff that such discussions `in class are inappropriate because they are not elements of approved curriculum. (Id.) They were instructed to tell her that she must "[s]tick to the curriculum and not elaborate on her health conditions" and that she would be supervised directly. (Id.)
*465 When Plaintiff arrived on the morning of April 29, Defendants Hollins and Mazzatesta met her at her mailbox. The tone and tenor of the meeting, from Plaintiff's perspective, was hostile. Plaintiff states that these Defendants "threatened" regarding teaching anything but curriculum. (Pl.'s Counter-Stmt. of Mat'l Facts ¶ 39; Smith Dep. I 126:10-127: 1.) Nothing in the record reflects Defendant Hollins's or Defendant Mazzatesta's recollection of the meeting.
Within twenty-four hours of her return to old CDHS, Plaintiff's symptoms returned. (Defs.' Stmt. of Mat'l Facts ¶ 41; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 41.) In spite of her severe reaction, she continued to teach at old CDHS through May 15, 2002. (Defs.' Stmt. of Mat'l Facts ¶ 42; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 42.) She went on medical leave as of May 16, 2002. (Defs.' Stmt. of Mat'l Facts ¶ 43; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 43.)
By late May 2002, Plaintiff's physicians informed her that she should not return to old CDHS, lest she suffer a permanent and profound respiratory disability. (Pl.'s Ex. 19; Sullivan Dep. 44:5-22, Oct. 16, 2006; Bascom Dep. 11:18-25, Oct. 17, 2006). On May 22, 2002, Plaintiff contacted Mr. Irwin to ask about the protocol for requesting a transfer. (Pl.'s Ex. 19.) Mr. Irwin told her to send a formal, written, request for transfer to his attention. (Id.) The next day, before Plaintiff made an official request, Mr. Irwin sent her a letter informing her that she was to be transferred from her social studies position at old CDHS to teach social studies at Linglestown Junior High School ("LJHS"). (Pl.'s Ex. 20.) According to Mr. Ferguson, the transfer was rational in light of Plaintiff's health concerns. (Ferguson Dep. 18:6-17.) LJHS was one of few air-conditioned buildings in the School District and had recently been remediated.[3] (Id.) It was "the most environmentally safe place for [Plaintiff] to work." (Id.; see Hasson Dep. I 95:5-19.)
On June 12, 2002, Plaintiff issued a press release, under her name, identifying her health problems, her complaints to the Department of Labor and the Department of Health, and her impression that the School District had "turn[ed] a blind eye" to the health concerns of its teachers and students. (Pl.'s Ex. 33 at 2.) The Paxton Herald picked up the release, turning it into an article with the headline "Local Teacher Breaks Silence On Toxic Mold In C.D. High." (Pl.'s Ex. 57.) Upon learning of the press release, Defendant Hasson faxed a "copy to counsel for the School District stating her belief that the release was "a clear violation" of Plaintiff's contract with the School District and requesting advice. (Pl.'s Ex. 33 at 1.)
Later in June, Defendant Mazzatesta is alleged to have learned that a parent member of the Parent-Teacher-Student Organization at old CDHS, Deb Hoachlander, had been corresponding with Plaintiff regarding the mold situation at old CDHS. (Hoachlander Dep. 31:13-32:18.) He told Ms. Hoachlander that, in his opinion, Plaintiff was spreading "falsehoods" through the news media about air safety at old CDHS. (Id.) He asked Ms. Hoachlander to forward Plaintiff's emails or, alternatively, he offered to go to Ms. Hoachlander's house to read them on her computer. (Id. at 32:19-33:11.) Ms. Hoachlander got the impression that Defendant Mazzatesta sought the emails to discredit Plaintiff. (Id. at 49:2-24.) Defendant Mazzatesta does not recall the specific conversation, but did remember asking someone to show *466 him the contents of an email rather than paraphrasing it to him. (Mazzatesta Dep. I 47:11-14.) Ultimately, Ms. Hoachlander forwarded some emails from Plaintiff having to do with web sites about mold as it affects indoor air quality. (Hoachlander Dep. 33:22-34:1.)
b. Linglestown Junior High School
In July 2002, Plaintiff met with Gus Zemba, the principal of LJHS. (Smith Dep. I 96:25.) She requested documentation about the history of mold growth and air quality at the school. (Id. at 97:4-7.) He told her to contact the School District Solicitor's office for that information. (Smith Dep. I 97:10-12.) He also told her to have her physician make the request in writing. (Pl.'s Ex. 35.) Mr. Ferguson sent a letter to Mr. Irwin requesting the same information on August 7, 2002. (Id.) Dr. Bascom wrote to Mr. Zemba on August 12, 2002. (Pl.'s Ex. 36.) She indicated that if it was likely that the building had mold growth, Plaintiff "should work elsewhere." (Id.) On August 15, 2002, Defendant Hasson advised Plaintiff that she, Mr. Zemba, and Mr. Irwin were in the process of responding to Plaintiff's requests and anticipated providing a response in two weeks. (Pl.'s Ex. 64.)
In Defendant Hasson's letter, to Plaintiff, she also inquired as to whether Plaintiff would be reporting for work at LJHS for the 2002-03 school year. (Id.) She asked Plaintiff to inform Defendant Hollins if Plaintiff would be returning or if Plaintiff would be "requesting leave pursuant to the Family Medical Leave Act by completing the enclosed application." (Id.) Plaintiff reported for work at LJHS.
On September 6, 2002, Plaintiff's worker's compensation attorney sent a request to counsel for the School District for information on LJHS. (Pl.'s Ex. 63.) Mr. Ferguson sent another letter to Mr. Irwin on September 11, 2002, with another request for information as to mold growth and air quality information at LJHS. (Pl.'s Ex. 37.)
Defendant Hasson responded to Dr. Bascom on September 27, 2002. (Pl.'s Ex. 38.) She related that there had been leaks in the roof in the past, but that repairs had been made quickly enough to reduce the possibility of resultant mold. (Id.)
It appears, however, that mold was discovered near the gymnasium of LJHS on June 14, 2002, the result of a leaky water fountain. (Pl.'s Ex. 39.) Defendant Hasson was notified of the mold on or about June 20, 2002. (Pl.'s Ex. 40.) The assistant principal of LJHS wrote a memo to her stating that an environmental specialist would visit to assess the problem and that he would provide their findings immediately. (Id.) On July 24, 2002, ALSI reported on the environmental quality of LJHS. (Pl.'s Ex. 41.) ALSI suggested remediation for the area surrounding the leaky water fountain. (Id.) At the time Defendant. Hasson wrote to Dr. Bascom, the School District was in the process of repairing the floor in the affected area of the gymnasium, removing the mold, and remediating the area. (Id.)
After remediation, on December 30, 2002, ALSI sampled the air in the area where water damage and fungal contamination were removed and concluded that the air at LJHS was normal. (Pl.'s Ex. 42.) ALSI indicated that the level of fungal spore concentrations "should not affect or cause complaints among most occupants." (Id.)
At the end of the 2002-03 "school year, Plaintiff was still having problems with her health, though not as severe as when she taught at old CDHS. (Defs.' Stmt. of Mat'l Facts ¶¶ 54-55; Pl.'s Counter-Stmt. of Mat'l Facts ¶¶ 54-55.) Plaintiff's doctors linked her health problems to an inhalation injury due to exposure to mold at old CDHS and continued exacerbation of the *467 injury from exposure to mold at LJHS. (Defs.' Stmt. of Mat'l Facts ¶ 56; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 56; Smith Dep. I 108:17-25.) Plaintiff's doctors wrote a report to that effect and sent it to Defendant Hasson in June 2003. (Defs.' Stmt. of Mat'l Facts ¶ 57; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 57.) Dr. Bascom informed Plaintiff that she would have to be out of an "exposed environment" for two years to even begin to recover her lung capacity. (Defs.' Stmt. of Mat'l Facts ¶ 59; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 59.)
Plaintiff's doctors were concerned that it was not safe for her to teach at either old CDHS or LJHS. (Defs.' Stmt. of Mat'l Facts ¶ 63; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 63.) On May 24, 2003, Dr. Shoemaker advised Defendant Hasson that if Plaintiff continued to work in a contaminated environment, like old CDHS and LJHS, she was "likely to become 100% disabled by virtue of her occupationally acquired illness." (Pl.'s Ex. 50 at 5.) Dr. Bascom also advised Plaintiff not to return to LJHS. (Bascom Dep. 15:5-12.) Thus, Plaintiff approached Mr. Ferguson about requesting alternative work arrangements for the coming 2003-04 school year. (Defs.' Stmt. of Mat'l Facts 65 ¶; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 65.)
In June 2003, Mr. Ferguson suggested to Defendant Hollins that Plaintiff be assigned to home-bound teaching or an alternative education center such as Dauphin County Prison. (Pl.'s Ex. 48 at 3; Ferguson Dep. 27:8-28:1.) He informed Defendant Hollins that LJHS was not safe for Plaintiff, bringing doctors' reports in support. (Pl.'s Ex. 48 at 1.) He sent a letter with the same information in August 2003, requesting accommodation by the School District because Plaintiff wanted to continue to teach. (Pl.'s Ex. 49.) Also in August, Mr. Ferguson wrote to Mr. Irwin about alternatives for Plaintiff. (Pl.'s Ex. 48 at 1; Pl.'s Ex 61.) Mr. Ferguson met with Defendant Hollins on August 14, 2003. (Pl.'s Ex. 48.) Defendant Hollins indicated that Plaintiff was still assigned to LJHS for the coming school year, but agreed that it was not safe for Plaintiff to be in the building. (Id.) According to Mr. Ferguson, Defendant Hollins indicated that she would support Plaintiff's request, if made, for benefits under the Family Medical Leave Act ("FMLA"). (Id.) Mr. Ferguson told her that an FMLA solution was not in Plaintiff's best interests. (Id.) Mr. Ferguson emailed Defendant Hasson on August 18, 2003, to inquire again about Plaintiff's status in the School District for the coming school year, indicating that Defendant Hollins directed him to Defendant Hasson as to Plaintiff's proposed alternative assignment for the school year. (Pl.'s Ex. 62.)
The School District did not have any alternative positions suitable for Plaintiff for the 2003-04 school year.[4] (Defs.' Stmt. of Mat'l Facts ¶ 68; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 68.)
c. Medical Leave
On Monday, August 25, 2003, the School Board approved FMLA leave for Plaintiff, effective August 18, 2003. (Pl.'s Ex. 54.) It is undisputed that Plaintiff did not request the leave. The record is unclear as to who, exactly, requested it for her such that the School Board could subsequently approve it. Defendant Hollins testified that she was not personally involved with the decision because human resources *468 would have handled that kind of request. (Hollins Dep. I 32:10-19; 34:7-11.) Defendant Mazzatesta had no role in placing her on FMLA leave. (Smith Dep. I 167:4-10; see Mazzatesta Dep. I 74:5-16.)
Mr. Ferguson advised Plaintiff that, to protect her employment status within the School District once she exhausted her FMLA leave, she should take a medical sabbatical. (Smith Dep. I 117:24-118:5; Ferguson Dep. 29:16-31:2.) To that end, Plaintiff sent a written request for medical sabbatical to Mr. Irwin on September 5, 2003. (Pl.'s Ex. 53.) In the letter, she again requested a work accommodation. (Id.) On September 22, 2003, the School Board approved her request for medical sabbatical, effective for school year 2003-04. (Pl.'s Ex. 55.) She received half of her regular salary while on medical sabbatical. (Defs.' Stmt. of Mat'l Facts ¶ 72; Pl.'s Counter Stmt. of Mat'l Facts ¶ 72.) Plaintiff claims that this sabbatical was `forced" upon her by Defendants. There is no evidence that Defendant Hasson had a role in the advent of Plaintiff's medical sabbatical. (Defs.' Stmt. of Mat'l Facts ¶ 149; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 149.) Defendant Hollins did not personally discuss a sabbatical with Plaintiff or take any action on the matter. (Hollins Dep. I 35:11-18; Smith Dep. I 168:12:15.) Defendant Mazzatesta also had no, role in her medical sabbatical. (Smith Dep. I 167:12-15; see Mazzatesta Dep. I 76:9-19.)
Plaintiff filed a complaint with the Pennsylvania Human Relations Commission in September 2003. (Smith Dep. I 148:15-149:5.) She also filed a second complaint with the Department of Labor at or about that time. (Id.)
d. New Central Dauphin High School
The School District completed construction on new CDHS while Plaintiff was on medical sabbatical. (Defs.' Stmt. of Mat'l Facts ¶ 75; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 75.) The School District spent more than $200,000 to prevent any mold growth in the new building. (Defs.' Stmt. of Mat'l Facts ¶ 79; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 79.) Plaintiff was assigned to new CDHS for school year 2004-05. (Defs.' Stmt. of Mat'l Facts ¶ 75; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 75.)
i. Teaching Assignment
Plaintiff learned that she would be teaching at new CDHS in April 2004. (Smith Dep. I 156:18-22.) She contacted the social studies department head at the school, Kathy Eckert. (Id. at 156:21-157:2.) Plaintiff asked Ms. Eckert if she would be allowed to teach the same subjects for which she had written the curriculum and which she had always taught, multicultural history and sociology. (Id. at 157:12-18; Smith Dep. II 282:23-25, Nov. 27, 2006.)
The process for determining which teacher will teach which subjects in the CDHS social studies department appears to be as follows: during April, the department head confers with the teachers to determine who would like to teach which subjects. (Smith Dep. I 157:2-25; Mazzatesta Dep. I 83:24-84:4.) With that input, the department head reports the requests to the principal. (Mazzatesta Dep. I 84:1-4.) The principal then decides who will teach which subject for the following school year. (Id. at 84:1-15.)
During the 2003-04 school year, a Mr. Osovella taught multicultural history and sociology. (Id.) Ms. Eckert recommended that Plaintiff teach those subjects for the 2004-05 school year. (Id.) Defendant Mazzatesta asked Mr. Osovella whether he wanted to drop those courses; Mr. Osovella said no. (Id.) Thus, it appears that Defendant Mazzatesta put multicultural history and sociology on Mr. Osovella's *469 teaching slate for the following year, not Plaintiff's. (See id.)
Ms. Eckert then informed Plaintiff that she would be teaching world cultures and U.S. history, subjects with which Plaintiff was unfamiliar and did not enjoy. (Smith Dep. I 158:1-5.) Plaintiff taught those classes during school year 2004-05.
In April 2005, the same process of feedback and reporting occurred among the department head and teachers in the social studies department. (Id. at 182:9-22.) Plaintiff approached Mr. Osovella and asked if she could take over multicultural history and sociology. (Id. at 182:21-183:11.) He said no. (Id. at 183:4-11.) It is unclear what recommendations Ms. Eckert submitted to Defendant Mazzatesta in April 2005; Plaintiff testified that Ms. Eckert requested that Plaintiff teach multicultural history and sociology rather than Mr. Osovella. (Id. at 183:12-15; 184:2-185:19.) Again, Defendant Mazzatesta assigned Mr. Osovella to teach multicultural history and sociology and Plaintiff to teach world cultures and U.S. history. (Id. at 184:2-185:19.)
There is no evidence that Defendants Hasson or Hollins participated in the decisions regarding Plaintiff's teaching assignments.
ii. Being a "Floater"
Upon arriving at new CDHS for the start of the 2004-05 school year, Plaintiff discovered that she had not been assigned a room at the school. (Id. at 158:19-25.) Instead, she was to work off of a cart, in six different classrooms on two floors over the course of the school day. (Id. at 158:19-22.) Teachers so assigned to rotate classrooms are called "floaters." (Mazzatesta Dep. I 80:14-25.)
Defendant Mazzatesta decided which teachers would have a permanent room for the school year and which teachers would be floaters. (Id.) He makes this decision based on the "building seniority" of a teacher. (Id.) The longer a teacher has worked in the building, the more likely he or she is to receive a permanent room assignment. (Mazzatesta Dep. I 80:21-25.) The decision is not based on the teacher's length of service in the School District; thus, a teacher with twenty years of experience teaching in the School District who is a recent transfer to new CDHS will not displace a teacher with five years in the School District who has been at new CDHS for those five years. (Id. at 81:1-8.) Because every teacher at new CDHS moved in when the building opened in 2004-05, Defendant Mazzatesta may have "carried over" teachers' building seniority from old CDHS. (Ferguson Dep. 157:25-159:1.)
In May 2005, Defendant Mazzatesta issued a request for teacher input on their "wish lists" for the following school year. (Smith Dep. I 183:16-21.) Plaintiff requested a permanent classroom. (Id. at 183:22.) For school year 2005-06 Plaintiff was again assigned to be a floater, while three other teachers, some with less seniority than she had, were given permanent rooms. (Id. at 183:22-184:2.)
Plaintiff testified that it is understood at CDHS that "you are given certain assignments [including as a floating teacher] as a result of disfavor with [Defendant] Mazzatesta." (Id. at 201:3-7.) Conversations with other teachers confirmed this understanding. (Id. at 200:11-201:7; see Smith Dep. II 294:16-295:2.) Further, Plaintiff testified that a social studies teacher in her first year `of teaching and her first year at new CDHS received a permanent classroom for school year 2005-06, while she was still assigned to be a floater. (Smith Dep. II 290:13-291:7.) There is a "generally accepted practice that if there is going to be a floater, it is going to be somebody *470 that is newer to the district" according to Mr. Ferguson. (Ferguson Dep. 32:23-25.)
There is no evidence that Defendants Hasson or Hollins participated in the decisions assigning Plaintiff to be a floater.
2. Coaching
Plaintiff was hired to be the assistant coach for the cross-country team at old CDHS each school year from 1988 through the fall season in 2002. (Defs.' Stmt. of Mat'l Facts ¶¶ 5, 84; Pl.'s Counter-Stmt. of Mat'l Facts ¶¶ 5, 84.) The procedure for hiring an assistant coach in the School District is in some dispute, but appears to be as follows: the head coach asks a person to be the assistant coach for the team. (See Defs.' Stmt. of Mat'l Facts ¶ 85; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 85.) If that person agrees, the head coach submits her name to the Athletic Director for the School District. (See Defs.' Stmt. of Mat'l Facts ¶ 86; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 86.) The Athletic Director may discuss the nominations with the principal of the school at which the person will coach. (Bressi Dep. 89:6-21, Sept. 21, 2006.) The Athletic Director submits the name of the proposed assistant coach to the secretary of the School Board. (Id. at 109:11-110:2.) The Superintendent presents the recommendations made by the Athletic Director to the Board. (Id. at 110:20-111:9.) The School Board makes the final decision as to whether a person recommended as an assistant coach will be hired. (Mausner Dep. 20:3-8.)
Mr. Leuschner asked Plaintiff in the spring of 2003 if she would like to be assistant coach again in the fall. (Smith Dep. I 136:2-7.) She said yes. (Id.) Mr. Leuschner submitted her name to the Athletic Director and Defendant Mazzatesta approved. (Bressi Dep. 88:25-89:21.) Subsequently, as related supra, Plaintiff was placed on medical leave then took a medical sabbatical for the 2003-04 school year. As a result, Cindy Radich of the personnel department approached Defendant Hasson to inquire if Plaintiff would be allowed to coach while on sabbatical. (Hasson Dep. I 100:3-8.) Defendant Hasson informed Ms. Radich of her policy that teachers out on medical sabbatical are not allowed to coach because"it is too confusing to explain to people that you're paying them to be off sick, but you're also paying them to coach." (Id. at 100:9-15.)
Defendant Hasson met with three members of the School Board to set the agenda for an executive session of the Board in August 2003. (Id. at 120:2-21.) During that meeting, she opened the personnel report made by Mr. Bressi. (Id. at 121:7-11.) The report recommended that Plaintiff be hired as an assistant coach for the cross-country team at old CDHS. (Id. at 121:12-15.) The Board members asked Defendant Hasson to call Mr. Bressi in to the executive session to explain the reasons that he recommended Plaintiff. (Id. at 121:13-15.) She agreed to ask Mr. Bressi to attend. (Hasson Dep. II 5:23-25, Oct. 2, 2006.)
At the executive session, the Board members discussed their concern that Plaintiff was being recommended for a position at old CDHS, the very building that she felt had made her sick. (Id. at 6:1-9.) Mr. Mausner asked whether the assistant coaching position would require her to go into the building. (Mausner Dep. 42:14-18.) "[T]he answer was yes, the assistant coach must go in" for locker room supervision or to escort an injured runner to the trainer or the nurse.[5] (Id. at 42:17-20.) Mr. Mausner said that he "could not support *471 somebody going into a building that they felt had an adverse [effect] on their health." (Id. at 42:21-22.) After some discussion, the Board agreed to pull the recommendation and refrained from voting on Plaintiff's name. (Id. at 43:2-3.)
Defendant Hasson was present at the executive session with the Board, as was Defendant Hollins. (Hasson Dep. II 33:15-34:6.) The record is unclear as to whether Mr. Bressi attended the executive session. Mr. Bressi does not recall attending the session. (Bressi Dep. 35:15-21; see Mausner Dep. 53:11-54:4.) Defendants Hasson and Hollins recall that he attended. (Hasson Dep. II 18:9-19; Hollins Dep. II 6:5-14, 16:7-10, Oct. 2, 2006.) Defendant Hasson testified that Mr. Bressi spoke to the reasons for his recommendation that Plaintiff be hired as assistant coach at old CDHS. (Hasson Dep. II 11:21-12:14; 34;1-4.) She did not make any recommendations herself. (Id. at 34:1-4.) Defendant Hollins did not participate in the discussion. (Id. at 34:5-12; Hollins Dep. II 19:1-22.)
Upon learning of the Board's decision not to hire her as an assistant coach for the 2003 cross-country season, Plaintiff had "the sense" that it was "because of my asking questions and seeking knowledge." (Smith Dep. I 141:16-19.) Mr. Leuschner got the impression from Mr. Bressi that the Board's decision not to hire her was related to the suits she had filed. (Leuschner Dep. 46:13-47:25, Sept. 15, 2006.) Mr. Ferguson claims that, according to Defendant Hasson, "in light of the fact that she was bringing suit against the district, if [Plaintiff] thought that she would ever get a coaching position that she was mistaken." (Ferguson Dep. 96:23-97:3.)
It is somewhat disputed whether Mr. Leuschner submitted a request that Plaintiff be his assistant coach for the 2004 fall season. Mr. Leuschner asked Plaintiff, in the spring of 2004, if she would like to be assistant coach for the fall season. (Leuschner Dep. 39:3-40:20; Smith Dep. I 150:19-22.) She said yes. (Smith Dep. I 150:19-22.) Mr. Leuschner recalls writing her name on the official request form for 2004 and submitting that form to the Athletic Director. (Leuschner Dep. 41:14-42:25.) Mr. Bressi told Mr. Leuschner, before submitting Plaintiff's name to the Board, that he did not believe the Board would hire Plaintiff "any more this time than it did the last time." (Bressi Dep. 67:8-20.) According to Mr. Bressi, Mr. Leuschner withdrew Plaintiff's name and requested another person. (Id. at 70:1-71:25.) Mr. Leuschner was unsure as to whether he submitted Plaintiff's name for assistant cross-country coach, or the name of another person. (Leuschner Dep. 49:5-15.)
It is undisputed that Plaintiff was not requested as assistant cross-country coach for the 2005 season or any subsequent season. (Defs.' Stmt. of Mat'l Facts ¶ 101; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 101.) Around that time, Plaintiff and the president of the teacher's union advised Mr. Leuschner that continuing to submit her name would be unwise until "all of this settles out." (Leuschner Dep. 67:21-68:21; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 101.)
B. Procedural History
On May 17, 2005, Plaintiff sued the School District and individual Defendants under 42 U.S.C. § 1983 for violation of her First Amendment right to exercise free speech without retaliation by her employer or supervisors. (Doc. 1.) Plaintiff filed an amended complaint on May 24, 2005. (Doc. 2.) Defendants moved for summary judgment on March 16, 2007. (Doc. 60.) Their supporting brief was filed on the same day. (Doc. 62.) Plaintiff filed her brief in opposition on April 20, 2007. (Doc. 69.) Defendants filed a reply brief on May 3, 2007. (Doc. 70.) Accordingly, this matter is ripe for disposition.
*472 II. Legal Standard
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c); accord Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir.2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d at 232.
Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply rest on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S. Ct. 2548. "`Such affirmative evidence regardless of whether it is direct or circumstantial must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.'" Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).
III. Discussion
Plaintiff alleges that Defendants retaliated against her in numerous ways because she spoke out about the mold in public schools. Defendants argue that they should be granted summary judgment on Plaintiff's retaliation claims because Plaintiff has failed to show a genuine issue of material fact as to the causal connection between her speech and the adverse employment actions. Further, Defendants submit that they would have taken the same action towards her for reasons unrelated to her speech. In the alternative, the individual Defendants claim that they are entitled to qualified immunity on all claims. The individual Defendants also argue that they should be granted summary judgment on Plaintiff's demand for punitive damages because Plaintiff has not demonstrated that Defendants intentionally disregarded her federally-protected rights.
A. First Amendment Retaliation
As an initial matter, to state a claim under 42 U.S.C. § 1983, a plaintiff must show that a defendant, acting under the color of state law, subjected her or caused her to be subjected to the deprivation of her Constitutional or federal rights. A plaintiff must show that each defendant "individually participated in the alleged constitutional violation or approved of it."[6]*473 C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir.2005). Unsupported allegations that a defendant participated in or acquiesced to an alleged constitutional violation are not sufficient to withstand summary judgment.
On summary judgment, the court is presented with arguments regarding Plaintiff's allegation that Defendants deprived her of her constitutional right to speak upon matters of public concern without retaliation from her employer or supervisors. See McKee v. Hart, 436 F.3d 165, 169 (3d Cir.2006); Brennan v. Norton, 350 F.3d 399, 419 (3d Cir.2003). "Determining whether a plaintiff's First Amendment rights were adversely affected by retaliatory conduct is a fact intensive inquiry focusing on the status of the speaker, the status of the retaliator, the relationship between the speaker and the retaliator, and the nature of the retaliatory acts." Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir.2000) (quoted in Brennan, 350 F.3d at 419). In the employment context, a retaliation claim triggers a burden-shifting three-step process of analysis: first, the plaintiff must show that her conduct was constitutionally protected; second, she must show that her constitutionally-protected conduct was a "substantial" or "motivating" factor in an adverse employment action; third, the burden shifts to the defendant to show "by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct." Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977); Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir.2000). The first factor is a question of law, but the second and third factors are questions of fact. Curinga v. City of Clairton, 357 F.3d 305, 310 (3d Cir.2004).
Defendants concede, for the purposes of summary judgment only, "that Plaintiff has stated facts sufficient to demonstrate that she engaged in [constitutionally-protected] speech regarding mold in School District facilities and resulting health problems," thus satisfying the first prong of the retaliation test. (Doc. 62 at 6.) Accordingly, the court need only address the questions of fact presented by the second and third prongs.
1. Was Plaintiff's Speech a "Substantial" or "Motivating" Factor in an Adverse Employment Action?
Under the second prong of the retaliation test, the court must determine 1) whether the acts attributed to Defendants are adverse employment actions and 2) if so, which Defendants personally participated in the actions such that they may be liable under § 1983. The court will then examine whether Plaintiff's speech was a substantial or motivating factor in any adverse employment actions taken.
*474 a. Adverse Employment Actions
Defendants concede, for summary judgment purposes only, that "placing [Plaintiff] on medical leave and failing to award her the assistant coaching positions are adverse employment actions" for which relief may be sought under § 1983. (Doc. 62 at 6.) Plaintiff submits that Defendants took additional adverse employment actions against her,[7] however, in that 1) Defendant Hasson made false statements to the press about the conditions at old CDHS; 2) Defendant Mazzatesta told others that he believed that Plaintiff was spreading falsehoods; 3) Defendants instructed her to refrain from discussing her health and the environment at old CDHS in the classroom; 4) Defendants withheld information or provided misleading information regarding the state of air quality at old CDHS and LJHS; and 5) after she returned from her medical sabbatical, for school year 2004-05, Defendant Mazzatesta retaliated against her by assigning her to teach classes with which she was unfamiliar and by assigning her to work off of a cart rather than in a permanent classroom. (See Doc. 69 at 14-18.)
An adverse employment action must inflict the requisite level of injury upon a plaintiff to be cognizable under § 1983, a tort statute. Suppan, 203 F.3d at 235 (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982)). The action must be more than de minimis, Brennan, 350 F.3d at 419, but may be relatively minor, O'Connor v. City of Newark, 440 F.3d 125, 127-28 (3d Cir.2006). The test focuses on whether the act was "sufficient to `deter a person of ordinary firmness' from exercising his or her First Amendment Rights." Suppan, 203 F.3d at 235; see also Rutan v. Republican Party of Ill., 497 U.S. 62, 76 n. 8, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990). Acts found sufficient to deter a person of ordinary firmness from exercising her First Amendment rights include adverse decisions regarding hiring, rehiring, promoting, transferring, and recalling an employee. Brennan, 350 F.3d at 419. Decisions that affect other terms and conditions of employment may also be actionable, "even `an act of retaliation as trivial as failing to hold a birthday party for a public employee' if intended to punish her for exercising her free speech rights." O'Connor, 440 F.3d at 128 (quoting Rutan, 497 U.S. at 76 n. 8, 110 S. Ct. 2729). Criticism, false accusations, and verbal reprimands, however, have been found not sufficient to deter an employee from exercising her First Amendment rights. Brennan, 350 F.3d at 419. Further, "an entire campaign of harassment which though trivial in detail may have been substantial in gross" may be actionable under § 1983. Suppan, 203 F.3d at 235 (internal quotation omitted); accord Brennan, 350 F.3d at 419 n. 16.
Some of the alleged wrongs against Plaintiff are not adverse employment actions, namely the public comments by Defendants Hasson and Mazzatesta and the instructions from all Defendants that Plaintiff was not to discuss her health problems or the environmental conditions at old CDHS during class time. Some of the alleged wrongs are actionable as adverse employment actions, however: withholding information regarding the environmental conditions at LJHS, being placed on FMLA leave in the fall of 2003, not *475 being hired as the assistant cross-country coach, and being assigned to work in unfavorable job conditions upon her return to teaching at new CDHS. The court will address each in turn.
i. Defendant Hasson's Comments to the Media
The comments made by Defendant Hasson to the media, espousing views contrary to Plaintiff's regarding the environment at old CDHS did not constitute an adverse employment action. The comments did not affect the terms or conditions of Plaintiff's employment. Open debate on a matter of public concern is not only permissible, it is anticipated and encouraged by the First Amendment. The possibility of public disagreement is insufficient to deter a person of ordinary firmness from exercising her First Amendment Rights. Bradshaw v. Twp. of Middletown, 296, F.Supp.2d 526, 542 (D.N.J.2003); see Shingara v. Miller, No. 1:05-CV-1807, 2007 WL 570080, at *3 (M.D.Pa. Feb. 15, 2007).
ii. Defendant Mazzatesta's Comments On the Veracity of Plaintiffs' Public Statements
Assuming without deciding that Defendant Mazzatesta told others that Plaintiff was lying about the state of old CDHS, his comments were not an adverse employment action. At a minimum, his comments demonstrated the kind of public disagreement described with respect to Defendant Hasson's comments to the media. At most, they amount to the "false accusations" described by Brennan as not sufficient to state a claim for retaliation under § 1983. See Bradshaw, 296 F.Supp.2d at 542 (holding that a defendant's statement in the newspaper that "the comments made by . . . [the plaintiff] were a lie and that [the plaintiff] knew it was a lie" did not rise to the level required to deter a plaintiff from exercising his First Amendment rights). Defendant Mazzatesta's statements were not sufficient to deter a person of ordinary firmness from exercising her First Amendment rights.
iii. The Meeting on April 29, 2002
Plaintiff alleges that Defendant Hasson "instructed [Defendants] Hollins and Mazzatesta to threaten [Plaintiff]" when she returned to old CDHS on April 29, 2002 (Pl.'s Counter-Stmt. of Mat'l Facts ¶ 141) and that Defendants Hollins and Mazzatesta subsequently did so (Doc. 69 at 15). The content of Defendant Hasson's instructions to Defendants Hollins and Mazzatesta and their subsequent exchange with Plaintiff is undisputed. Plaintiff was instructed to teach only the curriculum assigned to her and not to discuss her health or the environmental conditions at old CDHS. This instruction did not constitute an adverse employment action sufficient to deter Plaintiff from exercising her right to free speech.
As a public employee, Plaintiff has the right, "in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, ___ U.S. ___, 126 S. Ct. 1951, 1957, 164 L. Ed. 2d 689 (2006) (emphasis added). Her speech as a teacher may be constrained by her supervisors in some contexts. See id. at 1960 ("[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes and the Constitution does not insulate their communications from employer discipline."). Government employers require a degree of control over their employee's words and actions while on the job in the interest of efficient provision of public services. Id. at 1958. Here, Defendants had a distinct interest in restricting Plaintiff's speech in the classroom, during school time, to the *476 curriculum assigned. The public service that schools provide is instruction to children on specific topics deemed appropriate and necessary for their education. Requiring Plaintiff to confine her classroom comments to curriculum was not an adverse employment action. Further, the restriction on her speech in the classroom was not an action sufficient to deter a person of ordinary firmness from exercising her First Amendment rights outside of the classroom.
iv. Withholding of Information on Environmental Conditions
Plaintiff alleges that Defendants withheld information from her regarding the environmental conditions at old CDHS and at LJHS in retaliation for her public speech on mold at old CDHS. With respect to old CDHS, she claims that Defendants refused to release information to Plaintiff and her doctors so that she could receive appropriate medical treatment. The court infers, from the record evidence, that Plaintiff is referring to the report created by ALSI after it tested the air at old CDHS. Plaintiff wanted the report on a particular day, March 18, 2002, because she was going to see a doctor and wanted to provide information about the air quality at old CDHS during her appointment. Plaintiff's doctor was faxed a copy of ALSI's preliminary findings on that date and before the final report was, made publicly available. Although Plaintiff claims that "vital information was missing" from the preliminary findings, her own evidence demonstrates that ALSI, not any Defendant, withheld that information until more conclusive results were available. Further, ALSI's final report was made publicly available soon after. There is no evidence that any Defendant withheld the report about old CDHS from Plaintiff and her doctors.[8]
Plaintiff's request for information about LJHS presents a different scenario, however. She began requesting information about the air quality at the junior high school in July 2002. It is clear that Defendant Hasson became aware of these requests, at the latest, on or before August 15, 2002. On that date she responded to Plaintiff by letter. Defendant Hasson stated that she, `the LJHS principal, and human resources were in the process of responding to Plaintiff's requests. Defendant Hasson provided some of the information requested to Plaintiff's doctor on September 27, 2002.
The record demonstrates, however, that as early as June 20, 2002, Defendant Hasson was aware that there was mold on the gym floor at LJHS. There is no explanation in the record as to why Defendant Hasson, aware of the mold at LJHS as early as June 20, and aware of Plaintiff's request for information about such mold at least by August 15, would wait until September 27 to share the information with Plaintiff's physician.
The court concludes that the air quality at LJHS was a condition of Plaintiff's employment because of her extreme sensitivity to airborne mold. Plaintiff's physical health and ability to perform her duties as a teacher were directly related to the presence or absence of mold in the air. Although this is not the typical employment decision upon which lawsuits are based, the circumstances of this case lead the *477 court to the conclusion that the act of withholding information about the environment at LJHS was an adverse employment action. It may evolve at trial that Defendant Hasson did not have any punitive reason for not disclosing information about the environment at LJHS earlier than September 27, 2002. For present purposes, however, the court concludes that the possibility that such information would be withheld as punishment, in this context, is sufficient to deter a person of ordinary firmness from exercising her First Amendment rights.
v. "Forced" Medical Leave in 2003
Defendants' brief concedes that placing Plaintiff on medical leave was an adverse employment action sufficient to deter Plaintiff from exercising her right to free speech. The court addresses the matter here because not every Defendant personally participated in the act of placing her on leave. The record is devoid of evidence that Defendant Mazzatesta played any role in Plaintiff's medical leave. Plaintiff was assigned to Linglestown Junior High School at the time she was put on medical leave. Defendant Mazzatesta was the principal of old CDHS at the time. He testified that, because she was not in his building, he had nothing to do with her medical leave. (Mazzatesta Dep. 75:22-77:9.) Plaintiff's conclusory statement that his "involvement can be established through inference and circumstantial evidence" is not sufficient to withstand summary judgment as to Defendant Mazzatesta on this issue. See Celotex Corp., 477 U.S. at 324, 106 S. Ct. 2548.
There is a genuine issue of material fact as to the personal involvement of Defendants Hollins and Hasson, however. Although Defendant Hollins testified that she was not involved in placing Plaintiff on medical leave, Mr. Ferguson indicated that she initially suggested the leave. Further, Dr. Hasson's letter to Plaintiff on August 15, 2002, indicated that a request for FMLA leave should be directed to Defendant Hollins. Although this is not conclusive evidence of Defendant Hollins's participation in placing Plaintiff on leave, it creates an issue of fact for the jury. With respect to Defendant Hasson, the Superintendent is one of the main participants in setting the agenda for the School Board meetings. (Mausner Dep. 17:19-18:4; see Hasson Dep. I 120:2-10.) The court can only conclude that someone had to present the request that Plaintiff be placed on FMLA leave to the Board before the Board could approve it. Again, the evidence is not dispositive that Defendant Hasson personally took deliberate action to place Plaintiff on FMLA leave, but the record does show that there is an issue of fact as to this question.
vi. Failure to Hire Plaintiff as Assistant Coach for Cross-country
Defendants concede that the failure to hire Plaintiff as an assistant coach for the cross-country team was an adverse employment action sufficient to deter Plaintiff from exercising her right to free speech. The record demonstrates that Defendant Hollins did not personally participate in any part of the Board's decision not to hire Plaintiff. Defendants Hasson and Hollins testified that Defendant Hollins had no role. (Hasson Dep. II 34:5-12; Hollins Dep. II 19:1-6.) Plaintiff has not identified specific facts showing that Defendant Hollins took part. See Celotex Corp., 477 U.S. at 324, 106 S. Ct. 2548. Additionally, there is no dispute that if Defendant Mazzatesta participated in submitting Plaintiff's name as a proposed assistant coach, he supported the recommendation and did nothing to defeat it. (Bressi Dep. 89:6-90:1.) He was not present at the School Board meeting where the decision not to hire her was made. *478 Plaintiff has failed to point to record evidence creating a genuine issue of material fact as to Defendant Mazzatesta's participation in the denial of the assistant coaching job. See Celotex Corp., 477 U.S. at 324, 106 S. Ct. 2548.
Because it is disputed what, exactly, happened in the School Board meeting and who answered the Board's questions about Plaintiff's condition and the requirements of the job, there remains an open question of fact as to Defendant Hasson's personal involvement in the decision not to hire Plaintiff as an assistant coach. Further, there the record is unclear as to whether Plaintiff's name was submitted to the administration or to the Board for the 2004 season, Wand if so, at what stage in the process it was rejected.
vii. Benefits and Emoluments Afforded Similarly-Situated Teachers
Plaintiff submits that upon her return to teaching at the new Central Dauphin High School for school year 2004-05, Defendant Mazzatesta assigned her "to teach . . . two subjects that she had never taught previously except for one year" and required her to "work out of a cart, instead of a classroom, even though one was available." (Doc. 69 at 7.) These decisions are not de minimis; they go to conditions at the heart of Plaintiff's employment. They determine the content that she will teach and where she will teach it, every single day of a school year. The court, concludes that the threat of being assigned unfamiliar material to teach and six different classrooms in which to teach it is sufficient to deter a person of ordinary firmness from exercising her First Amendment rights.
viii. Summary of Adverse Employment Actions
The court concludes that the following are not adverse employment actions for which relief may be sought under § 1983: 1) Defendant Hasson's comments to the media about the state of the environment at old CDHS; 2) Defendant Mazzatesta's comments that Plaintiff was lying about the mold at old CDHS; and 3) Defendants' instructions about and participation in the meeting on April 29, 2002 wherein Plaintiff was instructed to teach curriculum only during her classes. The following actions are adverse employment actions for which relief may be sought under § 1983 against the individual Defendants named: 1) withholding information about the environmental condition at LJHS by Defendant Hasson; 2) placing Plaintiff on medical leave by Defendants Hasson and Hollins; 3) participating in the decision not to hire Plaintiff as an assistant coach by Defendant Hasson; 4) assigning Plaintiff to teach unfamiliar classes and requiring her to be a floater by Defendant Mazzatesta.
b. "Substantial" or "Motivating" Factor
Having identified the adverse employment actions, Plaintiff carries the burden of showing that her protected speech was a "substantial or motivating factor" in Defendants' decision to take those actions. See Suppan, 203 F.3d at 235 (citing Mt. Healthy, 429 U.S. at 287, 97 S. Ct. 568). There must be a causal nexus between the employee's speech and the adverse employment action. Brennan, 350. F.3d at 420. That nexus may be shown by demonstrating that the adverse employment action followed soon after the protected speech, evidence of continuing animosity towards the employee, incidents wherein supervisors enforced discipline or policy against the employee disparately vis-a-vis other employees, or other features of the particular circumstances presented. Id. at 420-21. Unsupported allegations reflecting "a myopic interpretation of events wherein retaliatory motives permeated the defendants' every move" do not suffice to *479 demonstrate the nexus between a plaintiff's speech and an adverse employment action. Id. at 419.
While Defendants concede that Plaintiff engaged in protected speech, they do not identify the time period in which she did so. Clearly, Plaintiff's press release in June 2002 was public speech, but the evidence demonstrates that Plaintiff spoke to parents, other teachers, and union representatives about the environmental conditions within School District buildings at various times throughout the chronology of this case. Because Defendants have not identified a point in time that Plaintiff's protected speech ceased, the court will not infer one. Thus, the court deems Plaintiff's protected speech to have been ongoing.
Aside from the question of timing, the court concludes that Plaintiff has produced sufficient evidence to demonstrate a genuine issue of material fact as to whether Defendants' acts over time were causally related to her protected speech. Here, Plaintiff's testimony that she felt "threatened" by Defendants Hollins and Mazzatesta, at the instruction of Defendant Hasson, must be credited. Mr. Ferguson testified that Defendant Hasson told him that Plaintiff's suit against the District would preclude her from being hired as an assistant coach. Ms. Hoachlander testified she felt that Defendant Mazzatesta was asking her to forward Plaintiff's emails in an effort to discredit Plaintiff. While these words or acts do not provide the basis for a retaliation claim in terms of injury to Plaintiff, they do suggest that the adverse employment actions described above were motivated by animus engendered by Plaintiff's public speech. Further, there is evidence that School District policies and policies within new CDHS were applied differently to Plaintiff than they were applied to other teachers. Plaintiff and Mr. Ferguson testified that her course work and assignment as floater were not typical for a teacher with her longevity of service and were considered within the school to be punitive.
From the foregoing, the court finds that Plaintiff has satisfied her summary judgment burden of adducing evidence that her exercise of free speech was a "substantial" or "motivating" factor in the adverse employment actions alleged. The court moves on to the third prong of the retaliation test.
2. Would Defendants Have Made the Same Decisions Absent Plaintiff's Speech?
If a plaintiff demonstrates the first two prongs of the retaliation test, the burden shifts to the defendants to show "by a preponderance of the evidence that [they] would have reached the same decision even in the absence of the protected conduct." Suppan, 203F.3d at 235 (quoting Mt. Healthy, 429 U.S. at 287, 97 S. Ct. 568). As succinctly put in Suppan, the defendants must demonstrate that the plaintiff's protected conduct was not the but-for cause of the adverse employment action. 203 F.3d at 236. The rationale is that an employee is entitled to be in the same position that she would have been, had she not exercised protected speech. Id. If she occupies the same position that she would have had she not spoken out, she has not been injured and has no cause of action. Id.
Here, Defendants claim that Plaintiff was treated exactly the same as she would have been had she not exercised her free speech rights. They submit that the decisions to place her on medical leave and not to hire her as an assistant coach were made in the interest of protecting Plaintiff's health, not to punish her for speaking out about the mold at old CDHS. As to her assignments at new CDHS, Defendant *480 Mazzatesta testified that he made the teaching assignment out of deference to the teacher who had been teaching Plaintiff's chosen subjects. He also testified that Plaintiff was made a floating teacher because she did not have sufficient building seniority to be assigned to a permanent classroom.
Defendants have produced sufficient evidence for a reasonable jury to find that they would have reached the same decisions even if Plaintiff had not spoken publicly. As noted in Curinga, the two prongs of the retaliation test that the court has addressed are issues of fact. 357 F.3d at 310. Faced with facts from Plaintiff tending to prove that Defendant's motives were retaliatory and facts from Defendants tending to prove that their motives were pure, the court is at an impasse. The decision of which evidence to credit and which to reject properly lies with the jury, not the court on summary judgment. See McCullough v. City of Atlantic City, 137 F. Supp. 2d 557, 569 (D.N.J.2001).
B. Qualified Immunity
Qualified immunity is an affirmative defense that shields "government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982); Wilson v. Russo, 212 F.3d 781, 786 (3d Cir.2000). A right is "clearly established" when, objectively, "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). Qualified immunity applies when an objectively reasonable official under the same circumstances would have believed his or her conduct was lawful. Hunter v. Bryant, 502 U.S. 224, 228, 112 S. Ct. 534, 116 L. Ed. 2d 589 (1991); Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir.1997). If it applies, qualified immunity provides more than immunity from recovery of damages. It "is the `entitlement not to stand trial or face the other burdens of litigation.'" Thomas v. Independence Twp., 463 F.3d 285, 291 (3d Cir.2006) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985)). If there are "underlying historical facts in dispute that are material to the resolution of the question[ ] whether the defendants acted in an objectively reasonable manner in view of the existing law and facts available to them," however, summary judgment is not appropriate. Sharrar, 128 F.3d at 828; accord McCullough, 137 F.Supp.2d at 572.
The right of a public employee to speak on matters of public concern without retaliation is clearly established and has been since before the facts that led to this law suit began to occur. Mt. Healthy, 429 U.S. at 287, 97 S. Ct. 568; Suppan, 203 F.3d at 235. The qualified immunity question in a First Amendment retaliation case turns on whether "officials reasonably could believe that their motivations were proper even when their motivations were in fact retaliatory." Larsen v. Senate of the Comm. of Pa., 154 F.3d 82, 94 (3d Cir.1998). This inquiry requires a factual determination as to the officials' subjective beliefs and motivations. Id. Accordingly, "[m]otive is a question of fact that must be decided by the jury, which has the opportunity to hear the explanations of both parties in the courtroom and observe their demeanor." Monteiro v. City of Elizabeth, 436 F.3d 397, 405 (3d Cir.2006); see Crawford-El v. Britton, 523 U.S. 574, 600, 118 S. Ct. 1584, 140 L. Ed. 2d 759 (1998). In light of the disputed issues of fact in this case as to Defendants' motives and subjective beliefs, the court cannot rule as a matter of law that Defendants' actions *481 were objectively reasonable. Thus, Defendants will be denied qualified immunity.
C. Punitive Damages
A defendant will be liable for punitive damages under § 1983 when a plaintiff shows the defendant's conduct to be, "at a minimum, reckless or callous." Brennan, 350 F.3d at 428-29 (quoting Savarese v. Agriss, 883 F.2d 1194, 1204 (3d Cir.1989)). Such damages will also be allowed if the defendant's conduct was "intentional or motivated by evil motive," but this higher standard is not required. Id. at 429. Punitive damages, however, "require more than the retaliatory motive itself." Id. at 429-30.
As noted, Defendants' motives and subjective beliefs are an issue of disputed fact. Accordingly, the court will defer ruling on the issue of punitive damages until all evidence has been presented at trial.
IV. Conclusion
For the reasons stated above, Defendants' motion for summary judgment will be denied in part and granted in part. Summary judgment will be denied as to the decision to withhold information regarding the environmental condition of LJHS by Defendant Hasson; the decision to place Plaintiff on medical leave by Defendants Hasson and Hollins; the decision not to hire Plaintiff as assistant cross-country coach by Defendant Hasson; and Plaintiff's course assignment and designation as a "floater" teacher at new CDHS by Defendant Mazzatesta. Summary judgment will be denied as to any actions taken by Defendant School District because its liability under Monell was not addressed on briefs. The individual defendants will be denied qualified immunity. The court will refrain from ruling on punitive damages at this time. Summary judgment will be granted in all other respects. An appropriate order will follow.
ORDER
In accordance with the foregoing memorandum of law, Defendants motion for summary judgment (Doc. 60) is DENIED in part and GRANTED in part as follows:
1) Summary judgment is DENIED as to the decision to withhold information regarding the environmental condition of LJHS by Defendant Hasson;
2) Summary judgment is DENIED as to the decision to place Plaintiff on medical leave by Defendants Hasson and Hollins;
3) Summary judgment is DENIED as to the decision not to hire Plaintiff as assistant cross-country coach by Defendant Hasson;
4) Summary judgment is DENIED as to Plaintiff's course assignment and designation as a "floater" teacher at new CDHS by Defendant Mazzatesta;
5) Summary judgment is DENIED as to Defendant Central Dauphin School District because its liability as a municipality was not addressed in briefing;
6) The individual Defendants are DENIED qualified immunity;
7) The court refrains from ruling on punitive damages until the submission of all evidence at trial; and
8) Summary judgment is GRANTED in all other respects.
NOTES
[1] There are two buildings identified as "Central Dauphin High School" ("CDHS") in the context of this matter. "Old" CDHS was located on Locust Lane, Lower Paxton Township, Pennsylvania. "New" CDHS, located on Piketown Road, West Hanover Township, Pennsylvania, was complete for the 2004-05 school year. Throughout this memorandum, the court will use "old" and "new" to differentiate between the two buildings.
[2] Her claim was denied on or about March 15, 2002. (Pl.'s Ex. 9.)
[3] Remediation is the process by which an area of a building, known to be affected by mold, is cleaned, rebuilt, reconditioned or otherwise restored to eliminate the contamination.
[4] Plaintiff's statement of material facts repeatedly states that there were two positions open, but the School District failed to inform her of them or give them to her. (Pl.'s Counter-Stmt. of Mat'l Facts ¶¶ 65, 74.) Plaintiff's citations therein do not support this assertion and the court has been unable to find record evidence in support.
[5] Plaintiff claims that she would not have had to go into old CDHS to coach cross-country. (Pl.'s Counter-Stmt. of Mat'l Facts ¶ 96; Pl.'s Ex. 67.) She was not at the executive session to argue the point.
[6] The court will analyze the issues with respect to the individual Defendants only. The parties have not briefed the issue of liability for Defendant Central Dauphin School District under Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). For liability to attach to a municipality under § 1983, a plaintiff must show that the municipality itself caused a constitutional violation. Id. at 694, 98 S. Ct. 2018. That is, a municipality is liable under § 1983 when "through its deliberate conduct, the municipality was the `moving force' behind the injury alleged." Bd. of County Comm'rs v. Brown, 520 U.S. 397, 405, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997). A municipality is not liable for the constitutional violations committed by its employees under the theories of respondeat superior or vicarious liability. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 736, 109 S. Ct. 2702, 105 L. Ed. 2d 598 (1989). Defendant School District is a municipality for the purposes of Monell liability. See id. at 735, 109 S. Ct. 2702; Johnson v. Elk Lake Sch. Dist., 283 F.3d 138, 144 n. 1 (3d Cir.2002). Without the benefit of briefing, the court will refrain from making any decision as to the School District at this time.
[7] The amended complaint states that Plaintiff "was arbitrarily denied the opportunity to work and to take advantage of all of the benefits and emoluments afforded teachers in similar situations." (Doc. 2 ¶ 17.) While this statement may be broad and general, it is not speculative. See Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007). Discovery has produced sufficient evidence to support the pleading of this claim.
[8] Plaintiff further alleges that Defendant Mazzatesta withheld information from her by refusing to allow her union representative in to old CDHS to make a visual inspection during the remediation of the school. Even if such an action could be considered "withholding of information," the court finds this allegation to be utterly without merit because it is undisputed that Defendant Mazzatesta allowed Mr. Ferguson and Ms. Gostin of the Health Department to tour the school at their leisure on the same date of their initial request.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1149393/
|
62 Wash. 2d 410 (1963)
383 P.2d 307
ELDON FRASCH et al., Appellants,
v.
JOHN LEEDOM et al., Respondents, MORRIS BUSH et al., Additional Defendants.[*]
No. 36133.
The Supreme Court of Washington, Department Two.
June 27, 1963.
Lawrence M. Ross (of Sawyer, Griffin & Boyle), for appellants.
Gordon, Goodwin, Sager & Thomas, for respondents.
HAMILTON, J.
Plaintiffs (appellants) appeal from an order granting defendants' (respondents') motion for judgment notwithstanding the verdict.
On September 18, 1959, at about 11:30 p.m., plaintiff Laura K. Frasch (hereafter referred to as if she were the sole plaintiff) and her teenage son were returning from a high school dance attended by her son. Plaintiff was traveling north on Pacific Avenue (also known as the Mountain Highway) in Pierce County, Washington. Pacific Avenue, in the vicinity in question, is a straight, fairly level, 60-mile an hour, four-lane highway, the north and southbound lanes being separated by double yellow lines. It had been raining and misting, the pavement was wet, the night was dark, and visibility was correspondingly affected. Several automobiles, returning from the school dance, were traveling north, some with their windshield wipers on, at speeds varying from 35 to 50 miles an hour. Approaching an unlighted intersection, at which she wished to turn west, plaintiff, traveling in the outside or easterly lane of travel, slowed down and prematurely turned sharply across the passing or inside northbound lane. A collision occurred between her vehicle and a northbound vehicle (hereafter referred to as the Salsberry vehicle) approaching in the passing lane. As a result of the collision, the Salsberry vehicle was disabled and came to rest headed north in the northbound passing lane. Its head and taillights remained on. Plaintiff's vehicle, still operable, came to rest headed south in the southbound lanes. Some words *412 concerning fault were exchanged between the occupants of the respective vehicles, and from its position in the southbound lanes plaintiff drove her vehicle to the westerly shoulder of Pacific Avenue and parked it. Plaintiff and her son then returned on foot to the Salsberry vehicle, purportedly to render assistance, survey the damage, and exchange identification.
In the meantime, two automobiles, traveling behind plaintiff's vehicle in the outside northbound lane, stopped and parked off the highway north of the scene. The two occupants of the Salsberry vehicle alighted and the owner, thinking plaintiff had left the scene, requested the occupants of the first following vehicle to remain as witnesses. The occupants of the second vehicle walked to the front of the Salsberry vehicle, where plaintiff, her son, and the two occupants of the Salsberry vehicle were beginning to assemble, inquired of the Salsberry occupants about flashlights or flares, following which one left to notify the state patrol. The Salsberry occupants noticing headlights approaching from the south in both the outside and passing lanes, commented upon the potential danger thereof and commenced running toward the south in an effort to warn the approaching vehicles by waving and shouting. The plaintiff, at this time, was either just arriving or standing in mid-front of the Salsberry vehicle observing the damage to the vehicle. She disclaims, under the stress of the moment, knowledge of impending danger, knowledge of who or how many persons were present, hearing the conversations about flashlights, flares or approaching vehicles, and hearing or seeing, until the last moment, any approaching vehicle.
Defendants' automobile was the vehicle approaching in the passing lane. It was operated by 16-year-old Jeanette Leedom, who was returning from the school dance with several girl friends as passengers. It struck the rear of the Salsberry automobile causing it to run over and injure plaintiff.
An interval, variously estimated between a few seconds and 3 minutes, elapsed between collisions.
*413 Defendants' vehicle, according to defendants' evidence, had, for some distance preceding the collision, been traveling at a speed of 40 to 50 miles an hour in the outside lane behind another vehicle driven by one Gary Justice. Approximately 1 1/2 to 2 1/2 blocks (600 to 900 feet) from the point of impact, the Justice vehicle slowed down, the driver having observed the confusion ahead. Defendant driver then turned into the inside lane and commenced passing the Justice vehicle. Thereafter, defendant driver noticed for the first time the taillights of the Salsberry vehicle. On both direct and cross-examination defendant driver explained her reaction substantially as follows:
"A. Well, when I first saw it I thought it was any ordinary car and as I got closer it looked like it was going slow, and then that's when I let my foot up off the accelerator. Then when I got closer I knew it wasn't going, that it had stopped, and naturally I proceeded to apply my brakes."
A passenger in a vehicle traveling a few car lengths behind defendants' automobile estimated defendants' brake lights came on a distance of 150 feet before impact. The occupants of the Salsberry vehicle, who in their attempts to warn approaching traffic had reached a point 20 to 30 feet behind the disabled vehicle, estimated defendants' vehicle started skidding 40 to 60 feet south of them. A state patrol officer measured 48 feet of skid marks from the point of impact.
Three following vehicles experienced difficulty in avoiding further collisions.
Plaintiff, alleging negligence, instituted action against defendants. Defendants, joining issue, affirmatively alleged contributory negligence and volenti non fit injuria, counterclaimed for injury and property damage, and by cross-claim joined as additional party defendants the driver and owner of the Salsberry vehicle.
At the conclusion of the evidence, the trial court held defendant driver guilty of negligence as a matter of law, dismissed defendants' counterclaim and cross-claim, and submitted to the jury the issues of plaintiff's contributory *414 negligence and the first phase of the doctrine of last clear chance.
The jury returned a verdict for plaintiff. The trial court granted defendants' motion for judgment notwithstanding the verdict upon the grounds that plaintiff was guilty of contributory negligence as a matter of law and that the doctrine of last clear chance was inapplicable. The trial court alternatively granted a new trial.
Plaintiff assigns error to the trial court's action and, in the event of a new trial, to certain instructions given and refused.
Defendants, pursuant to Rule on Appeal 16,[1] RCW Vol. 0, assign error to the trial court's rulings related to defendants' negligence, the applicability of the doctrine of volenti non fit injuria, and to certain instructions given and refused.
Our review of the record convinces us the trial court erred in granting judgment notwithstanding the verdict, and correctly granted a new trial. We so conclude because we are satisfied the trial court erred in (a) ruling defendants guilty of negligence as a matter of law, (b) ruling plaintiff guilty of contributory negligence as a matter of law, and (c) submitting to the jury the doctrine of last clear chance.
[1] In discussing the reasons for our conclusions, in the order above listed, we do so in the light of the oft-cited rule that a challenge to the sufficiency of the evidence, a motion for dismissal or for directed verdict, or a motion for judgment notwithstanding the verdict admits the truth of the opponent's evidence, together with all reasonable inferences arising therefrom, and requires a most favorable interpretation thereof. No element of discretion is involved, and such motions can be granted only when the court can say, as a matter of law, there is no substantial evidence to support the opponent's claim. Williams v. Hofer, 30 Wn. *415 (2d) 253, 191 P. (2d) 306; Lambert v. Smith, 54 Wn. (2d) 348, 340 P. (2d) 774; Miller v. Payless Drug Stores of Washington, 61 Wn. (2d) 651, 379 P. (2d) 932.
The trial court's determination that defendant driver was guilty of negligence as a matter of law of necessity must rest upon a premise of the driver's failure to timely observe and realize that the Salsberry vehicle was stationary.
[2] Defendant driver testified she first observed the Salsberry taillights from a distance of about one block (300 to 400 feet) after moving, from behind another vehicle, into the passing lane at a speed of from 40 to 50 miles an hour. Thereafter her sequential impressions were that the disabled vehicle was moving normally, traveling slowly, standing still. When the latter realization took place, the evidence indicates, she applied her brakes, at a point between 48 to 150 feet from the disabled vehicle, attempted evasive action, and skidded upon the wet pavement into collision.
With but slight factual and distance variations, we deem our observations in Davis v. Browne, 20 Wn. (2d) 219, 226, 147 P. (2d) 263, most apt:
"The mere fact that Davis did not realize that the Browne car was stationary upon the highway until he himself was within approximately one hundred feet of it cannot be said to constitute negligence on his part regardless of all other circumstances. It was, of course, his duty to exercise reasonable care, under the existing circumstances, to observe the presence of the automobile ahead of him and avoid coming in contact with it....
"As suggested by the trial court in its memorandum decision, any experienced driver of an automobile knows how difficult it sometimes is during the hours of night to determine whether a car ahead of him showing red taillights is actually moving, or at what speed it is moving, or whether it is stopping, or has in fact stopped. It would be most natural for one to assume that a car ahead of him, particularly if it were occupying the middle of the road, was proceeding forward rather than standing still in violation of positive law.
"In this instance, Davis was traveling along a course and at a rate of speed in conformity to law. Seeing the car ahead and thinking that it was in motion, he veered slightly *416 to his left when two hundred fifty feet away, with the evident intention of overtaking and passing that car. Had the car ahead been moving, Davis most probably would have succeeded in passing it in safety. It was not until he was within approximately one hundred feet of the Browne car, that either he or his companions realized that it was standing still. We are unable to say that the trial court was in error in refusing to hold that, under the existing circumstances, Davis was guilty of negligence in not sooner discovering that the Browne car was stationary."
Viewing defendants' evidence in the favorable light required, we conclude that the trial court erred in determining defendant driver guilty of negligence as a matter of law.
The trial court, in ruling upon defendants' motion for judgment notwithstanding the verdict, determined plaintiff to be guilty of contributory negligence as a matter of law. The trial court, in so holding, stated in its order:
"... The Court erred in submitting to the jury the issue of the plaintiff's negligence. She entered upon the highway as a pedestrian, while under no duty so to do, and stood immediately in front of the disabled Salsberry vehicle, and remained in said position for an appreciable length of time. She made no observation whatever, either while proceeding upon the highway or standing there with respect to oncoming traffic. Her negligence continued to the moment of her injury and at no time was she in a position where she could not have avoided such injury by merely stepping to one side or the other."
[3, 4] In essence, plaintiff testified she returned, as a participant in the accident, to the Salsberry vehicle to observe the damage, to render any assistance necessary, and to exchange identifications. This she contends was in compliance with her duty under RCW 46.52.020 (3).[2] Under such *417 circumstances, her duty of care was not that of the ordinary pedestrian. In See v. Willett, 58 Wn. (2d) 39, 44, 360 P. (2d) 592, after reviewing our previous decisions dealing with persons standing or moving about vehicles on or near a highway, we stated the duty of care, incumbent upon persons in plaintiff's situation, to be as follows:
"... A person who stands upon the highway must exercise reasonable care for his own safety; and whether the person has complied with this requirement must depend upon all of the circumstances of the case."
[5] The circumstances presented by the evidence in the instant case reveal uncertainty as to the time plaintiff was actually in front of the Salsberry vehicle (the estimates varying from a few seconds to 2 or 3 minutes), the number of people there at varying times, whether plaintiff could or did overhear conversations relating to potential danger, and whether, after plaintiff observed or in the exercise of care should have observed, the approaching headlights of defendants' vehicle, she could have avoided injury.
Viewing the evidence in the favorable light required, we conclude, as in the See case, the issue of whether plaintiff exercised reasonable care for her own safety, under all the circumstances, became a question for the jury. The trial court erred in ruling otherwise.
Plaintiff contends the trial court erred in ruling that the doctrine of last clear chance did not apply.
In Leftridge v. Seattle, 130 Wash. 541, 545, 228 P. 302, we summarized the doctrine of last clear chance as applied in this state as follows:
"Thus we have two different situations to which the last clear chance rule applies. In the one, the plaintiff's negligence may continue up to the time of the injury if the defendant actually sees the peril; in the second, the plaintiff's *418 negligence must have terminated if the defendant did not actually see the peril, but by the exercise of reasonable care should have seen it."
[6] In the instant case, the underlying basis of negligence on the part of both plaintiff and the defendant driver, in so far as the applicability of last clear chance be concerned, is inattention or failure to maintain a proper lookout for their own safety and the safety of others.
Under the circumstances prevailing, we deem our recent reference in Thompson v. Titus Motor Co., 60 Wn. (2d) 372, 375, 374 P. (2d) 177, most fitting:
"It is pointed out in one of the late texts: If an inattentive defendant negligently fails to see an inattentive (but not helpless) plaintiff, the case falls into the category where both plaintiff and defendant are negligently unaware of an impending peril; the plaintiff could have saved himself as long as defendant could have saved him. Under such circumstances, most American courts and the American Law Institute rule[1] out last clear chance. 2 Harper and James, Law of Torts § 22.13, p. 1252.
"[1] 2 Restatement of Torts, § 480."
The trial court erred in submitting the first phase of the doctrine to the jury, and correctly concluded on the post trial motions that neither phase of the doctrine applied.
A new trial being necessary, we now turn to assignments of error directed by the respective parties to the trial court giving and refusing to give certain instructions. In this respect, it is to be noted that defendants have not assigned error to the dismissal of their counter and cross-claims. The new trial, therefore, is limited to the issues of negligence and contributory negligence revolving about plaintiff's claim.
Plaintiff assigns error to the giving of instructions Nos. 15, 17, 21, 22, 23, and 25, and the failure to give one proposed instruction.
Instructions Nos. 15 and 17 deal with plaintiff's duties as a pedestrian. We deem these instructions inappropriate for the reasons stated in See v. Willett, supra.
Plaintiff's assignments of error directed to instructions Nos. 21, 22, 23, 25, and the failure to give a proposed instruction, *419 as argued by plaintiff, revolve about the doctrine of last clear chance and plaintiff's negligence in connection with the first collision. Absent applicability of the doctrine of last clear chance, the instructions would not appear apropos.
Defendants' assignments of error dealing with instructions revolve about the trial court's refusal to submit the defense of volenti non fit injuria.
[7] The trial court correctly refused such instructions. Defendants, upon the basis of the evidence presented, failed to carry their burden of demonstrating a superior knowledge and appreciation, on the part of plaintiff, of the danger or risk involved in joining other persons at the Salsberry vehicle, or of a wilful consent to the peril of another driver's inability to avoid a second collision. Viewing the evidence in a light most favorable to defendants' contention, plaintiff's conduct would, at best, constitute only contributory negligence involving an unreasonable exposure to danger.
The trial court's order granting judgment notwithstanding the verdict is reversed, and the cause remanded for new trial. Costs will abide the results of retrial.
OTT, C.J., DONWORTH, FINLEY, and HUNTER, JJ., concur.
August 29, 1963. Petition for rehearing denied.
NOTES
[*] Reported in 383 P. (2d) 307.
[1] "... Without the necessity of taking a cross-appeal, the respondent may present and urge in the supreme court any claimed errors by the trial court in instructions given or refused and other rulings which, if repeated upon a new trial, would constitute error prejudicial to the respondent." Rule on Appeal 16, RCW Vol. 0.
[2] "(3) The operator of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle which is driven or attended by any person shall give his name, address and vehicle license number and shall exhibit his vehicle operator's license to any person struck or injured or the operator or any occupant of, or any person attending, any such vehicle collided with and shall render to any person injured in such accident reasonable assistance, including the carrying or the making of arrangements for the carrying of such person to a physician or hospital for medical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person or on his behalf. Under no circumstances shall the rendering of assistance or other compliance with the provisions of this subsection be evidence of the liability of any operator for such accident;" RCW 46.52.020(3).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1290661/
|
176 Ga. App. 580 (1985)
336 S.E.2d 842
ACKER
v.
CITY OF ELBERTON et al.
70809.
Court of Appeals of Georgia.
Decided October 28, 1985.
Harold N. Acker, pro se.
John Stephen Jenkins, for appellees.
CARLEY, Judge.
Appellant, acting pro se, filed the instant action on January 30, 1985. Appellant's complaint alleged that appellee City of Elberton (City) and two of its former police officers were jointly and severally liable for injuries received "from the officers' wrongful, intentional, malicious, and violent actions" during the arrest of appellant on October 17, 1982. Compensatory and punitive damages were sought. Appellees City and former officer McIntosh were served and both subsequently filed answers and motions to dismiss. The remaining defendant was never served. The trial court conducted a hearing on the motions to dismiss and appellees urged that appellant's action was barred for two reasons: appellant's failure to give the requisite ante litem notice to the City in accordance with OCGA § 36-33-5; and the running of the two-year statute of limitation applicable to actions for injuries to the person. OCGA § 9-3-33. Appellant appeals from the grant of appellees' motions to dismiss.
1. Appellant contends that the trial court improperly conducted the hearing prior to the expiration of 30 days. However, the transcript of the hearing and the record reveal that nothing outside the pleadings was considered so as to convert the motions to dismiss into motions for summary judgment. See Signal Knitting Mills v. Roozen, 150 Ga. App. 552, 553 (3) (258 SE2d 261) (1979). Compare Burry v. DeKalb County, 165 Ga. App. 246 (299 SE2d 602) (1983). The giving of ante litem notice and the running of the statute of limitation are both issues which may be resolved by a motion to dismiss. See Jones v. City of Austell, 166 Ga. App. 808 (305 SE2d 653) (1983); Addington v. Ohio Southern Express, 118 Ga. App. 770 (165 SE2d 658) (1968). The trial court did not err in conducting a hearing on appellees' motions to dismiss before 30 days had passed from the time that such motions were filed.
2. Appellant asserts that no ante litem notice was required because his complaint set forth a cause of action under 42 USCA § 1983. Cf. Davis v. City of Roswell, 250 Ga. 8 (295 SE2d 317) (1982); City of Cave Spring v. Mason, 252 Ga. 3 (310 SE2d 892) (1984). However, in neither his original complaint nor its amendment did appellant invoke the federal statute or allege facts which would support a cause of action under it. "In order to state a claim under 42 USCA § 1983 the plaintiff must allege that the defendant is a person who deprived him of a constitutional right while acting under color of state law or custom. *581 [Cit.]" Davis v. City of Roswell, supra at 9. "We interpret 42 USCA § 1983 to create a cause of action, cognizable by the courts of this state, based upon acts which are in implementation of an intentional policy, adopted or ratified by the governing body of a public agency, which acts work deprivation of a constitutional right." (Emphasis in original.) City of Cave Spring v. Mason, supra at 4.
Instead, it appears that appellant's complaint alleged tort claims based entirely upon state law. As such, appellant's claims were subject to the ante litem notice requirement. See Shoemaker v. Aldmor Mgt., 249 Ga. 430 (291 SE2d 549) (1982); Webster v. City of East Point, 164 Ga. App. 605 (294 SE2d 588) (1982). Appellant's complaint contains his concession that he "is without evidence he presented notice to the City. . . ." The trial court did not err in granting the City's motion to dismiss. Compare Brackett v. City of Atlanta, 149 Ga. App. 147 (253 SE2d 786) (1979).
Moreover, even if timely ante litem notice had been given, appellant's complaint could not have stated a claim upon which relief could be granted against the City. "A municipal corporation shall not be liable for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law." OCGA § 36-33-3. Appellant's complaint is based solely upon his arrest by the City's officers. "A municipal corporation is not liable for the illegal arrest of a person by its police officers, nor for his consequent imprisonment." Gray v. Mayor & Council of Griffin, 111 Ga. 361 (2) (36 S.E. 792) (1900). Accordingly, since appellant's complaint was based upon state law rather than 42 USCA § 1983, the City's motion to dismiss was correctly granted. See Thomas v. Williams, 105 Ga. App. 321, 325 (2) (124 SE2d 409) (1962). Compare Davis v. City of Roswell, supra.
3. The applicability of the holding in Division 2 of this opinion does not extend to appellee McIntosh, the former police officer whose arrest of appellant underlies the action. "`[A]n employee who commits a wrongful or tortious act violates a duty he owes to one who is injured and is personally liable, even though his municipal employer may be exempt from liability under the doctrine of governmental immunity." [Cits.]" Foster v. Crowder, 117 Ga. App. 568, 569-570 (161 SE2d 364) (1968). "A municipal corporation is not liable to an action for damages for the illegal arrest of a citizen by one of the police officers of the city. For such arrest the officer is himself liable." Cook v. Mayor & Council of Macon, 54 Ga. 468 (1875). See also Thomas v. Williams, supra at 326 (3). Thus, the issue as to appellee McIntosh is whether appellant's complaint showed on its face that the two-year statute of limitation had run. Addington v. Ohio Southern Express, supra.
As noted previously, appellant's complaint alleged that his tortious arrest took place on October 17, 1982. His complaint was not *582 filed until January 30, 1985, clearly more than two years after the date of his arrest. However, appellant's complaint also contains the following: "The statute of limitation is suspended from the evening of October 17, 1982 through February 1, 1983 on [appellant's] incarceration into the Georgia Regional Hospital at Augusta, his commitment November 16, 1982 as a mentally ill person, his release January 12, 1983 but continued incarceration at the supportive living home in Athens, Georgia through February 1, 1983. . . ." (Emphasis supplied.) Thus, appellant's complaint purports to account for a tolling period which commenced on the date of his arrest and which terminated on a date less than two years prior to the filing of his suit. The issue is, therefore, whether appellant's allegations regarding the tolling of the statute of limitation were sufficient to withstand a motion to dismiss. See generally Lowe v. Pue, 150 Ga. App. 234 (257 SE2d 209) (1979).
Former OCGA § 9-3-90, the applicable statute in the instant case, provided as follows: "Minors, persons who are legally incompetent because of mental retardation or mental illness, or persons imprisoned, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons." (Emphasis supplied.) It is clear that, under this former statute, "a person imprisoned ha[d] the option of bringing an action while incarcerated or waiting until the period of incarceration end[ed]. If the latter option [was] chosen, the period of limitation [began] to run from the date of release, i.e., the time the `disability' [was] removed." Maddox v. Hall County, 162 Ga. App. 371, 372 (291 SE2d 442) (1982). See also Turner v. Evans, 251 Ga. App. (306 SE2d 921) (1983). Giving appellant's complaint the liberal construction required by our Civil Practice Act, it alleges that appellant was incarcerated at the Georgia Regional Hospital beginning on October 17, 1983, that he was subsequently committed as mentally ill, and that he was thereafter released from the hospital but continued to be incarcerated at the supportive living home until February 1, 1983. Appellee McIntosh contends that, since the hospital and supportive living home are not prisons, the allegations concerning appellant's incarceration therein are not sufficient to invoke the tolling provision of former OCGA § 9-3-90.
Former OCGA § 9-3-90 did not provide for tolling in the case of persons in prison, but for persons imprisoned. "Imprisonment is not confined to the act of putting a man in prison; it is a restraint of a man's personal liberty. . . . `It is not a necessary part of the definition that the confinement should be in a place usually appropriated to that purpose; it may be in a locality used only for the specific occasion; or it may take place without actual application of any physical agencies of restraint (such as locks or bars), but by verbal compulsion *583 and the display of available force.'" Savannah Guano Co. v. Stubbs, 138 Ga. 409, 411 (75 S.E. 433) (1912) (construing law of bail-trover). Thus, if appellant was involuntarily confined in the hospital and supportive living home, and this confinement resulted directly from his arrest in that it was an alternative to his otherwise having been placed in prison, it would appear that he was "imprisoned" and the statute of limitation was tolled under the terms of the former statute.
Therefore, we hold that the trial court erred in granting appellee McIntosh's motion to dismiss. Cf. Lowe v. Pue, supra. In so holding, we do not intimate that appellee may not yet prevail on the statute of limitation defense. It is possible that appellant was not so physically confined while at the hospital or the supportive living center as to be deemed "imprisoned" therein. If so, those periods would not toll the statute. However, resolution of this issue requires evidence which is not available in the context of a motion to dismiss. For purposes of a motion to dismiss, appellant's "allegation, quoted above, is sufficient, as a matter of pleading, to invoke the tolling of the statute pursuant to [former OCGA § 9-3-90]." Lowe v. Pue, supra at 234.
4. The judgment is affirmed as to appellee City and is reversed as to appellee McIntosh.
Judgment affirmed in part and reversed in part. Birdsong, P. J., and Sognier, J., concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2441573/
|
6 A.3d 562 (2010)
COM.
v.
ANDERSON.
No. 1923 MDA 2009.
Superior Court of Pennsylvania.
July 14, 2010.
Affirmed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2441578/
|
972 S.W.2d 848 (1998)
Jose GARCIA, Appellant,
v.
The STATE of Texas, Appellee.
No. 09-97-368 CR.
Court of Appeals of Texas, Beaumont.
Submitted May 6, 1998.
Decided May 28, 1998.
John C. Bennett, State Counsel for Offenders, Huntsville, for appellant.
Mark Mullin, Special Prosecution Unit, Huntsville, for state.
*849 Before WALKER, C.J., and BURGESS and FARRIS,[1] JJ.
OPINION
DAVID FARRIS, Justice (Assigned).
The appellant, Jose Garcia, stands convicted of Possession of a Deadly Weapon in a Penal Institution. TEX.PEN.CODE ANN. § 46.10 (Vernon 1994). On appeal Garcia complains (1) the State's evidence did not rebut beyond a reasonable doubt his claim to justification by necessity and (2) the trial court erred in failing to instruct the jury on the defense of necessity. We overrule both points of error and affirm the judgment.
Garcia's conviction was the consequence of a "shank," a piece of metal sharpened and fashioned into a knife, that he had hidden in his prison cell, in his pillow case. Garcia admitted possession of the shank, insisting it was necessary for his protection from members of a prison gang, the Texas Syndicate, who might want to kill him. Garcia testified that members of the Texas Syndicate repeatedly threatened him because he had shot one of their gang members. Prison employees testified that members of the Texas Syndicate were imprisoned at the same unit as Garcia and related that gang violence sometimes ended with the assault or murder of other prisoners.
In his second point of error Garcia complains the trial court erred in refusing to instruct the jury on the defense of necessity. An accused has a right to an instruction on necessity as a defense if it is raised by any evidence, however weak. See Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996). The State responds by arguing, in part, that there was no evidence that Garcia had an immediate need to be armed.
One element of a necessity defense is that the accused reasonably believes that his otherwise illegal conduct is immediately necessary to avoid imminent harm. See TEX. PEN.CODE ANN. § 9.22(1) (Vernon 1994). In another context the Court of Criminal Appeals construed "imminent" bodily injury to require a present, not a future threat. See Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim.App.1989). In interpreting § 9.22 one court has held that imminent harm occurs when there is an emergency situation, and that conduct is immediately necessary if the actor is required to make a split-second decision. See Smith v. State, 874 S.W.2d 269, 273 (Tex.App.Houston [14th Dist.] 1994, pet. ref'd). In contrast, fear induced by one's presence in a high crime area is not sufficient evidence of immediate necessity to avoid imminent harm to justify unlawfully carrying a handgun. See Johnson v. State, 650 S.W.2d 414, 416 (Tex.Crim.App.1983).
The facts of this case are distinctly different from those of another recently addressed by this court in which a prison inmate under physical assault by two other armed inmates seized a sock containing a combination padlock and used it as a club to defend himself. See Rivera v. State, 948 S.W.2d 365, 368-69 (Tex.App.Beaumont 1997, no pet.) The sock and padlock had been thrown to Rivera by still another prisoner. Id. In Rivera the court noted that Rivera was unarmed, facing "imminent harm" from an armed aggressor with no hope of intervention from prison personnel. Id. at 370. The court further noted, "It almost goes without saying that such an inmate would necessarily find it `immediately necessary' to grab any implement available to assist him...." Id. Here the facts are more analogous to the facts of a defendant traveling in a high crime area than those of Rivera. Garcia conceded that, while he never felt safe in prison, he did not carry the shank on his person but left it in his pillow case. He also testified that no one was threatening him with a deadly weapon or trying to kill him the day he was found in possession of the shank.
The fact that one must go in harm's way does not create an immediate necessity to avoid imminent harm. To hold otherwise would justify most prison inmates arming *850 themselves with prohibited weapons. We hold that there was no evidence that Garcia reasonably believed possession of the shank was immediately necessary to avoid imminent harm. We also hold that there was no evidence that Garcia was faced with an urgent need to avoid harm that outweighed the harm sought to be prevented by proscribing the possession of a deadly weapon. Accordingly, the trial court properly refused to submit an instruction on the defense of necessity. See TEX.PEN.CODE ANN. § 9.22(2). Point of error two is overruled.
In his first point of error Garcia argues the lack of a jury instruction on necessity changed the standard of review, and that the failure of the State to produce sufficient evidence rebutting that defense, though not included in the charge, requires he be acquitted. The authorities he cites do not support that proposition. To determine the sufficiency of evidence to disprove a defense we ask whether, after viewing all the evidence in the light most favorable to the State, any rational finder of fact would have found for the State on both the elements of the offense and the defensive issue. See Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim.App.1992). By finding a defendant guilty a jury implicitly rejects any defense. As we have found, in addressing Garcia's second point of error, there was no evidence of two elements of a necessity defense. It necessarily follows that we do not find the State failed to rebut that defense. Point of error one is overruled.
AFFIRMED.
NOTES
[1] The Honorable David Farris, sitting by assignment pursuant to TEX.GOV'T CODE ANN. § 74.003(b) (Vernon 1988).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1742536/
|
907 S.W.2d 664 (1995)
Jeffrey B. MEISNER, Appellant,
v.
The STATE of Texas, Appellee.
No. 10-94-276-CR.
Court of Appeals of Texas, Waco.
September 29, 1995.
*666 Wilson E. Hodge, Garland, for appellant.
Joe F. Grubbs, County and District Attorney, Cynthia W. Hellstern, Asst. County & District Attorney, Waxahachie, for appellee.
Before THOMAS, C.J., and CUMMINGS and VANCE, JJ.
OPINION
CUMMINGS, Justice.
Appellant Jeffrey Meisner pled no contest to the traffic violation of "Digging Out" in the Waxahachie municipal court under section 32-132 of the City Code. WAXAHACHIE, TEX. CODE § 32-132 (1973). Meisner appealed to the County Court at Law of Ellis County. The court denied Meisner's petition to declare the ordinance unconstitutional for vagueness and his motion to quash the complaint. In a trial before the court, he was found guilty and assessed a $10 dollar fine.
In two points of error, Meisner argues that (1) the trial court committed error by denying his petition to declare the traffic ordinance unconstitutional for vagueness and uncertainty; and (2) the word "willfully" in section 32-132 was insufficient to determine the requisite culpable mental state required for the offense.
Under article 4.03 of the Texas Code of Criminal Procedure, the courts of appeals shall not have criminal jurisdiction in those cases appealed from any inferior court to the county court of law in which the fine imposed by the county court of law does not exceed $100 dollars, unless the sole issue is the constitutionality of the statute or ordinance upon which the conviction is based. TEX. CODE CRIM.PROC.ANN. art. 4.03 (Vernon 1994).
Since the fine does not exceed $100 and the second point is based upon non-constitutional grounds, we must dismiss this argument for lack of jurisdiction. However, because the sole issue remaining for disposition is a constitutional issue, we will consider Meisner's claim that the ordinance is unconstitutionally vague. See Bidelspach v. State, 840 S.W.2d 516, 519 n. 2 (Tex.App.Dallas 1992), pet. dism'd, improvidently granted, 850 S.W.2d 183 (Tex.Crim.App.1993).
The record reflects that on April 7, 1993, at approximately 2:45 P.M., Meisner and his wife got in his pickup truck and left his place of business in Waxahachie to pick up their child from school. He pulled into the street, stopping at a red light at the next intersection. When the light turned green, Meisner turned left onto U.S. Highway 77. At trial, there was some evidence that it had been *667 raining that morning, and that the streets were wet. Meisner's truck squealed and spun its tires at both turns. Officer Barry Owens of the Waxahachie Police Department observed Meisner's actions, as he was stopped at the same intersection on Highway 77. Owens turned on his emergency lights and proceeded to pull Meisner over. The officer charged Meisner with two violations: (1) "Racing: Attempt to Outdistance" and (2) "Exhibition of Acceleration."
On May 14th, 1993, the State amended the complaint and charged Meisner with violating section 32-132 of the Waxahachie City Code, which provides:
Any driver of any Motor Vehicle who shall willfully cause such Vehicle to `Dig Out,' or shall cause any such Vehicle to make unnecessary noise by reason of operating such Vehicle in such manner as to cause the wheels thereof to spin or slide on the roadway of any street when starting such Vehicle or while making any turning movement shall be deemed guilty of a misdemeanor.
WAXAHACHIE, TEX.CODE § 32-132 (1973) (emphasis added).
In his sole remaining point of error, Meisner asserts that the phrases "to willfully cause ... to Dig Out" and "unnecessary noise" in section 32-132 are void for vagueness as applied to him, and thus make the ordinance unconstitutional under the United States Constitution. See U.S. CONST. amend. XIV.
Whenever an attack upon the constitutionality of a statute or ordinance is presented for resolution, we begin with the presumption that the statute is valid, and that the legislative body did not act arbitrarily or unreasonably in enacting the statute. Ex Parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim.App.1978). We must uphold the ordinance if a reasonable construction can be determined that will render the ordinance constitutional. Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App.1979). The burden rests upon the individual challenging the ordinance to prove its unconstitutionality. Granviel, 561 S.W.2d at 511. Furthermore, when no First Amendment rights are involved in a vagueness challenge, as here, we need only determine whether the ordinance is invalid as applied specifically to the appellant's conduct. Clark v. State, 665 S.W.2d 476, 483 (Tex. Crim.App.1984).
When examining a vagueness challenge, the reviewing court must make a two-part inquiry in order to determine if a criminal statute or ordinance is void for vagueness. State v. Fry, 867 S.W.2d 398, 401 (Tex.App.Houston [1st Dist.] 1993, no pet.). The first inquiry is whether an individual of ordinary intelligence receives sufficient information from the statute that his conduct is proscribed by law. Id. The second inquiry must examine whether the ordinance provides sufficient notice to law enforcement personnel in order to prevent arbitrary and erratic enforcement of the ordinance. Id. Either of these inquiries form an independent ground to find a statute void for vagueness. Id.
In reviewing the Waxahachie ordinance, we find that it allows an individual to be convicted either on grounds of "willfully ... Dig[ging] Out" or for causing "unnecessary noise." Because no determination was made as to what part of the ordinance Meisner was convicted on, his constitutional claim will fail unless both sections of the statute are found void for vagueness.
Meisner argues that the terms in the Waxahachie ordinance are not sufficiently definite to give him notice that his conduct was proscribed. He argues that the phrase "willfully cause such vehicle to `Dig Out'" is unconstitutionally vague and gives law enforcement officers unrestrained discretion in determining whether an individual has violated the ordinance. The Waxahachie Code sufficiently defines the term to "Dig Out,"[1] and it seems sufficiently clear in its meaning. However, the word "willful" presents some *668 problems, because it implies a requirement of mental culpability. Moreover, a requirement of scienter may mitigate a law's vagueness, especially with regard to the adequacy of notice to an individual that his conduct is proscribed. Wisenbaker v. State, 860 S.W.2d 681, 689 (Tex.App.Austin 1993, pet. ref'd). However, the traffic code makes no attempt to define the term. While it is true that the ordinance is not specifically defined by the Waxahachie City Code, a statute is not rendered unconstitutionally vague merely because the words or terms are not specifically defined. Floyd v. State, 575 S.W.2d 21, 23 (Tex.Crim.App.1978). Terms not specifically defined are to be given their plain and ordinary meaning. Courtemanche v. State, 507 S.W.2d 545, 546 (Tex.Crim.App.1974). It is not required that these statutes or ordinances be defined with mathematical exactitude, only that they provide fair notice to individuals, in light of common understanding and practices. Boyce Motor Lines v. U.S., 342 U.S. 337, 340, 72 S. Ct. 329, 330, 96 L. Ed. 367 (1952). In addition, words defined in dictionaries and with meanings so well known as to be understood by a person of ordinary intelligence are not to be considered vague and indefinite. Floyd, 575 S.W.2d at 23.
What exactly constitutes "willful" conduct? The United States Supreme Court has stated that "`willful' is a word `of many meanings, its construction often being influenced by its context.'" Screws v. State, 325 U.S. 91, 101, 65 S. Ct. 1031, 1035, 89 L. Ed. 1495 (1945). However, in the context of the Waxahachie City Code, the word "willful" is not adequately defined. In the absence of a statutory definition, we must look to how the term is measured by common understanding and practices. Unfortunately, the dictionary provides no guidance in defining this term either. For example, Black's Law Dictionary has almost a page and a half of definitions describing the different uses of "willful." Black's Law Dictionary 1599-1600 (6th ed.1990). The absence of any recognizable standard prevented Meisner from determining that his conduct was illegal.
With regard to the second inquiry, laws must provide specific standards for those who apply them in order to prevent arbitrary and discriminatory enforcement. See Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298, 33 L. Ed. 2d 222 (1972). Police cannot enforce the law solely at their discretion. See id. at 108-109, 92 S.Ct. at 2299. A law that imposes a criminal penalty is subject to a greater degree of scrutiny by a reviewing court. Lear v. State, 753 S.W.2d 737, 740 (Tex.App.Austin 1988, no pet.). At trial, Officer Owens stated that it was purely in his discretion to determine if Meisner acted "willfully." In other words, the arresting officer can arbitrarily legislate the meaning of "willful," whether it refers to intentional, knowing, or reckless conduct among others, in order to cite an individual with a violation of the ordinance. Although we are required to find that the ordinance is vague under only one of the two inquiries, we find that the first section of the ordinance fails both inquiries and is so vague that men of common intelligence must guess as to its meaning and differ as to its application.
Meisner also argues that the term "unnecessary noise" is unconstitutional based on vagueness grounds. A discussion of the possible vagueness of the phrase "unnecessary noise" presents a much closer question. Our legal system has long held to the proposition that an individual must be given fair notice of the offending conduct proscribed by law. Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 843, 31 L. Ed. 2d 110 (1972). The Waxahachie ordinance does not provide adequate notice of what constitutes unnecessary noise. It gives law enforcement officers unfettered discretion in determining what constitutes a violation. It is true that law enforcement officers must exercise some level of discretion in enforcing the law. Grayned, 408 U.S. at 112, 92 S.Ct. at 2301. However, this discretion must be limited by certain recognizable boundaries to insure due process for all individuals. Moreover, these boundaries are determined in part by the nature of the conduct that is proscribed as well other measuring factors, such as when and where the conduct is illegal. See id. In Grayned v. *669 City of Rockford, the appellant, Grayned was charged with violating a Rockford, Illinois, anti-noise ordinance which provided:
No person, while on public or private grounds adjacent to any building in which a school or any class thereof is in session, shall willfully make or assist in the making of any noise or diversion which disturbs or tends to disturb the peace or good order of such school session or class thereof....
Id. In finding the ordinance constitutional, Justice Douglas writes:
Although the prohibited quantum of disturbance is not specified in the ordinance, it is apparent from the statute's announced purpose that the measure is whether normal school activity has been or is about to be disrupted. We do not have here a vague, general `breach of the peace' ordinance, but a statute written specifically for the school context, where the prohibited disturbances are easily measured by their impact on the normal activities of the school. Given this `particular context,' the ordinance gives `fair notice to those to whom (it) is directed.'
Id. The present case differs from Grayned. Unlike the Rockford ordinance, the Waxahachie traffic ordinance lacks any context. It provides that an individual violates the ordinance if he causes "unnecessary noise" when spinning his wheels or turning his vehicle. This phrase allows the law enforcement officer to subjectively legislate the meaning of the statute. The ordinance does not provide any boundaries that allow ordinary individuals or law enforcement personnel to determine what conduct is proscribed. While an ordinance is not vague based solely on the fact that it is not limited by such factors as time and manner, such lack of boundaries is persuasive that the ordinance is lacking in definiteness. See Corwin v. State, 870 S.W.2d 23, 40 n. 3 (Tex.Crim.App.1993), cert. denied, ___ U.S. ___, 115 S. Ct. 95, 130 L. Ed. 2d 44 (1994). What may be deemed unnecessary noise to the officer may seem perfectly reasonable to another officer or the public in general.
Moreover, when is noise considered unnecessary? Not only do people differ upon what is unnecessary noise at one period of the day, but it is reasonable to assume that individuals would also have varying opinions of what is unreasonable depending on the time of day. Surely noise considered reasonable by some people at eleven in the morning may be totally unreasonable at eleven at night.
Furthermore, the conditions of the environment also effect what is reasonable. In the present case, there is evidence in the record that it had been raining earlier that morning, and that when Meisner pulled out of the parking lot and subsequently turned left at the intersection, his tires spun on the wet surface, making a noise. It is possible that the squealing of tires and spinning of wheels upon a wet road was necessary. The ordinance did not provide sufficient notice to Meisner that his conduct was proscribed.
In addition, this ordinance failed to provide sufficient notice to the Waxahachie police officers of what conduct is proscribed. Officer Owens was unsure what conduct was proscribed by the Waxahachie City Code. In fact, the ordinance was apparently so indefinite and imprecise that Owens charged Meisner under two other provisions of the traffic code, "RacingAttempting to Outdistance" and "Exhibition of Acceleration."
Moreover, the Ellis County District Attorney's office amended the complaint so as to charge Meisner with a violation of section 32-132 as opposed to "Racing: Attempt to Outdistance" and "Exhibition of Acceleration" as originally charged. Due to the lack of precision and definiteness in the ordinance, the district attorney was able to construe the ordinance to fit the offense. Thus we find that there is no context in the statute in which to define its meaning for ordinary individuals or law enforcement personnel and that it allows for arbitrary and discriminatory enforcement.
Therefore, we find both parts of Section 32-132 of the Waxahachie City Code void for vagueness as applied to Meisner's conduct, and thus the trial court erred in denying appellant's motion to quash the complaint. Point one is sustained and the judgment is reversed and remanded with instructions to dismiss the complaint.
NOTES
[1] The Waxahachie traffic code defines "Digging Out" as:
The practice of starting any motor vehicle from a standing position by applying a sudden burst of power, recognized by spinning rear wheels and noise of tires on the surface of the roadway.
Waxahachie, Tex.Code § 32-1 (1973).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1802998/
|
997 So.2d 416 (2008)
RAMOS
v.
STATE.
No. 2D08-4106.
District Court of Appeal of Florida, Second District.
December 24, 2008.
Decision without published opinion. Mand.denied.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2442375/
|
954 S.W.2d 730 (1997)
Joel Frank BOOKOUT, Plaintiff-Appellant,
v.
Pamela Williams BOOKOUT, Defendant-Appellee.
Court of Appeals of Tennessee, Eastern Section.
February 28, 1997.
Permission to Appeal Denied September 2, 1997.
*731 Richard A. Schulman, Spears, Moore, Rebman & Williams, Chattanooga, for Plaintiff-Appellant.
Michael R. Campbell, Campbell & Campbell, Chattanooga, for Defendant-Appellee.
Permission to Appeal Denied by Supreme Court September 2, 1997.
OPINION
McMURRAY, Judge.
This is an appeal from the trial court's judgment in a divorce action. The plaintiff (husband) filed the original action and the defendant (wife) filed a counterclaim. The trial court entered judgment granting the wife a divorce, establishing child support, granting custody of the children to the wife, setting visitation privileges for the husband, and dividing the marital estate.
The only issue presented for our review is whether the judgment dividing the marital property is equitable. We modify the judgment of the trial court and affirm as modified.
Our review is governed by Rule 13(d), Tennessee Rules of Appellate Procedure. "Unless otherwise required by statute, review of findings of fact by the trial court in civil actions shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise." In a de novo review, the parties are entitled to a reexamination of the whole matter of law and fact and this court should render the judgment warranted by the law and evidence. Thornburg v. Chase, 606 S.W.2d 672 (Tenn. App. 1980); American Buildings Co. v. White, 640 S.W.2d 569 (Tenn. App. 1982); Tennessee Rules of Appellate Procedure, Rule 36. No such presumption attaches to conclusions of law. See Adams v. Dean Roofing Co., 715 S.W.2d 341, 343 (Tenn. App. 1986).
Apart from an itemized division of the parties' household goods, the court fixed a dollar value for most of the remaining assets. He found the value of the remaining assets to be greater than one and one-half million dollars. (If our calculations are correct, the total value of the remaining assets is substantially greater.) The court then divided the property with approximately 75% going to the wife and the remainder to the husband.
The chancellor made a long and exhaustive findings of fact. Since there is abundant evidence establishing all facts found by the chancellor, well beyond the "preponderance standard," we concur with the findings of fact made by the chancellor except as hereinafter stated. Our next inquiry is whether the division of property was equitable under the facts as found.
The appellant argues that there is "a very strong presumption favoring equal division" of marital assets. As authority, he cites Evans v. Evans, 558 S.W.2d 851, 854 (Tenn. App. 1977). We find no such presumption. There is, however a presumption that marital property is owned equally. See Salisbury v. Salisbury, 657 S.W.2d 761 (Tenn. App. 1983). In this case all property is marital property and is presumed to be equally owned. Under such circumstances it is the duty of the courts to make such adjustments as may be necessary to reach an equitable division of the property, taking into consideration the factors established in T.C.A. § 36-4-121(c), which our General Assembly has provided for guidance.
*732 T.C.A. § 36-4-121(c) sets forth the factors to be considered in making a division of the marital estate. They include:
(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;
(3) The tangible or intangible contributions by one (1) party to the education, training or increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital assets and income;
(5) The contribution of each party to the acquisition, preservation, appreciation or dissipation of the marital or separate property, including the contribution of a party to the marriage as homemaker, wage earner or parent, with the contribution of a party as homemaker or wage earner to be given the same weight if each party has fulfilled his or her role;
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division of property is to become effective;
(9) The tax consequences to each party; and
(10) Such other factors as are necessary to consider the equities between the parties.
All the factors enumerated above do not apply in each case. In this instance, there was no separate property; neither party at the time of the marriage had an estate; and the parties conceded at oral argument that there were no real tax consequences. With regard to the duration of the marriage, the age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties are relatively equal. Likewise, the difference between the relative ability of each party for future acquisitions of capital assets and income is negligible.
Under the facts as found, the tangible or intangible contributions by one party to the education, training or increased earning power of the other party and the contribution of each party to the acquisition, preservation, appreciation or dissipation of the marital or separate property, including the contribution of a party to the marriage as homemaker, wage earner or parent are the most important items for consideration in making a division of the marital property.
The trial court recited in its memorandum opinion that it was guided by T.C.A. § 36-4-121. It is well-settled that trial courts have broad discretion in dividing marital estates, and their decisions are afforded great weight on appeal. Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn. 1983); Harrington v. Harrington, 798 S.W.2d 244, 245 (Tenn. App. 1990). A trial court's division of property need not be equal to be equitable. Batson v. Batson, 769 S.W.2d 849, 859 (Tenn. App. 1988). As a general matter, courts will evaluate the fairness of a property division by its final results. Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn. App. 1990).
With regard to the division of the marital assets in this case, the trial court made the following findings of fact:
The parties were married in 1980. Both parties are in their late 30's and appear to be in relatively good physical and mental health. Each party holds a professional license to practice in the State of Tennessee. Mrs. Bookout is a licensed registered physical therapist and Dr. Bookout is a licensed dentist. Both parties attended school for their professional training during the marriage. Each party has demonstrated the capacity to earn a substantial income. Dr. Bookout continues to show an increase in his earning capacity since he has returned to working four days a week and Mrs. Bookout has experienced some decrease in earnings over the past year. However, Mrs. Bookout's earnings are substantial. The parties during their marriage have accumulated an estate in excess of one and one half million dollars after subtracting all liabilities. Both parties have demonstrated a relatively strong ability *733 to provide for themselves and to acquire future assets. In the course of obtaining their professional training, Dr. Bookout's parents provided a house in which the parties lived and paid his tuition. Mrs. Bookout worked during this period, paid her own tuition, and provided support for the family during that time. The parties returned to Chattanooga in 1985 and began to practice their professions. Dr. Bookout established his dental practice at a location owned by his parents while Mrs. Bookout worked for someone else in her field of expertise. Later, Mrs. Bookout established her own professional practice in her husband's dental building. She later financed an expansion of this building to house her present professional practice. Since about 1985 the record indicates Mrs. Bookout has contributed approximately 82% of the income to the marital relationship. Dr. Bookout first worked five or six days per week in his dental practice, gradually scaling it down to three days per week in the year or two prior to the parties' separation. Mrs. Bookout gave birth to the parties' first child in 1990, and their second child in 1992. She became the parties primary care giver to their children as well as serving as a homemaker. The parties did pay to have a helper in the home for Mrs. Bookout. The record indicates Dr. Bookout enjoyed his "leisure time" and this "leisure time" contributed to the parties' ultimate separation.
After making these findings of fact, the court stated it was giving due consideration to the facts set forth in the holding in Batson v. Batson, supra. The court did not unequivocally make known the statutory factors he found central to his division of the marital estate.
As we have noted above, T.C.A. § 36-4-121(c)(3), (5), and perhaps (10) are the factors that perhaps should be given the most weight in making a division of property in this case. We believe these subsections weigh more heavily in favor of the wife, Mrs. Bookout. She clearly made a contribution to the education, training and increased earning power of her husband by working and providing support for the family while both were in school. The husband was not employed while he was in school. Secondly, the wife's contribution to the acquisition of the marital property was much greater (82%) than that of the husband. Not only was her income greater ($250,000 to $300,000 per year versus $75,000.00 to $100,000 per year), she was also the homemaker and primary care giver to the children, did more, and contributed more through longer working hours than the husband.[1]
The husband argues that while the court considered the wife's contribution to the marriage, it failed to consider his contributions, and instead, penalized him for fault in the breakup of the marriage. He correctly points out that fault is not to be considered in the division of the marital property. See T.C.A. § 36-4-121(a)(1). We find these contentions to be without merit. Clearly the court considered and compared the respective contributions made by each party. As to the assertions of penalizing the husband, the appellant apparently relies on the court's statement that "the record indicates Dr. Bookout enjoyed his `leisure time' and this `leisure time' contributed to the parties' ultimate separation." Taken out of context, the statement by the court could conceivably be construed as an assignment of fault. The statement is made, however, not to assign fault but to draw a comparison between the wife's contributions as a homemaker and primary care giver to that of the husband. We find nothing in the record to support the argument that the husband was penalized for fault in the breakup of the marriage.
The husband also complains that he contributed to the wife's physical therapy practice and that she did not contribute to his dental practice. There is evidence in the record indicating that he did assist his wife in her business. The court found that each party should be awarded their respective professional practices "since neither appeared to have substantially contributed to the establishment of those respective values." This finding by the court is tantamount to a *734 finding that the contributions of the husband to the wife's professional practice, if any, were negligible. We do not disagree with this finding. The wife does not claim to have contributed to the husband's dental practice.
The husband argues that his parents contributed much to the parties' marital property and concludes that "[i]f not for Dr. Bookout, Mrs. Bookout would not have benefited from the contributions of the Bookout family." We have no serious disagreement with the conclusion reached by Dr. Bookout. The record does not support a finding, however, that the contributions of the Bookout family to the marital estate was anything more than gifts to both Dr. and Mrs. Bookout. We find no merit in this argument.
Further, the husband argues, his family contributed to the success of the wife's professional practice by providing the building in which her facilities were located at no charge to her. It is true that Dr. Bookout's parents leased a building to the wife for a period of five years with five successive options of five years each to renew the lease. The lease did not require rental payments as such but required the wife, the sole tenant under the lease agreement, to pay the costs incurred by the lessors for insurance and taxes. Additionally, she is required to do all maintenance and upkeep of the property. It cannot, therefore, be said that the facilities were furnished at no charge to her. In any event, the value of the lease may properly be considered as a gift to the parties and a part of the marital estate. Additionally, Mrs. Bookout made capital improvements to the building, which she was permitted to do under the lease. The lessors were under no obligation to pay for the improvements to the buildings but were, under the terms of the lease, granted a "privilege" to pay the wife for her investment. Further, as the trial court noted, the wife has renounced any claim to be paid which she might have against the husband's parents.[2]
The court awarded the parties' home and most of the furnishings to the wife. The court valued the home (real estate) at $405,000.00. It appears from the record that the court was considering the needs of the wife in maintaining the family household for herself and the children. The child support guidelines, in establishing the amount of child support, take into consideration the obligation of the non-custodial parent to contribute to the maintenance of the family household for the benefit of the children. Thus to order child support as contemplated by the guidelines and further make an award to the custodial parent of property consisting of that which is subsumed by the guidelines amounts to an improper award.
Under such circumstances, we feel it necessary to modify the judgment of the trial court to reach a more equitable result. We feel that equity can be achieved by adjusting the assets awarded to the husband to reflect an additional award to him in an amount approximately equal to the value of one-half of the full value of the home (real estate), which was established by the court at $405,000.00. It appears that this result may be reached by awarding the municipal bonds valued at $177,297.00 to the husband rather than the wife and awarding the husband $25,000.00 in cash.
We therefore modify the judgment of the trial court to provide that the husband rather than the wife shall be awarded the municipal bonds which were awarded to the wife in the final judgment and valued at $177,297.00. In the event that any of the bonds have matured, been reduced to cash, or otherwise disposed of, the husband is awarded the remaining bonds, if any, plus cash, payable immediately, in an amount equal to the difference between the value of the bonds at the time of the court's judgment and the value of the remaining bonds, if any, and $177,297.00 the value previously placed thereon by the court. In addition, the husband is awarded cash in the amount of $25,000.00. Cash payments may be made from any source that the wife may elect. It is our intention that the portion of the marital estate awarded to the *735 husband be increased by $202,297.00 as of the date of final judgment rendered by the trial court. We affirm the judgment of the trial court as modified.
We remand this case to the trial court for entry of a judgment consistent with this opinion. Costs are taxed equally between the parties.
GODDARD, P.J., and FRANKS, J., concur.
NOTES
[1] It should be remembered that no one factor is stronger, as a matter of law than another. The weight to be given each statutory factor must be decided on a case by case basis.
[2] The provision in the lease which gave rise to this discussion is as follows:
... In the event Pamela Bookout shall separate from her husband, Joe Frank Bookout, by divorce, then Lessors shall have the privilege to pay to Pamela Bookout her investment in said property, less depreciation at the time of said purchase.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2442382/
|
954 S.W.2d 881 (1997)
Nancy MULLIGAN, Appellant,
v.
BEVERLY ENTERPRISES-TEXAS INC. d/b/a Leisure Lodge Nursing Home and Healthcare Centers of Texas, Inc. d/b/a Anahuac Healthcare, Appellee.
No. 14-96-00947-CV.
Court of Appeals of Texas, Houston (14th Dist.).
October 9, 1997.
Rehearing Overruled November 13, 1997.
George M. Bishop, Houston, for appellant.
Deanna Dean Smith, Houston, Michael G. Lee, Irving, for appellee.
Before LEE, AMIDEI and ANDERSON, JJ.
OPINION
ANDERSON, Justice.
This is a case of alleged nursing home malpractice brought under the Deceptive Trade Practices-Consumer Protection Act [DTPA]. Nancy Mulligan [Mulligan] appeals from a take nothing judgment granted in favor of Beverly Enterprises-Texas, Inc. D/B/A Leisure Lodge Nursing Home and Healthcare Centers of Texas, Inc. D/B/A Anahuac Healthcare. Mulligan initially filed suit against the nursing home owners claiming both negligence and violations of the DTPA. However, the negligence claim was ultimately dropped and the DTPA claim alone went to trial. A directed verdict was subsequently entered against Mulligan.
On appeal, Mulligan brings four points of error. Mulligan contends the trial court erred in entering a directed verdict because (1) her pleadings were sufficient as a matter *882 of law to support a judgment, (2) the appellees offered no evidence conclusively proving a fact establishing the right to a judgment as a matter of law, (3) the appellants offered evidence of probative force on each DTPA claim sufficient to raise an issue of fact on the material questions, and (4) testimony from two fact witnesses offering evidence on material questions was improperly excluded. We affirm.
In January of 1990, Nancy Mulligan began touring nursing homes in anticipation of moving her aunt, Madeline Smith, into one of the facilities. After investigating several nursing homes, she selected the Leisure Lodge Nursing Home in Anahauc.[1] Mulligan allegedly placed Madeline Smith at Leisure Lodge after talking with the facility administrator and personally touring the nursing home. During discussions with the nursing home, Mulligan received several advertising brochures detailing the services Leisure Lodge provided its residents. Madeline Smith remained a resident at Leisure Lodge until her transfer to Cleveland Regional hospital where she died in 1994.[2]
Mulligan's claims against the nursing home stem from the variance between the anticipated care and actual care she received while a resident at the facility. In her Third Amended Petition, Mulligan claims violations of the DTPA based on the nursing home's alleged knowing misrepresentations about the services it would provide.[3] Additionally, Mulligan argues the nursing home breached express warranties also extended during the initial conversations with Leisure Lodge prior to placing Madeline Smith at the facility.
Standard of Review
In reviewing a directed verdict on appeal, an appellate court must "view the evidence in the light most favorable to the party against whom the verdict was rendered and disregard all contrary evidence and inferences." Qantel Business Sys. v. Custom Controls, 761 S.W.2d 302, 303 (Tex.1988). The judgment must be reversed and the case remanded for a jury determination if there is any evidence of probative value raising a material fact issue. See id. at 304. However, the directed verdict must be affirmed if there is no evidence of probative force or if the probative force is so weak that only a mere surmise or suspicion is raised as to the existence of essential facts on an ultimate issue in the case. See Hycarbex, Inc. v. Anglo-Suisse, Inc., 927 S.W.2d 103, 107-108 (Tex.App.Houston [14th Dist.] 1996, n.w.h.). Furthermore, a directed verdict is proper only if "no other judgement could be rendered and the prevailing party is entitled to judgment as a matter of law." Questa Energy Corp. v. Vantage Point Energy, Inc., 887 S.W.2d 217, 221 (Tex.App.Amarillo 1994, writ denied). Where the judgment does not specify the grounds upon which it is based, the nonmovant must challenge all of the grounds raised in the motion for directed verdict. See Hycarbex, 927 S.W.2d at 108. If any of those grounds are sound, the judgment must be affirmed. Id.
Medical Negligence Recast Under the DTPA
In Beverly Enterprises first reply point, it contends Mulligan's DTPA claim is barred by the Medical Liability and Insurance Improvement Act.[4] Section 12.01(a) of the act provides in part:
*883 Nothwithstanding any other law, no provisions of Sections 17.41-17.63, Business & Commerce Code [DTPA], shall apply to physicians or health care providers as defined in Section 1.03(3) of this Act, with respect to claims for damages for personal injury or death resulting, or alleged to have resulted, from negligence on the part of any physician or health care provider.
TEX.REV.CIV. STAT. ANN. art. 4590i § 12.01(a) (Vernon Supp.1997). The Texas Supreme Court has interpreted this section of the act to bar negligence claims against health care providers which are recast as DTPA claims. See Walden v. Jeffery, 907 S.W.2d 446, 447-448 (Tex.1995); Gormley v. Stover, 907 S.W.2d 448, 450 (Tex.1995). The "underlying nature" of the claim determines whether a DTPA action is barred by § 12.01(a). See Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex.1994) (noting warranty or representation claims requiring a determination of whether the standard of care was breached involve negligence and are precluded). Therefore, simply alleging a breach of warranty or knowing misrepresentation under the DTPA is not sufficient if the "underlying nature" of the claim is essentially negligence.[5]
In addressing a factually similar case, the Dallas Court of Appeals held the Medical Liability Act barred DTPA claims against a nursing home, Sunnyvale Manor, for representations and warranties based on the alleged services the nursing home provided. See Waters v. Del-Ky, Inc., 844 S.W.2d 250 (Tex.App.Dallas 1992, no writ). In Waters, a patient's sister brought a survivorship action against the nursing home responsible for her brother's care. See Id. at 252. She alleged the nursing home breached express warranties to provide certain services to her brother including "`prescribed physical and medical care,'" maintenance of organized nursing services and compliance with Texas State nursing home standards. Id.
In rejecting the sister's express warranty claim, Justice Baker held the claims, whether cast as tort or contract, were nothing more than claims for negligence based on deviations from the standard of care. Id. at 258 (citing Tex.Rev.Civ. Stat. Ann. art. 4590i § 1.03(a)(4) (Vernon Supp.1996)) (identifying a "Health care liability claim" under the Medical Liability Act as one concerning "treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient, whether the patient's claim or cause of action sounds in tort or contract"). Simply alleging breach of an express warranty by Sunnyvale that it would provide certain services was not enough to prevent preclusion of such claim under the Medical Liability Act because the level of care the patient received, if inconsistent with the warranty, is only a claim for negligence.[6]
*884 The same rationale applies to this cause. Mulligan attempts to recast a negligence claim as a DTPA action based on representations made by the nursing home that it would perform certain services. Mulligan alleges the nursing home made representations about the services Madeline Smith was to receive and express warranties as to the care to be provided. Mulligan specifically identifies only the alleged express warranty to take good care of Madeline Smith.
Each alleged warranty or representation goes directly to the level of care provided to Madeline Smith by the nursing home. Mulligan does not argue the services were entirely withheld while Madeline Smith lived at the nursing home. Instead, she apparently argues the services were provided, but not to a level she found acceptable or in compliance with normal standards.[7] Mulligan's claim, that the services rendered were deficient, is identical to the claim in Waters and fails for the same reasons.
The case at bar is distinguishable from Sorokolit where the doctor guaranteed a particular result to Janice Rhodes. The DTPA claims were allowed in that case because the doctor breached his express warranties by not delivering the exact promised post surgery result. See Sorokolit, 889 S.W.2d at 242-243. Here, the facts are different. The representations made to Mulligan, for example, that no resident would ever fall or would be moved from bed at a set time each day, were not guarantees. Instead, they were simply representations the nursing home would "care" for Madeline Smith. A conclusion that the representations and warranties were breached requires a determination of whether the nursing home failed to meet the standard of medical care for Ms. Smith, and therefore the underlying nature of the claim is one of negligence. Here, unlike Janice Rhodes, the appellee in Sorokolit, there was no guarantee of the results of the medical care given to Ms. Smith, only that she would be taken care of. This lack of specificity is a critical factor that distinguishes the case at bar from Sorokolit. Further, none of the documents relied on by Mulligan to support her claim, described in note 3 above, contain the necessary warrant of cure or promise of a particular result for Ms. Smith.[8] As repeatedly stated by the Supreme Court in Sorokolit, Walden, and Gormley, claims that a health care provider was negligent may not be recast as DTPA actions to avoid the standards set forth in the Medical Liability Act. Therefore, we hold that Mulligan's claim against this health care provider is such a recast claim, and as such it is barred by the Medical Liability Act.[9] Accordingly, the trial court properly granted a directed verdict against Mulligan.
Because we have held the nursing home owners were entitled to judgment based on preclusion of Mulligan's sole claim by the Medical Liability Act, we overrule all four of her points of error.
The judgment of the trial court is affirmed.
NOTES
[1] Beverly Enterprises-Texas, Inc. initially owned and operated the Leisure Lodge Nursing Home. It later sold the facility to Healthcare Centers of Texas, Inc. which renamed the nursing home Anahuac Health Care.
[2] Madeline Smith's death is unrelated to any claims Mulligan has against the nursing home.
[3] Mulligan points to four documents to support her claims. First, she looks to a brochure stating the nursing home would "care for your loved ones." Second, Mulligan identifies a message allegedly written by a nursing home administrator stating that she will "make sure ... [Madeline Smith] gets taken care of." Third, she points to a letter written by a Beverly Enterprises administrator stating she will continue to "provide the best nursing care available." Fourth, Mulligan focuses on a list of services maintained by Leisure Lodge Nursing Home stating the company will provide certain services to residents including "nursing care to meet the needs of the resident."
[4] Beverly Enterprises asserted both in its trial brief and orally at trial that it was entitled to a directed verdict on several grounds including the argument that the Medical Liability Act barred Mulligan's DTPA claim as a matter of law. The trial court granted a take nothing judgment because Mulligan presented no evidence on at least one element of her cause of action. This Court may affirm a directed verdict even if the trial court's reasoning is in error, provided it can be supported on another basis. See Hutson v. City of Houston, 418 S.W.2d 911, 914 (Tex.Civ.App. Houston [14th Dist.] 1967, writ ref'd n.r.e.). Thus, if Mulligan's claims are barred by the Medical Liability Act, this court may affirm the directed verdict. Id.
[5] In two recent cases, the Texas Supreme Court twice rejected negligence claims recast as DTPA claims. See Walden, 907 S.W.2d at 448 (holding claim against dentist based on representation that dentures would fit properly was actually a negligence claim); Gormley, 907 S.W.2d at 450 (rejecting DTPA claim for misrepresentations concerning ability to wear dentures because they went to the standard of care for dentists under the circumstances which was ultimately a negligence claim). Both cases focused on the "underlying nature" of the claim asserted to determine whether the DTPA claim was really a claim for negligence.
[6] At oral argument, Mulligan's counsel attempted to distinguish the case at bar from other cases barring negligence/DTPA claims under article 4590i on the basis that the nursing home owners gave her written representations about the care Ms. Smith would receive. In Waters, the Court directly addressed an identical assertion and stated "Despite [appellant's] assertions, we see no difference between implied and express warranties for purposes of article 4590i." Waters, 844 S.W.2d at 258. We agree. No court addressing this issue has ever suggested the distinction between a permissible medical care DTPA claim versus impermissible claim hinges on the presence of a writing.
[7] Mulligan testified as to several injuries her aunt allegedly received while staying at the nursing home. She testified her aunt fell and sustained a broken hip twice. She also testified the nursing home allowed her aunt to sit in urine and feces. Additionally, she complained her aunt was forced to remain in bed for extended periods of time without the opportunity to move about the home. She repeatedly testified the basis for complaining about each of these injuries was concern her aunt was not receiving adequate attention from the nursing and administrative staff.
[8] See TEX. BUS. & COM.CODE ANN. § 26.01(b)(8) (Vernon 1987). Beverly Enterprises affirmatively pleaded that Mulligan's express warranty allegations were barred by the statute of frauds, Sec. 26.01. See TEX.R. CIV. P. 94. Because we hold that Mulligan's claims are barred by article 4590i, we need not reach the question of whether Mulligan's claims are barred by the statute of frauds.
[9] Mulligan abandoned her negligence claim prior to trial when she filed her third amended petition asserting only a DTPA cause of action. Provided she had adhered to the standards of the act, Nancy Mulligan could have asserted her negligence cause of action under the Medical Liability Act.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2442417/
|
954 S.W.2d 174 (1997)
Tom HALL, Appellant,
v.
LONE STAR GAS COMPANY, Appellee.
No. 03-97-00037-CV.
Court of Appeals of Texas, Austin.
October 9, 1997.
Rehearing Overruled November 20, 1997.
*175 Thomas C. Hall, Law Office of Thomas C. Hall, P.C., San Antonio, pro se.
Randall C. Grasso, Dallas, for Appellee.
Before POWERS, ABOUSSIE and B.A. SMITH, JJ.
BEA ANN SMITH, Justice.
Tom Hall claimed that Lone Star Gas Company excessively used its easement and violated the Texas Deceptive Trade Practices Act ("DTPA"). The trial court rendered summary judgment for Lone Star on several stated grounds. Mr. Hall appeals the trial court's order in various points of error alleging there existed genuine material fact issues. Mr. Hall also claims the trial court erred in granting summary judgment because he had improper notice of the hearing. While we will reject one ground supporting summary judgment in favor of Lone Star, we nevertheless will affirm the summary judgment on other grounds.
FACTUAL AND PROCEDURAL BACKGROUND
In the late 1920's Lone Star built a dry gas line (Line R) to provide residential and commercial gas service along State Highway 67. In 1928, Mr. Hall's grandfather, the predecessor in title to Mr. Hall, executed an easement which grants Lone Star "the right of way and easement to construct, maintain, and operate pipe lines." Lone Star also has the right to "ingress and egress from the premises, for the purposes of constructing, inspecting, repairing, maintaining, and replacing the property of [grantee]." From September to mid-November of 1992 Lone Star worked on Mr. Hall's land in order to replace Line R.
On March 6, 1995, Mr. Hall filed suit against Lone Star alleging damages to his real property and fixtures and basing his claims on breach of contract, excessive use of the 1928 easement, and violations of the DTPA. Lone Star filed a motion for partial summary judgment which the trial court granted on April 24, 1996. The motion included a statute of limitations defense and a request for declaratory judgment that the easement was a multiple-line easement. Shortly thereafter, the court rescinded its partial summary judgment. Lone Star, again, sought partial summary judgment and a second hearing was held on November 25, 1996. On December 3, 1996, the trial court granted Lone Star's motion by rescinding its Order to Rescind its Order, thereby reinstating the April 24 partial summary judgment in favor of Lone Star. Because the remaining issues had been severed from the case, the trial court's order constituted a final judgment and Mr. Hall's appeal comes properly under this Court's jurisdiction.
STANDARD OF REVIEW
The standards for reviewing a motion for summary judgment are well established: (1) the movant 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; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be *176 taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). The function of summary judgment is not to deprive litigants of the right to trial by jury, but to eliminate patently unmeritorious claims and defenses. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952).
DISCUSSION
Multiple-line Easement?
Lone Star sought to defeat Mr. Hall's damages claim for excessive use of the easement by requesting a declaratory judgment that the easement is an expansible multiple-line easement of perpetual duration which allows Lone Star to lay additional lines. As movant, Lone Star had the burden to establish conclusively it was entitled to lay such lines. A matter is "conclusively established" for summary judgment purposes if ordinary minds cannot differ regarding the conclusion to be drawn from the evidence. See Zep Mfg. Co. v. Harthcock, 824 S.W.2d 654, 657-58 (Tex.App.Dallas 1992, no writ) (citing Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982)). We find that Lone Star failed to establish conclusively that it held a multiple-line easement and, therefore, the trial court erred in basing its summary judgment on this ground.
Whether a contract is ambiguous is for the court to determine. See Roman Catholic Diocese v. First Colony, 881 S.W.2d 161, 163 (Tex.App.Houston [1st Dist.] 1994, writ denied). If the easement is unambiguous its construction is a question of law for the court. See Boland v. Natural Gas Pipeline Co., 816 S.W.2d 843, 844 (Tex.App. Fort Worth 1991, no writ). The primary concern of the court is to ascertain the true intention of the parties as expressed in the instrument. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). In determining whether an easement grants the right to lay additional lines, Texas courts have uniformly looked to the compensation clause and express language of the granting clause.
The Boland court determined the gas company was permitted to lay an additional line years after the original had been laid because the easement expressly granted a right of way for an initial pipeline and "any additional pipeline described by Grantee, for the transportation of gas ... at route or routes selected by Grantee." Boland, 816 S.W.2d at 845. Similarly, the court in Strauch v. Coastal States Crude Gathering Co. found the pipeline company was not precluded from laying an additional pipeline 22 years later because the easement clearly stated that consideration had been given for the right to lay additional lines at any time and the amount of compensation for each future line had been precisely calculated. 424 S.W.2d 677, 681-82 (Tex.Civ.App.Corpus Christi 1968, writ dism'd). On the other hand, where no express provision in the easement granting the right to lay additional lines exists, a court will not imply rights beyond those of the easement. See Pioneer Natural Gas Co. v. Russell, 453 S.W.2d 882, 886 (Tex.Civ.App. Amarillo 1970, writ ref'd n.r.e.) In Russell the gas company claimed the use of the term "pipe lines" gave it the right to lay more than one line at any time. The court found the lack of an express grant distinguished the easement in question from the one in Strauch and held the company could not lay a parallel line forty years later. Id. at 885-86.
Similar to Russell, the easement here used the term "pipe lines" but contained no express provision granting the right to lay additional lines in the future. To the contrary, the compensation clause for future lines was specifically deleted from the form contract. In arriving at the true meaning and intention of the parties, a court may consider the deletions made by the parties. See Houston Pipe Line Co. v. Dwyer, 374 S.W.2d 662, 664 (Tex.1964). We cannot say as a matter of law that parties who deleted the compensation clause for future lines intended the easement to include the right to lay additional lines in the future. Cf. Dwyer, 374 S.W.2d. at 664-65 (holding lack of an express provision addressing issue of expansion *177 or addition precluded company from expanding easement); see Russell, 453 S.W.2d at 886. Thus, without some provision addressing the right to lay additional lines or providing for compensation, Lone Star's proposition that the easement permits future additional lines cannot prevail. We find that Lone Star did not carry its burden to establish conclusively it holds a multiple-line easement granting the right to lay additional lines in the future. Although we sustain Mr. Hall's second point of error, we will affirm the summary judgment on other grounds.
Notice of the Hearing
In point of error one, Mr. Hall claims the trial court erred because by failing to act on Lone Star's second motion for summary judgment and, instead, reinstating its earlier grant of summary judgment, Mr. Hall had improper notice for the November 25 summary judgment hearing. We find Mr. Hall failed to preserve this point of error for appeal. Under the Texas Rules addressing summary judgment, "[i]ssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal." Tex.R. Civ. P. 166a(c). Generally, a complaint regarding notice is required to be in writing and before the court at the summary judgment hearing. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979). In some cases, the complainant may not have the opportunity to present objections until after the entry of summary judgment, such as here, where Mr. Hall complains that the entry of the order was on an earlier motion rather than the one scheduled for the hearing. In these circumstances, a complainant is required to set forth any objections in a post-judgment motion. See Smith v. Mike Carlson Motor Co., 918 S.W.2d 669, 672 (Tex.App.Fort Worth 1996, no writ) (party should bring lack of notice of summary judgment motion and hearing to court's attention after summary judgment has been granted to preserve complaint for appellate review); Negrini v. Beale, 822 S.W.2d 822, 824 (Tex.App.Houston [14th Dist.] 1992, no writ) (participant in hearing on motion who failed to apprise trial court of complaint before, during or after summary judgment hearing waived any objection to improper notice and cannot raise it for first time on appeal).
Because the record is devoid of any post-judgment motion by Mr. Hall preserving his complaint of improper notice, we find that he waived any such right to appeal. However, if we were to reach this issue, we would hold that the trial court was within its rights to reinstate its earlier order because the subsequent recission constituted an interlocutory judgment. See Evans v. Hoag, 711 S.W.2d 744, 745 (Tex.App.Houston [14th Dist.] 1986, writ ref'd n.r.e.). Thus, once Lone Star filed its motion the trial court could properly grant a summary judgment after having previously denied the same motion, even if by way of recission.[1]See id.
Excessive Use of the Easement
Mr. Hall brings no point of error attacking the trial court's ruling that Lone Star's activities constituted a replacement of its worn-out line, a right expressly granted by the original easement. When the trial court's summary judgment order does not specify the grounds on which the summary judgment is granted, an appellate court will affirm the judgment if any grounds stated in the motion are meritorious. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). In the present case the trial court specified its grounds for granting summary judgment in favor of Lone Star; we will uphold the summary judgment if any of the stated grounds have a legal basis. Because summary judgment on the easement claim was proper on the replacement ground, we need not address Mr. Hall's point of error three regarding the statute of limitations.
The April 4, 1996 order stated, among other grounds, that "Lone Star's construction of a pipe line across Hall's property in September of 1992 was the installation of a replacement line for its original Line R, not an *178 additional line" (emphasis added). As neither party disputes that the easement grants Lone Star the right to replace pipe lines, we need only determine whether Lone Star was exercising its right to replace or laying an additional line. This Court has already determined that activities similar to Lone Star's constitute a proper and valid exercise of replacement rights under a like easement. Harris v. Phillips Pipe Line Co., 517 S.W.2d 361 (Tex.Civ.App.Austin 1975, writ ref'd n.r.e.).
In Harris the easement granted Phillips the right of way for the "laying, maintaining, use, operation, repair, replacement and removal of a ten inch pipe line." Id. at 362. When Phillips decided to replace the original line with a line buried to a greater depth for safety reasons, it laid the new line parallel to and fifteen feet away from the original line, the closest distance at which construction was not hazardous. Phillips continued to use the original line while constructing the new line in order to avoid interrupting service to its users, and upon completion switched service to the new line and discontinued use of the original. This manner of replacing pipe line was considered a common practice in the industry. See id. at 363. This Court concluded that an easement necessarily carries the right to do those things which are reasonably necessary for the full enjoyment of the easement. Id. at 364. Because Phillips clearly had the right to replace its pipe line, incidentally it had the right to take the course of action it did; "to require Phillips to cease use of the pipe line in order to replace it with a new line would deny [it] a right expressly given by the grant, the right to use, maintain and operate the pipe line." Id. at 364-65.
Due to leakage problems caused by an increased demand, Lone Star decided to replace a section of ten-inch Line R pipe line with ten-inch pipe line that could withstand greater pressure. Lone Star laid the new line parallel to and some feet away from the original; it continued using the original line to supply gas to its customers and upon completion switched the service to the new line and discontinued using the original. At no time did Lone Star use the two pipes simultaneously. The easement gives Lone Star the right to "construct, maintain, and operate," and further allows ingress and egress for the purposes of "constructing, inspecting, repairing, maintaining, and replacing the property of Grantee." Requiring Lone Star to cease operating and remove the original line before replacing it would deny Lone Star the maintenance and operation rights granted by the easement. By industry practice it would unduly burden Lone Star's ability to continue servicing its customers.
The present circumstances are distinguishable from those in Phillips Pipe Line Co. v. Clear Creek Properties, Inc., 553 S.W.2d 389 (Tex.Civ.App.Austin 1977, writ ref'd n.r.e.). In that case, this Court found Phillips had exceeded its easement rights when it used land outside the specified boundaries of the easement to replace and construct new lines that were contemplated by the original grant. Id. While it was clear Phillips had every right to construct new lines within the confines of the easement, Phillips contended the easement necessarily gave it the right to use the land beyond. To the contrary, the instrument expressly designated the width and location of the easement. An implied easement could not have existed. This Court found the easement granted only the strip specified and the parties never contemplated use of the area beyond. Id. at 392.
Lone Star's right to reasonably use the land pursuant to its enjoyment and use of the easement is not a right without limits. The supreme court has held that while the terms "operate" and "maintain" include the right to remove and replace original pipe, replacement pipe is only within the extent of the easement when such replacement is necessary and the new pipe is not substantially larger than the original. Dwyer, 374 S.W.2d at 665-66. In Dwyer, although the contract did not specifically limit the size of the line, the court found that the company could not continually replace the original line with larger and larger lines. Id. In this case, Lone Star was not replacing its line in order to enlarge it. The record reveals that the original pipe line, which had developed leaks, was *179 replaced with a stronger line.[2] Following Harris, we hold that Lone Star's right to replace was express and its replacement actions were reasonably necessary for the full enjoyment of the easement granted.[3] Because we find the trial court had a proper legal basis for concluding that Lone Star was merely replacing rather than laying an additional line in 1992, we affirm the summary judgment in favor of Lone Star on the easement claim. Accordingly, we need not address Mr. Hall's point of error three.
The DTPA claim
In points of error four and five Mr. Hall asserts the trial court erred in holding that he was not a "consumer" under the DTPA and that the two-year statute of limitations barred his claims. Consumer status is a question of law based upon all the evidence. See Coker v. Burghardt, 833 S.W.2d 306, 311 (Tex.App.Dallas 1992, writ denied); Security Bank v. Dalton, 803 S.W.2d 443, 451 (Tex.App.Fort Worth 1991, writ denied). Mr. Hall must meet two requirements to be a consumer: (1) he must have sought or acquired goods or services by purchase or lease, and (2) the goods or services purchased or leased must form the basis of the DTPA complaint. See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 539 (Tex.1981). We find that Mr. Hall did not satisfy the second requirement.
Mr. Hall submits he meets the first prong because he or his predecessor acquired the original and subsequent pipeline under the land for consideration and presently he receives gas through the pipeline at cost. He contends this transaction forms the basis of the complaint. While we do not dispute that Mr. Hall consumes gas through the pipeline in question, his claim for damages to his land arises out of Lone Star's use of the easement. His complaint did not in any perceivable manner rest on his receipt of gas which was incidentally provided by Lone Star. A plaintiff establishes its standing as a consumer by a relationship with the transaction, not by a relationship with the defendant. See Tuscarora Corp. v. HJS Indus., Inc., 794 S.W.2d 435, 441 (Tex.App.Corpus Christi 1990, writ denied). Here, Mr. Hall's relationship to his receipt of Lone Star's gas is immaterial to his claim of excessive use. Under the Cameron test, Mr. Hall's "transaction" did not form the basis of his complaint; we hold that he was not a "consumer" as a matter of law. Because Mr. Hall does not have a claim under the DTPA we need not address point of error five regarding the DTPA statute of limitations.
CONCLUSION
Although we reject the trial court's holding that the easement granted Lone Star the right to lay multiple lines in the future, we affirm summary judgment in favor of Lone Star as to excessive use of the easement on the ground that this was a replacement line and that the original easement granted Lone Star the right to replace its line. We further affirm summary judgment in favor of Lone Star on Mr. Hall's DTPA claims, holding that the trial court properly found, as a matter of law, that Mr. Hall was not a consumer.
NOTES
[1] We note that on November 15 Mr. Hall filed a timely response to Lone Star's motion before the hearing on November 25. The trial court considered the attached affidavits and apparently concluded they failed to defeat Lone Star's motion for summary judgment.
[2] While the record reveals no confirmation the replacement line is the same size, Mr. Hall stated in Plaintiff's Answers to Defendant's Second Set of Interrogatories (September 8, 1995), that it was his "understanding now that the pipeline replaced was a ten inch pipeline replaced by a ten inch pipeline."
[3] This conclusion does not address whether the replacement caused compensable damage to Mr. Hall's fixtures. The claim for damages to fences was severed by the trial court on December 2, 1996.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2442424/
|
524 F. Supp. 2d 794 (2007)
CHIC OPTIC, INC., and Contour Optik, Inc., Plaintiffs,
v.
E'LITE OPTIK, INC., Defendant.
Civil Action No. 3:00-CV-2010-L.
United States District Court, N.D. Texas, Dallas Division.
November 27, 2007.
*795 *796 Daniel V. Thompson, Thompson & Gus. tayson, Dallas, TX, for Defendant.
MEMORANDUM OPINION AND ORDER
SAM A. LINDSAY, District Judge.
Before the court are: the Findings, Conclusions, and Recommendations of the United States Magistrate Judge, filed August 30, 2006; Objections to the Magistrate Judge's Proposed Findings and Claim Construction by Defendant E'Lite Optik, Inc., filed September, 12, 2006; Plaintiffs' Response to Defendant E'Lite's Objection to the Magistrate Judge's Findings, Conclusion, and Recommendations on Claim Construction, filed September 25, 2006; and Reply Brief in Support of Objections to the Magistrate Judge's Proposed Findings and Claim Construction by Defendant E'Lite Optik, Inc., filed October 6, 2006.
Having carefully considered the Findings, Conclusions, and Recommendations of the United States Magistrate Judge, Defendant E'Lite Optik, Inc.'s objections, Plaintiffs' Response to Defendant's objections, Defendant's reply to Plaintiffs' response, record, and applicable law, for the reasons set forth below, the court determines that the magistrate judge's findings and conclusions are correct. Accordingly, the court accepts them as those of the court.
I. Factual and Procedural Background
This is a patent infringement lawsuit. On. August 29, 2000, the United States Patent and Trademark Office ("PTO") issued United States Patent No. 6,109,747 ("the '747 Patent"), which names David Chao as the inventor and Plaintiff Contour Optik, Inc. ("Contour") as the assignee of an invention relating to an eyeglass frame with an auxiliary frame and lenses. Plaintiff Chic Optic, Inc. ("Chic Optic") is an exclusive licensee of the invention. Chic Optik in turn granted a sublicense to Aspex Eyewear ("Aspex"). On September *797 13, 2000, Contour, Chic Optic, and Aspex[1] filed this lawsuit against Defendant E'Lite Optik, Inc. ("Defendant"), alleging infringement on the '747 Patent. E'Lite has counterclaimed seeking, among other things, a declaration that it is not infringing the '747 Patent and that the '747 Patent is invalid and unenforceable.
The parties filed a joint claim construction statement on November 23, 2005, followed by extensive briefing, seeking construction of six terms in the '747 Patent. Pursuant to a standing order of reference, on June 30, 2006, this case was referred to United States Magistrate Judge Irma C. Ramirez for a claim construction hearing. The magistrate judge held a claim construction hearing on July 21, 2006. On August 30, 2006, the magistrate judge filed her Findings, Conclusions and Recommendations (hereinafter "Report and Recommendation"). On September 12, 2006, Defendant filed Objections to the Magistrate Judge's Proposed Findings and Claim Construction. On September 25, 2006, Plaintiffs filed their Response to Defendant E'Lite's Objection to the Magistrate Judge's Findings, Conclusions, and Recommendations on Claim Construction. On October 6, 2006, Defendant filed its Reply Brief in Support of Objections to the Magistrate Judge's Proposed Findings and Claim Construction.
II. Legal Standard
Patent infringement is the unauthorized making, using, selling, offering to sell, or importing into the United States of any patented invention during the term of the patent. 35 U.S.C. § 271(a). Patent infringement analysis involves two steps. In the first step the court determines the proper construction of the patent claims by establishing, as a matter of law, the scope and boundaries of the subject matter that is patented. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir.1995) (en banc), aff'd, 517 U.S. 370, 384-85, 116 S. Ct. 1384, 134 L. Ed. 2d 577' (1996). In the second step the trier of fact compares the properly construed claims to the allegedly infringing device(s) and determines whether there has been an infringement. Id. The issue before the court at this time is construction of various claims of the '878 patent.
"`Claim construction' is the judicial statement of what is and is not covered by the technical terms and other words of the claims." Netword, LLC v. Central Corp., 242 F.3d 1347, 1352 (Fed.Cir.2001). See also United States Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed.Cir.), cert. denied, 522 U.S. 950, 118 S. Ct. 369, 139 L. Ed. 2d 287 (1997). The claims of a patent are the numbered paragraphs at the end of the patent that define the scope of the invention and thus the scope of the patentee's right to exclude others from making, using, or selling the patented invention. See Astrazeneca AB v. Mutual Pharmaceutical Co., 384 F.3d 1333, 1336 (Fed.Cir.2004).
"[T]he words of a claim `are generally given their ordinary and customary meaning.'" Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.Cir.2005), cert. denied, 546 U.S. 1170, 126 S. Ct. 1332, 164 L. Ed. 2d 49 (2006) (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996)). Ordinary and customary meaning is "the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention[.]" Id. at 1313. "In some cases, *798 the ordinary meaning of claim language as understood by a person of skill in the art may be readily apparent even to lay judges, and claim construction in such cases involves little more than the application of the widely accepted meaning of commonly understood words." Id. at 1314. When the ordinary and customary meaning of a term is not readily apparent, "the court looks to `those sources available to the public that show what a person of skill in the art would have understood disputed claim language to mean.'" Id. (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed.Cir.2004)). "Those sources include the words of the claims themselves, the [patent] specification, the prosecution history, and extrinsic evidence." Id.
"The claims, of course, do not stand alone. Rather, they are part of `a fully integrated written instrument,' consisting principally of a specification that concludes with the claims. For that reason, claims `must be read in view of the specification, of which they are a part.'" Id. at 1315 (quoting Markman, 52 F.3d at 979). Section 112 of the Patent Act, 35 U.S.C. § 112, states that the specification:
shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which, it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
35 U.S.C. § 112. "The specification `is always highly relevant to the claim construction analysis. Usually it is dispositive; it is the single best guide to the meaning of a disputed term.'" Phillips, 415 F.3d at 1315 (quoting Vitronics, 90 F.3d at 1582). "[T]he specification `acts as a dictionary when it expressly defines terms used in the claims or when it defines terms by implication.'" Id. at 1321 (quoting Vitronics, 90 F.3d at 1582).
In addition to the specification, the court should also consider the prosecution history, if it is in evidence, in determining the meaning of disputed claim terms. Phillips, 415 F.3d at 1317. The prosecution history is part of the intrinsic record and consists of a complete record of all proceedings before the Patent and Trademark Office ("PTO"), including the prior art cited during the examination of the patent. Phillips, 415 F.3d at 1317. The prosecution history also includes any express representations made by' the applicant regarding the scope' of the claims. Vitronics, 90 F.3d at 1582. "[B]ecause the prosecution history represents an ongoing negotiation between the PTO and the applicant, rather than the final product of that negotiation, it often lacks the clarity of the specification and thus is less useful for claim construction purposes." Phillips, 415 F.3d at 1317. The prosecution history can, however, "often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be." Id. (citing Vitronics, 90 F.3d at 1582-83).
Despite the Federal Circuit's emphasis on the importance of intrinsic evidence in claim construction, it has "also authorized district courts to rely on extrinsic evidence, which `consists of all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises.'" Id. (quoting Markman, 52 F.3d at 980). The Federal Circuit has observed that dictionaries and treatises can be "useful in claim construction[,]" particularly technical dictionaries *799 which may help the court "`to better understand the underlying technology' and the way in which one of skill in the art might use the claim terms." Id. at 1318 (quoting Vitronics, 90 F.3d at 1584 n. 6). As stated by the Federal Circuit en banc in Phillips:
Because dictionaries, and especially technical dictionaries, endeavor to collect the accepted meanings of terms used in various fields of science and technology, those resources have been properly recognized as among the many tools that can assist the court in determining the meaning of particular terminology to those of skill in the art of the invention.
Id. (citation omitted).
Extrinsic evidence through expert testimony may be useful to a court for a variety of reasons. Id. For example, it may:
provide background on the technology at issue, [ ] explain how an invention works, [] ensure that the court's understanding of the technical aspects of the patent is consistent with that of a person of skill in the art, or [] establish that a particular term in the patent or the prior art has a particular meaning in the pertinent field.
Id. "[C]onclusory, unsupported assertions by experts as to the definition of a claim term[, however,] are not useful to a court". Id. "Similarly, a court should discount any expert testimony `that is clearly at odds with the claim construction mandated by the claims themselves, the written description, and the prosecution history, in other words, with the written record of the patent.'" Id. (quoting Key Pharms. v. Hercon Labs. Corp., 161 F.3d 709, 716 (Fed.Cir. 1998)).
Although extrinsic evidence can be useful in claim construction, "it is less significant than the intrinsic record in determining the legally operative meaning of claim language." Id. at 1317 (internal citations and quotations omitted). "[U]ndue reliance on extrinsic evidence poses the risk that it will be used to change the meaning of claims in derogation of the indisputable public records consisting of the claims, the specification and the prosecution history, thereby undermining the public notice function of patents." Id. at 1319 (citation and internal quotations omitted).
III. Analysis
The technology at issue pertains to back-mounting magnetic clip-on eyewear. The '747 patent issued with 13 claims describing different embodiments of the invention. Plaintiffs in this lawsuit are asserting only Claim 12 of the patent against Defendant. Claim 12 of the '747 patent, with the six claim elements in dispute highlighted, reads as follows:
A primary frame adapted to support an auxiliary frame, which includes a first bridge and two sides, each side having an extension and each extension including a rear end having a first flange extended downward, each flange, itself not being a magnet, including a magnetic material, the primary frame comprising:
a second bridge; and
two sides, each having a stud, each stud including a magnetic material; wherein when the primary frame is supporting the auxiliary frame,
each magnetic material of the primary frame magnetically engages in a lateral manner with one of the magnetic materials of the auxiliary frame for securing said auxiliary frame to said primary frame;
each stud is extended over by one of the extensions, and can support that extension to prevent the auxiliary frame from moving downward relative to the primary frame; and *800 the flanges are located behind the studs to further secure the auxiliary frame to the primary frame, and to reduce the likelihood of the auxiliary frame from being disengaged from the primary frame if the auxiliary frame is being pulled forward relative to the primary frame.
See Report and Recommendation at 6-7 (quoting '747 Patent, col. 5, lines. 38-43; Col. 6, lines. 1-19).
A. The Magistrate Judge's Report and Recommendation
After carefully considering the parties' claim construction presentations, the legal briefing and applicable law, the magistrate judge recommended the following construction to the court:
"primary frame" should be construed as "the lens rims (if provided), the nose bridge, the rim locks (if provided); and the studs, each of which includes a magnetic material";
"auxiliary frame" should be construed as "the lens rims (if provided); the nose bridge; the extensions; and the first flanges, each of which each includes a magnetic material";
"each extension including a rear end having a first flange extended downward" should be construed as "each extension includes a rear end, a portion of which reaches in a downward direction relative to the remaining portions of the extension and facilitates attachment of the auxiliary frame to the primary frame";
"stud" should be construed as "those portions of each side of the primary frame which include a magnetic material and extend outwardly of the lenses or lens rims (if provided)";
"each stud is extended over by one of the extensions, and can support that extension to prevent the auxiliary frame from moving downward relative to the primary frame" should be construed as "at least some portion of each of the extensions reaches above and across the corresponding stud, and is capable, with or without direct contact, of maintaining the corresponding extension in position so as to keep it from falling, sinking or slipping and thus prevent the auxiliary frame f[ro]m moving downward relative to the primary frame"; and
"the flanges are located behind the studs to further secure the auxiliary frame to the primary frame" should be construed as "the flanges are located behind the studs to further secure the auxiliary frame to the primary frame, either through contact or magnetic attraction between the magnetic materials within the flanges and studs."
Id. at 20. The magistrate judge also recommended that the court adopt the following construction of claim terms agreed to by the parties in their Joint Claim Construction and Prehearing Statement, namely:
"adapted to support" should be construed as "made for the purpose of supporting";
"extension" should be construed as "a portion of the auxiliary frame that extends away from and rearwardly of the sides of the frame";
"support" should be construed as "holds in position";
"supporting" should be construed as "holding in position"; and
"two sides" should be construed as "left-hand and right-hand portions of the respective frame."
*801 Id. at 21.[2]
Plaintiffs filed no objections to the Report and Recommendation. Defendant has objected to the magistrate judge's recommended claim construction of the following disputed claim terms: "each extension [of the auxiliary frame] including a rear end having a first flange extended downward"; "each stud is extended over by one of the extensions, and can support that extension to prevent the auxiliary frame from moving downward relative to the primary frame"; and "the flanges are located behind the studs to further secure the `auxiliary frame to the primary frame." Defendant has filed no objection to the magistrate judge's recommended claim construction of the disputed claim terms "primary frame"; "auxiliary frame"; and "stud." The court now addresses Defendant's objections.
B. Defendant's Objections
1. "each extension including a rear end having a first flange extended downward"
Defendant objects to the magistrate judge's recommended construction of "each extension including a rear end having a first flange extended downward." To review, the magistrate judge recommended that this disputed element be construed as: "each extension includes a rear end, a portion of which reaches in a downward direction relative to the remaining portions of the extension and facilitates attachment of the auxiliary frame to the primary frame." See Report and Recommendation at 20. In recommending this claim construction, the magistrate judge rejected Defendant's argument that "the claim terms are clear enough and need no real construction, especially if it adds extra claim requirements." Id. at 11 (quoting Def. Resp. at 6). The magistrate judge essentially adopted the Plaintiffs' proposed construction of the term with the deletion of what she described as "extraneous language." Id. at 12.[3]
Defendant argues that the magistrate judge's recommended construction "significantly" broadens the "specific structural shape" of flange 23 illustrated in Figure 3 of the patent, because she recommends the use of the word "portion." See Def. Obj. *802 at 16. According to Defendant, "redefining `flange' under the guise of claim construction to mean a `portion' having any shape `which reaches in a downward direction relative to the remaining portions of the extension and facilitates attachment' impermissibly broadens Claim 12." Def. Reply to Pl. Resp. at 9-10. Defendant further objects to the magistrate judge's incorporation of functional language, namely, "facilitates attachment of the auxiliary frame to the primary frame," in her construction. Defendant argues that such use of the functional language is inconsistent with the claim language, since Claim 12 requires the flanges to be located behind the studs "to further secure the auxiliary frame to the primary frame," and such a requirement is different from merely "facilitating attachment" of the frames. Def. Obj. at 16. Based on these arguments, Defendant proposes the following definition: "each extension includes a rear end having a flange which extends in a downward direction relative to the remaining portions of the extension to further secure attachment of the auxiliary frame to the primary frame as required by other elements of the claim." Id. Defendant further states that its preference is to omit the "further secure" language. Id.
In response to Defendant's objections, Plaintiffs contend that the term "portion" used by the magistrate judge in her recommended claim construction "tracks Figure 3" very closely. Pl. Resp. at 7. "As shown in Figure 3, the flange 23 is the portion of the extension 22 located at its rear end; it extends downward relative to the rest of the extension; and it facilitates attachment of the auxiliary frame to the primary frame." Id. Plaintiffs also point out that the elements of Claim 12 are not limited to "specific structural shapes" illustrated in the '747 Patent, since "claim elements cannot be restricted to specific" embodiments disclosed in the patent specification, even if only one embodiment is disclosed." Id. (citations and internal quotations omitted). Plaintiffs also point to the dictionary meaning of "flange" which they submitted to the magistrate judge at the Markman hearing: "[a] protruding rim, edge, rib, or collar, as on a wheel or pipe shaft, used to strengthen an object, hold it in place, or attach it to another object." Id. at 8. According to Plaintiffs, "[b]ecause the '747 patent flange is not specifically `a rim, edge, rib, or collar, as on a wheel or a pipe shaft,' and should not be so limited in the context of claim 12, the more appropriate word to use in the Magistrate's construction was `portion.'" Id.
As to Defendant's objection that the magistrate judge incorporated functional language, namely, "facilitates attachment of the auxiliary frame to the primary frame," Plaintiffs argue that Defendant's "position exalts form over substance," since the words "secure" and "attach" both mean essentially the same thing in this context. Plaintiffs also argue that the magistrate judge's proposed definition of "flange" to include a so-called "functional element" is consistent with its ordinary meaning, a part used "to strengthen an object, hold it in place, or attach it to another object." Id.
Having considered the magistrate judge's findings and conclusions, the parties' legal briefing and applicable law, the court overrules Defendant's objections. The court rejects Defendant's selective argument that "portion" impermissibly broadens the scope of "flange." Defendant is relying on one possible embodiment of the claim. The Federal Circuit has cautioned against this approach to claim construction, "even when a specification describes very specific embodiments of the invention or even describes only a single embodiment, unless the specification *803 makes clear that the patentee intends for the claims and the embodiments in the specification to be strictly coextensive.'" JVW Enterprises, Inc. v. Interact Accessories, Inc., 424 F.3d 1324, 1335 (Fed.Cir. 2005) (citing Phillips, 415 F.3d at 1323); SRI Int'l v. Matsushita Electric Corp, of America, 775 F.2d 1107, 1121 n. 14 (Fed. Cir.1985) (en banc) ("Specifications teach. Claims claim. . . . That a specification describes, only one embodiment does not require that each claim be limited to that one embodiment."). In any event, the term "portion" used by the magistrate judge in her recommended claim construction tracks Figure 3 very closely. As shown in Figure 3, the flange 23 is the portion of the extension 22 located at its rear end; it extends downward relative to the rest of the extension; and it facilitates attachment of the auxiliary frame to the primary frame.
As to Defendant's objection that the magistrate judge's use of the terms "facilitates attachment of the auxiliary frame to the primary frame," the court agrees with Plaintiffs that Defendant's position exalts form over substance. In the context of the patent, the court can conceive no difference between the words "secure" and "attach." Moreover, the functional language is consistent with the claim language itself, which provides that "the flanges are located behind the studs to further secure the auxiliary frame." '747 Patent, Col. 6 lines 15-16. The court agrees with the magistrate judge that in such a situation, the construction recommended by the court properly "gives meaning to all the terms of the claim[.]" Report and Recommendation at 12 (citing Terlep Brinkmann Corp., 418 F.3d 1379, 1384 (Fed.Cir.2005)) (finding that district court's construction of term "clear" as "transparent or having the property of transmitting light without appreciable scattering so that bodies lying beyond are seen clearly" did not impermissibly import a functional limitation, but reflected an appropriate assignment of meaning to the disputed term); see also Hill-Rom Co., Inc. v. Kinetic Concepts, Inc., 209 F.3d 1337, 1341 (Fed.Cir.2000) (finding that district court's construction of the term "cushion" as "a structure that provides basic support and comfort" did not impermissibly import extraneous functional limitations into claim, because the construction was consistent with the ordinary meaning of the term and the abstract and description of the patent, noting that the objective of the cushion was to provide support).
2. "each stud is extended over by one of the extensions, and can support that extension to prevent the auxiliary frame from moving downward relative to the primary frame"
Defendant objects to the magistrate judge's recommended construction of: "each stud is extended over by one of the extensions, and can support that extension to prevent the auxiliary frame from moving downward relative to the primary frame." The magistrate judge noted that the parties' primary dispute concerned whether the court should adopt a construction requiring the primary frame studs to physically contact the extensions in order to provide support for the auxiliary frame. Essentially adopting the Plaintiffs' proposed claim construction, the magistrate judge recommended that this disputed claim element be construed to mean: "at least, some portion of each of the extensions reaches above and across the corresponding stud, and is capable, with or without direct contact, of maintaining the corresponding extension in position so as to keep it from falling, sinking or slipping and thus prevent the auxiliary frame f[ro]m moving downward relative to the *804 primary frame" Report and Recommendation at 20 (emphasis added).
Defendant argues that the magistrate judge's recommended construction is incorrect because: (1) the patent discloses an embodiment in which the extensions directly contact the studs; (2) reading the claim to cover configurations in which the extensions do not directly contact the top surfaces of the studs requires magnetic attraction not disclosed in the patent; and (3) the patent says that engaging contact between the extensions and studs is part of the invention. Def. Obj. at 4-10.
The court overrules Defendant's objections. While the parties appear to agree that the stud can directly contact the extension to provide the claimed support, the dispute concerns whether the claim requirement can be provided by a magnetic support without direct contact between the extension and stud. As argued by Plaintiffs, Patent '747, column 3 lines 4 through 9 of the patent specification discloses that magnetic attraction alone may be used to "solidly secure[ ]" the auxiliary frame to the primary frame. The patent does not state that physical contact between the extension and the upper side of the stud is required for the invention. Moreover, in support of its objection, Defendant points once again to the embodiment of the invention shown in the patent's drawing in the specification, which does show contact. As already stated, the Federal Circuit has cautioned against this approach to claim construction, "even when a specification describes very specific embodiments of the invention or even describes only a single embodiment, unless the specification makes clear that the patentee . . . intends for the claims and the embodiments in the specification to be strictly coextensive.'" JVW Enterprises, 424 F.3d at 1324 (citing Phillips, 415 F.3d at 1323). Moreover, as the magistrate judge correctly noted, "while Defendant points to a drawing that shows contact, Defendant points to nothing else in the specification, or in Claim 12, indicating that contact between the stud and extension is required." Report and Recommendation at 12.
In addition, as Plaintiffs correctly point out, the patent Abstract, a condensed summary of the invention, provides:
An eyeglass combination includes a primary frame having a bridge and two side studs. An auxiliary frame includes a bridge and two side extensions each having a rear flange for engaging with the stud and for allowing the auxiliary frame to be secured to a typical primary frame. The rear flanges each includes a magnet for engaging with another magnet engaged in the studs or for engaging with the studs of magnetic material.
See Ex. 1 to Pl. Resp (cited in Pl. Resp. at 11-12) (Plaintiffs' emphasis).[4] Thus, Defendant's contention that the patent discloses only direct contact is incorrect.
3. "the flanges are located behind the studs to further secure the auxiliary frame to the primary frame"
Defendant objects to the magistrate judge's proposed construction of this element. *805 As set forth above, the magistrate judge recommended that "the flanges are located behind the studs to further secure the auxiliary frame to the primary frame" should be construed as "the flanges are located behind the studs to further secure the auxiliary frame to the primary frame, either through contact or magnetic attraction between the magnetic materials within the flanges and studs." Report and Recommendation at 20. The magistrate judge rejected Defendant's proposed claim construction, namely, that "the flanges are located behind the studs to secure the auxiliary frame to the primary frame in addition to the support provided by the stud and the securing provided by the magnetic force." Under Defendant's proposed construction, the flanges themselves would provide a mechanism for securing the auxiliary frame to the primary frame, which would operate independently of the studs and magnetic materials.
Defendant argues that the magistrate judge's proposed construction is incorrect because: (1) it eliminates the requirement of Claim 12 that flanges "further secure" the auxiliary frame to the primary frame; (2) the patent requires that the flanges contact the studs to "independently" secure the frames together; and (3) the flanges operate independently of the magnetic materials. See Def. Obj. at 11-14.
The court overrules Defendant's objection. According to Defendant, because Claim 12 already requires that the magnetic materials of the flanges and studs engage to secure the auxiliary frame to the primary frame, "it makes no sense to `further secure' the frames by `magnetic attraction between the magnetic materials within the flanges and studs.'" Def. Obj. at 12. The court rejects Defendant's contention that the magistrate judge's recommended construction has the flanges "performing the same function twice." See id. The patent discloses that by locating the downwardly extending flanges behind the studs, the flanges provide a "hook means" to further secure the auxiliary frame to the primary frame. '747 Patent, col. 2 lines 61-65. As Plaintiffs correctly argue, "the element the magistrate construed requires the flanges be 'located behind the studs to further secure the auxiliary frame to the primary frame.'" Resp. at 12 (original emphasis). The requirement that the magnetic materials of the flanges and studs secure the frames together does not speak to the location of the flanges with respect to the studs; the magistrate judge's recommended construction concerns the claim element that does speak to where the flanges are located relative to the studs to facilitate the back-mounting connection. Id. Accordingly, the court rejects Defendant's argument that the magistrate judge's recommended claim construction somehow results in the flanges performing the same function twice.
The court further rejects Defendant's argument as another attempt to read out of the patent the inclusion of magnetic material. The magistrate judge's construction properly reflected her rejection of "Defendant's contention that the mechanism by which the flanges secure the auxiliary frame to the stud of the primary frame is necessarily by contact between the flanges and studs." Report and Recommendation at 19. In support, the magistrate judge noted that Claim 12 indicates that the flanges and studs include magnetic materials, and that it is these magnetic materials, rather than the flanges and studs themselves, that engage to secure the frames. Also, as set forth previously (see supra), the magnets in the flanges and studs may engage through magnetic attraction without actual contact. Once again, Defendant does not point to any *806 language in the claim or specification requiring contact.
IV. Conclusion
For the foregoing reasons, the court overrules Defendant's objections to the magistrate judges Report and Recommendation. The court determines that, the magistrate judge's findings and conclusions are correct. Accordingly, the court accepts them as its own. The court, therefore, construes the claim terms "adapted to support"; "extension"; "support"; "supporting"; and "two sides" in the manner agreed upon by the parties in the November 23, 2005 Joint Claim Construction and Prehearing Statement at 2-3, as follows.
"adapted to support" is construed as "made for the purpose of supporting";
"extension" is construed as "a portion of the' auxiliary frame that extends away from and rearwardly of the sides of the frame";
"support" is construed as "holds in position";
"supporting" is construed as "holding in position"; and
"two sides" is construed as "left-hand and right-hand portions of the respective frame."
The court construes the disputed claim terms of the '747 patent as follows:
"primary frame" is construed as "the lens rims (if provided), the nose bridge, the rim locks (if provided); and the studs, each of which includes a magnetic material";
"auxiliary frame" is construed as "the lens rims (if provided); the nose bridge; the extensions; and the first flanges, each of which each includes a magnetic material";
"each extension including a rear end having a first flange extended downward" is construed as "each extension includes a rear end, a portion of which reaches in a downward direction relative to the remaining portions of the extension and facilitates attachment of the auxiliary frame to the primary frame";
"stud" is construed as "those portions of each side of the primary frame which include a magnetic material and extend outwardly of the lenses or lens rims (if provided)";
"each stud is extended over by one of the extensions, and can support that extension to prevent the auxiliary frame from moving downward relative to the primary frame" is construed as "at least some portion of each of the extensions reaches above and across the corresponding stud, and is capable, with or without direct contact, of maintaining the corresponding extension in position so as to keep it from falling, sinking or slipping and thus prevent the auxiliary frame f[ro]m moving downward relative to the primary frame"; and
"the flanges are located behind the studs to further secure the auxiliary frame to the primary frame" is construed as "the flanges are located behind the studs to further secure the auxiliary frame to the primary frame, either through contact or magnetic attraction between the magnetic materials within the flanges and studs."
It is so ordered.
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE
IRMA CARRILLO RAMIREZ, United States Magistrate Judge.
Pursuant to the District Court's Order of Reference and Order Amending Scheduling *807 Order, filed June 30, 2006, this case has been referred to the undersigned U.S. Magistrate Judge for a claim construction hearing. Before the Court are:
(1) The parties' Joint Claim Construction and Prehearing Statement ("Jt. Claim Constr. State."), filed November 23, 2005;
(2) Plaintiffs Opening Claim Construction Brief ("Open.Br."), filed January 3, 2006;
(3) Opposition Claim Construction Brief for. Defendant E'Lite Optik, Inc. ("Resp."), filed April 24, 2006; and
(4) Plaintiffs Reply Claim Construction Brief ("Reply"), filed May 9, 2006.
The Court conducted a claim construction hearing on July 21, 2006. Based on the filings above, the parties' claim construction presentations, and the law applicable to the issues raised, the Court recommends construction of the disputed claims as set forth below.
I. BACKGROUND
On August 29, 2000, the United States Patent and Trademark Office ("PTO") issued United States Patent No. 6,109,747 ("the '747 Patent"). (Compl. at 2.) The '747 Patent names David Chao as the inventor and Plaintiff Contour Optik, Inc. ("Contour") as the assignee of an invention relating to an eyeglass frame with an auxiliary frame and lenses. Id.; Open. Br. Exh. 1 at 4. Contour granted an exclusive license to the invention to Plaintiff Chic Optic, Inc. ("Chic Optic"), which in turn granted a sublicense to Aspex Eyewear ("Aspex"). (2nd Am. Compl. at 2.) Contour, Chic Optic, and Aspex[1] filed this patent infringement action on September 13, 2000, alleging that Defendant E'Lite Optik, Inc. ("Defendant"), has infringed on the '747 Patent. Id. at 3. E'Lite filed a counterclaim seeking a declaration that it is not infringing the '747 Patent and that the '747 Patent is invalid and unenforceable, as well as other relief. (Ans. to 2nd Am. Compl. at 4-5)
The parties filed a joint claim construction statement on November 23, 2005, seeking construction of six terms. (Docket Entry No. 112.) Contour and Chic Optic (collectively, "Plaintiffs") filed their opening claim construction brief on January 3, 2006. (Docket Entry No. 113.) On February 13, 2006, Defendant's counsel moved to withdraw and for an extension of time to respond to Plaintiffs' opening claim construction brief. (Docket Entry No. 116.) The District Court granted the motion to withdraw, and extended Defendant's deadline to respond. (Docket Entry No. 118.) Defendant subsequently retained new counsel, which filed a response brief on April 24, 2006;[2] Plaintiffs filed their reply on May 9, 2006. (Docket Entries Nos. 121 & 126.) On June 30, 2006, the District Court referred the claim construction matter to this Court, which conducted a hearing on July 21, 2006.
II. CLAIM CONSTRUCTION PRINCIPLES
"[T]he interpretation and construction of patent claims, which define the scope of *808 the patentee's rights under the patent, is a matter of law exclusively for the court." Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed.Cir.1995) (en. banc), aff'd, 517 U.S. 370, 116 S. Ct. 1384, 134 L. Ed. 2d 577 (1996). To ascertain the meaning of claims, the court considers three sources: "the claims, the specification, and the prosecution history." Markman, 52 F.3d at 979 (citations omitted).
"It is a `bedrock principle' of patent law that `the claims of a patent define the invention to which the patentee is entitled the right to exclude.'" Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.Cir.2005) (en banc) (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed.Cir.2004)). Thus, the Court must first "look to the words of the claims themselves, both asserted and nonasserted, to define the scope of the patented invention." Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996) (citing Bell Commc'ns. Research, Inc. v. Vitalink Commc'ns. Corp., 55 F.3d 615, 620 (Fed.Cir.1995)). "[T]he words of a claim `are generally given their ordinary and customary meaning.'" Phillips, 415 F.3d at 1312-1313 (quoting Vitronics, 90 F.3d at 1582; citing Toro Co. v. White Consol. Indus., Inc., 199 F.3d 1295, 1299 (Fed.Cir.1999); Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1249 (Fed.Cir.1998)). "[T]he ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application." Phillips, 415 F.3d at 1313 (citing Innova, 381 F.3d at 1116; Home Diagnostics, Inc. v. LifeScan, Inc., 381 F.3d 1352, 1358 (Fed.Cir.2004); Ferguson Beauregard/Logic Controls v. Mega Sys., LLC, 350 F.3d 1327, 1338 (Fed.Cir. 2003); PC Connector Solutions LLC v. SmartDisk Corp., 406 F.3d 1359, 1363 (Fed.Cir.2005); Schering Corp. v. Amgen Inc., 222 F.3d 1347, 1353 (Fed.Cir.2000)).
"Other claims of the patent in question, both asserted and unasserted, can also be valuable sources of enlightenment as to the meaning of a claim term." Phillips, 415 F.3d at 1314 (citing Vitronics, 90 F.3d at 1582). "Because claim terms are normally used consistently throughout the patent, the usage of a term in one claim can often illuminate the meaning of the same term in other claims." Phillips, 415 F.3d at 1314 (citing Rexnord Corp. v. Laitram Corp., 274 F.3d 1336, 1342 (Fed.Cir.2001); CVI/Beta Ventures, Inc. v. Tura LP, 112 F.3d 1146, 1159 (Fed.Cir.1997)). "Differences among claims can also be a useful guide in understanding the meaning of particular claim terms." Phillips, 415 F.3d at 1314 (citing Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1538 (Fed.Cir.1991)). In particular, "the presence of a dependent claim that adds a particular limitation gives rise to a presumption that the limitation in question is not present in the independent claim." Phillips, 415 F.3d at 1314-15 (citing Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 910 (Fed.Cir.2004)).
Next, because the claims do not stand alone but `are part of a fully integrated written instrument comprised primarily of the specification, the Court must review that specification in construing claim terms. Phillips, 415 F.3d at 1315 (citing Markman, 52 F.3d at 978-79). By statute, the specification must describe the claimed invention in "full, clear, concise, and exact terms" so as to enable those of ordinary skill to make and use that invention. 35 U.S.C. § 112, ¶ 2; Phillips, 415 F.3d at 1316. Thus, "the specification `is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.'" Phillips, 415 F.3d at 1315 (quoting Vitronics, 90 F.3d at 1582). *809 However, limitations should not be imported from the specification. Phillips, 415 F.3d at 1324-25.
Third, when the patent's prosecution history is in evidence, the Court should consider that history in construing claim language. Markman, 52 F.3d at 980 (citing Graham v. John Deere Co., 383 U.S. 1, 33, 86 S. Ct. 684, 15 L. Ed. 2d 545 (1966)). The prosecution history, which the Federal Circuit has designated as intrinsic evidence, consists of the complete record of the proceedings before the PTO, as well as the prior art cited during the examination of the patent. Phillips, 415 F.3d at 1317 (citing Autogiro, 384 F.2d at 399.) "The prosecution history can often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim scope narrower then it would otherwise be." Phillips, 415 F.3d at 1317. However, "because the prosecution history represents an ongoing negotiation between the PTO and the applicant, rather than the final product of that negotiation, it often lacks the clarity of the specification and thus is less useful for claim construction purposes." Id. (citing Inverness Med. Switz. GmbH v. Warner Lambert Co., 309 F.3d 1373, 1380-82 (Fed.Cir.2002); Athletic Alternatives, Inc. v. Prince Mfg., Inc., 73 F.3d 1573, 1580 (Fed.Cir.1996)).
In addition to intrinsic evidence, the Court may under certain circumstances turn to extrinsic evidence in construing claim terms. "Extrinsic evidence consists of all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises." Markman, 52 F.3d at 980. "While extrinsic evidence can shed useful light on the relevant art . . . it is less significant than the intrinsic record in determining the legally operative meaning of claim language." Phillips, 415 F.3d at 1317 (internal quotations omitted) (citing C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862 (Fed.Cir.2004) (quoting Vanderlande Indus. Nederland BV v. Int'l Trade Comm'n, 366 F.3d 1311, 1318 (Fed. Cir.2004)); Astrazeneca AB v. Mutual Pharm. Co., 384 F.3d 1333, 1337 (Fed.Cir. 2004)). Extrinsic evidence is less significant than intrinsic evidence because it is less reliable, for a number of reasons. Phillips, 415 F.3d at 1318. For example, "extrinsic evidence by definition is not part of the patent and does not have the specification's virtue of being created at the time of patent prosecution for the purpose of explaining the patent's scope and meaning." Id. Despite this and other drawbacks of relying on extrinsic evidence, it "can help educate the court regarding the field of the invention and can help the court determine what a person of ordinary skill in the art would understand claim terms to mean[.]" Id. at 1319. Thus, the Federal Circuit in Phillips directs courts exercising their discretion to admit and use extrinsic evidence to "keep in mind the flaws inherent in each type of evidence [bearing on claim construction] and assess that evidence accordingly." Id.
The Phillips decision does not preclude district courts from using dictionaries appropriately as a means to better understand the underlying technology or assist in understanding the commonly understood meaning of terms. Id. at 1322. However, Phillips cautions that courts must be careful to consider dictionary definitions within the context of the patent itself. Id. at 1319-22.
With these principles of claim construction in mind, the Court now turns to the disputed claim terms.
II. ANALYSIS
Claim 12 of the '747 patent, with the terms at issue underlined, reads as follows:
*810 A primary frame adapted to support an auxiliary frame, which includes a first bridge and two sides, each side having an extension and each extension including a rear end having a first flange extended downward, each flange, itself not being a magnet, including a magnetic material, the primary frame comprising:
a second bridge; and
two sides, each having a stud, each stud including a magnetic material; wherein when the primary frame is supporting the auxiliary frame,
each magnetic material of the primary frame magnetically engages in a lateral manner with one of the magnetic materials of the auxiliary frame for securing said auxiliary frame to said primary frame;
each stud is extended over by one of the extensions, and can support that extension to prevent the auxiliary frame from `moving downward relative to the primary frame; and
the flanges are located behind the studs to further secure the auxiliary frame to the primary frame, and to reduce the likelihood of the auxiliary frame from being disengaged from the primary frame if the auxiliary frame is being pulled forward relative to the primary frame.
('747 Patent, Open. Br. Ex. 1 at Col. 5, Ins. 38-43; Col. 6, lns. 1-19.) The parties' arguments with respect to each of the disputed terms are addressed below.
A. Primary Frame
Plaintiffs propose a construction of the term "primary frame" as "the entirety of the primary eyeglass frame with the exception of the lenses, the plastic nose pieces (which touch the upper sides of the wearer's nose), and the leg means (known in the art as `temple pieces') which extend back over the wearer's ears. [T]he primary frame includes the lens rims (if provided), the nose bridge, the rim locks (if provided), and the studs, each of which includes a magnetic material." (Open. Br. at 8-9.) Plaintiffs assert that "it is beyond dispute that most commercial eyewear frames include lens rims and rim locks to secure the rims around the lenses[ ]" and that including those terms provides a clear, precise construction of primary frame. (Reply at 2.) Plaintiffs further argue that the use of the term "primary frame" in the preamble serves as an antecedent basis for the term's uses throughout the body of Claim 12, and that construction of the term is therefore appropriate.[3]Id.
*811 Defendant argues that "because the body of Claim 12 defines a `primary frame' having specific features, the claim language itself defines what is or is not part of the primary frame, and it is improper to construe this preamble use of `primary frame' in detail[.]" (Resp. at 2.) Defendant also argues that the term need not be construed, but in the event that the Court determines that construction is needed, proposes that "primary frame" be construed as "the primary eyeglass frame" or "an eyeglass frame[.]" (Resp at 3; Jt. Claim Constr. State. Exh. B at 1.) In addition, Defendant argues that because the terms "lens rims" and "rim locks" are not used in the patent, they should not be incorporated into the construction of the term. Id.
Prior to deciding on an appropriate construction of a term in the preamble, the Court must first decide whether construction of that term is warranted. "In general, a preamble limits the invention if it recites essential structure or steps, or if it is `necessary to give life, meaning, and vitality' to the claim." Catalina Mktg., 289 F.3d at 808 (citing Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed.Cir.1999)). "Conversely, a preamble is not limiting `where a patentee defines a structurally complete invention in the claim body and uses the preamble only to state a purpose or intended use for the invention." Catalina Mktg., 289 F.3d at 808 (citing Rowe v. Dror, 112 F.3d 473, 478 (Fed.Cir.1997)). While "No litmus test defines when a preamble limits claim scope[,][s]ome guideposts . . . have emerged from various cases discussing the preamble's effect on claim scope." Catalina Mktg., 289 F.3d at 808 (citing Corning Glass, 868 F.2d at 1257). For example, "dependence on a particular disputed preamble phrase for antecedent basis may limit claim scope because it indicates a reliance on both the preamble and claim body to define the claimed invention." Catalina Mktg., 289 F.3d at 808 (citing Bell Commcn's Research, Inc. v. Vitalink Commcn's Corp., 55 F.3d 615, 620 (Fed.Cir.1995)).
As Plaintiffs argue, the scope of Claim 12 depends for antecedent basis on the term "primary frame." The preamble makes clear that Claim 12 addresses a primary frame designed to be able to have an auxiliary frame secured thereto. The Court therefore rejects Defendant's argument that construction of the term primary frame is improper. Moreover, Defendant's reliance on the following passage of Bristol-Myers Squibb Co. v. Ben Venue Labs., Inc., 246 F.3d 1368, 1373-74 (Fed. Cir.2001) (citations omitted), is misplaced:
If the body of the claim sets out the complete invention, and the preamble is not necessary to give life, meaning and vitality to the claim, then the preamble is of no significance to claim construction because it cannot be said to constitute or explain a claim limitation.
(Resp. at 2-3.) The passage cited indicates that a court should not construe a term in the preamble unless it is "necessary to give life, meaning and vitality to the claim[ ]". The passage does not support the proposition that in such an event, the term should be construed only on a limited basis. This is the proposition Defendant appears to suggest both by its argument and by its proposal of a construction of the term primary frame as "the primary eyeglass frame" or "an eye-glass *812 frame[.]" Id. at 3; Jt. Claim Constr. State. Exh. B at 1.
In sum, the Court finds that construction of the term "primary frame" is proper, and that the term should be construed as "the lens rims (if provided), the nose bridge, the rim locks (if provided); and the studs, each of which includes a magnetic material." Construing this term in this manner provides clarity with respect to the elements of a disputed term. The claim language itself makes clear that the nose bridge and studs are components of the primary frame. (Open. Br. Exh. 1 at Col. 6, lns. 1-2.) In addition, the Court finds compelling Plaintiffs' argument that the lens rims and rim locks, if provided, are understood by persons of ordinary skill in the art to be included as part of the primary frame, and nothing in the intrinsic evidence suggests that such elements should be excluded.
B. Auxiliary Frame
Plaintiffs propose a construction of the term "auxiliary frame" as "the entirety of the auxiliary frame with the exception of the lenses. The [auxiliary] frame includes the lens rims (if provided); the nose bridge; the extensions; and the first flanges, each of which each includes a magnetic material." (Open. Br. at 9.) In support, Plaintiffs cite the specification and the drawings therein. Id. at 9-10.
Defendant argues that Plaintiffs unnecessarily attempt to add features to the auxiliary frame, and proposes that the Court either avoid construction altogether, or that the Court construe the term as "the auxiliary eyeglass frame" or as "the auxiliary frame includes the first bridge, two sides each having an extension [sic]."[4] (Resp. Br. at 3-4.)
The Court finds that "auxiliary frame" should be construed as "the lens rims (if provided); the nose bridge; the extensions; and the first flanges, each of which each includes a magnetic material." As the Court found with respect to the term "primary frame," a simple, straightforward construction of the term "auxiliary frame" clarifies the meaning of a disputed term. The claim language itself makes clear that the auxiliary frame includes a bridge and two sides, and that each side includes an extension with a flange, and further, that the flange contains a magnetic material.[5] (Open. Br. Exh. 1, Col 5, Ins. 38-42.) Including the lens rims appropriately aligns the construction of "auxiliary frames" with the construction of "primary frame."
C. Each Extension Including a Rear End Having a First Flange Extended Downward
Plaintiffs propose a construction of the term "each extension including a rear end having a first flange extended downward" as "each extension includes a rear end having a portion of the extension which protrudes from the rear end thereof and facilitates attachment of the auxiliary frame to the primary frame and where such portion of the extension reaches in a *813 downward direction relative to the remaining portions of the extension." (Open. Br. at 10.)
Defendant argues that "the claim terms are clear enough and need no real construction, especially if it adds extra claim requirements."[6] (Resp. at 6.) In particular, Defendant argues that Plaintiffs' proposed construction unnecessarily alters a term that is understandable in the context of the claim language, and inappropriately seeks to add a functional limitation to the term flange. (Resp. at 7-8.)
The Court finds that the term "each extension including a rear end having a first flange extended downward" should be construed as "each extension includes a rear end, a portion of which reaches in a downward direction relative to the remaining portions of the extension and facilitates attachment of the auxiliary frame to the primary frame." This construction essentially adopts the Plaintiffs' proposal in two respects. First, this construction explains the term flange. Rather than using Plaintiffs' proposed explanatory language, however, the Court's construction eliminates extraneous language which appears to confuse rather than clarify what is essentially an uncomplicated term that contains a somewhat uncommon word.
Second, the Court's construction also incorporates the part of Plaintiffs' proposed construction providing that the flange portion of the extension facilitates attachment of the primary and auxiliary frames. Notwithstanding the Defendant's argument otherwise, the proposed functional limitation here is consistent with the claim language itself, which provides that "the flanges are located behind the studs to further secure the auxiliary frame." (Open. Br. Exh. 1, Col 6, Ins. 15-16.) In such a situation, the construction recommended by the Court properly "gives meaning to all the terms of the claim[.]" See Terlep v. Brinkmann Corp., 418 F.3d 1379, 1384 (Fed.Cir.2005) (finding that district court's construction of term "clear" as "transparent or having the property of transmitting light without appreciable scattering so that bodies lying beyond are seen clearly" did not impermissibly import a functional limitation, but reflected an appropriate assignment of meaning to the disputed term) (citing Merck & Co. v. Teva Pharms. USA, Inc., 395 F.3d 1364, 1372 (Fed.Cir.2005)); Hill-Rom Co., Inc. v. Kinetic Concepts, Inc., 209 F.3d 1337, 1341 (Fed.Cir.2000) (finding that district court's construction of the term "cushion" as "a structure that provides basic support and comfort" did not impermissibly import extraneous functional limitations into claim, because the construction was consistent with the ordinary meaning of the term and the abstract and description of the patent, noting that the objective of the cushion was to provide support) (citations omitted). Thus, the phrase "facilitates attachment of the auxiliary frame to the primary frame" is appropriately incorporated into the construction of the term "each extension including a rear end having a first flange extended downward."
D. Stud
Plaintiffs propose a construction of the term "stud" as "those portions of each side of the primary frame which include a magnetic material and extend outwardly and rearwardly of the lenses or lens rims (if provided). The studs pivotally connect to the leg or `temple' pieces." (Open. Br. at 11.)
*814 Defendant argues that no construction is needed, but asserts that in the event that the Court decides to construe the term "stud," it should be construed "to mean a projection. The projection may extend outwardly from the side of the primary frame."[7] (Resp. at 8.) Defendant argues that the term stud should not be construed as extending rearward because the drafter in other instances in the patent described a part as extending rearward, and that because he did not so describe the stud in that manner, the Court should not read such an addition into the claim. (Resp. at 9.) Also, Defendant argues that the Court should not read the term "lens rim" into the patent, because the patent mentions no such feature.[8] (Resp. at 9.)
The Court finds that the term "stud" should be construed as "those portions of each side of the primary frame which include a magnetic material and extend outwardly of the lenses or lens rims (if provided)." Such a construction is consistent with the language of Claim 12 itself, which addresses a primary frame designed to support an auxiliary frame with extensions that reach over the side of the primary frame parallel to the lenses or, if present, lens rims. Also, the claim language, which provides that each side of the primary frame has a stud, with "each stud including a magnetic material" indicates clearly that the studs include magnetic material. (Open. Br. Exh. 1 at Col. 6, ins. 2-3.)
The Court rejects two features of Plaintiffs' proposed construction. One is Plaintiffs' proposal to construe the studs as extending rearward. Plaintiffs point out that the drawings in the specifications show studs that extend rearward.[9] (Reply at 6.) However, Plaintiffs cite no written portion of the specification, or any other intrinsic evidence, indicating that the studs extend rearward. The context of the claim language itself provides no support for construing the stud as extending rearward, as the claim language addresses support of the auxiliary frame with extensions reaching over only the side of the primary frame. The Court's construction does not exclude the possibility that the studs extend rearwardly. Rather, the Court's construction simply reflects a finding that nothing other than the illustration in the specification would so indicate, and that the illustration is insufficient here to merit inclusion of the rearward extension phrase. See Advanced Cardiovascular Sys., Inc. v. Scimed, 261 F.3d 1329, 1339 (Fed.Cir.2001) (finding that because nothing in the specification assigned significance to an element *815 of the drawings, the proposed limitation related to that limitation would not be imported into the claim construction) (citing Kraft Foods, Inc. v. Int'l Trading Co., 203 F.3d 1362, 1367-69 (Fed.Cir.2000); Toro Co. v. White Consol. Indus, Inc., 199 F.3d 1295, 1300-02 (Fed.Cir,1999); Wang Labs., Inc. v. Am. Online, Inc., 197 F.3d 1377, 1382-83 (Fed.Cir.1999)).
The Court also rejects Plaintiffs' proposal to add to the construction of "stud" the sentence "[t]he studs pivotally connect to the, leg or `temple' pieces." Plaintiffs argue that "it cannot be disputed that most commercial eyewear includes] temple pieces pivotally connected to the frame that fit[s] over the wearer's ears to secure the eyewear to the wearer's head." (Reply at 7.) Plaintiffs further argue that such temple pieces are described in prior art referenced in the '747 Patent's specification, and that "[p]rior art references discussed in a patent may be considered in claim construction since they may be indicative of what those skilled in the art believe a certain term means." (Reply at 7.) The case they cite for this proposition, In re Cortright, 165 F.3d 1353 (Fed.Cir.1999) addresses a patent seeker's appeal of the Patent and Trade Office's denial of a patent, and not the issue of claim construction as in the instant context. However, the cited portion of In re Cortright does refer to Vitronics Corp. v. Conceptronic, Inc., which `addresses the use of prior art in claim construction by the district court, and provides that:
[A] court in its discretion may admit and rely on prior art proffered by one of the parties, whether or not cited in the specification or the file history. This prior art can often help to demonstrate how a disputed term is used by those skilled in the art . . . Once again, however, reliance on, such evidence is unnecessary, and indeed improper, when the disputed terms can be understood from a careful reading of the public record. See Kearns v. Chrysler Corp., 32 F.3d 1541, 1547 (Fed.Cir.1994). Nor may it be used to vary claim terms from how they are defined, even implicitly, in the specification or file history.
90 F.3d at 1584-85. Here, Plaintiffs have not proffered evidence of the '207 Patent; thus, the Court need not consider whether to admit and rely upon that prior art. Moreover, the intrinsic evidence here supports a construction of stud that does not include temple pieces, and there is nothing in the intrinsic evidence to indicate that including the temple pieces in the construction of stud is appropriate. While Plaintiffs assert that commercial eyewear includes temple pieces pivotally connected to the frame, the Court finds no reason to include the sentence "Wile studs pivotally connect to the leg or `temple' pieces[ ]" in the construction of the term "stud."
E. Contact Between Primary and Auxiliary Frames
Plaintiffs and Defendant dispute whether contact is required between the studs of the primary frame and the extensions and flanges of the auxiliary frame.
1. Each Stud is Extended Over by One of the Extensions, and Can Support That Extension to Prevent the Auxiliary Frame from Moving Downward Relative to the Primary Frame
Plaintiffs propose a construction of the term "each stud is extended over by one of the extensions, and can support that extension to prevent the auxiliary frame from moving downward relative to the primary frame" as "at least some portion of each of the extensions reaches above, and across the corresponding stud, and is capable, with or without direct contact, of maintaining the corresponding extension in position *816 so as to keep it from falling, sinking or slipping and thus prevent the auxiliary frame f[ro]m moving downward relative to the primary frame." (Open. Br. at 12.) Defendant argues that the only way that the stud can support the extension is through contact.[10] (Tr. at 24, Ins. 2-3.) Thus, with respect to this term, the parties primarily dispute whether the Court must adopt a construction requiring that the primary frame studs contact the extensions in order to provide support for the auxiliary frame. (Resp. at 11.)
The Court finds that at the claim construction hearing, Plaintiffs presented compelling arguments to support their assertion that the stud and extension need not have contact. Counsel pointed out that "[i]f you put two magnets close enough there's an attraction and they engage. And anybody skilled in the art would would tell you that. It's not just physical touching, it's magnetic attraction." (Tr. at 45, ins. 20-23.) Counsel further explained that "if the magnetic materials don't touch each other but have sufficient magnetic attraction to hold, you need the support, you need 22 to sit on 12 [referencing labeled parts of invention's drawings in the specification]. But if the magnets touch each other and there's support, that way you don't need 22 to sit on 12." (Tr. at 46, Ins 2-6.) Based on this explanation, the Court finds that nothing in the specification or claim language supports a finding that contact between the stud and the extension is required for engagement between those two pieces to occur.
Defendant argues that "[t]he specification shows that the studs contact and support the extensions to prevent downward movement, and thus the claims, require this contact and support[.]" (Resp. at 11.) To support this assertion, Defendant cites the following statement from Phillips: "[t]he construction that stays true to the claim language and most naturally aligns with the patent's description of the invention will be, in the end, the correct construction." (Resp. at 11, citing Phillips, 415 F.3d at 1316.) Defendant's reliance on this passage is misplaced, as Defendant points to nothing in the claim language requiring contact, and the passage does not dictate that the Court adopt a construction that precisely reflects the embodiment of the invention shown in the patent's drawing in the specification. In fact, case law clearly establishes that the Court need not do so. See Teleflex Inc. v. Ficosa N. America Corp., 299 F.3d 1313, 1325-28 (Fed.Cir.2002) (holding that "embodiments disclosed in the specification [are] not determinative of the meaning of disputed claim terms.") (citations omitted). Here, while Defendant points to a drawing that shows contact, Defendant points to nothing else in the specification, or in Claim 12, indicating that contact between the stud and extension is required.
Accordingly, the Court finds that the term "each stud is extended over by one of the extensions, and can support that extension to prevent the auxiliary frame from moving downward relative to the primary frame" should not be construed to include a touching requirement. The Court further finds that Plaintiffs' proposed construction includes explanatory language consistent with the claim language. Thus, the Court finds that the term should be construed as proposed by Plaintiffs: "at least some portion of each of the extensions reaches above and across the corresponding, *817 stud, and is capable, with or without direct contact, of maintaining the corresponding extension in position so as to keep it from falling, sinking or slipping and thus prevent the auxiliary frame f[ro]m moving downward relative to the primary frame."
2. The Flanges are Located Behind the Studs to Further Secure the Auxiliary Frame to the Primary Frame
Plaintiffs propose a construction of the term "the flanges are located behind the studs to further secure the auxiliary frame to the primary frame" as "the flanges are located behind the studs to further fasten the auxiliary frame to the primary frame." (Open. Br. at 12.) Defendant does not propose a specific construction, but states that it:
favors the plain reading of the claim language which requires the flanges to actually "further secure" the frames together, and [Defendant] would make this clear by construing the term with explanatory language on the additional securing achieved by the magnets and studs.
(Resp. at 20.)[11] This additional securing, Defendant argues, must take place through contact between the flanges and the studs that is independent of attraction between the magnetic materials included therein. (Resp. at 21.) As framed by Defendant, the central dispute with respect to this term is "whether the flanges secure the frames together by engaging or contacting the studs, or whether the flanges merely include magnetic material so a previously claimed magnetic coupling can secure the parts together." Id. at 19.
The Court finds that the term "the flanges are located behind the studs to further secure the auxiliary frame to the primary frame" should be construed as "the flanges are located behind the studs to further secure the auxiliary frame to the primary frame, either through contact or magnetic attraction between the magnetic materials within the flanges and studs." In the context of this claim term, the substitution of the term "fasten" for "secure," as suggested by Plaintiffs, does not provide any additional clarity to the term; rather the additional explanatory language added by the Court resolves the dispute over the term's meaning. This construction also reflects the Court's rejection of Defendant's contention that the mechanism by which the flanges secure the auxiliary frame to the studs of the primary frame is necessarily by contact between the flanges and studs. Plaintiffs point out that Claim 12 indicates that the flanges and studs include magnetic materials, and that it is these magnetic materials rather than the flanges and studs themselves that engage to secure the frames. (Tr. at 30, Ins. 4-6.) Furthermore, as discussed above, the magnets in the flanges and studs may engage through magnetic attraction without actual contact. In addition, Defendant does not point to any language in the claim or specification requiring contact. Accordingly, the Court finds that the term "the flanges are located behind the studs to further secure the auxiliary frame to the primary frame" does not need to be construed to require contact between the flanges and the studs.
V. CONCLUSION
For the foregoing reasons, the Court recommends that the following disputed *818 terms of the "747 patent be construed as follows:
(1) The term "primary frame" should be construed as "the lens rims (if provided), the nose bridge, the rim locks (if provided); and the studs, each of which includes a magnetic material."
(2) The term "auxiliary frame" should be construed as "the lens rims (if provided); the nose bridge; the extensions; and the first flanges, each of which each includes a magnetic material."
(3) The term "each extension including a rear end having a first flange extended downward" should be construed as "each extension includes a rear end, a portion of which reaches in a downward direction relative to the remaining portions of the extension and facilitates attachment of the auxiliary frame to the primary frame."
(4) The term "stud" should be construed as "those portions of each side of the primary frame which include a magnetic material and extend outwardly of the lenses or lens rims (if provided)."
(5) The term "each stud is extended over by one of the extensions, and can support that extension to prevent the auxiliary frame from moving downward relative to the primary frame" should be construed as "at least some portion of each of the extensions reaches above and across the corresponding stud, and is capable, with or without direct contact, of maintaining the corresponding extension in position so as to keep it from falling, sinking or slipping and thus prevent the auxiliary frame f[ro]m moving downward relative to the primary frame."
(6) The term "the flanges are located behind the studs to further secure the auxiliary frame to the primary frame" should be construed as "the flanges are located behind the studs to further secure the auxiliary frame to the primary frame, either through contact or magnetic attraction between the magnetic materials within the flanges and studs."
In addition, the Court recommends that the following terms be construed as requested by the parties and as set forth below:
(1) The term "adapted to support" should be construed as "made for the purpose of supporting."
(2) The term "extension" should be construed as "a portion of the auxiliary frame that extends away from and rearwardly of the sides of the frame."
(3) The term "support" should be construed as "holds in position."
(4) The term "supporting" should be construed as "holding in position."
(5) The term "two sides" should be construed as "left-hand and right-hand portions of the respective frame."
SO RECOMMENDED.
NOTES
[1] Pursuant to an order dated August 26, 2003, the court dismissed Plaintiff Aspex Eyewear for lack of standing.
[2] Plaintiffs had urged the magistrate judge to follow the claim construction in a district court opinion that previously construed the disputed terms in Claim 12 of the '747 Patent at issue in this case. See Report and Recommendation at 7 n. 2 (citing Aspex Eyewear, Inc. v. Miracle Optics, Inc., 2003 WL 24188188, 2003 U.S. Dist. LEXIS 26355 (C.D.Cal.2003)). The magistrate judge "decline[d] to rely on those findings for this proposed construction as well as the other relevant constructions" for several reasons. First, she stated that "while similar claim terms were in dispute, the disputes among the parties over construction of those terms varied with respect to some of the terms." Second, she noted that while the Miracle Optics opinion provides reasons for rejecting the defendant's proposed construction in that case, it provided no reasons why the plaintiffs' proposed construction was correct. Finally, she stated that there is no requirement that the court defer to the Miracle Optiks opinion. Id. (citing Aspex Eyewear v. Altair Eyewear, Inc., 386 F. Supp. 2d 526, 535-36 (S.D.N.Y.2005) (declining to defer to claim construction findings, including those in Miracle Optiks, based in part on its finding that it is the responsibility of the Federal Circuit, rather than individual district courts, to ensure uniformity in claim construction.)).
[3] Plaintiffs recommended the following definition: "each extension including a rear end having a first flange extended downward" as "each extension includes a rear end having a portion of the extension which protrudes from the rear end thereof and facilitates attachment of the auxiliary frame to the primary frame and where such portion of the extension reaches in a downward direction relative to the remaining portions of the extension." See Def. Open. Br. at 10.
[4] The court rejects Defendant's argument that the magistrate judge relied only on the oral argument of Plaintiffs' counsel at the claim construction hearing to find that physical contact between the extension and the studs was not required. While the magistrate judge did make note in her Report and Recommendation that she found "compelling" Plaintiffs' arguments to support their assertion that the stud and extension need not have contact (see Report and Recommendation at 16), her Report and Recommendation makes clear that she considered the parties' written submission, including the patent, joint claim construction statement and parties' briefs. See id. at 1, 17.
[1] Aspex Eyewear was dismissed as a plaintiff for lack of standing pursuant to the District Court's order on E'Lite's motion to dismiss, issued August 26, 2003. (See Docket Entry No. 106.)
[2] Defendant's response to Plaintiffs' opening claim construction brief suggests generally that little or no construction of four of those terms is necessary, and at the claim construction hearing Defendant's counsel affirmed that its position is that only two terms require construction. However, the Court nonetheless addresses the arguments in Defendant's response, and notes the proposed constructions from the Joint Claim Construction Statement with respect to all disputed terms.
[3] Plaintiffs also cite as support for this proposed construction an opinion, Aspex Eyewear, Inc. v. Miracle Optics, Inc., 2003 U.S. Dist. LEXIS 26355 (C.D.C.A.2003), that previously construed the disputed terms in Claim 12 of the '747 Patent at issue here. The Court declines to rely on those findings for this proposed construction as well as the other relevant constructions for several reasons. First, while similar claim terms were in dispute in that case, the disputes among the parties over the construction of those terms Varied with respect to some of those, terms. Further, although the Miracle Optics opinion provides reasons for rejecting the defendant's Proposed instructions, it provides no explanation for why plaintiffs' proposed constructions, which the district court for the most part adopted, are correct. Only in its order on plaintiffs' motion for reconsideration of that opinion did that district court provide a detailed explanation for the revised construction of the term "each stud is extended over by one of the extensions, and can support that extension to prevent the auxiliary frame from moving downward relative to the primary frame." (See Open. Br. Exh. 3.) Finally, there is no requirement that the Court defer to the Miracle Optics opinion. See Aspex Eyewear, Inc. v. Altair Eyewear, Inc., 386 F. Supp. 2d 526, 535-36 (S.D.N.Y.2005) (declining to defer to claim construction findings, including those of the Miracle Optics court, based in part on its finding that it is the responsibility of the Federal Circuit rather than individual district courts to ensure uniformity in claim construction) (citing Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1455 (Fed.Cir.1998)). Accordingly, the Court respectfully declines to do so.
[4] In the Joint Construction Statement, Defendant proposed that "auxiliary frame" be construed as "a frame which can be attached to the primary frame." (Jt. Claim Constr. State. Exh. B at 1.)
[5] Defendant argues that Plaintiffs "construe[ 'auxiliary frame' to require that all of its various parts (bridge, extensions, flanges) must all be made of magnetic material, even though Claim 12 simply says the auxiliary frame `includes' magnetic material at several spots (e.g., flanges) rather than requiring that all of it be of a magnetic material." (Resp. at 4.) However, as Plaintiffs point out, their proposed construction describes only the flanges as including magnetic material, and not the rims, bridge, or extensions. (Reply at 2.)
[6] In the Joint Claim Construction Statement, Defendant proposed the following construction: "each extension including a flange extending downward from the end of the extension furthest from the frame." (Jt. Claim Constr. State. Exh. B at 1.)
[7] In the Joint Claim Construction Statement, Defendant proposed a construction of the term "stud" as "an outwardly extending projection." (Jt. Claim Constr. State. Exh. B at 1.)
[8] Defendant also argues that Plaintiffs inappropriately "define the stud as only the portions including magnetic material[,] because Claim 12 does not require that the whole stud be made of magnetic material". (Resp. at 9.) This argument reflects an apparent misreading of Plaintiffs' proposed construction, which in the Court's view does not require that the entire stud be made of magnetic material, but simply that it include a magnetic material.
[9] Plaintiffs assert without elaboration that construing "stud" to include a rearwardly extending portion is not only consistent with the patent drawings, but also with "the technological functionality of the claimed invention." (Reply at 6.) The nature of Plaintiffs' argument is not clear. To the extent that Plaintiffs are arguing that a failure to construe the studs as extending rearward would render the claim invalid as nonfunctional, the Court notes that the Federal Circuit "has not endorsed a regime in which validity analysis is a regular component of claim construction." Phillips, 415 F.3d at 1327. In the instant case, where Plaintiffs make a passing and unclear reference to functionality, the Court declines to consider such an argument.
[10] In the Joint Claim Construction Statement, Defendant proposed the following construction: "each extension extends over a stud that supports the extension and prevents the auxiliary frame from moving downward relative to the primary frame." (Jt. Claim Constr. State. Exh. B at 1.)
[11] In the Joint Claim Construction Statement, Defendant proposed the following construction: "the flanges are located behind the studs to secure the auxiliary frame to the primary frame in addition to the support provided by the stud and the securing provided by the magnetic force." (Jt. Claim Constr. State. Exh. B at 1.)
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1803186/
|
368 F. Supp. 1301 (1974)
UNITED STATES of America, Plaintiff,
v.
295.90 ACRES OF LAND, MORE OR LESS, IN the COUNTY OF LEE, STATE OF FLORIDA, and Carl A. Norberg, et al., Defendants.
No. 71-12-Civ-FtM-H.
United States District Court, M. D. Florida, Fort Myers Division.
January 3, 1974.
*1302 Ronald H. Watson, Asst. U. S. Atty., Tampa, Fla., for plaintiff.
Morris E. White, of Fowler, White, Gillen, Humkey, Kinney & Boggs, James B. McDonough, Jr., of Macfarlane, Ferguson, Allison & Kelly, Leslie Scharf, of Trenam, Simmons, Kemker, Scharf & Barkin, Tampa, Fla., for defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
HODGES, District Judge.
This is an eminent domain proceeding instituted by the Government to acquire certain lands on Sanibel Island, Lee County, Florida, to be used as a part of the J. N. "Ding" Darling National Wildlife Refuge.
Portions of the lands being condemned were designated in the Government's Complaint and Declaration of Taking as Tracts 25 and 25-I. These are contiguous parcels comprising, in the aggregate, approximately 33.41 acres. Various parties were identified as owners or potential claimants to those Tracts, and all appeared and filed their claims or answers.[1]
On July 21, 1972, the Government filed a Motion For Title Hearing in advance of the jury trial. Following a study of the motion and the positions of the respective parties, Judge Krentzman entered an order on January 10, 1973, finding that a genuine issue existed concerning the status of title to Tracts 25 and 25-I, and that such issue should be resolved by conducting an evidentiary title hearing prior to the jury trial to be held on the issue of just compensation. Accordingly, the hearing was scheduled before the undersigned in Fort Myers on April 16 and 17, 1973. Each side presented witnesses and documentary evidence, as well as post-hearing briefs; and the Court has since enjoyed the benefit of argument by counsel at a subsequent hearing conducted on December 18, 1973.
Stated as succinctly as possible, the issue presented is whether the Government already owned a major portion of the subject lands prior to the institution of this suit.
Originally, of course, title to most of Florida, including the subject property in particular, was ceded to the United States by virtue of the treaty with Spain in 1821 (8 Stat. 252). See, State ex rel. Town of Crescent City v. Holland, 151 Fla. 806, 10 So. 2d 577 (1942); 26 Fla.Jur., Public Lands, § 3 (1959). Subsequently, in 1875, pursuant to a contract with the Surveyor General, one Horatio Jenkins undertook to survey a number of townships in what is now the Charlotte Harbor-Lee County area, including Sanibel Island.[2] Jenkins' field notes were used to prepare the official maps or plats of the area as ultimately filed in the General Land Office of the United States, and those plats, in turn, formed the basis of the legal description of the lands in the area as thereafter conveyed by Government patents.
The property involved in this case Tracts 25 and 25-I lies within fractional Section 18 of Township 46 South, *1303 Range 22 East, as surveyed by Jenkins. Section 18 is a fractional section because the Jenkins plat shows a meandered body of water in the section resulting in irregularly shaped parcels of upland designated lots 1 through 7 as follows:
Tracts 25 and 25-I include a portion of (and are otherwise associated with) Government Lot 7 as depicted above. That lot was initially patented and conveyed into private ownership by the United States in 1897, and the Claimants in this suit deraign their title from that patent.
The parties are largely in agreement concerning the factual background recited thus far. The dispute that does exist arises from the fact that substantial discrepancies appear when any attempt is made to apply the Jenkins survey and plat to the land as it actually exists today. Indeed, the evidence is plain that *1304 Jenkins' work has been a source of confusion and uncertainty for many years among surveyors, title attorneys and others working with real estate descriptions on Sanibel Island. Thus, on January 2, 1968, the Bureau of Sport Fisheries and Wildlife of the Department of The Interior entered into a contract with Carl E. Johnson, Inc., a firm of registered land surveyors in Fort Myers, for the purpose of surveying and establishing boundary lines between public and private ownerships in Township 46 South, Range 22 East.[3] The result of the Johnson survey was to form the basis of a deed from the State of Florida to the United States conveying state owned or sovereignty lands and water bottom in that Township as an addition to the refuge. The description of the work as set forth in the contract with Johnson was as follows:
"The work consists of the location, survey, monumentation and marking of continuous boundary lines, separating private lands, and accretion appurtenant thereto, from the lands and water bottoms being acquired [from the State], and public lands of the United States now a part of the refuge. . . ." (Emphasis supplied).
Accordingly, when it was ascertained in the field that upland existed where water bottom was shown on the Jenkins' survey and plat (i. e., in areas lying beyond the Jenkins meander line), the Johnson firm allocated or prorated this land as apparent "accretion", one-half to the South ownership and one-half to the North ownership.[4]
The Johnson survey and plat was approved by the Regional Director of the Bureau of Sport Fisheries and Wildlife of the Department of The Interior; and on March 21, 1969, it was also approved and filed as an official plat by the Director of the Trustees of The Internal Improvement Fund of the State of Florida. See Florida Statute 253.031, F.S. A., (1971). Thereafter, on January 30, 1970, the State conveyed its interests in Section 18 to the United States by metes-and-bounds descriptions based upon the Johnson survey; and, in the meantime, private transactions involving property in the area also utilized the Johnson survey for purposes of description.
When this suit was filed the Government further utilized the Johnson survey in delineating the lands being taken, including Tracts 25 and 25-I. Those Tracts were described as that part of Lot 7, Section 18, Township 46 South, Range 22 East, "lying north of the centerline of Sanibel-Captiva Road, and apparent *1305 accretion thereto, more particularly described as follows" [metes and bounds]. As so described, Tracts 25 and 25-I consist of 33.41 acres, all of which, except for 2.76 acres, was land accreted to Lot 7 by the Johnson survey. That is, 30.65 acres of the land within those Tracts was shown as water bottom by Jenkins, lying beyond his meander line as the apparent boundary of Lot 7. An outline of Tracts 25 and 25-I, superimposed upon Jenkins' survey of Section 18 (as depicted earlier), would roughly appear as follows:
The southern boundary of Tracts 25 and 25-I as shown on the diagram generally coincides with the Sanibel-Captiva Road. That portion to the south of the road, shown as water by Jenkins, was also accreted as land to Lot 7 by Johnson, but still appears as water on this diagram because it is not included in Tracts 25 and 25-I, and is not involved in this case. The triangular tip of Jenkins' Lot 7 protruding into the Tracts is approximately 2.76 acres, and that is the portion conceded by the Government to be owned by the Claimants. The remainder *1306 of the Tracts, approximately 30.65 acres, is the area in dispute. The Government claims title to that area on the basis of the following theory.
It first concedes, as a general rule, that when lands are patented according to an official survey showing meander lines along a body of water, any excess land is apportioned to the patentee and his title is extended to the waters' edge in accordance with the intent of the surveyor in making the shoreline one of the calls of the description. Mitchell v. Smale, 140 U.S. 406, 11 S. Ct. 819, 35 L. Ed. 442 (1891); Producers Oil Co. v. Hanzen, 238 U.S. 325, 35 S. Ct. 755, 59 L. Ed. 1330 (1915). The Government contends, however, that this case is within an exception to that rule; namely, that where a meander line is shown to be a gross error tantamount to fraud because no water ever existed at or near the place indicated, then any land beyond the meander line is to be treated as unsurveyed land, title to which remains in the Government. Lee Wilson & Co. v. United States, 245 U.S. 24, 38 S. Ct. 21, 62 L. Ed. 128 (1917); Jeems Bayou Fishing & Hunting Club v. United States, 260 U.S. 561, 43 S. Ct. 205, 67 L. Ed. 402 (1923). The Claimants join issue and contend, on the other hand, that the facts and circumstances of this case place it within the general rule, not the exception, relying primarily upon United States v. Lane, 260 U.S. 662, 43 S. Ct. 236, 67 L. Ed. 448 (1923), and Internal Improvement Fund of the State of Florida v. Nowak, 401 F.2d 708 (5th Cir. 1968). Resolution of the case largely depends, therefore, upon analysis of these authorities, particularly the relationship between the Jeems Bayou and Lane decisions. Before embarking upon that analysis, however, some additional observations and findings must be made concerning the facts.
The Government marshaled an impressive array of witnesses and exhibits tending to prove that Tracts 25 and 25-I existed in their present state as upland in 1875 at the time of Jenkins' survey, and that his meander line was and is wholly inexplicable. On their side, the Claimants skillfully endeavored to show a number of possible explanations for the apparent discrepancy, all leading to the conclusion that Section 18 did encompass a body of water or mangrove swamp subject to the ebb and flow of the tide, so that Jenkins' meander line, albeit inaccurate, cannot under all the circumstances be characterized as such a gross and palpable error as to constitute a fraud upon the Government.[5] For its part, the Court is persuaded that the 33.41 acres of land now designated as Tracts 25 and 25-I was upland in 1875 at the time of Jenkins' survey. It was not submerged water bottom or otherwise subject to the ebb and flow of the tide.[6] Indeed, there seems to be no serious dispute as to that conclusion. Rather, the principal disagreement is whether there was any significant area of overflowed land or water bottom in Section 18 as a whole. The Government says there was not, contending that the magnitude of Jenkins' error in showing water where good land existed was on the order of 650 acres (viewing the meander lines in adjoining Sections 17, 20 and 21 together with those in Section 18). As to that question, however, the evidence is inconclusive and any precise finding would be purely speculative. It is sufficient to observe that at least some water bottom appears directly north of the subject property in Section 18 even today (aerial photograph, Defendants' Exhibit 6), and much of the remaining terrain in that section, lying beyond Jenkins' meander line, may accurately be described as low-lying areas *1307 and mangrove swamp. It should also be noted that the instant dispute is limited in every respect to the 30.65 acres within Tracts 25 and 25-I. No issue exists in this case with regard to any other ownerships in Section 18 or, for that matter, in Sections 17, 20 or 21.[7]
Analysis of the controlling authorities should appropriately begin with examination of the Jeems Bayou decision, supra. The land involved in that case was situated in Louisiana and had been surveyed by A. W. Warren in 1839. In 1860 a Government patent was issued to an individual conveying the southwest fractional quarter of Section 10, T. 20 N., R. 16 W., containing approximately 48 acres according to the Warren survey. The plat reflected that body of land as a peninsula extending into the waters of Ferry Lake or Jeems Bayou. The land in dispute in the case was some 85.22 contiguous acres lying west and south of the "supposititious" 48 acre peninsula. Indeed, a later survey revealed that the 48 acre peninsula was, in fact, virtually surrounded by 500 acres of well timbered upland extending beyond the boundaries of Section 10 into three adjoining sections. Although the lake or bayou existed, it was some distance away. Significantly, it was found that the Warren field notes yielded no indication whatever of an intention to meander the margin of any body of water, but described the 48 acres of land "by courses and distances." As a consequence, the Court refused to apply the general rule regarding meander lines and the extension of abutting titles to the waters' edge. Rather, the totality of the circumstances necessitated "the conclusion that the omission was of deliberate purpose, or the result of such gross and palpable error as to constitute in effect a fraud upon the government." (260 U.S. at 564; 43 S.Ct. at 206). The omitted upland was therefore treated as unsurveyed land, not conveyed by the patent. See also, Producers Oil Company v. Hanzen, 238 U.S. 325, 35 S. Ct. 755, 59 L. Ed. 1330 (1915); and Lee Wilson & Co. v. United States, 245 U.S. 24, 38 S. Ct. 21, 62 L. Ed. 128 (1917).
In United States v. Lane, supra, consisting of six consolidated cases, the Court again had occasion to consider the Warren survey of 1839 in the Jeems Bayou or Ferry Lake area of Louisiana,[8] and it is worthy of mention that the decision was rendered less than three weeks after the Jeems Bayou opinion. Yet, despite the fact that the two cases were decided at substantially the same time and involved the same survey in the same township (even, as to one parcel, in the same section), the Court reached the opposite result by holding in Lane that the general rule would be applied, not the exception to the rule as followed in Jeems Bayou.
The factual considerations persuading the Court were the smaller proportionate areas being added to the separately owned parcels; the apparent intent of the surveyor to meander the sinuosities of the shore line; and the fact that some margin of error should be anticipated and allowed due to the wild and remote nature of the land with concomitant *1308 low value in relation to the cost of the survey at the time the work was done. The correct resolution of this case, therefore, requires examination of its facts in light of the three considerations emphasized by Lane as the best means of determining whether that decision, or the exception represented by Jeems Bayou, should be applied.
The first factor to be weighed is the size of the parcel involved; and the consideration of "size" in this context has three relative aspects (a) the size or area of the parcel as shown by the original survey; (b) the relative size of the "new" area disclosed by the more recent survey; and (c) the size or magnitude of the original surveyor's error measured by the amount of unsurveyed land in the surrounding vicinity as a whole. Taking each of these aspects seriatim, the size of Lot 7 as shown by Jenkins was 64.01 acres. The four surveyed parcels first considered in Lane, as separate tracts, ranged from 23 acres to 114.80 acres; and the surveyed area in Jeems Bayou was 48 acres. As to this aspect of size, no distinguishing characteristic appears. The area added to Jenkins' Lot 7 by the new survey was 30.65 acres, an increment of 21%. The areas added to the first four parcels before the Court in Lane were 5.67 acres to the original 26.80 (21%); 12.72 acres to the original 23 (55%); 27.87 acres to the original 155 (18%); and 11.49 acres to the original 114.80 (10%). By contrast, the "new" land in Jeems Bayou (85.22 acres) was almost double the size of the tract shown on the original survey (48 acres) an increment of 179%. This comparison obviously tends to categorize this case with Lane while distinguishing it from Jeems Bayou. The final aspect of the size factor the magnitude of the omitted lands within the vicinity surrounding the parcel involved is difficult to rationalize when one reads Lane and Jeems Bayou together; and the difficulty is compounded when the concept is applied to the facts here. In Jeems Bayou the Court recited that the area in immediate dispute was 85.22 acres, but it subsequently observed that this controverted area was only part of more than 500 acres of omitted upland which extended beyond Section 10 and into three adjoining sections. Hence, the Court's conclusion was seemingly influenced not only by the size of the disputed area to be added to the tract involved, but also by the magnitude of the omitted land in the general vicinity. In Lane, however, while dealing with at least one parcel in the same section (Section 10), the Court emphasized the relative sizes of the particular tracts and the additions thereto, but never mentioned the aggregate omission of 500 acres in the surrounding area as a whole. It can only be concluded, therefore, insofar as consideration of size is concerned, that the most important test is the size of the particular parcel involved as related to the size of the disputed area added by the more recent survey. See United States v. Zager, 338 F. Supp. 984 (E.D.Wis.1972). The apparent scope of the original surveyor's error within the section or township in general is of secondary importance at best.[9] Furthermore, to the extent that the overall scope of the error should be considered at all, it is difficult to assess its proper weight in this case. The body of water shown by Jenkins is approximately 650 acres, all or most of *1309 which, according to the Government's contention, should have been surveyed as upland. And, although the Court has previously found as a fact that the 33.41 acres comprising Tracts 25 and 25-I was upland in 1875, the Court has also concluded that the evidence is insufficient to warrant any precise findings with regard to the nature of the remaining area lying beyond Jenkins' meander line. On balance, therefore, insofar as size is concerned, this case is more akin to Lane than to Jeems Bayou.
The second factor to be weighed is the intent of the surveyor. Did he intend to meander an existing body of water, or did he wrongly exclude good land by inexplicable "courses and distances . . . [which] necessitate the conclusion that the omission was of deliberate purpose, or the result of such gross and palpable error as to constitute in effect a fraud upon the government"? (Jeems Bayou, 260 U.S. at 563-564, 43 S.Ct. at 206). As a standard of reference it should be remembered that the omitted land in Jeems Bayou was described by the Court as a "large compact body of upland . . . well timbered with a growth of pine, oak and other trees . . ." (Ibid); and there was nothing in the surveyor's field notes to indicate a body of water as the intended boundary. Conversely, in Lane, the general terrain was characterized as wild and remote, and the meander line, at least in some places, fairly conformed to the shoreline of existing water. The evidence in this case (as well as the Court's personal view of the land) compels a finding that the subject area of Sanibel Island was also wild and remote, and there was then, as there is now, at least some open water in Section 18 together with a substantial area of overflowed mangrove swamp. Furthermore, reference to Jenkins' field notes discloses repeated use of the phrase "chop & hack mangroves," and his description of the point of beginning for the meander line was as follows: "Begin at meander corner of Secs. 17, 18, on North side of channel, then in Section 18", etc. (Emphasis supplied). The result of the survey may be enigmatic, but the intent and purpose of the surveyor is clear so that, once again, the circumstances are more comparable to Lane than to Jeems Bayou.
The third and final factor to be considered is the nature and value of the land in relation to the other conditions surrounding the making of the disputed survey. Here, as already noted, the area being surveyed was truly wild and remote. Even the upland comprising Tracts 25 and 25-I is today a heavily overgrown thicket of tropical plants, bushes, trees and vines. Traversing it on foot from any given point to another would be a tedious and difficult task at best. Attempting to walk through any of the mangrove areas in Section 18 would be virtually impossible. One of the witnesses testified, for example, that a mile per day would be good progress in making a careful survey of the area in the field, yet Jenkins' surveyed the entire township within a two week period during May, 1875. As the Court aptly said in Lane (260 U.S. at 665, 667; 43 S.Ct. at 237-238):
". . . the lands were of such little value, the locality so wild and remote, and the attendant difficulties so great that the expenditure of energy and money necessary to run the lines with minute regard to the sinuosities of the lake would have been quite out of proportion to the gain."
* * * * * *
"Considering the circumstances . . . the failure to run the lines with more particularity was not unreasonable . . . ."
The Court has thus reached the conclusion that this case should be governed by the general rule as applied in Lane, and not by the exception to the rule as followed in Jeems Bayou. In weaving its way to this conclusion the Court has found considerable aid and comfort in Internal Improvement Fund of the State of Florida v. Nowak, 401 F.2d 708 (5th Cir. 1968). The Court of Appeals there resolved a similar problem by taking the *1310 same approach and reaching the same result. A point-by-point, comparative analysis of the relevant decisions and the facts of this case leads inevitably in that direction.
It must be recognized, however, that there is one distinguishing characteristic about the present case which prevents the "general rule" from fitting the circumstances quite as neatly and precisely as one would like. That distinction lies in the fact, as mentioned earlier, that the new and more accurate survey by Johnson in 1968-1969 does not simply extend the apparent boundary of Lot 7 to the edge of any existing body of water in accordance with the presumed intent of the original surveyor as was done, for example, in both Lane and Nowak. Instead, the excess upland was apportioned equally to the abutting owners as apparent accretion. It might be suggested, therefore, that this feature alone is sufficient to require application of the exception to the rule as in Jeems Bayou; and, to be sure, the theory or rationale of the exception lends some weight to that position. In Lee Wilson & Co. v. United States, 245 U.S. 24, 29, 38 S. Ct. 21, 22, 62 L. Ed. 128 (1917), the Court first articulated the general rule, and then explained the exception as follows:
"But where upon the assumption of the existence of a body of water or lake a meander line is through fraud or error mistakenly run because there is no such body of water, riparian rights do not attach because in the nature of things the condition upon which they depend does not exist . . ."
In short, despite the favorable comparison of this case with Lane on each of the three factual considerations emphasized as controlling in that decision, the ultimate question arises as to whether the general rule can ever be applied in the absence of proof that a clearly defined body of water exists, or previously existed, thereby giving rise to the riparian rights upon which the rule depends. The question poses some difficulty in view of the Court's previous conclusion that it would be pure speculation to attempt any determination at this late date concerning the precise nature, scope and configuration of the submerged lands in Section 18 when Jenkins arrived there in 1875. But there is another feature that sets this case apart. Unlike Jeems Bayou, or even Lane and Nowak, the issue here does not concern the location of a lake or river, or other familiar and definitive body of inland water. Instead, the case involves a low lying offshore island, sloping on the mainland side into mangrove swamp, and subject always to the vagaries of sea and tide to say nothing of the havoc of hurricanes and modern changes wrought by dikes and drainage.[10] This is not to suggest that Jenkins' meander was substantially accurate, for obviously it was not; but it is sufficient to preclude any finding of such gross and palpable error as to be tantamount to fraud, and that is the key. While the general rule is a corollary of riparian rights, it is equally true that the exception depends upon gross error or fraud to the degree of a finding that "no body of water exists or existed at or near the place indicated." (Jeems Bayou, 260 U. S. at 564, 43 S.Ct. at 206). At least some water bottom existed (and still exists) in Section 18, and the peculiar circumstances are such that no reliable yardstick is available by which to measure the full extent of Jenkins' error. It follows under those circumstances that application of the general rule of Lane, including a proration of the excess land to the abutting upland owners in keeping with standard surveying practice, is neither an aberration nor an unwarranted extension of that rule.
The exception to the rule, after all, is just that an exception. Strong policy *1311 considerations are aligned against its application except in the most egregious circumstances. Century old surveys are bound to be inaccurate in some respects, and ". . . the immense importance of stability of titles dependent upon [Government patents] demand that suit to cancel them should be sustained only by proof which produces conviction." Wright-Blodgett Co. v. United States, 236 U.S. 397, 403, 35 S. Ct. 339, 341, 59 L. Ed. 637 (1915).
The concluding lines of Nowak are particularly apropos (401 F.2d at 718):
"Each case must turn on its own facts and must be considered in light of the general rule and the exception to that rule. We do not, as appellants have suggested that we might, hold that any reference on a plat to a body of water will mean as a matter of law that the water is the boundary."
It is the conclusion and judgment of the Court that, at the time of the Complaint and Declaration of Taking filed in this cause, the Claimants were the owners of Tracts 25 and 25-I as their interests may appear, and they are entitled to an award of just compensation to be determined according to law.
NOTES
[1] There are a number of such Claimants, but it is unnecessary for purposes of this order to separately identify them or the nature of their several interests. They are collectively represented by the same counsel, and the issue presented is one raised by the Government as to which the several Claimants are united in opposition. Their positions, both factually and legally, are precisely coextensive.
[2] As a matter of general orientation, Sanibel Island is an elongated, crescent shaped body of land approximately 12 miles long and 2 to 3 miles wide, running generally from East to West and lying in the Gulf of Mexico approximately 3 miles off shore.
[3] The following passage from Johnson's explanation of his survey (Defendants' Exhibit 2, sheet 2), is indicative of both the duration and the nature of the confusion caused by Jenkins' work:
"The original survey of Township 46 South, Range 22 East on Sanibel Island was executed by Horatio Jenkins, Jr. in 1875. On June 29, 1897, Albert W. Gilchrist, a very competent surveyor who later became Governor of the State of Florida, came to Sanibel Island under a contract with the Government to retrace part of Township 46 South, Ranges 22 and 23 East for the purpose of resurveying Township 46 South, Range 21 East. After 15 days of searching for evidence of the original survey in Township 46 South, Range 22 East, he was forced to the conclusion, as quoted from his notes: `The retracement had shown that most of the notes were fictitious and the fiction grew greater as I approached the West. I decided the only thing to be done was to accept the notes of the original survey as the standard and to obtain the starting point for the resurvey of Township 46 South, Range 21 East in accordance. To establish the Range Line between Ranges 22 & 23 East, Township 46 South, and thence run the original Field Notes of the meanders of the Gulf of Mexico, Westward for six miles.' Book "B", P. 59."
[4] Mr. Lester Bulson, a registered surveyor associated with Carl E. Johnson, Inc., testified without contradiction that this method of allocating or prorating apparent "accretion" was a sound and generally accepted practice among professional surveyors, and that he had previously performed surveys and prepared maps in Sections 18 and 19, following the same practice.
[5] The evidentiary excursion into the life and times of Horatio Jenkins, as well as the geological history of Sanibel Island, was an intriguing adventure. The Court is in debt to all counsel for the preparation and ability manifested by their efforts at trial.
[6] In addition to the testimony and evidence presented, the Court personally viewed and walked upon a portion of the subject land by stipulation of counsel at the conclusion of the hearing.
[7] This point was urged by the Claimants in support of their contention that the Government should be estopped from claiming title to any portion of Tracts 25 and 25-I. It is mentioned here, not in the context of a possible estoppel (a question which the Court does not reach), but because the size of the parcel involved is important to the ultimate decision. The Court should also mention that it has not placed any importance upon the burden of proof or where it lies, an issue that existed between the parties during the earlier debate as to whether the evidentiary hearing should be conducted. Both sides presented evidence, and the Court's findings have been made on the basis of a preponderance of all the evidence so that, at this juncture, any remaining contention concerning the burden of proof is entirely without substance or is moot, or both.
[8] In Jeems Bayou, the parcel of land involved was described as being in the SW ¼ of Section 10, Township 20 North, Range 16 West. In Lane the various parcels were said to be situated in Sections 3, 10, 13 and 24, respectively, of the same Township and Range. At least one of the Lane parcels, therefore, was in the same section as the land involved in Jeems Bayou, and the others were only a short distance away.
[9] This approach can be criticized on the basis that the end result could be affected by the purely fortuitous circumstance of the division (or lack of division) of the original whole by mesne conveyances since the initial Government patent. As the separate tracts under different ownership become larger in number and smaller in size, the probability increases that Lane will apply. On the other hand, if the whole remained intact under one ownership, Jeems Bayou might suggest a different result. The justification is, first, that consideration of size is only one of the factors in the equation and is not determinative standing alone; and, secondly, courts can and should consider only those controversies brought to them for a decision. If the litigation involves one small parcel of land, there would be no end to the mischief created by expanding the scope of the inquiry into other adjoining areas, other titles and, perhaps, other facts.
[10] The Claimants established that no less than seventeen hurricanes have passed over or near the area since 1830; and, in recent years, the Government has constructed an extensive dike to the north of the subject property as an improvement to the refuge.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443546/
|
83 F. Supp. 2d 1172 (1999)
In re SOUTHERN PACIFIC FUNDING CORPORATION SECURITIES LITIGATION.
No. Civ. 98-1239-MA.
United States District Court, D. Oregon.
December 7, 1999.
*1173 *1174 Gary Berne, Timothy Dejong, Stoll Stoll Berne Lokting & Schlacter P.C., Portland, OR, William Lerach, Alan Schulman, Debra Wyman, Milberg Weiss Bershad Hynes & Lerach LLP, San Diego, CA, Edward Dietrich, Los Angeles, CA, Stuart Savett, Barbara Podell, Savett Frutkin Podell & Ryan, P.C., Philadelphia, PA, Vincent Cappucci, Entwistle & Cappucci LLP, New York City, Jordan Lurie, Elizabeth Lin, Weiss & Yourman, Los Angeles, CA, for plaintiffs.
Eric Todderud, Heller Ehrman White & McAuliffe, Portland, OR, Daniel Dunne, Jr., Heller Ehrman White & McAuliffe, Seattle, WA, Thomas Dulcich, Schwabe Williamson & Wyatt PC, Portland, OR, Paul George, Foster Pepper Shefelman LLP, Portland, OR, Peter Rosen, Mayer Brown & Platt, Los Angeles, CA, for ICII defendants.
Joseph C. Arellano, Kennedy Watts Arellano & Ricks LLP, Portland, OR, for defendant KPMG.
OPINION & ORDER
MARSH, District Judge.
This is the third time that I have conducted a painstaking review of the plaintiffs' complaint to determine if the allegations of fraud are sufficient to withstand dismissal under the Private Securities Litigation Reform Act (PSLRA). This latest round of motions comes at my prompting. Since my last opinion, two significant Ninth Circuit decisions were issued that clearly affect my prior holdings. While I did not require the parties to submit motions for reconsideration, I did hold a conference call where I explained that I was aware of these new decisions and that I encouraged that such motions be filed to avoid creating unnecessary issues for appeal. Several motions followed and this opinion addresses those motions.
First, plaintiffs seek to file a Fourth Amended Complaint which adds greater detail to their fraud allegations. Following the briefing on this motion, plaintiffs sought to amend their complaint again to include allegations premised upon recently delivered e-mail evidence from defendant ICII. Defendants oppose these two motions on grounds that plaintiffs should not be permitted to rely upon evidence gathered from the discovery process in light of S.G. Cowen Sec. Corp. v. United States District Court for the Northern District of California, 189 F.3d 909 (9th Cir. 1999) and the underlying purposes of the PSLRA.
Rule 15(a) provides that leave to amend "shall be freely given when justice so requires." I find that the Cowen decision does nothing to alter that basic precept. The facts in this case are markedly different than those in Cowen since the discovery stay was never lifted for the purpose of giving plaintiffs the opportunity to bolster their complaint. Instead, the stay in *1175 this case was lifted because I denied, in large measure, defendants' dismissal motions based upon what I considered the applicable standards at that time.[1] To extend Cowen as the defendants suggest would create an unnecessary fiction and would require that the court ignore relevant allegations. Further, I fail to see how the underlying purposes of the PSLRA would be served since the expense of discovery has already taken place. Thus, plaintiffs' motions to file a fourth amended complaint and to supplement that amendment are GRANTED.
Second, plaintiffs seek reconsideration of my order dismissing their section 11 and section 15 claims under the 1933 Securities Act based upon Hertzberg v. Dignity Partners, 191 F.3d 1076 (9th Cir.1999).[2] In Hertzberg, the court held that claims for material omissions in registration statements brought under section 11 of the 1933 Securities Act may be maintained by "any person acquiring a security."[3] Thus, the court concluded that plaintiffs could maintain a section 11 claim for after-market transactions. There is no dispute that this holding effectively overrules my prior order dismissing plaintiffs' section 11 claims. While defendants argue that there are other bases for dismissal, clearly the original basis for my ruling must be vacated.
Defendants now seek dismissal on the ground that plaintiffs' allegations of falsehoods in an October 31, 1997 Registration statement for a single public offering of SPFC 11.5% Senior Notes fail to meet the pleading requirements of Fed. R.Civ.P. 9(b). There is no dispute that the PSLRA bears no application to the 1933 Securities Act, nor is there any debate about the fact that plaintiffs need not prove scienter to sustain a section 11 claim.[4] Plaintiffs first argue that defendants' motions should be denied under the law of the case doctrine since I sustained the same core allegations alleged in plaintiffs' section 10(b) claim in prior motions to dismiss. Because the basis for my dismissal of the section 11 claims was limited to plaintiffs' standing, I find that my consideration of the adequacy of the pleadings is not barred by the law of the case doctrine. Although there is a factual overlap, the issues under both claims differ.
Plaintiffs also argue that their claims should not be subject to 9(b) because they sound in negligence rather than fraud and, in any event, the section 11 claims satisfy Rule 9(b).
In support of their assertion that 9(b) should apply to plaintiffs' section 11 claims, defendants rely upon In Re Stac Electronics Securities Litigation, 89 F.3d 1399 (9th Cir.1996). In Stac, the plaintiffs asserted securities violations under section 10(b) of the 1934 Act and section 11 of the 1933 Act premised upon the same allegations of fraud. With their section 11 claim, plaintiffs argued that Rule 9(b) pleading should not apply since there is no scienter requirement under section 11. The court rejected this argument, finding that Rule 9(b) applies when claims brought under section 11 are "grounded in fraud."
At the outset, I note that quantifying plaintiffs' claims in this action is a difficult task. The defendants argue on the one hand that plaintiffs have failed to state claims of fraud under section 10(b) and then argue that plaintiffs' claims are grounded in fraud under section 11. While I acknowledge that this is not an *1176 outright contradiction, it does call the argument into question.
I find that Stac is distinguishable from the instant case for several reasons. First, the core allegation in Stac was that defendant failed to disclose knowledge that a significant competitor was about to enter its market. This concerns a deliberate choice not to disclose allegedly material, adverse information. By contrast, the core allegation in this case is that SPF failed to alter key assumptions in its accounting relative to pre-payment and delinquency rates. At paragraph 6 of the Fourth Consolidated Amended Complaint, plaintiffs allege that defendants' assumptions for credit losses were not "reasonable." At paragraph 7, plaintiffs assert that assumptions were not changed in a "prudent" manner. Plaintiffs also assert, generally, that defendants had "inadequate" internal controls and that they violated generally accepted accounting principles. All of these allegations sound far more in negligence than they do in fraud.[5] Accordingly, I hold that plaintiffs need not satisfy the pleading standards of 9(b) to sustain a claim under section 11. This same holding applies to plaintiffs claims under section 15 against the individuals who signed the registration statement.
I further find that plaintiffs have fairly alleged a claim that defendants included false information in the October 31, 1997 registration statement for the single public offering of SPFC 11.5% Senior Notes. Plaintiffs claim that record earnings should have been reported as losses had prepayment and delinquency rates been properly considered. Thus, ICII defendants' motions to dismiss are DENIED as to the section 11 and 15 claims.
The independent auditor, KPMG, has been included as a defendant in the section 11 claim. However, KPMG did not audit SPF's quarterly financial statements and the October 1997 registration statement relied upon unaudited financial reports. Plaintiffs have argued that KPMG should still remain liable because it permitted its 1996 financial statement to be republished with the 1997 registration statement. Subsection (a)(4) of § 11 provides for liability against "every accountant ... who has with his consent been named as having prepared or certified any part of the registration statement." (emphasis added). I find that the statute is broad enough to encompass such a claim against KPMG. Thus, KPMG's motion to dismiss the § 11 claim is denied as well.
The analysis of the viability of plaintiffs' section 10(b) claims presents the greatest challenge. On August 4, 1999, a divided panel of the Ninth Circuit issued In re Silicon Graphics Inc. Securities Litigation, 183 F.3d 970 (1999). The factual context of Silicon Graphics is far different than that present with this case. Stockholders filed a class action claiming violations of section 10(b) of the 1934 Act after the price of Silicon's stock dropped due to lower than anticipated earnings. Plaintiffs alleged that internal company reports, in existence at the time defendants made positive public statements, put company representatives on notice of production problems that would clearly impact earnings estimates. On the surface, Silicon appears to be one of those cases specifically targeted by Congress with its enactment of the PSLRA. Silicon was a sound company that simply experienced some production difficulties which meant that revenue growth was 33% rather than 40%.
By contrast, SPF was reporting record earnings in July of 1998, less than three months prior to filing for bankruptcy protection under Section 11 of the Bankruptcy Code. SPF insiders acknowledged troubles in the industry and assured investors that, unlike other funding companies, SPF had *1177 adequately factored in prepayment and delinquency rates. Plaintiffs allege that SPF's demise was caused by the very falsehoods and material omissions which form the basis for this complaint. Allegations in Silicon that corporate insiders deliberately ignored internal reports about production problems that resulted in a 7% decrease in growth is a far cry from allegations that SPF defendants ignored significant pre-payment and delinquency data to such an extent that the company ceased to exist as a going concern just weeks following glowing predictions and statements of financial soundness. This is not a case in which an otherwise healthy company has been targeted by professional securities' plaintiffs due to a stock dip.
With this background in mind, I have carefully studied Silicon and have come to the conclusion that the Ninth Circuit's decision makes three critical holdings that invalidate my prior ruling on defendants' motions to dismiss plaintiffs' 10(b) claims. First, Silicon holds that the level of scienter required to sustain a 10(b) claims is that of "deliberately reckless or conscious misconduct," "that strongly suggests actual intent." Id. at 973, 979. Plaintiffs claim that this holding merely constitutes a restatement of the Ninth Circuit's holding in Hollinger v. Titan Capital Corp., 914 F.2d 1564 (9th Cir.1990) (en banc). Defendants argue that the Ninth Circuit has raised the standard. There is language in the court's opinion that suggests that it is merely restating the standard set forth in Hollinger. See 183 F.3d at 975 ("We used [in Hollinger] the words `known' and `must have been aware,' which suggest consciousness or deliberateness"). However, the Silicon court expressly provides that, as a threshold issue, it must determine the appropriate mental state necessary to sustain a 10(b) claim in light of the PSLRA. Rather than simply citing Hollinger, the court analyzes Supreme Court and legislative history to reach the "deliberate recklessness" standard. Further, the majority fails to respond to the dissent's objection that the court improperly raised the mental state requirement. The dissent from the refusal of the court to take the case en banc also assumes that the majority opinion raised the standard, as have other subsequent circuit decisions. Silicon, 195 F.3d 521 (9th Cir.1999) (dissent from denial of reh'g); Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1284 n. 21 (11th Cir.1999). Based upon the foregoing, I find that the Silicon court raised the substantive standard applicable to § 10(b) claims to that of deliberate recklessness and that "deliberate recklessness" constitutes a higher degree of recklessness than previously contemplated. I further find that "deliberate recklessness," means that the defendants must have acted with full knowledge of the risks of the consequences of their actions in a manner akin to that of a driver that attempts to speed across railroad tracks in front of a rapidly approaching and clearly visible oncoming train. This formulation takes into account the level of risk as measured against the severity of the consequences and the knowledge of the defendant of both factors.
The second critical holding of Silicon is its rejection of the motive and opportunity test as a sufficient basis, standing alone, to meet the deliberate reckless standard. I raised the factual context of Silicon at the outset because, although the court does not expressly address the materiality element of a 10(b) fraud claim, I find that materiality and factual context are critical factors in examining the adequacy of pleading scienter. If a corporate president receives a report that his largest factory has burned to the ground and nevertheless attends a stock holder meeting and publicly claims that there will be no slow down in a production schedule, the degree of materiality of the omission must have a bearing upon just how wrong his public statement was at the time. The greater the materiality, the greater inference of scienter. Thus, while motive and opportunity are insufficient to give rise to a strong inference of scienter standing alone, motive and opportunity *1178 coupled with highly material misrepresentations or omissions may well satisfy the standard. It is one thing to ignore reports of potential bad weather; it is quite another to set sail in the face of a storm.
Third, Silicon raises the specificity standard for pleading fraudulent intent to an unprecedented level of fact pleading. Identifying specific internal reports that contradict contemporaneous public statements is insufficient to meet the new pleading standard. Instead, plaintiffs must plead the source of their information, how they learned of the reports, who drafted them, and must supply a detailed description of the report itself. Id. at 984. Simply identifying the content of the report, the officers who received them and the department that prepared them is insufficient. Id. at 998, n. 24 (Browning, J. dissenting). Further, the pleaded evidence of scienter must do more than "suggest" an inference of fraud; it must "strongly suggest" an inference of fraud. Id. at 983.
Finally, the complaint must address timing by specifying why the statements were false "at the time they were made." Id. at 984. The Ninth Circuit has recently emphasized that the temporal proximity between "positive statements" and "poor performance," standing alone, are insufficient to establish falsity under Rule 9(b). Yourish v. California Amplifier, 191 F.3d 983 (9th Cir.1999).[6]
Thus, I have reviewed plaintiffs' Fourth Amended Complaint (as supplemented) with these inquiries in mind: (1) have plaintiffs pleaded facts giving rise to a strong inference of deliberately reckless conduct; and (2) do the evidentiary pleadings meet the heightened specificity standard utilized by the Ninth Circuit?
Overall, the complaint provides ample detail regarding the allegedly false, positive company statements issued during the class period. The issue then is whether plaintiffs have provided sufficient detail explaining why the challenged statements were false when made.
If the paragraphs of the fourth amended consolidated complaint and its supplement are analyzed individually and in isolation, they fail to meet the specificity standard of Silicon. Each paragraph does not provide author, date, content and how the plaintiffs came to discover the information. However, the overall presentation of the complaint alleges that defendants regularly received and reviewed reports regarding pre-payment rates and delinquencies. These reports were distributed prior to and throughout the class period and the reports demonstrated that the defendants were made aware of the fact that the assumptions they used to predict pre-payments and delinquencies were far off the mark. So far off the mark that revenue was over-stated by 300% and failing loans were in the 45-50% range. Further, the complaint alleges that these deficiencies were long-standing. Thus, the fact that the nature of the business required that defendants make predictions about future loan performance does little to address the defendants' alleged failure to account for facts in hand demonstrating that their "key" assumptions were unrealistic to a degree that threatened the company's very solvency.
Overall, the complaint paints a picture of a group of corporate insiders who knew that the entire mortgage lending industry was facing significant hardships due to the drop in lending rates. The complaint further reveals that the defendants attempted to distinguish SPF from others in the industry *1179 by assuring investors that SPF was utilizing particularly conservative assumptions relative to pre-payment rates and delinquencies such that the general industry downturn should not have adversely affected SPF. In spite of these assurances, the complaint alleges that defendants were aware, over a lengthy period, of the fact that their pre-payment and delinquency assumptions were grossly inaccurate and that these inaccuracies threatened the financial stability of the company. Board meeting minutes and e-mail reveal that defendants were aware of the seriousness of the situation SPF faced. I find that these allegations satisfy the "deliberate recklessness" pleading standard set forth in Silicon. If proven, the facts alleged support a finding that the defendants knew that they were driving in front of a speeding freight train and that there was a high likelihood of getting hit.
The remaining allegations (paragraphs 133-181) concern claimed accounting violations under GAAP and GAAS and relate to audit work performed by newly added defendant KPMG relative to 1996 and 1997 financial statements. In In re Worlds of Wonder Securities Litigation, 35 F.3d 1407 (9th Cir.1994) (WOW), the Ninth Circuit recognized that outside auditors could well be liable under § 10(b) even where insider defendants were not, if plaintiffs could establish that the auditor's conduct constitutes an "extreme departure from reasonable accounting practice," such that "the audit amounted to no audit at all." Id. at 1425 (citations omitted). The court further explained that deliberate GAAS violations or the publication of inaccurate accounting figures was insufficient to show scienter, absent evidence of extreme, deficient conduct.
While Silicon did not address the liability of an outside auditor, laying Silicon's pleading standard against the WOW court's assessment of the role of an outside auditor, I find that plaintiffs have pleaded facts which would tend to show that KPMG's accounting practices were extremely deficient when gauged at the time they were undertaken.
Conclusion
I have considered all of the allegations included within plaintiffs' Fourth Amended Consolidated Complaint along with plaintiffs' supplemental material and I have concluded that plaintiffs have stated claims against all of the defendants for violations of §§ 11 and 15 of the 1933 Securities Act. Plaintiffs have withdrawn their request for reconsideration of my earlier dismissal of their claims under § 12 of the 1933 Act. I further find that plaintiffs have met the heightened particularity requirement of the PSLRA relative to their claims under § 10(b) of the 1934 Securities and Exchange Act. This latter holding applies with equal force to plaintiffs' claims of § 20 liability against the individual defendants under the 1934 Act. To the extent that additional pleading is required relative to each individual defendant for purposes of asserting § 20 liability, I find that plaintiffs have satisfied the standard by providing a sufficient factual basis for each individual's role in the alleged fraudulent practices.
Based on the foregoing, plaintiffs' motion for reconsideration of my earlier dismissal of the 1933 Act claims (# 116) is GRANTED; plaintiffs' motion for leave to file a Fourth Amended Consolidated Complaint (# 125) is GRANTED; defendants' motions to dismiss (# 131, 134, 140) are DENIED except as to the § 12 claim under the 1933 Act; plaintiffs' motion to file a supplemental memorandum to add allegations to the complaint (# 155) is GRANTED.
IT IS SO ORDERED.
NOTES
[1] With the pendency of these new dismissal motions, discovery has been stayed again.
[2] Plaintiffs have withdrawn their motion for reconsideration of my dismissal of their section 12 claims under the 1933 Act.
[3] Like § 10(b) of the 1934 Securities and Exchange Act, section 11 provides a cause of action for false claims. Unlike § 10(b), however, a § 11 claim applies only to misstatements or material omissions included within a registration statement.
[4] The section 15 claims assert control person liability against individual defendants Howard, Guy, Makowiecki, Snavely and ICII.
[5] The real issue under the § 10(b) claim is, and always has been, whether plaintiffs have plead sufficient facts to demonstrate such an extreme degree of negligence (deliberate recklessness) to constitute fraud as it is defined by the 1934 Act. The claims in this case are not, nor have they ever been that defendants were committing the kind of classic, blatant, criminal fraud akin to selling swamp land in Florida.
[6] In Yourish v. California Amplifier, 191 F.3d 983 (9th Cir.1999), the court upheld dismissal of a § 10(b) securities fraud claim for failure to satisfy Rule 9(b). The court explained that a plaintiff must do more than claim that public statements are inconsistent with internal reports; the complaint must specifically identify those reports. The court also noted that since the complaint failed under 9(b), it need not address the heightened pleading standard of the PSLRA. Ostensibly, I assume that is why the court failed to cite to or apply the holding of Silicon Graphics despite the similarity of the issues raised on appeal.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443551/
|
83 F. Supp. 2d 613 (2000)
ASSOCIATED UTILITY CONTRACTORS OF MARYLAND, INC., Plaintiff,
v.
The MAYOR AND CITY COUNCIL OF BALTIMORE and Maryland Minority Contractors Association, Inc., Defendants.
No. CIV. AMD 98-4060.
United States District Court, D. Maryland.
February 16, 2000.
Robert Edward Gough, Maury S. Epner, Miller Miller & Canby, Rockville, MD, for Associated Utility Contractors of Maryland, Inc.
William R. Phelan, Jr., Law Dept., Baltimore, MD, Kathryn E. Kovacs, Baltimore City Law Dept., Baltimore, MD, for The Mayor and City Council of the City of Baltimore.
Adam Craig Harrison, Adam C. Harrison, PC, Towson, MD, Donna S. Mandl, Law Offices of Adam C. Harrison, P.C., Towson, MD, for Maryland Minority Contractors Association, Inc.
MEMORANDUM
DAVIS, District Judge.
Plaintiff Associated Utility Contractors of Maryland, Inc. ("AUC") filed this action to challenge the continued implementation of the affirmative action program created by Baltimore City Ordinance 610, Balt. City Code §§ 217-226B ("the Ordinance"). The Ordinance was enacted in 1990 and authorizes the City to establish annually numerical set-aside goals applicable to a wide range of public contracts, including construction subcontracts.
After a limited period of discovery, AUC filed a motion for summary judgment, *614 which the City and intervening defendant Maryland Minority Contractors Association, Inc. ("MMCA") opposed. On December 17, 1999, I issued an order granting in part and denying in part the motion for summary judgment ("the December injunction"). Specifically, as to construction contracts entered into by the City, I enjoined enforcement of the Ordinance (and, consequently, continued implementation of the affirmative action program it authorizes) in respect to the City's 1999 numerical set-aside goals for Minority-and Women-Owned Business Enterprises ("MWBEs"), which had been established at 20% and 3%, respectively. I denied the motion for summary judgment as to the plaintiff's facial attack on the constitutionality of the Ordinance, concluding that there exists "a dispute of material fact as to whether the enactment of the Ordinance was adequately supported by a factual record of unlawful discrimination properly remediable through race- and gender-based affirmative action."
Although the December injunction contemplated that further discovery would be undertaken by the parties and that further proceedings would be necessary fully to adjudicate this case, in the present posture of the matter, I am persuaded that no further proceedings are necessary or appropriate in this case. I explain below the reason for the entry of the December injunction and the reasons I now conclude that no further proceedings are necessary or appropriate in this case in this court.
I
The City has timely appealed the entry of the December injunction to the United States Court of Appeals for the Fourth Circuit. In addition, the City has filed before me, and plaintiff has opposed, a motion for stay of the injunction pursuant to Fed.R.Civ.P. 62(c). In support of the motion for stay, the City has disclosed the issues it will rely upon in what it contends will be a successful appeal. First, the City persists in its contention that AUC lacks organizational standing to challenge the Ordinance. For the reasons previously explained on the record and as elaborated upon herein, I am persuaded that plaintiff has satisfied the requirements for organizational standing as to the set-aside goals established by the City for 1999.
The City also seems to contend that (and apparently will seek vacation of the December injunction on appeal on the ground that) I erred in failing to forebear from the adjudication of this case and of the motion for summary judgment until after it had completed an alleged disparity study which, it contends, will establish a justification for the set-aside goals established for 1999. This curious argument seems to rest on the unarticulated notion that a governmental entity might permissibly adopt an affirmative action plan including set-aside goals and wait until such a plan is challenged in court before undertaking the necessary studies upon which the constitutionality of the plan depends. I am not aware of any legal support for such an approach, the City has not cited any such authority, and I am constrained to reject it.
As explained below, therefore, because the City has offered no contemporaneous justification for the 1999 set-aside goals it adopted on the authority of the Ordinance, I issued the December injunction and I shall decline to stay its effectiveness. Inasmuch as the December injunction awards complete relief to the plaintiff organization, and since any effort to adjudicate the issue of whether the City will adopt revised set-aside goals on the authority of the Ordinance is at present a wholly speculative undertaking, I shall dismiss this case without prejudice.
II
In 1986, the City Council enacted in Ordinance 790 the first city-wide affirmative action set-aside goals, which required, inter alia, that for all City contracts, 20% of the value of subcontracts be awarded to Minority-Owned Business Enterprises *615 ("MBEs") and 3% to Women-Owned Business Enterprises ("WBEs"). As permitted under then controlling Supreme Court precedent,[1] Ordinance 790 was justified by a finding that general societal discrimination had disadvantaged MWBEs. Apparently, no disparity statistics were offered to justify Ordinance 790.
After the Supreme Court announced its decision in City of Richmond v. J.A. Croson, 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989), the City convened a Task Force to study the constitutionality of Ordinance 790. The Task Force held hearings and issued a Public Comment Draft Report on November 1, 1989. It held additional hearings, reviewed public comments and issued its final report on April 11, 1990, recommending several amendments to Ordinance 790. The City Council conducted hearings, and in June 1990, enacted Ordinance 610, the law under attack in this case.
In enacting Ordinance 610, the City Council found that it was justified as an appropriate remedy of "[p]ast discrimination in the City's contracting process by prime contractors against minority and women's business enterprises...." Balt. City Code § 217(a). The City Council also found that "[m]inority and women's business enterprises ... have had difficulties in obtaining financing, bonding, credit and insurance;" that "[t]he City of Baltimore has created a number of different assistance programs to help small businesses with these problems ... [but that t]hese assistance programs have not been effective in either remedying the effects of past discrimination ... or in preventing ongoing discrimination." Id. § 217(c) & (d).
The operative section of Ordinance 610 relevant to this case mandates a procedure by which set-aside goals are to be established each year for minority and women owned business participation in City contracts. Id. § 219(a). The Ordinance itself does not establish any goals, but directs the Mayor to consult with the Chief of Equal Opportunity Compliance and "contract authorities" and to annually specify goals for each separate category of contracting "such as public works, professional services, concession and purchasing contracts, as well as any other categories that the Mayor deems appropriate." Id. The yearly goals must be "reasonable, achievable, and ..." based upon
(1) the existence and extent of past discrimination against minority and women's business enterprises on contracts awarded by the City and the likelihood of continuing discrimination if there were no annual goal;
(2) the level of participation of minority ... and women's business enterprises on past contracts awarded by the City which have contained minority and women's business enterprise requirements;
(3) the level of participation of minority ... and women's business enterprises on contracts awarded by other governmental agencies in the Baltimore area which have utilized minority and women's business enterprise requirements; and
(4) the availability of minority and women's business enterprises which are capable of providing the required goods and services.
Id. The Ordinance specifies that the Mayor must transmit the proposed goals to the Board of Estimates and the City Council, with thirty days notice before they become final. Id.
In 1990, upon its enactment of the Ordinance, the City established across-the-board set-aside goals of 20% MBE and 3% WBE for all City contracts with no variation by market. Thus, the record shows, without dispute, that the City simply readopted the 20% MBE and 3% WBE subcontractor participation goals from the prior law, Ordinance 790, which the Ordinance had specifically repealed. Id. *616 § 217(g).[2] These same set-aside goals have been adopted without change and without factual support in each succeeding year since 1990. That is, the record shows, and the City does not dispute, notwithstanding the terms of the Ordinance, no annual study ever was undertaken to support the implementation of the affirmative action program generally or to support the establishment of any annual goals, and indeed, the City did not even collect the data which would have permitted such findings. No disparity study existed or was undertaken until the commencement of this law suit. Thus, the City had no reliable record of the availability of MWBEs for each category of contracting, and thus, as relevant to the case at bar, no way of determining whether its 20% and 3% goals were rationally related to extant discrimination (or the continuing effects thereof) in the letting of public construction contracts.
III
AUC has established that it has associational standing to challenge the set-aside goals adopted by the City in 1999. Specifically, contrary to the City's contentions, based on the affidavit of Elaine Middleton, Executive Director of AUC; AUC's Answers to Interrogatories Nos. 2, 4, 15, and 16; and, the Baltimore City Certificates of Prequalification issued to several of AUC's members, plaintiff has sufficiently established that its members are "ready and able" to bid for City public works contracts. No more is required.
A litigant's standing to challenge a law is a critical component of the case or controversy requirement of Article III, and thus of this court's jurisdiction to hear the challenge. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977), established a three part test for determining when "an association has standing to bring suit on behalf of it members ...:(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation in the lawsuit of the individual members...." Hunt, 432 U.S. at 343, 97 S. Ct. 2434; accord Friends of the Earth, Inc. v. Laidlaw Envtl. Services, ___ U.S. ___, 120 S. Ct. 693, 704, 145 L. Ed. 2d 610 (2000); see also Maryland State Conference of NAACP Branches v. Maryland Dept. of State Police, 72 F. Supp. 2d 560, 565 (D.Md.1999). The three prerequisites to associational standing described in Hunt are clearly satisfied here.
First, AUC must show that AUC's members, "or any one of them," Warth v. Seldin, 422 U.S. 490, 511, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975), would otherwise have standing to sue in their own right. Hunt, 432 U.S. at 343, 97 S. Ct. 2434. In a "long line of cases" the Supreme Court has delineated three things that an individual must establish to obtain standing in her own right:
(1) injury in fact, by which we mean an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, by which we mean that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that *617 the injury will be redressed by a favorable decision, by which we mean that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative. These elements are the irreducible minimum required by the Constitution.
Northeastern Florida Chapter of the Assoc. Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 663-64, 113 S. Ct. 2297, 124 L. Ed. 2d 586 (1993)(internal quotations and citations omitted).
It is clear that AUC's members are disadvantaged by the goals in the bidding process, and this alone is a cognizable injury. For the purposes of an equal protection challenge to affirmative action set-aside goals the Supreme Court has held that the "`injury in fact' is the inability to compete on an equal footing in the bidding process ..." Northeastern Florida Chapter, 508 U.S. at 666, 113 S. Ct. 2297; see Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995). Thus the Court in Northeastern Florida Chapter held that individual standing is established to challenge a set-aside program when a party demonstrates "that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis." 508 U.S. at 666, 113 S. Ct. 2297. The Court further held that once a party shows it is "ready and able" to bid in this context, the party will have sufficiently shown that the set-aside goals are "the `cause' of its injury and that a judicial decree directing the city to discontinue its program would `redress' the injury," thus satisfying the remaining requirements for individual standing. Id. at 666 & n. 5, 113 S. Ct. 2297.
Ample evidence that AUC members are "ready and able" to bid on City public works contracts is provided in several documents in the record. AUC's Answer to Interrogatory 2 provides a list of AUC members. That several of these members have bid on city public works contracts and been awarded them during the years between 1990 and 1997 is evidenced by the City Equal Opportunity Compliance Office "MBE/WBE Participation by Contract Type" Detail Listings, which the parties have submitted as exhibits to their memoranda. In addition, the fact that various AUC members are currently "ready and able" to bid on City public works contracts is evidenced by the listing of those members' prequalification numbers in the AUC member list, and in copies of twelve AUC members' current "Certificate of Prequalification" attesting that these members are "prequalified to perform work in City of Baltimore projects" in various categories of public works construction. Pursuant to City of Baltimore Rules for Qualification of Contractors § 2.1, "[p]ossession of a valid Certificate of Prequalification is deemed proof of qualification" to bid on city contracts to perform work costing in excess of $25,000. Finally, the fact that AUC members who are "ready and able" to bid on City public works contracts are injured by the Ordinance is evidenced by the affidavit of Elaine Middleton, AUC's Executive Director, attesting to the fact that the twelve AUC members whose Certificates of Prequalification are in the record do not qualify as "Minority Group Members," "Minority Business Enterprise" or "Women's Business Enterprise" as defined in the Ordinance. Accordingly, these members are disadvantaged in the City public works contract bidding process, which privileges MWBE's as described above. Thus, members of AUC would have individual standing in their own right to challenge the constitutionality of the City's set-aside goals applicable to construction contracting, satisfying part one of the associational standing test.
The second part of the Hunt associational standing test requires AUC to demonstrate that "the interests it seeks to protect are germane to the organization's purpose." Hunt, 432 U.S. at 343, 97 S. Ct. 2434. AUC's purposes, as delineated in its constitution and bylaws, are "`[t]o combat unfair practices within' the public works segment of the construction industry" *618 and "to provide a means for members to `avail themselves of the greater power and prestige of a united Association, acting as a ... representative in securing and establishing just, honorable, and equitable dealing and relationships with all contracting agencies ... in the State of Maryland.'" AUC Complaint (quoting AUC Const. Art. II, § 3; AUC Bylaws Art. I, § 2).[3] Clearly, any challenge to the continued implementation of set-aside goals, to the extent such public policy choices are disfavored by segments of the membership of AUC as "unfair," is "germane to the organization's purpose" as explicated by its membership and leadership.
Finally, part three of the Hunt test requires that "neither the claim asserted nor the relief requested requires the participation in the lawsuit of the individual members." Hunt, 432 U.S. at 343, 97 S. Ct. 2434. AUC's claims for declaratory and injunctive relief from what it believes to be unconstitutional set-aside goals do not necessitate "individualized proof and both are thus properly resolved in a group context." Id. at 344, 97 S. Ct. 2434. The relief which AUC seeks, to enjoin the City from enforcing the public works contracts set-aside provisions, would cure the injury which AUC's members assert they have suffered. See International Union, United Auto v. Brock, 477 U.S. 274, 288, 106 S. Ct. 2523, 91 L. Ed. 2d 228 (1986)("[T]he UAW can litigate this case without the participation of those individual claimants and still ensure that `the remedy, if granted, will inure to the benefit of those members of the association actually injured.'")(quoting Warth v. Seldin, 422 U.S. at 515, 95 S. Ct. 2197).
Thus, AUC has associational standing to challenge the constitutionality of the public works contracts set-aside provisions established in 1999 and this court has jurisdiction over this action. I find unpersuasive the City's repeated assertions, rooted in its reading of Adarand and Suhre v. Haywood County, 131 F.3d 1083 (4th Cir.1997), that plaintiff can only satisfy its burden to establish standing by the submission of an affidavit from one of its members containing an assertion of "an unmistakable intention" that that member will bid on a City construction contract "in the relatively near future."
IV
AUC complains that since their initial promulgation in 1990, the City's set-aside goals have required AUC members to "select or reject certain subcontractors based upon the race, ethnicity, or gender of such subcontractors" in order to bid successfully on City public works contracts for work exceeding $25,000 ("City public works contracts"). AUC claims therefore that the City's set-aside goals violate the Fourteenth Amendment's guarantee of equal protection because they require prime contractors to engage in discrimination which the government itself cannot perpetrate. See Norwood v. Harrison, 413 U.S. 455, 465, 93 S. Ct. 2804, 37 L. Ed. 2d 723 (1973)("It is axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.") (citation and internal quotations omitted). Government classifications based upon race and ethnicity are reviewed under strict scrutiny, Adarand, 515 U.S. at 227, 115 S. Ct. 2097; those based upon gender are reviewed under the less stringent intermediate scrutiny. United States v. Virginia, 518 U.S. 515, 531, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996). I shall briefly review *619 the legal standards applicable to each category of classification in turn, and then explain why, in this case, those standards have not been satisfied by the City.
A
The Fourteenth Amendment to the United States Constitution guarantees that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV, § 1. It is now settled that "all laws that classify citizens on the basis of race [are] constitutionally suspect." Shaw v. Hunt, 517 U.S. 899, 904, 116 S. Ct. 1894, 135 L. Ed. 2d 207 (1996). While such classifications are not illegal per se, they nevertheless are subjected to the most exacting legal scrutiny possible. "[A]ll racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny." Adarand, 515 U.S. at 227, 115 S. Ct. 2097. That is, the government classification must be narrowly tailored to achieve a compelling government interest. Croson, 488 U.S. at 493-95, 109 S. Ct. 706. As the Fourth Circuit has explained:
The rationale for this stringent standard of review is plain. Of all the criteria by which men and women can be judged, the most pernicious is that of race. The injustice of judging human beings by the color of their skin is so apparent that racial classifications cannot be rationalized by the casual invocation of benign remedial aims.... While the inequities and indignities visited by past discrimination are undeniable, the use of race as a reparational device risks perpetuating the very race-consciousness such a remedy purports to overcome.
Maryland Troopers Ass'n, Inc. v. Evans, 993 F.2d 1072, 1076 (4th Cir.1993) (citation omitted).
In Croson, a plurality of the Supreme Court concluded that state and local governments have a compelling interest in remedying identified past and present race discrimination within their borders. Croson, 488 U.S. at 492, 509, 109 S. Ct. 706. The plurality explained that the Fourteenth Amendment permits race-conscious programs that seek both to eradicate discrimination by the governmental entity itself, and to prevent the public entity from acting as a "`passive participant' in a system of racial exclusion practiced by elements of the local construction industry" by allowing tax dollars "to finance the evil of private prejudice." Id. at 492, 109 S. Ct. 706.[4] Thus, Croson makes clear that the City has a compelling interest in eradicating and remedying private discrimination in the private subcontracting inherent in the letting of City construction contracts.
The Fourth Circuit has interpreted Croson to impose a "two step analysis for evaluating a race-conscious remedy." Maryland Troopers Ass'n, 993 F.2d at 1076. "First, the [government] must have a `strong basis in evidence for its conclusion that remedial action [is] necessary....' `Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are ... in fact motivated by illegitimate notions of racial inferiority or simple racial politics.'" Id. (citing Croson).
The second step in the Croson analysis is to determine whether the government has adopted programs that "`narrowly tailor' any preferences based on race to meet their remedial goal." Id. The Fourth Circuit *620 summarized Supreme Court jurisprudence on "narrow tailoring" as follows:
The preferences may remain in effect only so long as necessary to remedy the discrimination at which they are aimed; they may not take on a life of their own. The numerical goals must be waivable if qualified minority applications are scarce, and such goals must bear a reasonable relation to minority percentages in the relevant qualified labor pool, not in the population as a whole. Finally, the preferences may not supplant race-neutral alternatives for remedying the same discrimination.
Id. at 1076-77 (citations omitted).
B
"Parties who seek to defend gender-based government action must demonstrate an `exceedingly persuasive justification' for that action." Virginia, 518 U.S. at 531, 116 S. Ct. 2264. This burden is a "demanding [one] and it rests entirely on the State." Id. at 533, 116 S. Ct. 2264. Although gender is not "a proscribed classification," id., in the way race or ethnicity is, the courts nevertheless "carefully inspect[] official action that closes a door or denies opportunity" on the basis of gender. Id. at 532. At bottom, a government wishing to discriminate on the basis of gender must demonstrate that its doing so serves "important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives." Id. at 533 (citations and quotations omitted); Contractors Ass'n of Eastern Penn. v. Philadelphia, 6 F.3d 990, 1001, 1009 (3d Cir.1993).
As with the standards for race-based measures, no formula exists by which to determine what evidence will justify every different type of gender-conscious measure. However, as the Third Circuit has explained, "[l]ogically, a city must be able to rely on less evidence in enacting a gender preference than a racial preference because applying Croson's evidentiary standard to a gender preference would eviscerate the difference between strict and intermediate scrutiny." Contractors Ass'n, 6 F.3d at 1010.
The Supreme Court has stated that an affirmative action program survives intermediate scrutiny if the proponent can show it was "a product of analysis rather than a stereotyped reaction based on habit." Metro Broadcasting, Inc. v. F.C.C., 497 U.S. 547, 582-83, 110 S. Ct. 2997, 111 L. Ed. 2d 445 (1990)(internal quotations omitted). The Third Circuit determined that "this standard requires the City to present probative evidence in support of its stated rationale for the [10% gender set-aside] preference, discrimination against women-owned contractors." Contractors Ass'n, 6 F.3d at 1010.
C
In evaluating the first step of the Croson test, whether the City had a "strong basis in evidence for its conclusion that [race-conscious] remedial action was necessary," Maryland Troopers Ass'n, 993 F.2d at 1076, AUC argues that I must restrict my inquiry to evidence which the City actually considered before enacting the numerical goals. I agree.[5]
The Supreme Court holding in Shaw confirms that the plurality opinion in Wygant established the standard that pre-enactment evidence must provide the "strong basis in evidence" that race-based *621 remedial action is necessary. In Wygant, the plurality opinion, joined by four justices including Justice O'Connor, held that a state entity "must ensure that, before it embarks on an affirmative-action program, it has convincing evidence that remedial action is warranted. That is, it must have sufficient evidence to justify the conclusion that there has been prior discrimination." Wygant, 476 U.S. at 277, 106 S. Ct. 1842 (cited with approval in Shaw, 517 U.S. at 910, 116 S. Ct. 1894).[6] Because of this controlling precedent, I am compelled to analyze the evidence before the City when it adopted the 1999 set-aside goals specifying the 20% MBE participation in City construction subcontracts. For analogous reasons, the three percent WBE preference must also be justified by preenactment evidence.
In this case, that task is extraordinarily simple. It is undisputed here that the City considered no evidence in 1999 before promulgating the construction subcontracting set-aside goals of 20% for MBEs and 3% for WBEs.[7] Confronted with a sheer absence of any record of what evidence the City considered prior to promulgating the set-aside goals for 1999, there is simply no dispute of material fact foreclosing summary judgment in favor of plaintiff. It is thus clear, as a matter of law, that the 20% preference is not supported by a "strong basis in evidence" showing a need for a race-conscious remedial plan in 1999; nor is the three percent preference shown to be "substantially related to achievement" of the important objective of remedying gender discrimination in 1999, in the construction industry in Baltimore.
The City has repeatedly asserted throughout this case that this court should uphold the set-aside goals based upon statistics *622 which the City is now in the process of gathering in a disparity study it has commissioned. However, the City has not provided any legal support for the proposition that a governmental entity might permissibly adopt an affirmative action plan including set-aside goals and wait until such a plan is challenged in court before undertaking the necessary studies upon which the constitutionality of the plan depends. Moreover, the current study is not even complete as of the date of this Memorandum. It clearly could not have produced data upon which the City actually relied in establishing the set-aside goals for 1999.
I commend the City for beginning to collect and analyze the data which the City Council directed it to begin collecting annually back in 1990, when the Ordinance was enacted. Presuming the data this study produces are reliable and complete, the City could soon have the statistical basis upon which to make the findings Ordinance 610 requires, and which could satisfy the constitutionally required standards for the promulgation and implementation of narrowly tailored set-aside race and gender conscious goals.
Nonetheless, as the record stood when I entered the December injunction and as it stands today, there are no data in evidence showing a disparity, let alone a gross disparity, between MWBE availability and utilization in the subcontracting construction market in Baltimore City. Indisputably, the City possessed no such evidence when it established the 1999 set-aside goals challenged in this case. A percentage set-aside measure, like the MWBE goals at issue here, can only be justified by reference to the overall availability of minority- and women-owned businesses in the relevant markets. In the absence of such figures, the 20% MBE and 3% WBE set aside figures are arbitrary and clearly unenforceable in light of controlling Supreme Court and Fourth Circuit authority.
V
For the reasons set forth herein, I entered the injunction on December 17, 1999 and it remains fully in effect. Furthermore, in the present posture of this case, which is now pending in the United States Court of Appeals for the Fourth Circuit upon the City's timely appeal, further litigation here is unwarranted as plaintiff has received from this court in the December injunction all of the relief to which it is presently entitled. Accordingly, the motion for stay of order shall be denied and this action shall be dismissed without prejudice.
NOTES
[1] Fullilove v. Klutznick, 448 U.S. 448, 100 S. Ct. 2758, 65 L. Ed. 2d 902 (1980).
[2] The Ordinance provided as follows, in pertinent part: "A general goal of this subtitle is to provide a narrowly tailored remedy for past discrimination, a goal that is advanced by deleting the overall twenty percent minority business enterprise and three percent women's business enterprise goals, substituting separate goals for different categories of contracts ... requiring regular review of the necessity for the provisions of this subtitle...." Balt. City Code § 217(g).
[3] AUC's complaint contains references to AUC's constitution and bylaws; however, the complaint is not verified and thus is not technically "evidence" before the court. Nevertheless, neither the City nor MMCA contest AUC's assertion of its organizational purposes. See International Union, United Auto. v. Brock, 477 U.S. 274, 286, 106 S. Ct. 2523, 91 L. Ed. 2d 228 (1986)(relying upon provisions of the petitioner union's constitution as recited in the petitioner's brief on summary judgment to determine that the "interests that the UAW seeks to protect in this suit are `germane to the organization's purpose.'").
[4] In this respect, Croson rejected the view expressed in Justice Powell's plurality decision in Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986), that government affirmative action can act only to remedy its own discrimination. Id. at 274, 106 S. Ct. 1842 (The Supreme Court "has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination."); see Ian Ayres & Frederick E. Vars, When Does Private Discrimination Justify Public Affirmative Action?, 98 Columbia L.Rev. 1577, 1582 (1998).
[5] Originally in its papers, AUC argued that the only evidence that would be admissible in this case would be "the evidence that was before the Baltimore City Council when it enacted [the numerical goals]" AUC's Memorandum of Law at 14. However, in its supplemental written submission after the hearing on November 5, 1999, AUC acknowledged that it would be appropriate to consider post enactment evidence for purposes of evaluating "narrow tailoring." The Croson "strong evidence" standard requires evaluation of only preenactment evidence; however, inquiry about the efficacy of race neutral alternatives and about whether the affirmative action is narrowly tailored can appropriately include consideration of post-enactment evidence.
[6] The Fourth Circuit has not ruled on the issue whether affirmative action measures must be justified by a strong basis in preenactment evidence. In its decisions invalidating state affirmative action policies in Podberesky v. Kirwan, 38 F.3d 147 (4th Cir.1994), and Maryland Troopers Ass'n, Inc. v. Evans, 993 F.2d 1072 (4th Cir.1993), the Court apparently relied without comment upon post enactment evidence when evaluating the policies for Croson "strong basis in evidence." Podberesky, 38 F.3d at 154 (referring to post enactment surveys of African-American students at College Park campus); Maryland Troopers, 993 F.2d at 1078 (evaluating statistics about the percentage of black troopers in 1991 when deciding whether there was a statistical disparity great enough to justify the affirmative action measures in a 1990 consent decree). However, this issue was apparently not raised in these cases, and both were decided before the 1996 Supreme Court decision in Shaw v. Hunt, 517 U.S. 899, 116 S. Ct. 1894, 135 L. Ed. 2d 207, which clarified that the Wygant plurality decision was controlling authority on this issue.
Three courts had held, prior to Shaw, that post enactment evidence may be relied upon to satisfy the Croson "strong basis in evidence" requirement. Concrete Works of Colorado, Inc. v. Denver, 36 F.3d 1513 (10th Cir. 1994), cert. denied, 514 U.S. 1004, 115 S. Ct. 1315, 131 L. Ed. 2d 196 (1995); Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 60 (2d Cir.1992); Coral Construction Co. v. King County, 941 F.2d 910 (9th Cir.1991), cert. denied, 502 U.S. 1033, 112 S. Ct. 875, 116 L. Ed. 2d 780 (1992). In addition, the Eleventh Circuit held in 1997 that "post enactment evidence is admissible to determine whether an affirmative action program" satisfies Croson. Engineering Contractors Ass'n of South Florida, Inc. v. Metropolitan Dade County, 122 F.3d 895, 911-12 (11th Cir.1997), cert. denied, 523 U.S. 1004, 118 S. Ct. 1186, 523 U.S. 1004 (1998). However, that decision does not consider Hunt and instead relies upon the reasoning in Ensley Branch, NAACP v. Seibels, 31 F.3d 1548, 1565-66 (11th Cir.1994), a pre-Hunt case. Engineering Contractors, 122 F.3d at 911 ("Without repeating everything we had to say in Ensley Branch on this subject ..."). Because I believe that Shaw and Wygant provide controlling authority on the role of post enactment evidence in the "strong basis in evidence" inquiry, I do not find these decisions persuasive on this point. See West Tennessee Chapter of Assoc. Builders & Contractors, Inc. v. Board of Ed. of the Memphis City Schools, 64 F. Supp. 2d 714 (W.D.Tenn.1999).
[7] I do not understand the City to suggest that the 10-year-old evidence before the City Council upon the enactment of the Ordinance in 1990 might serve to justify the 1999 goals. See Maryland Troopers Ass'n, 993 F.2d at 1076-77.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443556/
|
83 F. Supp. 2d 187 (2000)
UNITED STATES
v.
Alan N. SCOTT
No. Cr.A. 99-10099-WGY.
United States District Court, D. Massachusetts.
January 18, 2000.
*188 *189 Mark W. Pearlstein, John M. Hodgens, Jr., U.S. Attorneys Office, Boston, MA, for Plaintiff.
Kevin J. O'Dea, Dennis J. Kelly, Burns & Levinson, Boston, MA, for Defendant.
MEMORANDUM AND ORDER
YOUNG, Chief Judge.
I. Introduction.
The defendant, Alan N. Scott ("Scott"), here moves to suppress the fruits of two search warrants issued by Magistrate Judge Marianne Bowler. The first warrant issued on March 12, 1999, and was executed on March 16, 1999. The second warrant issued on April 8, 1999, authorizing the government to search the hard drives of two computers seized during the execution of the first warrant. Scott also moves to suppress the contents of his wallet seized by a Secret Service agent on March 16, 1999. Scott argues that the fruits of these two searches should be suppressed because: (a) the initial search warrant issued was not supported by probable cause; (b) the seizure of the computers was illegal due to the absence of probable cause; (c) the search warrants were lacking in particularity; (d) the government so exceeded the scope of the search warrants during their execution that suppression should be mandatory; (e) the search and seizure of the wallet was not a valid search incident to arrest; (f) the government agents failed to comply with Rule 41(d) of the Federal Rules of Criminal Procedure and Scott was prejudiced thereby; and (g) the warrant execution was devoid of the "Good Faith" requirement necessary to invoke United States v. Leon. The government filed a response in opposition to Scott's motion to suppress, and Scott filed a reply to the government's opposition. The parties jointly agreed to submit the matter upon the written record without the necessity for an evidentiary hearing.
II. Factual Background.
Based on information provided by two confidential witnesses and long-time childhood friends, James Kent ("Kent") and *190 Michael Jackson ("Jackson"), Special Agent Mark Graham ("Graham") of the United States Secret Service submitted a thirty-three page affidavit on March 12, 1999 to Magistrate Judge Bowler. The affidavit summarized a bank fraud scheme alleged to have been undertaken by Scott, Robert Chace, Jr. ("Chace"), Kent, and Jackson. (Def.'s Mot. to Suppress at 2.) Further, the affidavit alleged that Kent and Jackson were involved with Scott and Chace in obtaining "Rhode Island identification cards in false names," (id. at 3), and stated that Kent and Jackson "were further instructed to obtain Shaw's supermarket cards, AAA cards and ATM cards, along with opening maildrops in the false names." (Id.) Moreover, the affidavit recounted information given to Graham by Kent and Jackson regarding two automobile loans secured from BankBoston, as well as other actions taken by the informants. Finally, the affidavit sought the issuance of arrest warrants for Scott and Chace and a search warrant for the premises of 15½ Mason Street, Hyde Park, Massachusetts. The warrants were issued on March 12, 1999, and were executed on March 16, 1999.
On March 16, 1999, Federal agents arrested Scott at his residence, 15½ Mason Street, Hyde Park, Massachusetts upon a complaint charging "Scott with making a counterfeit security, in violation of 18 U.S.C. § 513(a); producing a false identification document, in violation of 18 U.S.C. § 1028(a)(1); bank fraud, in violation of 18 U.S.C. § 1344; preventing communication to law enforcement, in violation of 18 U.S.C. § 1512(b); and conspiracy, in violation of 18 U.S.C. § 371." (Gov't Resp. Opp'n at 2.) The Federal agents then executed the search warrant and seized numerous items. Among the items seized were two computers, a Compaq Presario 4660 and an IBM Thinkpad. (Def.'s Mot. to Suppress at 6.) Scott alleges that despite his request, the "executing agents refused to show or give [him] a copy of either the search warrant or arrest warrant, although [he] was arrested and taken away from the premises by Agent Graham." (Id.) Further, Scott alleges that "[t]he executing agents also did not leave a copy of the search warrant at the premises, although a copy of the inventory was left at 15½ Mason Street." (Id.) An inventory of the items seized was duly filed with the Court.
On April 8, 1999, Graham submitted an additional affidavit to Magistrate Judge Bowler seeking an additional search warrant for the 15½ Mason Street address. The search warrant authorized the Federal agents to search the hard drives of the two computers seized in the initial search for evidence of additional federal offenses. These offenses were: "[m]aking false claims against the United States, in violation of 18 U.S.C. § 287; and wire fraud, in violation of 18 U.S.C. § 1343." (Gov't Resp. Opp'n at 2.)
III. Analysis.
In Illinois v. Gates, the Supreme Court held that "`[A] magistrate's determination of probable cause should be paid great deference by reviewing courts.'" Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S. Ct. 584, 21 L. Ed. 2d 637 [1969]); see also United States v. Feliz, 182 F.3d 82, 86 (1st Cir.1999); United States v. Procopio, 88 F.3d 21, 25 (1st Cir.1996). As the Supreme Court described:
[T]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Gates, 462 U.S. at 238, 103 S. Ct. 2317.
Likewise, the First Circuit has adopted a totality of the circumstances approach and held that "[i]n order to establish probable *191 cause, the facts presented to the magistrate need only `warrant a man of reasonable caution' to believe that evidence of a crime will be found." Feliz, 182 F.3d at 86 (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S. Ct. 1535, 75 L. Ed. 2d 502 [1983]); see also United States v. Vigeant, 176 F.3d 565, 569 (1st Cir.1999); United States v. Khounsavanh, 113 F.3d 279, 283 (1st Cir.1997). Moreover, the "probable cause standard does not demand showing that such a belief be correct or more likely true than false." Feliz, 182 F.3d at 86 (internal quotation omitted).
Although magistrates are given great deference by reviewing courts, finding probable cause to support a search warrant cannot be based on "bare bones" affidavits consisting solely of conclusory statements. Furthermore, "`[m]ere suspicion, rumor, or strong reason to suspect [wrongdoing]' are not sufficient." Vigeant, 176 F.3d at 569 (quoting United States v. Han, 74 F.3d 537, 541 [4th Cir.1996]). In Gates, the Supreme Court affirmed that "[s]ufficient information must be presented to the magistrate to allow that official to determine probable cause; his actions cannot be a mere ratification of the bare conclusions of others." Gates, 462 U.S. at 239, 103 S. Ct. 2317.
A. Sufficient Probable Cause for the Initial Search Warrant.
Scott argues that Agent Graham's affidavit was not sufficient on its face to support the search of 15½ Mason Street. Specifically, Scott argues that the information in Graham's affidavit was provided by two unknown and unreliable informants and that such corroboration as was undertaken verified only details of their own illegal activities and not the activities of Scott. Further, Scott argues that law enforcement officials failed to corroborate any details of the alleged criminal activity provided by the informants which established ties to Scott. Moreover, Scott argues that the corroborated information relevant to him is the type of innocent detail that does not give rise to probable cause for a search warrant. Finally, Scott argues that the affidavit lacks mention of the "lengthy" criminal records of Kent and Jackson.
In United States v. Zayas-Diaz, the First Circuit held that "[f]or evidence to avert suppression ..., normally the warrant application must demonstrate probable cause to believe that a particular person has committed a crime `the commission element' and that enumerated evidence relevant to the probable criminality likely is located at the place to be searched `the nexus element.'" United States v. Zayas-Diaz, 95 F.3d 105, 110-111 (1st Cir.1996) (quoting United States v. Fuccillo, 808 F.2d 173, 175 [1st Cir.1987]); see also Feliz, 182 F.3d at 86; Vigeant, 176 F.3d at 569. Some of the factors which the First Circuit has held will contribute to a probable cause determination are: "whether [the] informant['s] statements are self-authenticating ..., whether some or all [of] the informant's factual statements were corroborated wherever reasonable and practicable (e.g., through police surveillance), and whether a law-enforcement affiant included a professional assessment of the probable significance of the facts related by the informant, based on experience and expertise." Zayas-Diaz, 95 F.3d at 111; see also Khounsavanh, 113 F.3d at 284.
Since probable cause is a fact-specific inquiry with no one factor possessing "talismanic powers," Khounsavanh, 113 F.3d at 285, it is the sum of all relevant factors that will determine probable cause. Indeed, "[n]one of these factors is indispensable; thus, stronger evidence on one or more factors may compensate for a weaker or deficient showing on another." Zayas-Diaz, 95 F.3d at 111.
1. Reliability of Kent and Jackson in the Past.
It is well understood that providing accurate information to law enforcement officials *192 in the past is a strong indicia of an informant's reliability. According to Agent Graham's affidavit in support of the search warrant, neither Kent nor Jackson provided information to Graham in the past. (Def.'s Ex. A ¶ 14.) Kent, nonetheless, had provided information within the past year to other law enforcement personnel in connection with marijuana distribution unrelated to the current investigation. (Id.) This information was corroborated, but no arrests were made. Jackson, however, has not provided past information to any law enforcement personnel.
2. Information Provided by Kent and Jackson and Corroborated by Law Enforcement Personnel.
In Khounsavanh, the First Circuit decreed:
[T]he judgment to be made is: when does verification of part of the informant's story make it sufficiently likely that the crucial part of the informant's story (i.e., allegations that criminal activity has occurred and that evidence pertaining thereto will be found in the location to be searched) is true, such as would "`warrant a [person] of reasonable caution and belief' that [a search would be] appropriate," based upon what the informant has said?
Khounsavanh, 113 F.3d at 284.
Law enforcement personnel confirmed Kent's description of the exterior of the house located at 15½ Mason Street. (Def.'s Ex. A ¶ 18.) Pretrial Services Officer Alan Chipman ("Chipman") confirmed that Scott resided at 15½ Mason Street, was confined to his home under electronic monitoring, and lived alone. (Id. ¶ 20.) Chipman also confirmed that Kent's description of the first floor plan of Scott's residence was accurate. (Id. ¶ 22.) Law enforcement personnel confirmed, through Boston Edison, that the electric bill for 15½ Mason Street is in Scott's name, and confirmed that P.O. Box 366236, Hyde Park, Massachusetts is assigned to Scott. (Id. ¶ 21.)
Kent reported to Graham that Scott had instructed him to obtain Rhode Island identifications with Jackson because Rhode Island did not produce ID cards through a digitized process. (Id. ¶ 24.) Graham confirmed that in 1995-1996, the Massachusetts Registry of Motor Vehicles employed a digital photograph computerized system for the production of identification documents, but the Rhode Island identification system was antiquated and more vulnerable to imposters. (Def.'s Ex. A ¶ 24.)
Kent reported to Graham that he had assumed the identities of Kevin Burke, Brian S. Connelly, and Gerardo Madrigal since November 1998, and he provided Graham with a photocopy of Rhode Island identification cards in the name of Brian S. Connelly, issued on February 1, 1999, and Gerardo Madrigal, issued on December 18, 1998. (Id. ¶ 25.)
Kent described to law enforcement personnel how he "purchased" an automobile from Peter Caradonna in the name of Kevin E. Burke, applied for a loan from Bank-Boston, and obtained a $17,500 check made payable to Peter Caradonna. Documentation from the loan file at BankBoston indicated that on or about January 25, 1999, BankBoston issued a $17,500 loan proceeds check made payable to Peter Caradonna. (Id. ¶ 31.) Further, the vehicle purchased was reported to be garaged at 15 Evergreen Drive, East Providence, Rhode Island the address that appears on the Kevin E. Burke Rhode Island ID card with Kent's picture. (Id.)
Law enforcement officials confirmed Jackson's description of Chace's car. (Id. ¶ 38.) Jackson reported that Scott gave him and Kent lists of different Motor Vehicle Registry locations, names, addresses and maps reflecting the locations, and the money to obtain the identification cards. Jackson provided Graham with "what appears to me [Graham] to be" a computer-generated list of detailed instructions and directions of the locations that should be visited by Kent and Jackson. (Def.'s Ex. *193 A ¶ 39.) The instructions included the "assumed names, the locations where and the names under which the bank accounts should be opened, the accounts that should be selected, and the amounts to be deposited in the accounts ($50), as well as the specific ATM card that should be chosen (`Select card instead of regular ATM')." (Id.)
Jackson reported that he obtained a Rhode Island identification card in the name of David LaPlant at the instruction of Scott. This ID card was obtained by Braintree police, and the Braintree police disclosed that the ID card was issued on December 14, 1998. (Id. ¶ 40.) A photocopy of the AAA and Shaw's cards obtained by Jackson, allegedly at the instruction of Scott, were seized by law enforcement officials after Jackson was arrested by Braintree police at Kay Jewelers. (Id. ¶ 26.) Kay Jewelers confirmed that Jackson applied for store credit in the name of David A. LaPlante, 900 Post Road, Warwick, RI 02888. (Id. ¶ 45.) Braintree police confirmed that Jackson was arrested on December 22, 1998, for attempting to purchase a diamond ring at Kay Jewelers with a fraudulent ID. (Def.'s Ex. A ¶ 45.)
Jackson reported that he received a check for $18,000 from BankBoston to purchase "Madrigal's" car. He further reported that a BankBoston branch divided the $18,000 check into two $9,000 checks. "Records of BankBoston confirm that the $18,000 cashier's check was exchanged for two $9,000 cashier checks at a BankBoston branch in Canton, MA, at approximately 11:37(AM) on December 22, 1998." (Id. ¶ 42.) The "real" David A. Laplante was contacted by BankBoston, and he gave an affidavit denying that he was the loan applicant, denying that he received any benefit from the transaction, and claimed the endorsement of the $18,000 check was a forgery. (Id. ¶ 43.)
Photocopies of Bank Boston's loan file corroborate that on December 15, 1998, (one day after the LaPlant Rhode Island ID was issued) a telephone request from a "David A. LaPlante" for $18,000 to buy a Mercedes was received. LaPlante gave his address as 900 Post Road, Warwick, Rhode Island. (Id. ¶ 47.) An employee at BankBoston's Emerald Square location became suspicious of LaPlante's attempt to cash the $18,000 check and refused to do so without ID. (Id.) Subsequently, LaPlante went to a BankBoston branch located within a Stop & Shop Supermarket in Kingston, Massachusetts and received the $18,000 check. (Def.'s Ex. A ¶ 49.) Finally, BankBoston loan records confirmed that an individual who identified himself as "LaPlante" obtained two $9,000 cashier's checks from the BankBoston branch in Canton, Massachusetts in exchange for the $18,000 check.
3. Inculpatory Statements Made by Kent and Jackson and Cross Corroboration of their Accounts.
In Schaefer, the First Circuit noted that "[t]he fact that an informant's statements are against his or her penal interest adds credibility to the informant's report." United States v. Schaefer, 87 F.3d 562, 566 (1st Cir.1996). The first twenty-seven pages of Graham's affidavit concern Kent and Jackson's inculpatory account of their illegal activities, allegedly at the behest of Scott.[1]
The First Circuit also stated that "[c]ourts often have held that consistency between the reports of two independent informants helps to validate both accounts." Id. Kent and Jackson, who grew up together and have been friends for a long time, (Def. Ex. A ¶ 16), met with Graham individually and provided cross corroborating accounts of their illegal activities.
*194 4. Prior Criminal Histories of Kent and Jackson.
In United States v. Rumney, the First Circuit determined that "[a] criminal record, no matter how lengthy, does not necessarily impugn one's veracity." United States v. Rumney, 867 F.2d 714, 720-721 (1st Cir.1989). Kent has at least one sealed juvenile case on file. (Def.'s Ex. J.) Since 1993, Kent has been arraigned eleven times for various offenses. (Id.) These offenses include seven larcenies by check, larceny, operating after a suspended license, trespassing, and one unreadable offense. (Id.)
Since 1991, Jackson has been arraigned thirty three times for various offenses. These offenses include operating after a suspended license three times, forgery, attempting to commit a crime, threatening offenses three times, leaving the scene of property damage two times, operating after a suspended registration, assault and battery with a dangerous weapon, two assault and battery charges, two assaults with a dangerous weapon, possession of marijuana, disorderly person, and fifteen unreadable offenses. (Def.'s Ex. K.)
5. Summary.
Based on the totality of the circumstances, it was not unreasonable for Magistrate Judge Bowler to have formed a commonsense belief that evidence of a crime would be found at 15½ Mason Street. Without considering the information provided by Jackson,[2] the information provided by Kent is sufficient to support a magistrate "of reasonable caution" in finding probable cause. Kent's description of Scott's physical characteristics and description of the first floor of Scott's residence were corroborated by law enforcement officials. In addition, all of Kent's information stemmed from his own personal observation and direct contact with Scott.
The First Circuit in Khounsavanh stated that "it is not particularly probative for the informant to supply a lot of details about irrelevant facts that other people could easily know about and that are not incriminating ... [u]nless such details, combined with other circumstances, would in some way generate suspicion that criminal conduct has occurred or that contraband or evidence exists on the premises. ..." Khounsavanh, 113 F.3d at 284. In United States v. Taylor, however, the court stated "the affidavit may disclose an adequate basis for evaluating the informant's veracity through the very specificity and detail with which it relates the informant's first-hand description of the place to be searched...." United States v. Taylor, 985 F.2d 3, 6 (1st Cir.1993). Therefore, Kent's personal observation and direct contact with Scott, coupled with his detailed description of Scott's residence and his description of the schemes allegedly masterminded by Scott, is enough to generate the necessary suspicion that criminal conduct occurred at 15½ Mason Street. Further, the information provided by Kent and corroborated by law enforcement officials is remarkably similar to the information found sufficient to authorize a search warrant in United States v. Kessinger, 504 F. Supp. 494, 497, 499 (D.Mass. 1980) (Caffrey, C.J.).[3]
*195 Probable cause is further supported by law enforcement's knowledge of Scott's lengthy criminal record.[4] "An affiant's knowledge of the target's prior criminal activity or record clearly is material to the probable cause determination." Taylor, 985 F.2d at 6. Moreover, probable cause is supported by Graham's experience as a Special Agent for the Secret Service, United States Department of the Treasury.[5] "[T]he issuing magistrate properly may credit the experience and pertinent expertise of a law enforcement affiant in evaluating the authenticity of the informant's description of the target's modus operandi." Id.
B. Sufficient Probable Cause to Seize Computer Equipment.
The computers were seized pursuant to the affidavit requesting seizure of property that constituted evidence of criminal offenses, the fruits of crime, and the instrumentalities of criminal offenses. Specifically, the crime in question is a violation of 18 U.S.C. § 513(a) which prohibits "mak[ing], utter[ing] or possess[ing] a counterfeited security of ... an organization ..., with intent to deceive another person, organization or government...." The statutory definition of a security includes a "check." See 18 U.S.C. § 513(c)(3). Further, the statutory definition of "organization" is any "legal entity, other than a government, established or organized for any purpose, and includes a corporation, company ... or any other association of persons which operates in or the activities of which affect interstate or foreign commerce." 18 U.S.C. § 513(c)(4).
Scott argues that Graham's affidavit fails to describe any offense that falls within the scope of 18 U.S.C. § 513(a), and its inclusion in the affidavit is a pretext by the government to accomplish an otherwise unlawful seizure of computer equipment. Scott also argues that the supporting affidavit failed to establish a sufficient nexus to support the seizure of the computer equipment and thus the seizure was just part of a "fishing expedition" by the government to obtain information for the Internal Revenue Service.[6]
Since the decision of the neutral magistrate need only be supported by a commonsense belief that there is a fair probability of contraband or evidence of a crime present at the place to be searched, Feliz, 182 F.3d at 86, this Court rules that the affidavit contains sufficient information to establish probable cause for seizing the computers. Kent reported to Graham that he personally saw Scott produce checks from his computer. (Def.'s Ex. A ¶ 33). Kent also reported that he had (1) witnessed the software used to produce these *196 checks,[7] (2) seen reams of blank check stock,[8] and (3) personally signed checks in the name of Kevin Burke and Mark Zowella (phonetic) at Scott's instruction. (Id.) In addition, Kent reported that he signed several dozens of these checks made payable to various retail stores in amounts ranging from $15-$500. (Id.)
Kent's forging of checks produced by Scott from his computer and payable to various retail stores alone may not be sufficient to establish a violation of 18 U.S.C. § 513(a). In United States v. Barone, the Ninth Circuit concluded that "an entity can only constitute an `organization' for purposes of § 513 if its activities apart from the uttering of its forged securities affect interstate commerce." United States v. Barone, 71 F.3d 1442, 1446 (9th Cir.1995).
The Court need not resolve the issue at this juncture, however, since the alleged forged securities activity, in conjunction with the alleged violation of 18 U.S.C. § 1344,[9] is sufficient to support a finding of probable cause to seize the computers. Unlike the "shell" company in Barone, the Scott-Kent association engaged in crimes beyond the mere forging of checks. Kent reported to Graham that he (Kent), acting as Kevin E. Burke (a name which Kent allegedly used to sign forged checks produced from Scott's computer), "`purchased' an automobile ostensibly owned by Peter Caradonna, applied for a loan from BankBoston, a bank with deposits insured by the Federal Deposit Insurance Corporation, and obtained a $17,500 check made payable to Peter Caradonna." (Def.'s Ex. A ¶ 30.) Kent then reported to Graham that he received $1,000 for acting as the "purchaser" and the remaining proceeds were divided between Scott, Chace, and the "seller." The $17,500 loan check made payable to Peter Caradonna was confirmed by documentation from the loan file of BankBoston. The vehicle was identified as a 1996 Nissan Pathfinder and "was reported to be garaged at 15 Evergreen Drive, East Providence, Rhode Island, which is the address that appears on the Kevin E. Burke Rhode Island ID card that depicts a photograph of [Kent]." (Id. at ¶ 31.)
The alleged checks forged by Kent in the name of Kevin Burke and produced on Scott's computer, in conjunction with Kent's posing as Kevin Burke and committing bank fraud against BankBoston, creates a sufficient nexus to warrant a person *197 of reasonable caution to make a commonsense determination that evidence of crimes involving a "Kevin Burke" might be found on Scott's computer. Similar to the First Circuit's determination in Feliz that it is reasonable to suppose a drug trafficker "possessed documents showing the names and telephone numbers of customers and suppliers" at his residence, Feliz, 182 F.3d at 87, this Court rules that it is equally reasonable to suppose that someone allegedly engaged in bank fraud and producing false securities on his computer would have records of the bank fraud and false securities on that computer.
Graham's April 8, 1999 affidavit likewise contains sufficient information to support probable cause to search the hard drives of the Compaq Presario CPU 4660 computer and IBM Thinkpad computer seized during the execution of the March 16, 1999 search of Scott's residence. The search warrant sought evidence of two offenses. These offenses are a violation of 18 U.S.C. § 287 and a violation of 18 U.S.C. § 1343.[10]
According to Graham's April 8, 1999 affidavit, Special Agent Rittenour ("Rittenour") was able to conduct a "text string" mirror-image search of the computers' hard drives. (Def.'s Ex. D ¶ 7.) After querying the search for "hits" associated with names involved in Graham's original affidavit, Rittenour obtained hits for the names Caradonna and Burke. (Id.)
The name Caradonna was used in the fraudulent $17,500 loan obtained from BankBoston, and Rittenour detected a hit for Caradonna on the hard drive of the Compaq Presario. (Id. ¶ 9.) The hit corresponded to an e-mail message sent on January 28, 1999 from the computer seized in the initial search and "made reference to an application for purchase of $17,500 of the Reserve Primary fund." (Id.) The account at Reserve Funds in the name of Peter Caradonna was confirmed by Justus Sackett at Reserve Funds in New York, and Sackett confirmed that an e-mail message was sent to Reserve Funds on January 28, 1999. (Id. ¶ 10-11.)
Rittenour also detected numerous hits for the name Kevin Burke. The hits contained different social security numbers and address information for various "real" Kevin Burkes. (Def.'s Ex. D ¶ 13.) Although none of this information identically matched the Kevin Burke involved in the bank fraud, Graham extrapolated from the BankBoston loan application and the information on the Compaq Presario that the "Kevin Burke" involved in the bank scheme was created by mixing and matching information concerning various "real" Kevin Burkes. (Id. ¶¶ 14-16.)
In addition, Rittenour found the name Kevin Burke with references to tax information.[11] On April 2, 1999, Graham and Special Agent Gianoukos visited the first "real" Kevin Burke whose social security and address information was found on the Compaq Presario. The "real" Kevin Burke knew nothing about the $17,500 loan, did not know Scott or Peter Caradonna, had not yet filed his tax return, and did not request that a refund of $3,149 be electronically deposited to a Chase Manhattan *198 Bank account. (Id. ¶ 18.) Graham and Gianoukos then interviewed the father of Kevin A. Burke (real Kevin Burke # 2) and were told that he has "no knowledge of his son ever owning a Nissan Pathfinder. ..." (Id. ¶ 19.) Finally, Graham and Gianoukos attempted to visit a third "real" Kevin Burke and learned that he did not reside at the given address. They did learn, however, that he had not filed a tax return and did not know Scott. (Id. ¶ 20.) No one could be reached at the address of the fourth "real" Kevin Burke obtained from a search of the Compaq Presario.
The information obtained in the mirrorimage text string search coupled with Graham's subsequent interviews with "real" Kevin Burkes, as well as with Gianoukos' knowledge of Scott's modus operandi and Scott's prior criminal record, provides sufficient evidence to establish probable cause to search the hard drives of the two computers.
C. The Particularity of the Search Warrants.
Scott argues that the search warrants issued on March 12 and April 8, 1999 were both prohibited general warrants. Specifically, Scott argues that the warrants gave only generic characterizations of the documents sought, authorized the seizure of items far exceeding the scope of the criminal activity described in the affidavit and did not limit the scope of the seizure to a time frame consistent with the stated criminal scheme.
The Fourth Amendment's requirement that a warrant describe with particularity the place to be searched and the things to be seized "arises out of the hostility to the Crown's practice of issuing `general warrants' taken to authorize the wholesale rummaging through a person's property in search of contraband or evidence." United States v. Upham, 168 F.3d 532, 535 (1st Cir.1999); see also Fuccillo, 808 F.2d at 175. Indeed, "[t]he requirement that warrants shall particularly describe the things to be seized ... prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." United States v. Abrams, 615 F.2d 541, 543 (1st Cir.1980); see also Fuccillo, 808 F.2d at 175. Further, a particular warrant "inform[s] the person subject to the search and seizure what the officers are entitled to take." In re Lafayette Academy, 610 F.2d 1, 5 (1st Cir.1979).
1. Search Warrants Gave Generic Characterizations of the Documents Sought and Authorized the Seizure of Items Exceeding the Criminal Activity Described in the Affidavits.
Scott argues that even though the affidavits set forth specific names and entities that were allegedly used in conjunction with the suspected criminal activity, the search warrants made no attempt to confine the objects of the search to those specific names and entities. Further, Scott argues that the search warrants authorized the seizure of items beyond those for which the affidavits established probable cause.
The Court must determine whether the list of items to be seized attached to the search warrant is stated with the appropriate particularity.[12] "The cases on `particularity' are actually concerned with at least two rather different problems: one is whether the warrant supplies enough information to guide and control the agent's judgment in selecting what to take ... and the other is whether the category as specified is too broad in the sense that it includes *199 items that should not be seized." Upham, 168 F.3d at 535.
Scott argues that the March 12 search warrant authorized the seizure of any and all "savings account passbooks, checkbooks, check ledgers, deposit slips, withdrawal slips, bank statements, money orders, drafts, cancelled checks, lists of names, lists of telephone numbers, correspondence to/from banks, credit card issues; Federal Express receipts, etc.," and had no limitation as to name, entity, or time period, (Def.'s Mot. to Suppress at 23), concluding that the search warrant is not sufficiently particular so that "`nothing is left to the discretion of the officer executing the warrant.'" Fuccillo, 808 F.2d at 175 (quoting Stanford v. Texas, 379 U.S. 476, 485, 85 S. Ct. 506 [1965]). This Court, however, must ascertain whether the warrant properly guides the agents' judgment in selecting what to take and is not too broad to include items that should not be seized.
In addition, Scott argues that the warrant's authorization of the seizure of inter alia, "credit cards; application for credit cards; cash advances; cameras; undeveloped film and the undeveloped images thereon; savings account passbooks, money orders; drafts; canceled checks; list of banks; correspondence to/from credit card issuers, Federal Express receipts; and evidence of off-site storage facilities, including rental agreements, payment slips and receipts," was beyond the scope established by probable cause.[13]
The search warrant authorized the seizure of property that constituted evidence of criminal offenses, the fruits of crime, and the instrumentalities of criminal offenses, to wit, making a counterfeit security, unlawfully producing an identification document, bank fraud, using intimidation to prevent communication of a federal offense, and conspiring to commit the foregoing offenses. Only the Federal Express receipts fall outside the scope of the probable cause established by the warrant. They are, accordingly, suppressed.
2. Limiting the Scope of the Seizure to the Stated Time Frame of the Scheme.
Scott argues that even though the affidavits gave a narrow time frame of suspected criminal activity, the search warrants did not place any corresponding restriction on the permissible scope of the seizure. In Lafayette Academy, Inc., the search warrant allowed for "seizure of most every sort of book or paper at the described premises...." Lafayette Academy, Inc., 610 F.2d at 3.[14] In holding that the search warrant was unconstitutional, the First Circuit stated that "[i]n many instances of warrants authorizing the seizure of documents from a general file[,] efforts may also be required to narrow the documents by category, time period, and the like." Id. at 4 n. 4. Similarly, in United States v. Abrams, the Court concluded that the officers had unfettered discretion because there was no limitation in the search warrant regarding time nor any limitation on the description of the specific records to be seized. In finding a Fourth Amendment violation, the Court determined that the officers "could not or made no attempt to distinguish bona fide records from fraudulent ones so they seized all of them in order that a detailed examination could be made later." Abrams, 615 F.2d at 543.
Although a time limitation helps to make a search warrant sufficiently particular, it is not an absolute necessity. The First Circuit addressed this matter specifically in United States v. Bucuvalas, and adjudged that "[t]emporal delineations *200 are but one method of tailoring a warrant description to suit the scope of the probable cause showing." United States v. Bucuvalas, 970 F.2d 937, 942 n. 7 (1st Cir. 1992). Since temporal delineations are but one indicia for determining particularity, this factor alone may not render the search warrant a prohibited general warrant. Even though the March 12 and April 8 affidavits describe a specific time frame for the alleged criminal activity, First Circuit law does not require that the search warrants be correspondingly limited. Indeed, even if this Court were to determine that the search warrants were insufficiently particular with respect to setting forth the time period within which certain items were to be seized and the Court does not so rule blanket suppression of all the items seized is not the appropriate remedy. In United States v. Riggs, the First Circuit determined that "`[i]t would be harsh medicine indeed if a warrant which was issued on probable cause and which did particularly describe certain items were to be invalidated in toto merely because the affiant and magistrate erred in seeking and permitting a search for other items as well....'" United States v. Riggs, 690 F.2d 298, 300 (1st Cir.1982) (quoting 2 W. LaFave, Search and Seizure § 4.6[f], at 111-12 [1978]); see also United States v. Levasseur, 704 F. Supp. 1158, 1173 (D.Mass.1989).
D. Government So Exceeded Scope in Execution of Search Warrant That Suppression Is Mandated.
Scott argues that the executing officers exhibited a blatant and flagrant disregard for the terms of the search warrant and that the items unlawfully seized "were more than 50% of the total number of items that were seized." (Def.'s Mot. to Suppress at 29.) Scott argues that United States v. Fuccillo is directly on point and controlling here. In Fuccillo, the court determined that the FBI could have put specific information into the search warrant which would have allowed the executing agents to differentiate the cartons of contraband women's clothing from legitimate ones. Since the agents failed to do this, the court ruled the search warrant to be unconstitutional as a general warrant. See Fuccillo, 808 F.2d at 176-77. In addition, the court ruled that even though the agents were relying on a very broad warrant, they further exceeded the authority of the warrant and seized the entire contents of the warehouse. As a result, the Court determined that the agents could not reasonably have relied on the warrant, and the court suppressed all the evidence. See id. at 177.
The First Circuit recently addressed the issue of seizing items outside the scope of the warrant in United States v. Hamie. In Hamie, the court stated that "[a]lthough courts have periodically applied the extraordinary and drastic remedy of suppressing all evidence seized, this has occurred only in extreme situations, such as when the lawful basis of a warrant was a pretext for the otherwise unlawful aspects of a search or when the officers flagrantly disregarded the terms of the warrant." United States v. Hamie, 165 F.3d 80, 83-84 (1st Cir.1999). The First Circuit further stated that "the improper seizure of `many items outside [a] warrant's scope ... does not alone render the whole search invalid and require suppression and return of all documents seized.'" Id. at 84 (quoting United States v. Young, 877 F.2d 1099, 1105 [1st Cir.1989]).
Even though items were seized outside the scope of the search warrant and not under any exception,[15] the "normal remedy is to suppress the use of any items improperly taken." Hamie, 165 F.3d at 84. The Court, therefore, must determine which items seized by the government and intended to be introduced as evidence at *201 trial,[16] were improperly seized and not under any applicable exception.
E. Plain View.
In addition, Scott argues that the plain view exception for items seized outside the scope of the warrant is in-applicable here. Scott argues that each item seized must be individually justified under the plain view analysis and that with the exception of two books, Inside Money Laundering and How to Investigate by Computer, no attempt was made to do this. The First Circuit recently addressed the plain view exception in Hamie. The Court stated that "the `plain view' doctrine permits law enforcement agents to seize evidence in plain view during a lawful search even though the items seized are not included within the warrant's scope." Hamie, 165 F.3d at 82.
The plain view doctrine is established by a two-part test. "First, `an essential predicate to [the seizure of evidence not within a warrant's purview is] that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.'" Id. (quoting Horton v. California, 496 U.S. 128, 136, 110 S. Ct. 2301 [1990]). "Second, the doctrine requires that the evidence's incriminating character be `immediately apparent' to the officer." Hamie, 165 F.3d at 82. Indeed, "[t]he term `immediately apparent' has been defined as sufficient to constitute probable cause to believe it is evidence of criminal activity." Id. at 83. Further, "[t]his standard requires [that] `[t]here must be enough facts for a reasonable person to believe that the items in plain view may be contraband or evidence of a crime. A practical, non-technical probability that incriminating evidence is involved is all that is required.'" Id. (quoting United States v. Giannetta, 909 F.2d 571, 579 [1st Cir. 1990]). Scott argues that there is insufficient probable cause to justify the plain view seizure of Inside Money Laundering and How to Investigate by Computer. In response, the government argues persuasively that these two books show Scott's knowledge of money laundering and computer investigations, essential elements of the crimes described in the warrant. They are not suppressed.
Applying a practical, nontechnical probability analysis to the items seized by the government under the plain view doctrine, it remains for the Court to determine which items, if any, fall outside the warrant and also outside the purview of the plain view exception. Despite the thorough record proposed by the parties, the government's bold assertion of "plain view" will not carry the day with respect to items (not discussed above) which were seized outside the warrant. The parties shall prepare a joint list of such items and shall brief, as to each particular item, the applicability vel non of the plain view doctrine. This done, the items themselves shall be submitted to the Court for review prior to decision. Items seized pursuant to the plain view exception do not have to be contraband or actual evidence of criminal activity. Rather, there needs only to be enough facts for the reasonable person to believe that the items may be contraband or evidence of criminal activity.
F. Search and Seizure of Scott's Wallet Incident to Arrest.
Scott argues that the seizure of his wallet incident to his arrest was invalid because he was arrested in front of his residence, and his wallet was located in a night stand drawer in a second floor bedroom. The government returned the wallet to Scott on June 15, 1999, and has stated that *202 it does not intend to offer the contents of the wallet in evidence. The matter is thus moot.
G. Compliance with Federal Rule of Criminal Procedure 41(d).
Rule 41(d) of the Federal Rules of Criminal Procedure states, "[t]he officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken." Fed.R.Crim.P. 41(d). The First Circuit has stated that "`Rule 41(d) does require federal officers to serve upon the person searched a copy of the warrant and a receipt describing the materials obtained, but it does not invariably require that this be done before the search takes place.'" United States v. Bonner, 808 F.2d 864, 869 (1st Cir.1986) (quoting Katz v. United States, 389 U.S. 347, 356 n. 16, 88 S. Ct. 507, 19 L. Ed. 2d 576 [1967]). Indeed, "`[v]iolations of Rule 41(d) are essentially ministerial in nature and a motion to suppress should be granted only when the defendant demonstrates legal prejudice....'" Bonner, 808 F.2d at 869 (quoting United States v. Marx, 635 F.2d 436, 441 [5th Cir.1981]). To show prejudice, "defendants must show that they `were subjected to a search that might not have occurred or would not have been so abrasive had [Rule 41(d)] been followed.'" Id. (quoting Marx, 635 F.2d at 441).[17]
Scott argues that upon his arrest and prior to being taken from his residence, he asked for a copy of the arrest and search warrants and his request was denied.[18] Further, Scott argues that he was given a copy of the affidavit in support of the warrants a few hours later, but he was never given a copy of the search warrant nor was a copy of the search warrant left at his premises.[19] Moreover, Scott argues that his receiving a copy of the search warrant on April 8, 1999 pursuant to the government's automatic discovery was an attempt to circumvent suppression motions then pending before Judge O'Toole in another case,[20] with the result that Scott was unable to determine whether to file a further suppression motion in that case. Finally, Scott argues that the 41(d) violation was deliberate because the agents executing the warrant had over twenty-five years of experience in the aggregate and would have known that they were required to leave a copy of the search warrant at the residence searched.
*203 Since this motion has been submitted on the papers, the Court must take the facts in the light most favorable to Scott. Even so, Scott is unable to show that he was legally prejudiced by receiving the search warrant on April 8, 1999. Scott argues that the continuation of the February 23, 24, and 26 suppression hearings before Judge O'Toole was set for March 27th. The March 27th hearing, however, was further postponed to April 26, 1999, a continuance that occurred well after March 16, 1999, the date of the search. Scott thus had from April 8th until April 26th to file a "new" suppression motion before Judge O'Toole. He did not. Had the suppression hearing been held on March 27th as originally scheduled, Scott might have been able to show legal prejudice in the matters pending before Judge O'Toole due to what this Court assumes was a Rule 41(d) violation. Regardless, the matter before Judge O'Toole is immaterial to these proceedings. Scott was not legally prejudiced or precluded from filing a suppression motion in that case.
In order to show prejudice, Scott must show that, absent the Rule 41(d) violation, the search would not have occurred or it would not have been as abrasive. Scott was arrested immediately and removed from the premises before the search was undertaken. As a result, it is reasonable to infer that the nature of the search would not have changed even if Scott had been given a copy of the warrant prior to the search. It is also reasonable to infer that the same search would have occurred whether or not a copy of the warrant was left at the premises. Had Scott been present during the search after being refused a copy of the search warrant, however, he might have been able to show prejudice as matter of law,[21] a point this Court need not now address.
H. Leon "Good Faith" Exception.
Since this Court upholds the warrant, further analysis is unnecessary. Still, for the sake of completeness, the Court considers whether the officers acted in "good faith."
In United States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), the Supreme Court held that "the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial cost of exclusion." The courts have noted, however, that this good-faith exception is subject to at least four exclusions:
(1) "When the magistrate ... was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth"; (2) "where the issuing magistrate wholly abandoned his [detached and neutral] judicial role"; (3) where the affidavit is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable"; and (4) where a warrant is "so facially deficient i.e. in failing to particularize the place to be searched or the things to be seized that the executing officers cannot reasonably presume it to be valid."
United States v. Owens, 167 F.3d 739, 745 (1st Cir.1999) (quoting Leon, 468 U.S. at 923, 104 S. Ct. 3405).
Scott argues that (1) the warrant affidavit did not supply a substantial basis for probable cause, (2) the officers' objective good faith was totally undermined by the executing agents' blatant and flagrant disregard for the terms of the search warrant, and (3) the search warrant was so *204 "facially deficient" that no reasonable well-trained federal officer could have relied upon it.
The Court has already rejected Scott's arguments. The Court must still make a determination, however, whether the search warrant was so facially deficient in particularizing the things to be seized that the executing officers could not reasonably have presumed the warrant to be valid. It was not. While the warrant could have further subclassified certain items, see United States v. Diaz, 841 F.2d 1, 6 (1st Cir.1988), it was not so facially deficient that a reasonable law enforcement officer acting in objective good faith would have known it to have been invalid.
IV. Conclusion.
For the reasons set forth above, the motion to suppress is ALLOWED as to the Federal Express receipts, but DENIED in all other respects save as to the items not identified in the warrant (and not otherwise identified in this opinion), the seizure of which the government must now justify under the "plain view" doctrine. As to these items, further proceedings are ordered pursuant to this opinion.
NOTES
[1] According to Graham's affidavit, (Def.'s Ex. A ¶ 15), Kent was still involved in the illegal activities as of the writing of the affidavit, but Jackson's involvement ceased after he was arrested by Braintree police on December 22, 1998.
[2] It is questionable whether Jackson is a satisfactorily reliable informant. Unlike Kent, Jackson has not provided law enforcement officials with information in the past. In addition, Jackson's criminal record includes forgery which seriously undermines his credibility. Although the Court in Rumney held that a criminal record does not per se impugn one's veracity, the Court suggested that crimes similar to perjury or false statements could discredit trustworthiness. See Rumney, 867 F.2d at 720 ("appellant does not contend that Nassoura's crimes were ones involving perjury or false statements"). Regardless, the information provided by Kent is sufficient to establish probable cause for the search warrant.
[3] In United States v. Kessinger, the Court found the informant reliable based upon the informant's personal observation of Kessinger possessing cocaine in his apartment and the informant's description of the defendant, his cars, and his apartment. Id. at 499. The Court determined that this information was of a sufficiently detailed nature "so as to assure that it was based on more than mere rumor or speculation." Id. Also noteworthy is the fact that probable cause was found in Kessinger applying the Aguilar-Spinelli two-prong test, a notably stricter standard than the totality of the circumstances standard adopted in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).
[4] According to Graham's affidavit, Scott has been convicted of possessing a firearm without a permit, twice convicted of counterfeiting motor vehicle documents, and threatening and intimidating a material witness. (Def.'s Ex. A ¶ 4.) Further, Scott has two pending criminal charges against him. These charges are for bank fraud and conspiracy to make false claims against the United States Treasury. (See id. ¶¶ 6-8.)
[5] According to his affidavit, Graham has investigated offenses involving inter alia credit card fraud, bank fraud, and fraudulent negotiation of U.S. Treasury checks for the past eight years. (Def.'s Ex. A ¶ 1.)
[6] Scott argues that the seizure of the computer equipment was designed to aid IRS Agents James Donahue ("Donahue") and Michael Gianoukos ("Gianoukos") in their two criminal cases against Scott pending before Judge O'Toole. As support for his position, Scott notes the "virtually identical" nature of computer seizure sections of Graham's affidavit and Gianoukos' affidavit in support of a November 1997 search of Scott's residence. (Def.'s Mot. to Suppress at 13.)
[7] Scott argues that this statement necessarily implies that the software was not installed on the computer, but instead was on a separate disk or CD-ROM. (Def.'s Mot. to Suppress at 12.) Scott also argues that one cannot "see" software that has been installed on the hard drive of a computer, and the Agents therefore had no basis for searching the computer when the software existed as a separate disk or CD-ROM. (Id.) Moreover, Scott argues that the seizure of the computers was improper because the government's analysis of the seized computers revealed no such software and the only software seized were Versacheck software disks in their original unopened packages. (Id. at n. 2.)
This argument is unpersuasive for two reasons. First, software can often be "seen" on the hard drive of a computer through its corresponding icon. Second, allegedly seeing the software is only part of the evidence to support probable cause for seizing the computers and even without this piece, there is still sufficient information contained in Graham's affidavit to establish probable cause.
[8] Scott argues that photographs taken by the Secret Service did not reveal reams of blank check stock, but instead only reams of copy paper. (Def.'s Reply Mem. at 3-4 n. 1.) Further, the government was only able to seize a small packet of check paper. (Id.) This is irrelevant, however, to whether the magistrate had sufficient probable cause to issue a search warrant. The standard for probable cause is not the actual presence of evidence, but the commonsense belief in the fair probability that evidence or contraband will be found. See Gates, 462 U.S. at 238, 103 S. Ct. 2317.
[9] Section 1344 defines bank fraud as:
"knowingly execut[ing], or attempt[ing] to execute, a scheme or artifice ...
(2) to obtain any of the moneys [or] funds ... owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations or promises."
[10] Section 287 states, "[w]hoever makes or presents to any person or officer in the civil ... service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious or fraudulent, shall be imprisoned...."
Section 1343 states, "[w]hoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money by means of false or fraudulent pretenses ... transmits ... by means of wire, radio or television communication in interstate ... commerce, any writings ... for the purpose of executing such scheme or artifice, shall be fined ... or imprisoned...."
[11] Graham provided Special Agent Gianoukos with the different names, dates of birth, and social security numbers of the Kevin Burkes found on the Compaq Presario. Gianoukos later informed Graham that these Kevin Burkes had filed tax returns and had received refunds electronically mailed to different accounts.
[12] Scott argues that the search warrants did not incorporate or otherwise make any reference to the affidavits nor was the affidavit attached to the search warrant. (Gov't Exs. 2, 4.) In United States v. Klein, the First Circuit recognized that an affidavit may provide the necessary particularity if "the affidavit accompanies the warrant, and the warrant uses suitable words of reference which incorporate the affidavit." United States v. Klein, 565 F.2d 183, 186 n. 3 (1st Cir.1977).
[13] Scott also argues that there was insufficient probable cause to support the seizure of computer equipment, but this matter has been resolved above.
[14] In Lafayette Academy Inc., the search warrant was executed by thirty government agents who employed four or five trucks to remove the materials seized.
[15] The government concedes in its opposition to Scott's motion to suppress that "the agents seized some items outside the scope of the warrant and under no exception to the warrant requirement...." (Gov't Opp. at 13.)
[16] In its opposition to Scott's motion to suppress, the government argues that the majority of the evidence disputed by Scott is moot because it does not intend to introduce it at trial. In Hamie, the Court stated "[t]o the degree that the unauthorized items were improperly seized, there was no need to suppress them because the government never sought to introduce them at Hamie's trial." Hamie, 165 F.3d at 84.
[17] Bonner, however, deals with officers who searched a residence without having a copy of the warrant with them. In this case, Scott argues that the agents had the warrant and flatly refused to give a copy to him.
[18] This is disputed by the government in an affidavit by Graham. (Gov't App. Ex. 7.)
[19] Scott's contention that he asked for a copy of the search warrant, and his contention that a copy of the search warrant was not left at his premises is also in dispute. According to the affidavit of special agent William Cameron, Scott did not ask for a copy of the warrant. (Gov't App. Ex. 6 ¶ 8.) Further, the government argues that a copy of the search warrant and inventory was left at Scott's residence. (See Id. ¶ 12.)
In support of his claim, Scott makes four arguments: (1) Since Agent Cameron inaccurately recalled in September the clothes worn by Scott on March 16, he cannot be expected to have an accurate memory about whether or not Scott asked for a copy of the warrant. (2) Scott has been the subject of three previous searches by the IRS and has explicitly asked for such paperwork on each occasion in the past. (3) Had a copy been left at Scott's residence, counsel would not have sought a copy from the First Assistant U.S. Attorney, Mark Pearlstein. (4) The sworn affidavit of Brian McKinnon that no copy of the search warrant was left at Scott's residence was corroborated by the Plymouth Jail taped phone call that Scott placed to McKinnon that evening.
[20] Scott argues that the seizure of certain items in his wallet during the pendency of the suppression hearing before Judge O'Toole gives rise to the suspicion that the government was thereby attempting to circumvent the then pending suppression motions by establishing a new basis for introducing such evidence.
[21] This appears to be the case in the Ninth Circuit case of United States v. Gantt, 194 F.3d 987 (9th Cir.1999). In Gantt, the Ninth Circuit held that a deliberate disregard for Rule 41(d) is grounds for suppressing evidence. In Gantt, the defendant sat in the hallway while the agents conducted a three-hour search of her residence. The defendant asked to see a complete copy of the search warrant and the agents failed to show it to her. The Ninth Circuit found this "deliberate" violation of Rule 41(d) to be sufficient to mandate suppression of the evidence obtained in the search.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/6363757/
|
Opinion by
Judge Wilkinson, Jr.,
This case involves an appeal by the Buffalo Township Board of Supervisors from an order of the Court *388of Common Pleas of Butler County refusing to place certain conditions on the tentative approval of appellee’s planned residential development (PRD). We affirm.
In June, 1972, appellee-developer applied to the Buffalo Township Zoning Hearing Board and the Buffalo Township Planning Commission for tentative approval of a PRD to contain 470 units. On August 7, 1972 a public hearing was held. Tentative approval was denied and the developer appealed to the Court of Common Pleas of Butler County. The Zoning Hearing Board was dismissed as a party and the Board of Supervisors added. Hearings were held before the court on May 4 and June 20, 1973 and extensive testimony was taken. The court ruled that under Section 709 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10709, tentative approval must be granted or denied by the governing authority, i.e., the Board of Supervisors and, therefore, remanded.
Upon remand, the Board of Supervisors granted tentative approval subject to 23 conditions. The developer refused to accept some of the conditions and again appealed to the court of common pleas. The court, considering the appeal de novo on the basis of its prior hearings, granted tentative approval to the PRD subject to 17 conditions. The developer accepted these conditions but the Board of Supervisors has appealed.
It is uncontested that the construction of appellee’s PRD will necessitate the accelerated improvement of Harbison Road as well as the accelerated construction of water lines and sewage facilities. Among the conditions placed on tentative approval by the Board of Supervisors was that all off-site costs of the above improvements be paid for by the developer. On appeal, the court below required the developer to pay *389for the construction costs of widening Harbison Road and for the off-site costs of installing water lines and a sewage disposal system. These conditions are not appealed by the developer. The court imposed on the Township the cost of acquiring off-site rights-of-way, holding that charging these costs on the developer would be “invalid, arbitrary and tuireasonable.” The Board of Supervisors appeals from the imposition of these costs on the Township. Here, where the lower court has considered the application for tentative approval of a PRD de novo, our scope of review is to determine whether the lower court committed an abuse of discretion or error of law when it refused to impose the cost of acquiring off-.site rights-of-way on the developer. Board of Commissioners of the Township of O’Hara v. Hakim, 19 Pa. Commonwealth Ct. 661, 339 A.2d 905 (1975).
We need not decide whether the imposition of the costs of acquiring off-site rights-of-way on the appellee would have been invalid as the court below found. Even assuming it would have been valid, we believe that the lower court did not abuse its discretion by refusing to impose such costs. It is clear that some of the costs of off-site improvements can fairly be charged to a developer whose plans so burden existing facilities as to necessitate their accelerated improvement or construction. However, conditions placed on tentative approval must be reasonable and economically feasible. Doran Investments v. Muhlenberg Township Board of Commissioners, 10 Pa. Commonwealth Ct. 143, 309 A.2d 450 (1973). The rationale for imposing off-site costs is not to transfer all costs of development from municipalities to private developers. The primary responsibility for providing these services lies with local governments. The purpose of imposing reasonable off-site costs on developers is to cushion municipalities from the effect of rapid, large-*390scale development. See R. Ryan, Pennsylvania Zoning Law and Practice §5.3.10 (1970). After taking testimony the court below held that imposing the costs of the off-site rights-of-way on the appellee would be arbitrary and unreasonable. On the basis of this record, we cannot say that the court below abused its discretion.1
Accordingly, we will enter the following
Order
Now, June 2, 1977, the order of the Court of Common Pleas of Butler County, at Civil Division A.D. No. 60, December Term, 1972, dated March 29, 1976, is affirmed and the appeal is dismissed.
Appellant argues that the rational nexus test applied by the court below required the imposition of all off-site costs on the developer. We disagree. Under the test a developer can only be forced to “bear that portion of the cost which bears a rational nexus to the needs created by, and benefits conferred upon, the subdivision.” 181 Incorporated v. Salem County Planning Board, 133 N.J. Superior 350, 358, 336 A.2d 501, 506 (L.D. 1975), quoting from Longridge Builders, Inc. v. Planning Board of the Township of Princeton, 52 N.J. 348, 350, 245 A.2d 336, 337 (1969).
|
01-03-2023
|
06-24-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/2443452/
|
83 F. Supp. 2d 1248 (2000)
Marie AQUILINO, Ph.D., Plaintiff,
v.
UNIVERSITY OF KANSAS, Defendant.
No. Civ.A. 99-2231-KHV.
United States District Court, D. Kansas.
February 11, 2000.
*1249 *1250 Alan V. Johnson, Stephen D. Lanterman, Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, KS, W. Thomas Stratton, Topeka, KS, for Marie Aquilino.
Rose A. Marino, Office of General Counsel, University of Kansas, Lawrence, KS, Barbara L. McCloud, University of Kansas, Office of the General Counsel, Lawrence, KS, for University of Kansas.
MEMORANDUM AND ORDER
VRATIL, District Judge.
Marie Aquilino, a former faculty member at the University of Kansas, filed suit against the university, alleging that it refused to promote her to Associate Professor and award her tenure because of her sex, and that it subsequently refused to hire her as an ad hoc faculty member or adjunct professor because she had filed a sex discrimination charge with the EEOC, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. as amended. The matter is before the Court on defendant's Motion For Summary Judgment Against Plaintiff Aquilino (Doc. # 23) filed December 15, 1999. For reasons set forth below, the Court sustains the motion in part and overrules it in part.
Summary Judgment Standards
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S. Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S. Ct. 2505.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
"[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable *1251 or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S. Ct. 2505. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S. Ct. 2505.
Factual Background
The following facts are uncontroverted, deemed admitted or, where disputed, viewed in the light most favorable to plaintiff.
In August 1991, plaintiff, a white female, started work at the University of Kansas ("KU") as a tenure track Assistant Professor in the Kress Foundation Department of Art History (KFDAH or Department).
In and after 1993, the KFDAH gave plaintiff annual reviews which evaluated three factors: teaching, research and service. In the spring of 1993, Dr. Edmund Eglinski, KFDAH chair, gave plaintiff an annual review which rated her teaching and research as "very good" and her service as "outstanding."[1] In response to the evaluation, plaintiff sent Dr. Eglinski a letter which stated that the evaluation was "neither fair or accurate in its reflection on my contribution to the department and I am alarmed by its implications for my third year [pre-tenure] review." Plaintiff also stated that she was "left with the impression that there is little demonstrable support for my work, for the perspective of my teaching, or for my interests as a junior faculty member." Dr. Eglinski responded by noting that plaintiff received "mixed" student evaluations and that students had complained about the pace of lectures, tests, plaintiff's inaccessibility outside of class and hostility toward student questions.
In November 1993, the KFDAH asked plaintiff to provide materials for her third-year (pre-tenure) review. One purposes of the third-year review is for the Department to inform tenure-track faculty members whether they are then on track for promotion and tenure, and to suggest areas of improvement. On March 1, 1994, after a meeting of the tenured faculty members of the KFDAH, Dr. Eglinski consolidated the comments of the department and gave plaintiff a generally favorable pre-tenure review. Dr. Eglinski noted that "your performance as a teacher shows great promise [and is adequate to excellent] but there is a problem of perception that you are inaccessible and unsympathetic. Your research and service are appropriate for this stage of your career and meet our expectations." Plaintiff asked Dr. Eglinski how to address the "perception" problem regarding her teaching. Dr. Eglinski told her that she should be more like David (Dr. David Cateforis, one of plaintiff's male colleagues) and to "smile more." In the review, Dr. Eglinski wrote that "[i]t behooves you to soften your manner when advising students." One of the Department members, Dr. Stephen Goddard, wrote Dr. Eglinski a letter which noted his disagreement with the KFDAH evaluation. Dr. Goddard stated that he was surprised that the emotions of his colleagues "ran so hot" regarding plaintiff. When plaintiff attempted to discuss her third-year review with Dr. Charles Eldredge, he told her that she should drop her inquiries and leave the matter alone.
A sub-committee of the College Committee on Appointments, Promotion and Tenure ("CCAPT") analyzed the third-year, pre-tenure reviews of four departments at KU. On March 15, 1994, the sub-committee sent Dr. Eglinski a letter regarding plaintiff's *1252 review. The sub-committee encouraged Dr. Eglinski to conduct an annual internal review of plaintiff based on (1) rigorous peer review of class visits, (2) student evaluations, (3) formal evaluation of research and (4) on-going evaluation of service quality and record. KFDAH implemented some but not all of these suggestions.
On April 19, 1994, Dr. Eglinski gave plaintiff her annual evaluation, rating her teaching and service as "superior" and her research as "outstanding." For teaching, Dr. Eglinski noted that "[t]here are still complaints about inaccessibility."
In February 1994, plaintiff was awarded the J. Paul Getty Postdoctoral Fellowship in the History of Art. As a condition of the fellowship, plaintiff requested and received a leave of absence for the 1994-95 academic year.
On May 1, 1995, Dr. Eglinski gave plaintiff an annual evaluation which again rated her teaching and service as "superior" and her research as "outstanding." Because of her leave of absence, the evaluation only included plaintiff's teaching and service for the first half of 1994.
On May 1, 1996, Dr. Linda Stone-Ferrier, the department chair (after Dr. Eglinski), sent plaintiff her annual evaluation, again rating her teaching and service as "superior" and her research as "outstanding." Plaintiff's evaluation for teaching and service carried over from her prior evaluation because due to her fellowship, she did not teach classes or perform typical service in early 1995.
On March 14, 1997, Dr. Stone-Ferrier gave plaintiff an annual evaluation which rated her teaching as "unable to evaluate," her research as "outstanding" and her service as "very good." Plaintiff received the rating of "unable to evaluate" because she did not solicit student evaluations from her classes and the KFDAH did not receive any student evaluations for two of plaintiff's classes. Dr. Stone-Ferrier asked plaintiff about the missing evaluations. Plaintiff stated that she forgot to distribute them. After discussions with plaintiff and with her consent, Dr. Stone-Ferrier asked students to provide evaluations for the classes. The student evaluations ranged from "very good" to "excellent." After Dr. Stone-Ferrier received several evaluations, she asked Associate Dean Casagrande whether she should utilize the student evaluations. Dean Casagrande advised her that student evaluations solicited months after a course had been completed could not accurately reflect student opinions. Dean Casagrande instructed Dr. Stone-Ferrier to give plaintiff a rating of "unable to evaluate" for teaching. Although Dr. Stone-Ferrier did so, she included several un favorable student comments because plaintiff stated that it was not fair to omit all evaluations of her teaching. Dr. Stone-Ferrier also noted that plaintiff's rapport with students could be affected by the manner and style which she also exhibited in faculty meetings.
In March 1997, plaintiff wrote Dr. Stone-Ferrier, contesting the evaluation of her teaching because (1) Dr. Stone-Ferrier had not included any positive student comments, (2) plaintiff's "manner" had nothing to do with enrollment in her classes, (3) plaintiff's "manner" in a faculty meeting had nothing to do with her teaching and if anything, plaintiff's "demeanor in faculty meeting was (is) a result of being insulted, degraded, put down, and yelled at for six years." Plaintiff stated that she was "alarmed" by the evaluation.
Shortly before the KFDAH was set to act on plaintiff's application for promotion and tenure, it circulated a draft of "discipline expectations" to plaintiff and two other candidates (Dr. Amy McNair and Dr. David Cateforis). The KFDAH had initially drafted the discipline expectations in 1989 or 1990, for a prior candidate, and it used essentially the same expectations each year. In this instance, all three candidates objected to the draft because they thought that it did not accurately reflect their work and that it favored Dr. Cateforis because he had worked on museum catalogues and exhibition brochures. Dr. *1253 Stone-Ferrier suggested that the candidates draft a revised statement and plaintiff did so after further consultation with Dr. Stone-Ferrier. Although the KFDAH did not adopt all of plaintiff's suggestions, it revised the discipline expectations to incorporate some of them. Plaintiff thought that at least two of the changes were significant and positive.
After plaintiff learned that Dr. Cateforis and Dr. McNair participated with a faculty member in selecting three of the external reviewers for the promotion and tenure decision, plaintiff asked Dr. Stone-Ferrier to help her select external reviewers. Dr. Stone-Ferrier agreed and allowed plaintiff to submit a list of six external reviewers together with a list of three individuals whom she did not want to be used as external reviewers. Dr. Stone-Ferrier consulted plaintiff and they agreed on a list of three external reviewers to be selected from the departmental list.
In October 1997, the KFDAH unanimously recommended against promotion and tenure for plaintiff and in favor of promotion and tenure for Dr. Cateforis and Dr. McNair.[2] Four of the six external referees for plaintiff recommended her for promotion and tenure. The KFDAH rated plaintiff "poor" in teaching, research and service, with an overall evaluation of "poor." The KFDAH rated Dr. Cateforis "exceptional" in teaching and service and "very good" in research, with an overall evaluation of "exceptional." In a letter to the CCAPT, Dr. Stone-Ferrier explained:
[Dr. Aquilino] has published only one article, which was based on her dissertation, and two five-paragraph book reviews. The vast majority of her research efforts, as well as the $72,371.72 in fellowship and grants that she has received, have resulted in a 236-page typescript that has yet to find a publisher.[3] ... Dr. Aquilino's scholarly record is seriously deficient in terms of both quality and quantity.
Additionally, the problems detailed in the Blue Form have been brought to Dr. Aquilino's attention over the last six and a half years in year-end merit evaluation letters as well as in her Third-Year Review letter.... Although Dr. Aquilino has received "very good" and "outstanding" ratings [on her annual and pre-tenure reviews], it should be kept in mind that these are in actual practice virtually the only two evaluations that any faculty member in the art history department receives. We expect a very high level of performance in research, teaching and service. The merit-evaluation letters are extremely difficult to compose because they are intended to acknowledge officially both accomplishments, as well as areas in need of improvement. However, on the other hand, we wish to support and encourage our untenured junior faculty in particular, and not to penalize them through merit evaluations for problems that can be dealt with less formally and less publicly. Additionally, the Chair is somewhat handicapped by the fact that the information on which he/she bases a merit evaluation judgment has been supplied only by the faculty member being reviewed. No third-party intervention affords correction and criticism as in the promotion and tenure process. ... The research ratings were consistently "outstanding" because of the potential inherent in Dr. Aquilino's impressive fellowships; however, the promise of publication(s) resulting from such grant support has ultimately been disappointing.
*1254 Exhibit 15 to Memorandum In Support Of Motion For Summary Judgment On Claims Of Plaintiff (Doc. # 24) filed December 15, 1999.
In December 1997, the CCAPT also recommended against promotion and tenure for plaintiff and in favor of promotion and tenure for Dr. McNair and Dr. Cateforis. The CCAPT denied plaintiff promotion and tenure because of her lack of publication and the unanimous vote of her department. In March 1998, the Provost and the University Committee on Promotion and Tenure agreed. The Chancellor of KU, Dr. Robert Hemenway, followed the unanimous recommendations of the Provost, the UCPT, the CCAPT and the KFDAH, and awarded promotion and tenure to Dr. McNair and Dr. Cateforis but not to plaintiff. As a result, the KFDAH notified plaintiff that her employment would terminate at the end of the 1998-99 academic year.
In the spring of 1999, plaintiff applied for an adjunct faculty position with the Hall Center for the Humanities. Although the Hall Center for the Humanities supported plaintiff's appointment, the Provost rejected the appointment because he thought that it would not serve "a University purpose" and that it would be "inappropriate." In May, 1999, the KFDAH denied plaintiff an appointment as ad hoc faculty member in the department.
The Department of Latin American Studies and the Department of History supported plaintiff's nomination for ad hoc positions in those departments. On August 10, 1999, KU denied plaintiff's ad hoc appointment to the history department. The Dean of the Graduate School told the Department of Latin American Studies that an ad hoc position for plaintiff should be no problem. On August 30, 1999, however, KU denied plaintiff's ad hoc appointment to that department.
Analysis
I. Sex Discrimination Claim
Plaintiff alleges that defendants violated Title VII by refusing to hire her for the Associate Professor position because of her sex. To prevail on her claim, plaintiff must establish that her sex was a determining factor in the challenged decision. See Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir.1996) (citing Lucas v. Dover Corp., 857 F.2d 1397, 1400 (10th Cir.1988)). Plaintiff need not show that her sex was the sole reason for her non-selection, but she must show that her sex "made the difference" in the decision. Greene, 98 F.3d at 557 (quoting EEOC v. Sperry Corp., 852 F.2d 503, 507 (10th Cir. 1988)). She may meet this burden by direct or circumstantial evidence that her sex was a determining factor, or by the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). See MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1441 (10th Cir.1996). Defendants argue that as a matter of law, plaintiff cannot meet her burden under either approach.
Direct evidence, though rare, consists of "proof of an existing policy which itself constitutes discrimination," Mosley v. Pena, 100 F.3d 1515, 1519 (10th Cir.1996), or statements which on their face show that defendant "acted on [its] discriminatory beliefs." Ramsey v. City & County of Denver, 907 F.2d 1004, 1008 (10th Cir. 1990), cert. denied, 506 U.S. 907, 113 S. Ct. 302, 121 L. Ed. 2d 225 (1992); see Carney v. Pena, 992 F. Supp. 1285, 1290 (D.Kan. 1998). "Statements which on their face are expressions of personal opinion, however, can only support an inference of discrimination if the trier of fact finds the inference reasonable, and so constitute only circumstantial or indirect evidence of discrimination against the plaintiff." Mosley, 100 F.3d at 1519-20 (quoting Ramsey, 907 F.2d at 1008).
Plaintiff claims that three statements by department chairs Eglinski and Stone-Ferrier constitute direct evidence of discrimination. When plaintiff asked Dr. *1255 Eglinski how to address her "perception" problem noted in her third-year review, he told her to "smile more" and to "be more like David [Cateforis]." Dr. Eglinski also wrote that "[i]t behooves you to soften your manner when advising students." During plaintiff's 1997 annual review, the next department chair, Dr. Stone-Ferrier, criticized plaintiffs "manner and style" in class and in faculty meetings. To accept plaintiff's argument that these statements constitute direct evidence of sex discrimination, the jury would have to infer that Dr. Eglinski and Dr. Stone-Ferrier had a bias against female faculty members, that they acted on that bias and that they convinced others to do likewise. The statements by Dr. Eglinski and Dr. Stone-Ferrier are not direct evidence of sex discrimination. See EEOC v. Wiltel, Inc., 81 F.3d 1508, 1514 (10th Cir.1996) (if trier of fact must infer that discrimination was a motivating factor, statement is not direct evidence); Ramsey, 907 F.2d at 1008 (direct evidence must show that defendant acted on its discriminatory belief).
The Court therefore evaluates plaintiff's claim under the burden-shifting framework established in McDonnell Douglas. To set forth a prima facie case of discrimination under McDonnell Douglas, plaintiff must show each of the following elements: (1) that she is a member of a protected class; (2) that she was qualified for the position sought; (3) that she was rejected; and (4) that defendant filled the position with someone who was not a member of the protected class. See Thomas v. Denny's, Inc., 111 F.3d 1506, 1510 (10th Cir.), cert. denied, 522 U.S. 1028, 118 S. Ct. 626, 139 L. Ed. 2d 607 (1997). Plaintiff's establishment of a prima facie case creates a presumption of unlawful discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993).
Defendant first argues that plaintiff has failed to show that she was qualified for the position of Associate Professor. Plaintiff has shown, however, that a majority of her external referees recommended that she receive the position and tenure. Plaintiff's evidence is sufficient to meet her prima facie burden as to her qualifications. See Thomas, 111 F.3d at 1510 (prima facie burden met through credible evidence that plaintiff is qualified even if employer disputes evidence; burden may be met through plaintiff's own testimony or that of co-workers); see also Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d 339, 342 (10th Cir.) (subjective qualifications best evaluated at third stage of McDonnell Douglas analysis, not at prima facie stage), cert. denied, 459 U.S. 1071, 103 S. Ct. 491, 74 L. Ed. 2d 633 (1982); Zahorik v. Cornell Univ., 729 F.2d 85, 93-94 (2d Cir.1984) (plaintiff may show she is qualified by showing that "some significant portion of the departmental faculty, referrants or other scholars in the particular field hold a favorable view on the question").
After plaintiff has established a prima facie case, the burden shifts to defendant to produce evidence that it took the adverse employment action for a legitimate nondiscriminatory reason. See Greene, 98 F.3d at 558; Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995). Defendant must articulate and produce some evidence that it did not hire plaintiff for the Associate Professor position for a "facially legitimate and nondiscriminatory reason." Aramburu v. Boeing Co., 112 F.3d 1398, 1403 (10th Cir.1997). Here, defendant has met this burden by stating that it did not select plaintiff because of deficiencies in her research, teaching and service.
As defendant has met its burden, the presumption of discrimination drops from the case and plaintiff must establish by a preponderance of the evidence "that the proffered reason was not the true reason for the employment decision." Id. Plaintiff may show pretext by establishing either that a discriminatory reason more likely motivated defendant or that its explanations are unworthy of credence. See Rea v. Martin Marietta Corp., 29 F.3d 1450, 1455 (10th Cir.1994).
*1256 A. Plaintiff's Prior Evaluations
Plaintiff claims that her favorable annual reviews and positive third-year (pre-tenure) review indicate that defendant's proffered reason is a pretext for discrimination. A change in management's evaluation of employee performance does not by itself, however, raise an inference of pretext. See Valdivia v. University of Kan. Med. Ctr., 24 F. Supp. 2d 1169, 1174 (D.Kan.1998); see also Viola v. Philips Med. Sys. of North Am., 42 F.3d 712, 717-18 (2d Cir.1994) (rejecting inference of discrimination or pretext from negative performance review after prior positive reviews); Orisek v. American Institute of Aeronautics and Astronautics, 938 F. Supp. 185, 188 (S.D.N.Y.1996) (same), aff'd, 162 F.3d 1148, 1998 WL 650257 (2d Cir.1998). "To hold otherwise would be to hold that things never change, a proposition clearly without a basis in reality." Shabat v. Blue Cross Blue Shield, 925 F. Supp. 977, 988 (W.D.N.Y. 1996) (internal quotations and citation omitted), aff'd, 108 F.3d 1370, 1997 WL 138836 (2d Cir.1997). An employer is entitled to change its evaluation of an employee over time, and in the context of a tenure-track faculty member, changes may be particularly likely if the tenure decision depends on a cumulative assessment of the work of the candidate. See Dr. Stone-Ferrier letter to CCAPT dated October 29, 1997 ("The research ratings were consistently `outstanding' because of the potential inherent in Dr. Aquilino's impressive fellowships; however, the promise of publication(s) resulting from such grant support has ultimately been disappointing."), Exhibit 15 to Memorandum In Support Of Motion For Summary Judgment On Claims Of Plaintiff (Doc. # 24) filed December 15, 1999.
Further, although plaintiff's prior evaluations were generally positive, plaintiff received a number of critical remarks. In 1993, plaintiff stated that she was "alarmed" by the implications of her annual review on her third-year review. Plaintiff also stated that she thought that the department had not shown demonstrable support for her work, her teaching perspective or her interests as a junior faculty member. In March 1997, plaintiff also wrote and phoned the department chair, contesting the annual evaluation of her teaching. Plaintiff again stated that she was "alarmed" by the evaluation. Plaintiff also acknowledged at faculty meetings, her demeanor "was (is) a result of being insulted, degraded, put down, and yelled at for six years." In sum, plaintiff has not presented evidence that the Department consistently gave her glowing recommendations for tenure and promotion. However positive those evaluations might appear to a lay audience, plaintiff by her own admission has conceded that those individuals who were familiar with the tenure process understood otherwise. In addition, defendant has presented uncontested evidence that ratings on annual and pre-tenure reviews are inflated. See Dr. Stone-Ferrier letter to CCAPT dated October 29, 1997.
More importantly, an inference of discrimination does not arise from plaintiff's prior evaluations because she has not shown that male faculty members with similar ratings are generally awarded promotion and tenure. Indeed, defendant has presented evidence that it denied tenure to one of plaintiff's male colleagues who had similar annual evaluations. Absent evidence that favorable annual and pre-tenure reviews ordinarily result in promotion and tenure, an inference of discrimination based on plaintiff's prior reviews is not permissible.
B. Procedural Irregularities
Disturbing procedural irregularities, e.g., falsifying or manipulating hiring criteria, may support an inference of discrimination. See Simms v. State of Okla. ex rel. Dept. of Mental Health, 165 F.3d 1321, 1328 (10th Cir.), cert. denied, ___ U.S. ___, 120 S. Ct. 53, 145 L. Ed. 2d 46 (1999); Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 532 (10th Cir.1994); Mohammed v. Callaway, 698 F.2d 395, 399 (10th Cir.1983). Plaintiff alleges several irregularities in the KFDAH handling of her tenure application.
*1257 First, plaintiff claims that the KFDAH did not follow the CCAPT subcommittee recommendation that it conduct a detailed annual review of her work. Plaintiff fails to show, however, that defendant treated any of her faculty colleagues differently or more favorably. Absent evidence that the KFDAH conducted such reviews for male faculty members or ordinarily followed the recommendations of the CCAPT sub-committee, no inference of pretext arises from its failure to follow the sub-committee recommendations in this instance. Moreover, although defendant did not precisely follow all of the CCAPT recommendations, it gave plaintiff annual reviews and noted potential problems with her teaching.
Plaintiff also claims that the KFDAH manipulated the "discipline expectations" to favor Dr. Cateforis. As noted, the discipline expectations were drafted in 1989 or 1990 for a prior candidate. On this record a jury would not reasonably find that the KFDAH "manipulated" the process in favor of Dr. Cateforis by using essentially the form it had used for nearly ten prior years. If anything, it appears that the KFDAH manipulated the process to Dr. Cateforis' dis advantage because it circulated a draft of the discipline expectations to all three candidates, allowing them to suggest revisions and incorporating at least two significant changes which plaintiff suggested. Plaintiff has not specified any significant suggestions which were omitted from the final version. Finally, the draft discipline expectations did not favor Dr. Cateforis because he was a man. Rather, as plaintiff concedes, they apparently favored him because he had worked on museum catalogues and exhibition brochures. This alleged "bias" is gender neutral and contrary to plaintiff's suggestion, it did not suddenly surface in 1997.
Finally, plaintiff alleges that contrary to university policy, the KFDAH selected former KU faculty members and former professors of Dr. Cateforis to serve as his external evaluators. The KU Guidelines for Promotion and Tenure Recommendations (1997-98) provide:
External evaluators must not include dissertation advisors, former professors, graduate school colleagues, co-authors, KU Faculty, or one's own former students. Candidates whose special research requires drawing on such persons must make a special case to the appropriate department or school committee. Those reasons should be transmitted to the UCPT.
Defendant's Reply Memorandum To Plaintiff Aquilino On Her Response To Defendant's Motion for Summary Judgment (Doc. # 41) filed February 7, 2000, Exhibit 2 at xii. Plaintiff has not proven, however, that any external evaluator for Dr. Cateforis was a former professor. Although plaintiff has shown that one of his evaluators was a former KU faculty member, see Depo. of Max Keith Sutton at 53, she has not shown that KU generally excluded former faculty members from service as external evaluators. Indeed the record evidence suggests that on several occasions KU used former faculty members as external evaluators. See Depo. of Elizabeth Kuznesof at 47 ("this is not at all unprecedented. I think if you go through all of the cases, you'll find a number of cases that do include what you categorize as forbidden."); Depo. of Max Keith Sutton at 50-52 (prohibition applies only to current KU faculty, not former faculty); see Memorandum In Support Of Motion For Summary Judgment On Claims Of Plaintiff (Doc. #24) filed December 15, 1999, Exhibit 2A at 18a (three of plaintiff's external evaluators were former visiting KU faculty members). On this record, while plaintiff may disagree whether the policy language prohibits use of former faculty members, she has not shown that the university agreed with her interpretation or that the KFDAH manipulated the selection process for external evaluators to favor Dr. Cateforis.[4]
*1258 The alleged irregularities do not raise a reasonable inference that defendant believed anything except that plaintiff was unqualified for promotion and tenure. At most, plaintiff has shown that the review process was not perfect. "Title VII, however, does not afford plaintiff a flawless or fair tenure review process it simply precludes the University from making an adverse tenure decision based, even in part, on plaintiff's [sex]." Babbar v. Ebadi, 36 F. Supp. 2d 1269, 1279 (D.Kan.1998). Even if KU did not diligently follow its standard procedures in evaluating plaintiff's tenure application, such evidence does not permit an inference that plaintiff's sex was a motivating factor in defendant's tenure decision. See Roberts v. State of Okla., 110 F.3d 74, 1997 WL 163524, at *7 (10th Cir.1997) (deviations from written university policies insufficient to establish pretext); Randle, 69 F.3d at 454 ("The mere fact that an employer failed to follow its own internal procedures does not necessarily suggest that the employer was motivated by illegal discriminatory intent or that the substantive reasons given by the employer for its employment decision were pretextual."); Rea, 29 F.3d at 1459 (minor procedural deviation in defendant's layoff procedure did not amount to evidence of pretext).
C. Defendant's Use Of Subjective Criteria
Plaintiff claims that defendant's use of subjective criteria, i.e. her research and scholarly work, suggests that its reason for not promoting her was a pretext for sex discrimination. Based on this reasoning, nearly every tenure decision could be challenged before a jury. Common sense does not support this position, nor do the authorities which are cited by plaintiff. The Tenth Circuit has noted that plaintiff is entitled to an inference of discrimination where "an otherwise qualified individual" is denied promotion based on subjective considerations. Pitre v. Western Elec. Co., Inc., 843 F.2d 1262, 1271-72 (10th Cir. 1988); see Blong v. Secretary Of Army, 877 F. Supp. 1494, 1500 (D.Kan.1995) (defendant rated plaintiff as "qualified" for position, but later decided not to hire anyone to fill position). Plaintiff has not shown, however, that KU determined that she met the objective qualifications for promotion and tenure. Further, the subjective considerations referred to in Pitre and the other authorities cited by plaintiff are quite different from considerations of research and scholarly work. See Pitre, 843 F.2d at 1271-72 ("ability, performance, potentiality, ... and the needs of the business"); Blong, 877 F.Supp. at 1502-03 (seeking "best" person); Berry v. General Motors Corp., 796 F. Supp. 1409, 1422 (D.Kan.1992) (general performance, people skills, and initiative). Finally, the inference of discrimination is most appropriate when the evaluators are not members of the protected group. See Pitre, 843 F.2d at 1272; Blong, 877 F.Supp. at 1503; Berry, 796 F.Supp. at 1422. Here, many of plaintiff's evaluators were women.
Plaintiff essentially claims that defendant did not properly apply the subjective criteria and exercised poor business judgment. An employer is not liable, however, simply because it relies on inaccurate or inconclusive information. The Court agrees with the rationale of other courts regarding the plaintiff's burden to show that a denial of tenure resulted from an unlawful reason:
[C]ourts must be vigilant not to intrude into [tenure] determination[s], and should not substitute their judgment for that of the college with respect to the qualifications of faculty members for promotion and tenure. Determinations about such matters as teaching ability, research scholarship, and professional stature are subjective, and unless they *1259 can be shown to have been used as the mechanism to obscure discrimination, they must be left for evaluation by the professional, particularly since they often involve inquiry into aspects of arcane scholarship beyond the competence of individual judges [or jurors].
Forsythe v. Board of Educ. of Unified Sch. Dist. No. 489, 956 F. Supp. 927, 933 (D.Kan.1997) (quoting Kunda v. Muhlenberg College, 621 F.2d 532, 548 (3d Cir. 1980)); Villanueva v. Wellesley College, 930 F.2d 124, 129 (1st Cir.1991) ("It is not the function of the courts to sit as `supertenure' committees."); Zahorik, 729 F.2d at 93 ("where the tenure file contains the conflicting views of specialized scholars, triers of fact cannot hope to master the academic field sufficiently to review the merits of such views and resolve the differences of scholarly opinion."). Although plaintiff has offered her own opinion as to her qualifications, as well as the positive opinions of several colleagues, such evidence is insufficient to show pretext. Plaintiff's colleagues on the KFDAH Promotion and Tenure Committee, the KFDAH chair, the CCAPT (by a seven to two vote), the College Dean, the UCPT (by unanimous vote) and the Provost all recommended against promotion and tenure.[5] Likewise the Chancellor, who had the ultimate authority to promote plaintiff, did not support her promotion and tenure. Against this evidence, plaintiff's assertion that she was qualified for promotion and tenure is insufficient to create a reasonable inference that the proffered reason for denial is pretextual. At most plaintiff has shown that KU may have misjudged her qualifications or relied on inaccurate information. Such an error, however, is insufficient to establish pretext. See McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1129 (10th Cir.1998) ("An articulated motivating reason is not converted into pretext merely because, with the benefit of hindsight, it turned out to be poor business judgment."); Furr v. Seagate Tech., Inc., 82 F.3d 980, 988 (10th Cir.1996) ("It is the manager's perception of the employee's performance that is relevant, not plaintiff's subjective evaluation of [her] own relative performance.") (citations omitted), cert. denied, 519 U.S. 1056, 117 S. Ct. 684, 136 L. Ed. 2d 608 (1997).
In short, the foregoing evidence would not permit a reasonable jury to conclude that defendant's proffered reason, i.e. deficiencies in plaintiff's teaching, research and service, is a pretext for sex discrimination.[6]
*1260 II. Retaliation
Plaintiff alleges that after September 16, 1998, when she filed a sex discrimination charge, KU retaliated by refusing to hire her for the adjunct and ad hoc faculty positions in violation of Title VII. In analyzing plaintiff's retaliation claim the Court applies the familiar McDonnell Douglas shifting burden of proof, set forth above. In order to establish a prima facie case of retaliation under Title VII, plaintiff must show that (1) she engaged in protected opposition to Title VII discrimination; (2) she suffered an adverse employment action contemporaneous with or subsequent to such opposition or participation; and (3) a casual connection links the protected activity and the adverse employment action. See Penry v. Federal Home Loan Bank of Topeka, 155 F.3d 1257, 1263 (10th Cir.1998); Thomas, 111 F.3d at 1513. Plaintiff can establish the causal connection by "evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action." Burrus, 683 F.2d at 343.
Defendant concedes that plaintiff can establish a prima facie case of retaliation based on the filing of her administrative charge. After plaintiff establishes a prima facie case of retaliation, the burden shifts to KU to offer a legitimate reason for the adverse action. Here, KU claims that it did not hire plaintiff for the adjunct or ad hoc faculty positions because it had previously denied her promotion and tenure. See Memorandum In Support Of Motion For Summary Judgment On Claims Of Plaintiff (Doc. # 24) filed December 15, 1999 at 29.[7] The burden now shifts back to plaintiff to show a genuine dispute of material fact as to whether KU's proffered reason is pretextual. See Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir.1997). Plaintiff may establish retaliation indirectly by demonstrating that KU's asserted reasons for the adverse actions at issue are unworthy of belief. See id. (citing Murray v. City of Sapulpa, 45 F.3d 1417, 1421 (10th Cir.1995)).
Plaintiff first claims that the close proximity between her protected activity and the adverse employment decisions is sufficient, by itself, to establish pretext. "Close proximity in time may provide some probative evidence of retaliatory intent." Sanjuan v. IBP, Inc., 160 F.3d 1291, 1299 (10th Cir.1998). An inference of retaliation based on timing "can only be made, however, where `close temporal proximity' exists between the bringing of charges and the subsequent adverse action." Candelaria v. EG & G Energy Measurements, Inc., 33 F.3d 1259, 1262 (10th Cir.1994) (quoting Smith v. Maschner, 899 F.2d 940, 948-49 (10th Cir. 1990)). Here, the six to eleven month period between plaintiff's administrative charge and the adverse employment actions is insufficient, by itself, to support an inference of retaliation. See Conner, 121 F.3d at 1395 (four months insufficient to establish causal connection between protected activity and adverse actions); Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir.1997) (three months insufficient); Candelaria, 33 F.3d at 1262 (three years insufficient to establish retaliation).
In addition to the timing of the adverse employment actions, however, plaintiff has shown that KU's decision to deny tenure does not generally disqualify the faculty member from future non-tenured faculty positions with the university. *1261 Based on this evidence, a reasonable jury could find that defendant's offered reason for not hiring plaintiff for a non-tenured position, i.e. that she had previously been denied promotion and tenure, is unworthy of belief. The jury could further infer that defendant's true reason for not hiring plaintiff was the filing of her administrative charge in September 1998. Accordingly, the Court overrules defendant's motion for summary judgment on plaintiff's retaliation claim.
IT IS THEREFORE ORDERED that defendant's Motion For Summary Judgment Against Plaintiff Aquilino (Doc. # 23) filed December 15, 1999 be and hereby is SUSTAINED with respect to plaintiff's sex discrimination claim and is OVERRULED with respect to plaintiff's retaliation claim.
NOTES
[1] In each category the KFDAH rated faculty members as either outstanding, very good, good or unsatisfactory.
[2] On October 23, 1997, Dr. Goddard wrote Dr. Stone-Ferrier and suggested that the department change its vote on plaintiff's promotion and tenure. The KFDAH did not change its recommendation and reported to the CCAPT that it had reached a unanimous decision.
[3] Plaintiff testified that a member of the UCPT informed her that a finished manuscript was a pretty good indication that it would be published. Dr. Stone-Ferrier, noted, however, that even if her manuscript was accepted for publication in the next year, her record "bodes poorly for future productivity."
[4] The policy prohibits use of "former professors, graduate school colleagues, co-authors, KU Faculty, or one's own former students."
As plaintiff reads the policy, the term "former" modifies not just "professors," but "professors, graduate school colleagues, co-authors, KU Faculty, or one's own former students." As to the latter, this construction would prohibit use of "former .... one's own former students." Plaintiff's argument in this regard is not persuasive.
[5] Plaintiff points out that Dr. Elizabeth Kuznesof, a colleague of plaintiff on the UCPT, testified that it was very difficult to reconcile the poor ratings plaintiff had received from her department with the fact that plaintiff was highly regarded elsewhere in the university. Dr. Kuznesof testified, however, that based on plaintiff's weak record of scholarly publications, she would not have recommended plaintiff for promotion and tenure even if the KFDAH gave plaintiff favorable evaluations in other areas.
[6] The comments by Dr. Eglinski and Dr. Stone-Ferrier, discussed above, do not constitute sufficient circumstantial evidence that a discriminatory reason more likely motivated defendant or that the proffered reason is pretextual. In order for remarks to be sufficiently probative of discriminatory intent, plaintiff must demonstrate a nexus between the alleged discriminatory statements and defendant's adverse decision. See Rea, 29 F.3d at 1457; see also Cone, 14 F.3d at 531 (isolated comments, unrelated to challenged action, insufficient to show discriminatory animus). The comments have no demonstrated temporal proximity with the tenure decision. Dr. Eglinski made his statements approximately three and one-half years before the tenure decision and Dr. Stone-Ferrier made her statement approximately seven months before the tenure decision. Without such a nexus, the statements are best viewed as "stray remarks" that are not probative. See id. Moreover, ambiguous remarks regarding "style" and "manner" are too vague and abstract to support a claim for sex discrimination. See Jalal v. Columbia Univ., 4 F. Supp. 2d 224, 234 (S.D.N.Y.1998) ("If trial courts allow Title VII plaintiffs to reach a jury on the strength of comments by academic decisionmakers that are ambiguous, but support no rational inference of bias, th[e] principle [of freedom in the community of American universities] may be compromised.").
[7] In its reply brief, KU advances another reason for not hiring plaintiff for the ad hoc and adjunct positions: her appointment to these positions would not have served the university purposes of teaching courses or serving on a graduate committee. Defendant did not raise this argument in the original brief in support of its motion for summary judgment, and the Court therefore does not consider the issue. See Medina v. City of Osawatomie, 992 F. Supp. 1269, 1272-73 (D.Kan.1998) (court will not consider issues first raised in reply briefs); Mike v. Dymon, Inc., No. 95-2405-EEO, 1996 WL 427761, at *2 (D.Kan. July 25, 1996) ("In pursuit of fairness and proper notice, the court generally summarily denies or excludes all arguments and issues first raised in reply briefs.") (citations omitted).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2446807/
|
5 A.3d 632 (2010)
Isaac HARGROVE and Juanita Handon, Appellants,
v.
DISTRICT OF COLUMBIA, Appellee.
Nos. 05-CT-256, 05-CT-257.
District of Columbia Court of Appeals.
Argued October 8, 2009.
Decided September 30, 2010.
Nigel L. Scott, Washington, DC, was on the brief for appellant Hargrove.
Jessica Brand, Public Defender Service, with whom James Klein and Andrea Roth, Public Defender Service, were on the brief, for appellant Handon.
Rosalyn Calbert Groce, Deputy Attorney General, with whom Peter J. Nickles, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Janice Y. Sheppard, Assistant Attorney General, were on the brief, for appellee.
Before REID, GLICKMAN, and BLACKBURNE-RIGSBY, Associate Judges.
GLICKMAN, Associate Judge:
Appellants are school officials who appeal their convictions of having violated the mandatory reporting statute, D.C.Code § 4-1321.02(a) (2001 & Supp.2010), by failing to report suspected child abuse after a student's parents complained to them that their daughter had been molested at school by other students. Appellants contend that the statute did not require them to report the incident because it did not involve child abuse or neglect on the part of a parent or other caretaker. We agree *633 and, accordingly, we vacate appellants' convictions.
I.
Appellants, Isaac Hargrove and Juanita Handon, were the principal and vice-principal of Nation House School, a private school in the District of Columbia. On the evening of January 14, 2004, the parents of I.S., a preschool student at Nation House, complained to appellants that four of I.S.'s classmates had molested her in a school bathroom the previous day. By I.S.'s account, which her parents related to appellants, the other preschoolersthree boys and a girlhad put their fingers in her vagina. Earlier that day, I.S.'s parents had taken her to the hospital, and the Child and Family Services Agency (CFSA) and the Metropolitan Police Department (MPD) had been notified.
Appellants questioned the accused preschool students and their parents about I.S.'s claims and came to believe that her allegations were not credible. Neither appellant made a report on I.S.'s alleged abuse to the CFSA or MPD.
At MPD, the case was assigned to Detective James Goldring. On February 2, the detective visited the school and met with appellants as part of his investigation. He inquired of appellant Hargrove whether the school would provide him with its internal incident report. Hargrove, who had begun preparing that report the night I.S.'s parents lodged their complaint but had not yet finished it, told Detective Goldring he "had no idea" it had to be submitted to MPD or CFSA. When the detective returned to the school two days later, Hargrove gave him his completed written report on the matter.
The District of Columbia subsequently charged appellants with having violated the mandatory reporting statute, D.C.Code § 4-1321.02(a). In pertinent part, that statute requires a school official to make an immediate report to either the MPD or the CFSA[1] if he or she "knows or has reasonable cause to suspect that a child known to him or her in his or her professional or official capacity has been or is in immediate danger of being a mentally or physically abused or neglected child, as defined in [D.C.Code] § 16-2301(9)."[2] The referenced statutory provision in Title 16 is part of the subchapter governing neglect and delinquency proceedings in Family Court. It defines the term "neglected child" to mean a child who has been (or is in danger of being) abused or neglected in any of several specified ways by his or her "parent, guardian, or custodian."
At their bench trial, appellants moved for a judgment of acquittal. They argued that § 4-1321.02(a) did not require them to report the alleged abuse of I.S. by her classmates because it did not involve parental or other caretaker malfeasance and she therefore was not a "neglected child" within the meaning of § 16-2301(9). The trial judge disagreed with that interpretation of the mandatory reporting statute and found each appellant guilty of the misdemeanor offense.[3]
*634 II.
No abuse or neglect on the part of I.S.'s parents (her caretakers) was suspected or involved in this case. That much is undisputed. We are presented with a pure question of law, the interpretation of the mandatory reporting statute, subject to de novo review.[4] At issue is the meaning of the language in D.C.Code § 4-1321.02(a) describing the child whose maltreatment must be reported: "a mentally or physically abused or neglected child, as defined in § 16-2301(9)." The parties disagree over how the two parts of this description relate to each other. Appellants argue that the phrase "as defined in § 16-2301(9)" modifies the preceding phrase, "a mentally or physically abused or neglected child," in its entirety, and hence that the statute requires a report only in cases of abuse or neglect involving caretaker malfeasance. The District argues that the reference to § 16-2301(9) defines only the term "neglected child" in the first phrase, and that a child may be "abused" within the meaning of that phrase even if no caretaker malfeasance is implicated. We conclude that appellants' reading of the statute is the correct one.
We construe statutes in accordance with "[o]rdinary grammatical and syntactical usage,"[5] and if the "plain meaning" of statutory language "is clear and unambiguous and will not produce an absurd result, we will look no further."[6] The phrase "a mentally or physically abused or neglected child" contains a single noun ("child") modified by adjectives, and thus constitutes a single noun-adjective compound. The following phrase, "as defined in § 16-2301(9)," set off from the first by a comma, functions as an adjectival modification of the "child" described by the first phrase it equates that child to another noun-adjective compound, the "neglected child" defined by § 16-2301(9). Syntactically, therefore, the second phrase qualifies the first phrase in its entirety, not merely the term "neglected child." Appellants' reading of the reporting statute is the grammatically correct one.
That statutory reading comports with the rule of the last antecedent, pursuant to which qualifying words and phrases are assumed to refer solely to "the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence."[7] Because the phrase "mentally or physically abused or neglected child" is a single noun-adjective compound, it contains only one antecedent to the adjectival phrase that follows it. Indeed, as appellants point out, if the words "neglected child, as defined in § 16-2301(9)" were removed from the reporting statute, the words "mentally or physically abused" would modify nothing. The meaning then would be impairedthe sentence would be non-sensical.[8]
*635 Because § 16-2301(9) defines only the term "neglected child," while the reporting statute speaks of an "abused or neglected child," it may appear incongruous at first blush that the two terms should be deemed equivalent. The appearance of incongruity is deceiving, however, because the definition of a "neglected child" in § 16-2301(9) specifically includes a child "who has been ... abused by his or her parent, guardian, or custodian,"[9] and the word "abused" in that definition is itself defined, in paragraph (23) of § 16-2301, to encompass sexual abuse, the infliction of physical or mental injury, and other specified mistreatment. Thus, § 16-2301(9) aptly defines an "abused or neglected child" for purposes of the reporting statuteeven though the definition is not as broad as it could have been because it excludes abuse by persons other than caretakers.
As the "several words [`a mentally or physically abused or neglected child'] are followed by a [phrase] which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the [phrase] be read as applicable to all."[10] This conclusion is buttressed by the Council's repeated use of the term "neglected child" to include an "abused child" in other, closely-related provisions of the mandatory reporting laws.[11] Thus, D.C.Code § 4-1321.01 (2001) declares that the "purpose" of the law is to "require a report of a suspected neglected child" in order to protect the child and to "prevent further abuse or neglect"; and § 4-1321.03(a), (b) (2001) states that the required report of "a known or suspected neglected child" must describe "[t]he nature and extent of the abuse or neglect of the child." The drafters employed the terms "neglect" and "abuse or neglect" and their variants interchangeably.[12]
The omission of a separate definition of the term "abused child" in § 4-1321.02(a) would be difficult to explain if the Council did not mean to capture its meaning by referring to § 16-2301(9). What possible reason would have led the Council to define only the term "neglected child" and not the companion term "abused child" as well? The District's answer to that questionthat "neglected" is a term of art calling for definition while "abused" is notis unpersuasive. Elsewherefor instance, in D.C.Code § 16-2301the Council has found it useful to define each term separately.
That the Council chose neither to define "abused child" in the mandatory reporting statute other than by reference to § 16-2301(9), *636 nor to require reporting of non-caretaker abuse in § 4-1321.02(a), is confirmed by recent legislative history. In 2002 the Council considered expanding the definition of child abuse in paragraph (23) of § 16-2301 to cover abuse perpetrated by non-caretakers; prior to that time, the paragraph defined abuse the way it did neglect, as a type of caretaker malfeasance. In a submission to the Committee on the Judiciary, the United States Attorney's Office supported the expansion and recommended that the Council incorporate the proposed new definition of abuse in the mandatory reporting statute.[13] Noting that existing law "does not appear to mandate reporting of all child abuse, regardless of the relationship between the child and the perpetrator," the Office recommended that the reporting statute be amended "to read `has been or is in immediate danger of being a mentally or physically abused or neglected child, as defined in § 16-2301(9) or § 16-2301(23).'"[14] The committee report on the final version of the bill took note of the request "that the statute be changed to require mandatory reporting of child abuse by all persons."[15] However, while the Council proceeded to amend § 16-2301(23) to cover non-caretaker abuse, it did not make the corresponding change in § 4-1321.02(a).[16] That the legislature did not adopt the suggested modification of § 4-1321.02(a) to correlate it to the expanded § 16-2301(23) "militates against [the District's] interpretation of the provision."[17]
A few years later, the Council considered and eventually adopted a more modest expansion of the reporting requirement in § 4-1321.02. As part of a proposed "Omnibus Public Safety Act of 2005," the Mayor recommended that the statute be amended to require the reporting of certain crimes against children committed by persons other than their caretakers. In written testimony submitted to the Judiciary Committee, the Attorney General explained the purpose of the proposed amendment as follows:
The Mayor has also proposed the Mandatory Reporting of Child Victimization Act of 2005. This new law is designed to fill a gap in the existing reporting requirements pertaining to child victimization. Currently, a mandatory reporter must only report when a child has been neglected or abused by a caretaker, parent or guardian.[18] There is no existing requirement that a mandatory reporter notify authorities when a child has been the victim of a crime by someone who is not a caretaker....
*637 The Mandatory Reporting of Child Victimization Act of 2005 is designed to expand the current law by including the requirement that specific mandated reporters be required to report certain crimes or injuries beyond the narrow scope of those which constitute child abuse or neglect....
This relatively narrow expansion of the District's existing mandated reporter law is an important step in providing additional protection for our children who have been seriously victimized, but are not necessarily abused or neglected. The Bill is carefully tailored to apply only to those who are routinely entrusted with the care of children and it is limited in the types of crimes or injuries that must be reported in order to ensure that the most egregious crimes against children do not go unreported.[19]
The Council eventually adopted the Mayor's proposal, not by expanding the definition of an "abused or neglected child" in subsection (a) of § 4-1321.02, but by adding subsection (e).[20] That subsection provides that a mandatory reporter
who knows or has reasonable cause to suspect that a child known to him or her in his or her professional or official capacity has been, or is in immediate danger of being, the victim of "sexual abuse" or "attempted sexual abuse" prohibited by Chapter 30 of Title 22; or that the child was assisted, supported, caused, encouraged, commanded, enabled, induced, facilitated, or permitted to become a prostitute, as that term is defined in § 22-2701.01(3); or that the child has an injury caused by a bullet; or that the child has an injury caused by a knife or other sharp object which has been caused by other than accidental means, shall immediately report or have a report made of such knowledge, information, or suspicion to the Metropolitan Police Department or the Child and Family Services Agency.
Subsection (e) would be redundant if subsection (a) already required mandatory reporters to report child abuse committed by non-caretakers. The District suggests that the Council simply "may have been acting out of an abundance of caution to clarify that at minimum the particular forms of abuse in new [subsection] (e) would trigger the statute."[21] That suggested explanation is belied by the legislative history of the amendment, which shows that subsection (e) was meant to enlarge the reporting requirement only to the extent stated therein.
In construing the pre-existing subsection (a) of § 4-1321.02, we appreciate that, ordinarily, "the views of a subsequent [legislature] form a hazardous basis for inferring the intent of an earlier one."[22] But this is not a situation in which a party is invoking "subsequent legislative history [to] override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment."[23] The District has not advanced, nor have we found, any legislative history casting doubt on what we take to be the Council's consistent view from 2002 *638 to 2007 that § 4-1321.02(a) imposes no reporting obligation with respect to non-caretaker malfeasance. That view comported with the plain meaning of the statute, and it reflected the expressed understanding of the Attorney General, the United States Attorney's Office, and the CFSA. So far as we are aware, no one disputed it. In these circumstances, we believe the Council's view of the matter is entitled to considerable weight. At a minimum, it "tells us how the law was generally interpreted at that time, even if we cannot draw from that fact [alone] that the interpretation is correct."[24]
We conclude that the mandatory reporting statute means just what it says. Section 4-1321.02(a) imposes no reporting requirement in the absence of reasonable cause to suspect caretaker malfeasance in connection with the abuse or neglect of a child. Because appellants had no reason to suspect such malfeasance on the part of I.S.'s parents or caretakers in the present case, we vacate their convictions.
So ordered.
NOTES
[1] In 2004, and until it was amended in 2007, § 4-1321.02(a) provided for reports to be made to the Child Protective Services Division of the Department of Human Services or the MPD. Well before that amendment, however, the CFSA had assumed the role of implementing the mandatory reporting law. Thus, the parties agree that if appellants were obligated to make a report, it would have been to the CFSA or the MPD.
[2] The persons required to report such abuse or neglect are enumerated in subsection (b) of D.C.Code § 4-1321.02.
[3] At the time, willful violations of the mandatory reporting statute were punishable by a $100 fine and up to 30 days in jail. See D.C.Code § 4-1321.07 (2001). The maximum penalties subsequently were increased to a $300 fine and up to 90 days of imprisonment. See D.C. Law 16-306, § 203(c), 53 D.C.Reg. 8610 (effective Apr. 24, 2007).
[4] Veney v. United States, 936 A.2d 811, 822 (D.C.2007).
[5] Nat'l Med. Ass'n v. District of Columbia, 611 A.2d 53, 55 (D.C. 1992).
[6] In re D.H., 666 A.2d 462, 469 (D.C. 1995).
[7] 2A SUTHERLAND STATUTORY CONSTRUCTION § 47:33, at 487-89 (7th ed. 2007) (internal quotation marks and footnote omitted); see also Perkins v. District of Columbia Bd. of Zoning Adjustment, 813 A.2d 206, 211 (D.C. 2002) ("The rule is not inflexible, and it is not applied if the context of the language in question suggests a different meaning.").
[8] Cf. Goldschmidt v. Paley Rothman Goldstein Rosenberg & Cooper, 935 A.2d 362, 372 (D.C. 2007) (holding that clause set off by commas does not modify the balance of a statute that would read "grammatically and sensibly" if the clause were deleted).
[9] D.C.Code § 16-2301(9)(A)(i). The term "neglected child" also includes a child whose caretaker "has failed make reasonable efforts to prevent the infliction of abuse upon the child," id., or "who is in imminent danger of being abused and another child living in the same household or under the care of the same parent, guardian, or custodian has been abused." Id. § 16-2301(9)(A)(v).
[10] Perkins, 813 A.2d at 213 (quoting Porto Rico Ry., Light & Power Co. v. Mor, 253 U.S. 345, 348, 40 S. Ct. 516, 64 L. Ed. 944 (1920)).
[11] "[A] statute should be read and construed as a whole within the context of the entire legislative scheme." Howard v. Riggs Nat'l Bank, 432 A.2d 701, 709 (D.C.1981).
[12] Similarly, the Council recognized that abuse is a type of neglect when it directed police to handle "a report of a neglected child other than an abused child" differently from "a report of an abused child," D.C.Code § 4-1301.05(a), (b) (2001), and when it required the CFSA to determine whether a child "alleged to be a neglected, but not an abused, child" should be removed from the home, id. § 4-1301.07(a) (2001).
[13] Improved Child Abuse Investigations Amendments Act of 2001: Hearing on Bill No. 14-372 before the Committee on the Judiciary, Council of the District of Columbia, Statement of United States Attorney's Office at 7-8 (Feb. 4, 2002).
[14] Id. (emphasis added).
[15] Committee on Human Services, Council of the District of Columbia, Report on Bill 14-372, "Improved Child Abuse Investigations Amendment Act of 2001," at 15 (June 11, 2002).
[16] See D.C. Law 14-206, 49 D.C.Reg. 7815 (effective Oct. 19, 2002). Cf. D.C.Code § 4-1345.01(1)(A) (defining an "at-risk child or youth" for certain funding purposes to include one subjected to "[a]buse or neglect, as described in § 16-2301(9) and (23)").
[17] Nat'l Med. Ass'n, Inc. v. District of Columbia, 611 A.2d 53, 55 n. 1 (D.C.1992).
[18] At the time the Attorney General made this statement, the CFSA's published guidelines for mandatory reporters defined "child abuse/neglect" for reporting purposes as mistreatment of a child "by a person responsible for the child's welfare." D.C. CHILD AND FAMILY SERVICES AGENCY, RECOGNIZING AND REPORTING CHILD ABUSE: A GUIDE FOR MANDATED REPORTERS at 1 (2003 rev. ed.).
[19] Omnibus Public Safety Act of 2005: Hearing on Bill No. 16-247 before the Committee on the Judiciary, Council of the District of Columbia, Testimony of Attorney General Robert J. Spagnoletti at 26 (May 31, 2005).
[20] See D.C. Law 16-306, § 203(a) (effective Apr. 24, 2007).
[21] Brief for the District of Columbia at 22 n. 8.
[22] United States v. Price, 361 U.S. 304, 313, 80 S. Ct. 326, 4 L. Ed. 2d 334 (1960).
[23] Doe v. Chao, 540 U.S. 614, 626-27, 124 S. Ct. 1204, 157 L. Ed. 2d 1122 (2004) (internal quotation marks omitted).
[24] Washington Gas Light Co. v. Pub. Serv. Comm'n of the District of Columbia, 982 A.2d 691, 721 n. 134 (D.C.2009) (emphasis in the original).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443305/
|
8 A.3d 282 (2010)
CASH AMERICA NET OF NEVADA, LLC, Appellant,
v.
COMMONWEALTH of Pennsylvania, DEPARTMENT OF BANKING, and the Honorable Steven Kaplan, in his official capacity as Secretary of Banking of the Commonwealth of Pennsylvania, Appellees.
No. 68 MAP 2009.
Supreme Court of Pennsylvania.
Argued May 11, 2010.
Decided October 19, 2010.
*284 Alan S. Kaplinsky, Esq., Raymond Adam Quaglia, Esq., Jeremy Rosenblum, Esq., David Pittinsky, Esq., Ballard Spahr Andrews & Ingersoll, L.L.P., Philadelphia, for Cash America Net of Nevada, LLC.
Jeffrey S. Saltz, Esq., Law Office of Jeffrey S. Saltz, P.C., Philadelphia, for amici curiae, J.R. Clark, G. Michael Flores, Marc A. Fusaro.
Carter David Frantz, Esq., Robert Christopher Lopez, Esq., PA Department of Banking, for Department of Banking.
Robert L. Byer, Esq., Pittsburgh, Robert McCarthy Palumbos, Esq., Jennifer Diesing Falcey, Esq., Duane Morris L.L.P., Philadelphia, for Dept. of Banking & Steven Kaplan.
Steven Kaplan, for Steven Kaplan.
Kerry Elizabeth Smith, Esq., Community Legal Services, Aisha Ahmed Baruni, Esq., for amicus curiae Community Legal Services, Inc.
Daniel P. Mosteller for amicus curiae Daniel P. Mosteller.
Irwin William Aronson, Esq., Willig, Williams & Davidson, Harrisburg, for amicus curiae Pennsylvania AFL-CIO.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
OPINION
Justice BAER.
The issues before us involve the authority of the Department of Banking (Department) to apply Section 3.A of the Consumer Discount Company Act,[1] 7 P.S. § 6203.A, to lenders without offices or personnel in Pennsylvania. Based on the plain language of the statute, we hold that Section 3.A makes it unlawful for any unlicensed lender to make the specified types of loans in this Commonwealth, regardless of whether the lender is physically located or has personnel in the Commonwealth. We therefore affirm the Commonwealth Court.
Appellant Cash America Net of Nevada, LLC (Cash America), is a Delaware limited liability company qualified to do business in Nevada and licensed by the Nevada Division of Financial Institutions, with no offices or employees in Pennsylvania, engaged in the business of making short-term "pay-day" loans to Pennsylvania residents over the Internet. Payday lending is a consumer lending practice in which a lender offers consumers high-rate, short-term loans secured by either a post-dated check or a debit authorization from a bank. These post-dated checks or debit authorizations become payable to the lender at the end of the loan term, usually set at two weeks to coincide with the borrower's payday. Pa. Dep't of Banking v. NCAS of Del., LLC, 596 Pa. 638, 948 A.2d 752, 754 *285 (2008). The Department characterizes such loans as a predatory lending practice.
Cash America's Pennsylvania borrowers constitute one of its critical market segments. Indeed, Cash America earned approximately $10 million annually by making payday loans over the Internet to Pennsylvania residents in amounts of the lesser of 25% of the borrower's gross monthly income or $750. Cash America assesses a finance charge of 25% of the amount borrowed. The annual percentage rate (APR) of the loans offered by Cash America are as follows: for an eight day term, 1140.63%; for a fourteen day term, 651.79%; for a thirty-five day term, 260.71%. Cash America has not obtained a license from the Department for its lending to Pennsylvania residents. If Cash America were licensed, it would not be permitted under Pennsylvania law to charge residents such high interest rates.
The powers and responsibilities of the variety of lenders present in the marketplace are defined in a sophisticated statutory scheme. We are concerned here only with a nondepository, nonmortgage, consumer lender of amounts less than $25,000. Such lenders are regulated by the Loan Interest and Protection Law (LIPL), 41 P.S. §§ 101-605, and the CDCA, 7 P.S. §§ 6201-6219. Accordingly, our discussion of lenders encompasses only those lenders within the reach of the LIPL and the CDCA. Read together, the LIPL and the CDCA limit the amount of interest lenders may charge on loans under $25,000.
Specifically, Section 201 of the LIPL generally caps interest rates on loans less than $50,000 at 6% as follows:
Except as provided in Article III of this act, the maximum lawful rate of interest for the loan or use of money in an amount of fifty thousand dollars ($50,000) or less in all cases where no express contract shall have been made for a less rate shall be six per cent per annum.
41 P.S. § 201(a).
The CDCA, which was originally enacted in 1937, defines "person" as including "an individual, partnership, association, business corporation, nonprofit corporation, common law trust, joint-stock company or any other group of individuals however organized." 7 P.S. § 6202. Section 3.A of the CDCA, 7 P.S. § 6203.A, bars "persons" from making loans under $25,000 and charging in excess of the lawful interest rate, unless that person is licensed in accord with the act:
[N]o person shall engage ... in this Commonwealth, either as principal, employe, agent or broker, in the business of negotiating or making loans or advances of money on credit, in the amount or value of twenty-five thousand dollars ($25,000) or less, and charge, collect, contract for or receive interest. ... or other considerations which aggregate in excess of the interest that the lender would otherwise be permitted by law to charge if not licensed under this act ... except a domestic business corporation organized under or existing by virtue of the Business Corporation Law of this Commonwealth, after first obtaining a license from the Secretary of Banking of the Commonwealth of Pennsylvania in accordance with the provisions of this act.
7 P.S. § 6203.A. A person licensed pursuant to the CDCA is authorized to make loans of $25,000 or less under the rates, terms, and conditions contained in the CDCA, which can be up to approximately 24%. 7 P.S. § 6213.E and 6217.1.A.
Within the context of this case, the effect of these two statutes is that if a lender is licensed by the Department in accord with the CDCA, it can charge between 6-24% *286 on loans under $25,000. If it is not licensed, it is bound by the 6% cap imposed by the LIPL. The issue presented herein is how Cash America, which is not licensed under the CDCA and does not wish to be licensed, fits into this scheme. Cash America argues that it is exempt because it operates outside without personnel in Pennsylvania.
The Secretary of Banking (Secretary) and the Department had, until recently, agreed with Cash America. Until July 26, 2008, the Department did not impose the LIPL's general 6% interest rate or the CDCA to out-of-state lenders. Before then, the Department had interpreted the phrase "in this Commonwealth" in Section 3.A of the CDCA not to apply to entities without any offices or employees physically present in the Commonwealth, such as Cash America. Under the prior interpretation, articulated in a series of interpretive letters, such an entity would not be required to obtain a license under the CDCA to originate consumer loans by means of the Internet or mail to residents of the Commonwealth with charges exceeding 6% simple interest per annum, provided that the entity was licensed or otherwise authorized under its home state law to engage in this type of lending activity. With the rise of Internet-based lending activity, however, it became clear to the Department that its prior position had "resulted in Pennsylvania consumers being exposed to the very lending practices that the CDCA was enacted to protect them from," i.e., lending at high interest rates by non-licensed entities. 38 Pa. Bull. 3986, 3987 (July 26, 2008). The Department determined that its prior interpretation of "in this Commonwealth" within Section 3.A of the CDCA was not compelled as a matter of statutory interpretation or legislative intent. Consequently, the Department revised its interpretation of Section 3.A of the CDCA.
On July 26, 2008, the Department published this policy change in the Pennsylvania Bulletin in a "Notice to those Engaging or Considering Engaging in Nonmortgage Consumer Lending to Pennsylvania Residents," 38 Pa.Bull. 3986 (July 26, 2008) (Notice), indicating its intent to provide Pennsylvania consumers with the protections of the CDCA, regardless of whether the lender or its employees are located in Pennsylvania. The Department announced "that engaging in nonmortgage consumer lending to Pennsylvania residents by any means, including by means of the internet or by mail, constitutes engaging in such business `in this Commonwealth' as contemplated by Section 3.A of the [CDCA]." Id.
Under this interpretation, the Department would require licensing under the CDCA for entities engaged in consumer lending to Pennsylvania residents in amounts below $25,000 in which the charges exceed 6% simple interest per annum. The Notice further provided that a person licensed under the CDCA is permitted to negotiate or make loans to Pennsylvania residents under the rates, terms and conditions contained in the CDCA. Id. Finally, the Notice advised that entities engaged in consumer lending to Pennsylvania residents in which the charges exceed 6% simple interest per annum (such as Cash America) must be licensed under the CDCA by February 1, 2009, or cease lending to Pennsylvania residents. Id. at 3987.
According to Cash America, payday lending is not economically viable under the interest rate restrictions of the CDCA. Cash America therefore decided to forego either limiting its interest rate to the 6% imposed by the LIPL or attempting to obtain a license in accord with the CDCA. Instead, it filed a petition for review in the *287 nature of a complaint in equity against the Department and the Secretary (Appellees) in the Commonwealth Court on January 8, 2009, seeking declaratory and injunctive relief. It sought to have the Notice declared unlawful and to enjoin Appellees from implementing or enforcing it. It averred that it is a limited liability company existing under the laws of Delaware and qualified to do business in Nevada; it has no personnel or office physically located in Pennsylvania; and licensure under the CDCA was not possible for Cash America because Pennsylvania law requires that a licensed lender be a Pennsylvania business corporation. See 7 P.S. § 6203.A; 7 P.S. § 6207 ("A license under the provisions of this act shall be issued only to a corporation organized under the Business Corporation Law of the Commonwealth of Pennsylvania.").
In its petition, Cash America requested a declaration that an out-of-state company without an office or employee physically present in Pennsylvania acting as "principal, employe, agent or broker" (collectively referred to here as "personnel") is not engaged in business "in this Commonwealth" as the phrase is used in Section 3.A; that, accordingly, implementation and enforcement of the Notice violated the plain language of the CDCA; and that, for these reasons, the Department should be enjoined from applying the Notice to out-of-state lenders without personnel in Pennsylvania. Additionally, Cash America sought a declaration that the implementation and enforcement of the Notice constituted unpromulgated rulemaking in violation of Pennsylvania law, entitling Cash America to an injunction against enforcement until the Department complied with requirements for promulgating a new regulation. Finally, Cash America requested a declaration that implementation of the Notice would render the CDCA inconsistent with the Commerce Clause of the United States Constitution and therefore unconstitutional.[2]
The Department filed an answer and a counterclaim for declaratory judgment. It denied that licensure was not an option for Cash America and explained in a new matter that the Department interprets the laws of the Commonwealth to allow it to grant licensure to lenders regardless of whether they are a Pennsylvania business corporation with its principal place of business in Pennsylvania, as long as the lender is a company qualified to do business in Pennsylvania and has a registered agent in the Commonwealth. In its counterclaim, the Department asserted that because Cash America was not licensed under the CDCA, it was prohibited from charging interest and fees that aggregate in excess of 6%, pursuant to Section 201 of the LIPL, 41 P.S. § 201, and that its lending practices violated both the LIPL and the CDCA. The Department requested a declaration that Cash America's Internet lending to Pennsylvania residents is not authorized by Pennsylvania law because it violates the CDCA and the LIPL. The parties filed cross-motions for summary judgment.[3]
*288 The Commonwealth Court resolved the parties' arguments in a published decision. Cash America Net of Nev., LLC v. Dep't of Banking, 978 A.2d 1028 (Pa.Cmwlth.2009). Substantively, the Commonwealth Court rejected Cash America's argument that Section 3.A of the CDCA clearly and unambiguously excluded from its purview an out-of-state lender with no personnel or office in Pennsylvania. The Commonwealth Court agreed with the Department that despite its previous interpretation of Section 3.A to exclude out-of-state lenders, its current interpretation to include them was correct based on the statutory language. Additionally, the court found that the Department's interpretation was consistent with legislative intent. Accordingly, the Commonwealth Court concluded that there were no material facts in dispute and the Department's right to judgment was clear, thus entitling it to summary relief. The Court declared that Cash America's practice of making pay day loans to Pennsylvania residents is not authorized by the laws of the Commonwealth and that such lending specifically violates the LIPL and the CDCA.
Addressing Cash America's argument that the Notice was an invalid regulation because it was not adopted pursuant to the Commonwealth Documents Law (Documents Law), 45 P.S. §§ 1102-1602, the Commonwealth Court agreed with the Department that the Notice was not a regulation. Like the previous interpretations of Section 3.A of the CDCA, which were not binding on courts and did not have the force of law, the Commonwealth Court reasoned that the Department adopted the Notice in a manner consistent with its authority to enforce the CDCA through interpretive letters and did not claim that its new interpretation was binding on courts or even on the Department. Cash America, 978 A.2d at 1034 (citing Section 202.D of the Department of Banking Code, 71 P.S. § 733-202.D, which permits the Department to "issue statements of policy and interpretive letters necessary and appropriate to administer this act or any other statute within the department's jurisdiction to administer or enforce."); see Ins. Fed'n of Pa., Inc. v. Ins. Dep't, 929 A.2d 1243 (Pa.Cmwlth.2007) (holding that agency notice was a statement of policy that interpreted existing law), aff'd 601 Pa. 20, 970 A.2d 1108 (2009).
Judge Leavitt authored a dissent, joined by Judges Cohn Jubelirer and Simpson. The dissent noted that since the enactment of the CDCA in 1937 the Department understood Section 3.A to require a lender to have personnel physically present in the Commonwealth before the Department could license that lender. According to the dissent, the Department could not reinterpret Section 3.A to effect a new regime of regulation because its new interpretation was not supported by the plain language of the statute or legislative intent. The dissent concluded that it is irrelevant that Cash America is making loans via the Internet. What is relevant, in the dissent's view, is that the CDCA does not and was never intended to apply to interstate transactions.
On appeal, Cash America asks this Court to consider whether the Department's new policy determination as to the applicability of Section 3.A of the CDCA to Internet payday lenders is supported by the statutory language; whether an out-of-state lender with no principal, employee, agent, broker or office in Pennsylvania is subject to the LIPL, 41 P.S. § 201; whether the Department's announcement of its new policy established a binding norm that must be promulgated as a regulation; *289 whether the Commonwealth Court properly declared Cash America to be in violation of the CDCA in the context of a declaratory judgment action; and whether our decision, if we affirm the Commonwealth Court, should apply only prospectively.
Because this claim raises an issue of statutory construction, which is a question of law, this Court's standard of review is de novo and the scope of review is plenary. Malt Beverages Distribs. Ass'n v. Pa. Liquor Control Bd., 601 Pa. 449, 974 A.2d 1144, 1149 (2009); Generette v. Donegal Mut. Ins. Co., 598 Pa. 505, 957 A.2d 1180, 1189 (2008); Commonwealth v. Shiffler, 583 Pa. 478, 879 A.2d 185, 189 (2005). In resolving the issues presented, we are guided by the settled principles set forth in the Statutory Construction Act, including the primary maxim that the object of statutory construction is to ascertain and effectuate legislative intent. 1 Pa.C.S. § 1921(a). In pursuing that end, we are mindful that "when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S. § 1921(b). As a general rule, therefore, the best indication of legislative intent is the plain language of a statute. Malt Beverages, 974 A.2d at 1149; Shiffler, 879 A.2d at 189. Reading the plain statutory language, "words and phrases shall be construed according to rules of grammar and according to their common and approved usage," while any words or phrases that have acquired a "peculiar and appropriate meaning" must be construed according to that meaning. 1 Pa.C.S. § 1903(a). It is only when "the words of the statute are not explicit" on the point at issue that resort to statutory construction is appropriate. 1 Pa.C.S. § 1921(c); Malt Beverages, 974 A.2d at 1149. Finally, in ascertaining legislative intent, the Statutory Construction Act requires a presumption that the General Assembly did not intend a result that is absurd or unreasonable. 1 Pa.C.S. § 1922(1).
I. CDCA
According to Cash America's interpretation of Section 3.A of the CDCA, if a lender does not have personnel in Pennsylvania, it is not "in this Commonwealth" as that phrase is used in Section 3.A. Cash America asserts that interpreting the phrase "either as principal, employe, agent or broker" as modifying the immediately preceding phrase "in this Commonwealth" effectively limits the reach of the CDCA to solely intrastate loan transactions. In contrast, according to Cash America, interpreting the phrase "either as principal, employe, agent or broker" as modifying the word "person," as the Commonwealth Court majority did, renders the phrase entirely meaningless. Moreover, Cash America observes that if the General Assembly intended to extend the CDCA to lenders without a physical presence in Pennsylvania, it knew how to accomplish this result, as it has demonstrated in other, unrelated statutes. See, e.g., the Pennsylvania Goods and Services Installment Sales Act, 69 P.S. § 1103 (applying the act to offers or agreements made in Pennsylvania to Pennsylvania buyers, "regardless of the situs of the contract as specified therein").
Moving beyond the plain language of the CDCA, Cash America argues that the General Assembly did not intend to regulate interstate transactions. It asserts that the CDCA was enacted at a time when the General Assembly could not constitutionally reach out-of-state lenders without a physical presence in this Commonwealth. See Crutcher v. Kentucky, 141 U.S. 47, 11 S. Ct. 851, 35 L. Ed. 649 (1891) (invalidating a Kentucky statute *290 that purported to require out-of-state companies to obtain a license before doing business in Kentucky and holding that "a state law is unconstitutional and void which requires a party to take out a license for carrying on interstate commerce"). Given this jurisprudence, Cash America maintains that the General Assembly properly limited the scope of the CDCA to intrastate commerce. See 1 Pa. C.S. § 1922(3) ("the General Assembly does not intend to violate the Constitution of the United States."). Although Cash America acknowledges that Commerce Clause jurisprudence has evolved since 1937 to permit the General Assembly to require licensure of lenders located outside of the state, it asserts that this evolving jurisprudence is not relevant to our consideration of the General Assembly's intent in 1937. See Commonwealth v. Bavusa, 574 Pa. 620, 832 A.2d 1042, 1051 (2003) (rejecting a dynamic view of statutory interpretation that would measure legislative intent in light of constitutional authority which was non-existent at the time the General Assembly acted). Thus, according to Cash America, because the General Assembly could not have subjected out-of-state lenders to the requirements of the CDCA in 1937, the Department cannot now interpret the CDCA to require such licensure.
Moreover, Cash America argues that interpreting the CDCA to apply to out-of-state lenders raises Commerce Clause issues with regard to the CDCA's requirements that a licensee be a domestic business corporation, 7 P.S. § 6203.A, and maintain an office or principal place of business in Pennsylvania, 7 P.S. § 6208. Although the Department has, by interpretive letter, declared that it will interpret the CDCA not to require an out-of-state licensee to maintain an office or principal place of business in Pennsylvania, Cash America asserts that this strained interpretation is a tacit admission by the Department that it cannot constitutionally harmonize all provisions of the CDCA.
Additionally, according to Cash America, the absence of any legislative action to revise the Department's long-standing prior interpretation of the CDCA is a tacit recognition that the prior interpretation is in accord with legislative intent. See Gilligan v. Pa. Horse Racing Comm'n, 492 Pa. 92, 422 A.2d 487 (1980) (finding that the legislature's acquiescence to the manner of the commission's exercise of its rule-making authority manifested approval thereof); Estate of Loeb, 400 Pa. 368, 162 A.2d 207, 211 (1960) ("Where ... the words of a statute are not clear or explicit the contemporaneous construction of a statute by those charged with its execution and application, especially when it has long prevailed, is entitled to great weight and should not be disregarded or overturned except for clear language in the [Pennsylvania Transfer Inheritance Tax Act] itself or very strong cogent and convincing reasons."). Significantly, according to Cash America, the legislature has amended Section 3 of the CDCA seven times since its adoption and has left undisturbed the words newly interpreted by the Department, thereby, in Cash America's view, endorsing the Department's original interpretation.
In that the Department has reversed its prior, longstanding interpretation of Section 3.A, Cash America argues that it is not entitled to the deference normally afforded to agencies because of their specialized experience. Cash America posits that when an agency has changed its position with regard to the interpretation of a statute, it is never entitled to deference regarding its new interpretation. See RAG Cumberland Res. v. Dep't of Envtl. Prot., 869 A.2d 1065, 1072 n. 11 (Pa.Cmwlth.2005) ("Any deference we owe to the Department in this case must yield to Petitioners' *291 considerable evidence that the Department's `new' statutory interpretation is an abrupt volte face from the interpretation it had followed for more than thirty years."). Rather, Cash America submits that when an agency has abided by a particular longstanding interpretation of statutory language, only the legislature can alter that interpretation by amending and changing the relevant statutory language. According to Cash America, this Court has cautioned against an agency ushering in a new regulatory scheme that is directly contrary to its longstanding prior regulatory position without authorizing legislation. See Malt Beverages, 601 Pa. 449, 974 A.2d 1144, 1154 (2009) ("While a policy determination [regarding the expanded definition of `retail dispenser' offered by the Board] may well be accomplished by our legislature, it is not our role to sanction such a momentous transformation.").
The Department likewise offers alternative arguments based on the text of the CDCA and the Act's legislative history. The Department argues that the rules of grammar support the Commonwealth Court's construction of Section 3.A. Specifically, the Department argues that a plain reading of Section 3.A reveals that it is unlawful for any unlicensed person to engage in the Commonwealth in the business of making loans of $25,000 or less and charge interest and fees that exceed the 6% interest cap imposed by the LIPL, and Section 3.A includes those who may not engage in the Commonwealth in the proscribed lending practice to include personnel, specifically, a "principal, employe, agent, or broker." The Department asserts that by explaining that a person cannot lawfully operate under the CDCA as a principal, employee, agent or broker, the statute specifies that it is applicable to more than simply a principal. According to this argument, the fact that the phrase "either as principal, employe, agent or broker" is set off by commas indicates that it is nonrestrictive in nature, i.e., it contains non-essential information and can be removed without changing the sentence's basic meaning.
The Department also points to Sections 3.B and 11 of the CDCA, which each define when a person is engaged in business covered by the Act. 7 P.S. § 6203.B (providing that a person "shall be deemed to be engaged in the business contemplated by this act" where that person either "hold[s] himself out as willing or able to arrange for or negotiate" loans of $25,000 or less for which interest and other consideration aggregates in excess of 6% annual simple interest or "solicits prospective borrowers of such loans."); 7 P.S. § 6211 ("[a] person, who is not licensed under this act, shall be presumed to be engaged in business contemplated by this act if he advertises or solicits business as principal, agent or broker for which a license is required by the provisions of this act."). According to the Department, Cash America's lending to Pennsylvania residents falls within the scope of these provisions.
Looking beyond the CDCA's plain language, the Department examines the act's remedial purpose, legislative history, and its own experience and expertise to support its position. Specifically, the Department argues that the remedial purpose of the CDCA is to protect Pennsylvanians from extortionist interest rates, see Equitable Credit & Disc. Co. v. Geier, 342 Pa. 445, 21 A.2d 53, 57 (1941), and that the General Assembly drafted the CDCA broadly to regulate the activity of negotiating or making loans on which the total charges exceed 6% annual simple interest. According to the Department, interpreting the CDCA as Cash America advocates to regulate in-state lenders while turning a blind eye to the most exploitative out-of-state lenders would frustrate the broad *292 regulatory objective of the CDCA. As a remedial statute, according to the Department, the CDCA should be construed against the lender. See 1 Pa.C.S. § 1928(c) (providing that "provisions of a statute shall be liberally construed to effect their objects and to promote justice"). Additionally, the Department argues that the CDCA is framed in general terms and may be adapted to new lending practices, such as Internet lending, as they arise.
The Department argues that the CDCA's legislative history supports the regulation of an out-of-state lender such as Cash America that holds itself out to Pennsylvania residents as able to arrange loans governed by the CDCA. Specifically, the 1937 Report of the Secretary of Banking (1937 Report) that became the basis for the CDCA discussed the hazards of solicitations from lenders by newspaper advertisements, which the Department analogizes to Internet solicitations. Moreover, the Department argues it is not clear, as Cash America would have it, that the Commerce Clause as interpreted when the CDCA was originally enacted would have prohibited the General Assembly from requiring licensure of out-of-state lenders. Besides, according to the Department, the interpretation of the Commerce Clause in 1937 does not dictate the meaning of the CDCA today.
The Department also responds to Cash America's argument that the CDCA only applies to in-state lenders because it requires a licensee to be a domestic business corporation, see 7 P.S. § 6203.A, and maintain its principal place of business in Pennsylvania, see 7 P.S. § 6208. The Department argues that it does not enforce either of these requirements in a manner violative of the Commerce Clause. According to the Department, it interprets the requirement that a licensee be a domestic business corporation in a manner that avoids a conflict with the Commerce Clause by granting licenses to both domestic and foreign business corporations and limited liability companies. Similarly, "it is the position of the Department that [a foreign entity] is not required to maintain a principal place of business or any other physical location in Pennsylvania in order to become licensed under the CDCA." R.R. 184a (Interpretive letter of the Department dated December 18, 2008); Department's brief at 43.
The Department disputes Cash America's reliance on the Department's prior interpretation of Section 3.A as evidence of legislative intent not to apply the CDCA to out-of-state lenders because, according to the Department, nothing prevents it from reconsidering and revising its prior interpretations. It further disputes Cash America's position that the Department has initiated through the Notice a "momentous transformation" in policy that can only be accomplished by the legislature. See Malt Beverages, 974 A.2d at 1154. According to the Department, Malt Beverages did not alter the ability of an agency to revise its own non-binding interpretations of a statute.
It is well established that public policy in this Commonwealth prohibits usurious lending, and this prohibition has been recognized for over 100 years. NCAS of Del., 948 A.2d at 759. As explained above, the maximum lawful rate of interest that a lender may charge for the loan or use of money in the amount of $50,000 or less is six percent per year. Section 201 of the LIPL, 41 P.S. § 201. The CDCA provides an exception to this general rule by allowing entities to charge a borrower more for consumer loans up to $25,000, provided that the lender acquires a license under the CDCA. See Section 3(A) of the CDCA, 7 P.S. § 6203(A). Specifically, Section 3.A directs that an unlicensed entity cannot *293 loan money at rates "in excess of the interest that the lender would otherwise be permitted by law to charge if not licensed. ..."
Here, Cash America's loans are less that $25,000, and include charges from 260.71% for a thirty-five day loan to 1140.63% for an eight day loan. Cash America argues, however, that notwithstanding its business of making loans in amounts less than $25,000 to Pennsylvania residents, it is not subject to these regulations because it has no personnel in Pennsylvania. Essentially, it argues that by remaining physically outside of Pennsylvania, there is no limit on the interest it can charge to Pennsylvania residents, and that it may operate at an advantage to in-state lenders by charging far more than the CDCA permits licensed, in-state lenders to charge. As explained below, we reject this argument on the basis of the plain language of Section 3.A of the CDCA.
The CDCA regulates nonmortgage consumer lending in two related ways. First, it requires any "person" who engages "in this Commonwealth, either as principal, employe, agent or broker" in the business of negotiating or making loans in the amount of $25,000 or less and charges interest and fees that aggregate in excess of 6% annual simple interest to obtain a license from the Secretary. 7 P.S. § 6203.A. The act defines "person" as including "an individual, partnership, association, business corporation, nonprofit corporation, common law trust, joint-stock company or any other group of individuals however organized." 7 P.S. § 6202. Second, if the lender is "a domestic business corporation organized under or existing by virtue of the Business Corporation Law of this Commonwealth," and it is licensed, then the CDCA provides that it may charge interest and fees that aggregate in excess of 6% annual interest, 7 P.S. §§ 6213.E and 6217.1.A, in exchange for submitting to a regulatory scheme that includes examinations by the Department, minimum capital requirements, and other caps on interest rates and fees. See 7 P.S. §§ 6207, 6211, 6213, and 6217.1.
A plain reading of Section 6203.A indicates that those persons, whether an individual or group of organized individuals, who may not engage in the proscribed lending activity in this Commonwealth includes not only the principal, but also the employee, agent, or broker of the principal. The CDCA thus regulates not only the conduct of the individual or corporation, but also the people who act on behalf of the individual or corporation. If a corporation or any representative is engaging in the business of making the qualified loans in this Commonwealth, it or they must abide by the licensure requirements of the CDCA.
Contrary to Cash America's interpretation of Section 3.A, in which a lender is not in this Commonwealth if it does not have a "principal, employe, agent or broker" in Pennsylvania, the quoted phrase is set off by a pair of commas within the statutory provision, indicating that the phrase is nonrestrictive.[4] This nonrestrictive phrase does not restrict the meaning of "in this Commonwealth" and, in fact, could be removed from the sentence without changing the sentence's basic meaning. The nonrestrictive phrase modifies the preceding word "person." By defining "person" broadly to include individuals and legal entities, and providing that a "person" can act through its personnel, the CDCA regulates *294 lending activity regardless of who is acting on behalf of the lender.[5]
Examining the plain language of Section 3.A, we hold that it supports the Department's and the Commonwealth Court's interpretation. We therefore reject Cash America's attempt to avoid licensure, regulation, and limits on the rates it may charge simply by operating over the Internet rather than by being physically present in the Commonwealth. If an out-of-state lender is engaging in business in Pennsylvania of making loans within the ambit of the CDCA, then it is subject to the licensing requirements and regulatory restrictions of the CDCA, regardless of whether it has personnel in the state.
This conclusion is further supported by Sections 3.B and 11 of the CDCA, 7 P.S. §§ 6203.B and 6211. These sections describe when a lender is "engaged in the business contemplated by" the CDCA. They are focused on how lenders represents themselves and whether they purposefully direct their activities to conduct encompassed by the CDCA, regardless of the lender's location. See Section 3.B, 7 P.S. § 6203.B ("Any person who shall hold himself out as willing or able to arrange for or negotiate such loans ... or who solicits prospective borrowers of such loans ... shall be deemed to be engaged in the business contemplated by this act..."); Section 11, 7 P.S. § 6211 ("A person, who is not licensed under this act, shall be presumed to be engaged in business contemplated by this act if he advertises or solicits business as principal, agent or broker for which a license is required by the provisions of this act ...").
We also reject Cash America's argument that the Department's current interpretation of Section 3.A fails to give constitutional effect to all of the CDCA's provisions. Specifically, Section 8 requires the licensee to maintain its business records "at its principal place of business within this Commonwealth. ..." 7 P.S. § 6208. Additionally, Section 3.A provides that any person making the qualified loans must (1) be "a domestic business corporation organized under or existing by virtue of the Business Corporation Law of this Commonwealth" and (2) "[obtain] a license from the [Secretary] in accordance with the provisions of [the CDCA]."
As the Department acknowledges, if it were to require a foreign lender seeking a CDCA license to establish its principal place of business in Pennsylvania, it may unconstitutionally burden interstate commerce in violation of the Commerce Clause. The Department interprets Section 8, 7 P.S. § 6208, to avoid this potentiality by not requiring a foreign entity to maintain its principal place of business, or any physical location, in Pennsylvania, in order to be licensed. See R.R. 184.a (Interpretive Letter of December 18, 2008).
Moreover, the text of Section 3.A requires licensees to be "a domestic business corporation organized under or existing by virtue of the Business Corporation Law." 7 P.S. § 6203.A. The Business Corporation *295 Law provides for the domestication of foreign corporations and grants them all the powers, privileges, duties, and limitations granted and imposed on domestic business corporations. 15 Pa.C.S. § 4161. A foreign corporation may become domesticated in accord with the Business Corporation Law by filing articles of domestication with the Department of State, and would, therefore be entitled to apply for a license in accord with the CDCA. Cash America has not attempted to become so licensed pursuant to the CDCA because it does not aspire to operate in Pennsylvania by the same rules that apply to Pennsylvania corporations or foreign domesticated corporations. Pennsylvania lenders cannot make loans at the rates Cash America has charged. Nor is Cash America arguing that it is being shut out of Pennsylvania and is unable to obtain a license to do business in the state. As amici explain,[6] Cash America wants the benefits of doing business with Pennsylvania residents while evading the regulations. Instead of seeking equal treatment, Cash America is trying to bypass state usury laws and consumer protections by doing business in Pennsylvania without a license. See NCAS of Del., 948 A.2d at 761, n. 11 ("usury is generally accompanied by subterfuge and circumvention of one kind or another to present the color of legality.").[7]
Regarding Cash America's reliance on the Department's prior interpretations of Section 3.A, these non-binding prior interpretations do not determine the statute's meaning. We are not bound by the Department's interpretations; we are bound by the plain language of the statute. Similarly, Cash America's argument that the General Assembly could have explicitly indicated its intention to apply the CDCA to interstate transactions if that was its intent, as demonstrated by explicit language in other, unrelated statutes, is not persuasive. We are interpreting the plain language of the CDCA, and this analysis is not influenced by language in irrelevant statutes.
We likewise agree with the Department that Malt Beverages does not restrict an administrative agency's prerogative to revise its own non-binding statements of policy. Malt Beverages concerned the Pennsylvania Liquor Control Board's (LCB) interpretation of the statutory definition of "retail dispenser" in the Liquor Code. 974 A.2d at 1154. The LCB asked this Court to interpret the Liquor Code to effect a substantial change in the law. In resolving the ambiguous language in the Liquor Code, we observed that accepting the LCB's interpretation would amount to a momentous transformation of policy that was contrary to the three-tiered beer distribution scheme established by the legislature. In contrast to the ambiguous language at issue in Malt Beverages, we specifically find the language of Section 3.A is not ambiguous. Our explanation in Malt Beverages was dependent on our finding that the LCB's interpretation was actually contrary to legislative intent. More importantly, however, the Department may issue "statements of policy *296 and interpretive letters" regarding the CDCA. 71 P.S. § 733-202.D. As we explain more fully in our discussion of the second issue, the Department issued the Notice under this explicit power. This Court, therefore, is not effecting a momentous transformation in the law, but is validating the Department's right to reinterpret the statute it is charged with enforcing in accord with the law.
Likewise, Gilligan and Loeb do not prevent the Department from revising prior interpretations. Gilligan involved a rule promulgated by a commission rather than a non-binding interpretation. 422 A.2d 487. The Court emphasized that after the commission affirmatively acted under the rule at issue and the legislature did not curtail the commission in this regard, it thereby acquiesced in the interpretation embodied in the rule. In Loeb, the executors of an estate computed an inheritance tax at 15% in accord with the interpretation of the Transfer Inheritance Tax Act, 72 P.S. § 2302, which had existed for 39 years. 400 Pa. 368, 162 A.2d 207. The Department of Revenue computed and calculated the tax in accordance with a new Tax Calculation Directive to arrive at a different calculation. This Court examined the language of the Tax Act and rejected the Department of Revenue's new directive, finding that it conflicted with the "clear, simple, definite, and universal construction of the Act for 39 years by Judges and lawyers, as well as by the Commonwealth itself in ... thousands of cases, and is likewise in conflict with decisions of this Court which, by necessary implication, have held to the contrary. ..." Id. at 211. In contrast, the Department's prior interpretation of Section 3.A of the CDCA has never been applied by any court.
In conclusion, we hold that interpreting the CDCA in the manner advocated by Cash America would subject in-state lenders to regulation pursuant to the CDCA while simultaneously creating a de facto licensing exemption for out-of-state lenders, who could then engage in the very lending practices the CDCA prohibits. Such an interpretation is not supported by the plain language of Section 3.A, 7 P.S. § 6203.A.[8]
II. Interpretation Versus Regulation
Cash America argues that the Department's new interpretation of Section 3.A as explained in the Notice was the promulgation of a new regulation, as opposed to a statement of policy, and as a regulation, the Department was required *297 to follow the prescribed process for promulgation. According to Cash America, the binding nature of the Department's new interpretation renders it a regulation.
According to the Department, the Notice was not an unpromulgated regulation, but a non-binding statement of policy that a court may accept or reject depending on the accuracy of its interpretation. It argues that it published the Notice under the specific power of the Department of Banking Code, 71 P.S. 733-202.D, which permits it to issue statements of policy and interpretive letters.
We have summarized the difference between regulations and policy statements as follows:
A properly adopted substantive rule establishes a standard of conduct which has the force of law ... The underlying policy embodied in the rule is not generally subject to challenge before the agency. A general statement of policy, on the other hand, does not establish a "binding norm." ... A policy statement announces the agency's tentative intentions for the future.
Lopata v. UCBR, 507 Pa. 570, 493 A.2d 657 (1985) (quoting PHRC v. Norristown Area Sch. Dist., 473 Pa. 334, 374 A.2d 671, 679 (1977)). When an agency makes an interpretation of general applicability, that policy statement lacks the force of law of a properly adopted regulation. Eighty-Four Mining. Co. v. Three Rivers Rehab., Inc., 554 Pa. 443, 721 A.2d 1061, 1066 (1998); Norristown, 374 A.2d at 679. A general statement of an agency's policy does not establish a binding norm upon that agency, but announces the agency's provisional intentions for the future. Eighty-Four, 721 A.2d at 1066. Reviewing courts have the discretion to accept or reject the agency's general statement of policy, depending on how accurately the interpretation reflects the meaning of a statute. Id. A properly adopted regulation, unlike a statement of policy, has the force of law and is binding on a reviewing court. Norristown, 374 A.2d at 679. Regulations must be promulgated in compliance with the Documents Law, 45 Pa.C.S. § 501 et seq., which details notice and comment procedures.
The Department can act in one of two ways to interpret the CDCA. First, the CDCA authorizes the Secretary to issue binding "rules and regulations as may be necessary for the protection of the public, for insuring the proper conduct of the business contemplated by this act, and for the enforcement of this act, which ... shall have the force and effect of law." 7 P.S. § 6212. Additionally, Section 202.D of the Department of Banking Code authorizes the Department to issue "statements of policy and interpretive letters" regarding the CDCA, which do not have the force of law. 71 P.S. § 733-202.D.
Pursuant to its authority under Section 202.D of the Department of Banking Code, the Department issued the Notice interpreting Section 3.A of the CDCA. It did not invoke its authority under Section 12 to issue binding rules and regulations. The Department very clearly expressed that the Notice articulated its interpretation of the law. See Notice, 38 Pa. Bull. 3986 ("it is the position of the Department of Banking (Department) that engaging in nonmortgage consumer lending to Pennsylvania residents by any means, including by means of the internet or by mail, constitutes engaging in such business `in this Commonwealth' as contemplated by section 3.A of the Consumer Discount Company Act ..."). This interpretation, like the prior interpretation, did not have the force and effect of law, and we see no reason to require the Department to reinterpret *298 Section 3.A through a binding regulation.[9]
III. Declaratory Judgment Action
Cash America next argues that the relief ordered by the Commonwealth Court exceeds the bound of a declaratory judgment action. According to this argument, the courts must wait until the Department initiates an enforcement action against Cash America for violating the CDCA as interpreted in the Notice before the courts can rule on the merits of the Department's current interpretation of the CDCA; a declaratory judgment action is an improper vehicle for the Department to enforce the CDCA or the LIPL.
The Department observes that Cash America answered the Department's counterclaim without challenging the Commonwealth Court's authority under the Declaratory Judgment Act, 42 Pa.C.S. §§ 7531 et seq., to grant the declaration the Department requested. Because Cash America did not argue in the Commonwealth Court that the court lacked the authority to grant the Department's declaration, the Department argues that Cash America has waived this argument. Additionally, according to the Department, it is authorized to maintain declaratory judgment actions pursuant to the Department of Banking Code, 71 P.S. § 733-503.C, and the Declaratory Judgment Act, 42 Pa.C.S. § 7541(b).
Cash America's argument fails for several reasons. First, because Cash America asked the Commonwealth Court for a declaration that it was not violating the CDCA, answered the Department's counter-claim, and moved for summary relief, it cannot now complain that the Commonwealth Court lacked authority to declare that it was violating the CDCA. Moreover, the Department is authorized to maintain actions for "an injunction or other process against any person to restrain and prevent the person from engaging in activity violating ... any [ ] statute or regulation within the department's jurisdiction to administer or enforce." 71 P.S. § 733.503-C. Additionally, there is no need for the Department to initiate a separate enforcement action to seek to establish that Cash America is violating the CDCA because the Declaratory Judgment Act provides the means to assert this fact. 42 Pa.C.S. § 7532 ("The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree.")
IV. Prospectivity
In the event this Court affirms the Commonwealth Court, Cash America argues that the ruling should apply prospectively and that we should hold that Cash America did not violate Pennsylvania law before the publication of this Court's decision. According to the Department, Cash America is arguing for the first time on appeal that the Commonwealth Court's declaration that Cash America was operating in violation of the CDCA and this Court's affirmance of that order should not apply retroactively, and therefore this argument has been waived through Cash America's failure to raise it to the court below.
Cash America did not assert this argument before the Commonwealth Court, and may not raise it for the first time on appeal. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). Moreover, the parties agreed that Cash America would stay its application for preliminary injunction, and the *299 Department would forgo enforcing the CDCA and the LIPL against out-of-state lenders until the Commonwealth Court decided the parties' cross-applications for summary relief. In accord with the parties' explicit agreement, therefore, Cash America is not subject to any retroactive application of the Commonwealth Court order by the Department. Accordingly, we will not resolve the parties' arguments in this regard, both because it is waived and appears to be hypothetical.
Accordingly, the order of the Commonwealth Court is affirmed.
Chief Justice CASTILLE, and Justices EAKIN, TODD, McCAFFERY, ORIE MELVIN join the opinion.
Justice SAYLOR files a concurring opinion.
Justice SAYLOR, concurring.
I join the Court's holding and support much of the majority's reasoning. In light of the incongruities in the governing statute relative to foreign lenders and the interpretive history in the Department of Banking, however, I have difficulty with the majority position that the case can be resolved solely based on plain-meaning interpretation. Rather, I believe statutory construction is implicated, to include consideration of the policy objectives of the statute, which I believe strongly support the present holding of the Court.
NOTES
[1] Act of April 8, 1937, P.L. 262, as amended, 7 P.S. §§ 6201-6219 (the CDCA).
[2] Cash America withdrew its request for relief under the Commerce Clause. This argument was based on the Department's application of the CDCA to out-of-state lenders with no personnel or office in Pennsylvania in conjunction with its position, set forth in an interpretive letter, that a CDCA licensee must maintain its principal place of business in Pennsylvania. The Department rescinded the latter position by interpretive letter, which the parties agree effectively mooted Cash America's Commerce Clause argument.
[3] Following a preliminary injunction hearing, counsel for all parties agreed that Cash America's request for a preliminary injunction and the Department's implementation of its new policy would be stayed pending disposition by the Commonwealth Court en banc of cross-motions for summary judgment.
[4] Nonrestrictive clauses are parenthetic and therefore are separated by commas. William Strunk, Jr. and E.B. White, The Elements of Style (4th ed.2000), at 4. A nonrestrictive clause adds, parenthetically, a supplement to the main clause. Id.
[5] Cash America relies on the Statutory Construction Act to argue that we cannot rely on the placement of commas because the CDCA was originally enacted in 1937. See 1 Pa.C.S. § 1923(b) ("In no case shall the punctuation of a statute control or affect the intention of the General Assembly in the enactment thereof but punctuation may be used to aid in the construction thereof if the statute was finally enacted after December 31, 1964."). Section 3.A has, however, been amended five times since December 31, 1964. See Act of Dec. 30, 1970, P.L. 959, No. 301, § 2; Act of March 3, 1976, P.L. 36, No. 17, § 1; Act of Dec. 18, 1984, P.L. 1083, No. 216, § 2; Act of Dec. 12, 1994, P.L. 1060, No. 144, § 1; Act of July 12, 1996, P.L. 490, No. 80, § 1. Because the current version of Section 3.A was finally enacted after December 31, 1964, we may consider its punctuation.
[6] Community Legal Services, the Pennsylvania AFL-CIO, and the Center for Responsible Lending filed an amici brief in support of the Department.
[7] That Cash America is not interested in doing business in Pennsylvania on a level playing field with Pennsylvania corporations is born out by the record before us. For example, in its brief, it states that "payday lending is not economically viable under the interest rate restrictions imposed by the CDCA." Appellant's brief at 14. Additionally, it explained to the Commonwealth Court that the company will lose money if it makes loans that comply with the CDCA, and it would rather stop making loans in Pennsylvania than try to obtain a license. R.R. 196.
[8] In a circular, nebulous argument, Cash America argues that, based on its interpretation of the CDCA, it is exempt it from licensing requirements and regulation because it is not located in Pennsylvania. Because of this purported exemption, according to Cash America, the LIPL's 6% simple interest cap, see 41 P.S. § 201, does not apply to it. In support of this argument, Cash America relies on Section 604 of the LIPL, which provides that the simple interest cap does not apply where it is inconsistent with the interest permitted by any other act, including the CDCA. 41 P.S. § 604. According to Cash America, therefore, it is entitled to originate consumer loans over the Internet to Pennsylvania residents with no limit on the maximum interest rate it may charge.
Cash America's interpretation of the LIPL is premised on its flawed interpretation of the CDCA. Therefore, for the same reasons that we reject Cash America's interpretation of the CDCA, we likewise reject this argument. Section 201 of the LIPL provides that the maximum interest rate that a lender may lawfully charge for a loan in the amount of $50,000 or less is 6% per year unless another Pennsylvania law, such as the CDCA, authorizes a higher interest rate. Because no Pennsylvania or federal law authorizes Cash America to charge Pennsylvania residents the rates of interest connected to its loans, it is violating the default maximum interest rate provided by the LIPL.
[9] Indeed, Cash America agrees with the Department that the prior interpretation of Section 3.A, issued through interpretive letters, was not a binding norm. R.R. 209a.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443318/
|
287 S.W.2d 531 (1956)
J. E. SHEFFIELD, Appellant,
v.
Beulah LEWIS et al., Appellees.
No. 6856.
Court of Civil Appeals of Texas, Texarkana.
February 9, 1956.
Rehearing Denied March 8, 1956.
*532 M. H. Barton, E. C. Wellborn, Henderson, for appellant.
J. F. Norris Dennard, Henderson, for appellees.
FANNING, Justice.
Plaintiffs-appellees Beulah Lewis and Homer D. Irby, filed suit on November 30, 1954, against defendant-appellant J. E. Sheffield, to cancel a certain mineral deed, dated April 30, 1936, from Beulah Lewis to J. E. Sheffield, covering all of the minerals under a 221/16-acre tract of land in Rusk County, Texas.
Trial was to a jury and all special issues submitted were answered favorably to plaintiffs, with the jury finding to the effect as follows: That J. E. Sheffield represented to Beulah Lewis that the instrument in controversy was an oil and gas lease, that Beulah Lawis believed and relied on the representation and that it was a material inducement; that Beulah Lewis did not understand the nature and effect of the instrument; that she was mistaken as to the effect of the instrument, that J. E. Sheffield possessed superior knowledge to that of Beulah Lewis as to the effect of the instrument and that her mistake was induced by concealments, misleading statements or acts of Sheffield; that the consideration was grossly inadequate; that the consideration was inadequate, that a confidential relationship existed between Sheffield and Beulah Lewis, that Sheffield concealed from Beulah Lewis the true value of the property, and concealed from her the true nature and effect of the instrument; that Beulah Lewis did not discover either the falsity of the representations or the true nature and effect of the instrument more than four years before she filed suit; that Beulah Lewis did not have knowledge of facts that would cause a reasonably prudent person to make inquiry which would have led either to the discovery of the falsity of the representations or the true nature and effect of the instrument more than four years before she field suit. Judgment was rendered for plaintiffs upon the verdict of the jury. Defendant's motion for judgment non obstante veredicto and motion for new trial were overruled, and defendant has appealed.
Appellant's first and second points are as follows:
"1. Error of the court in refusing to instruct the jury, at the close of the testimony, to return a verdict in favor of the Appellant, since the undisputed evidence showed that appellee had knowledge of fraud, if any had been perpetrated upon her, more than four years before commencing this suit."
"2. Error of the court in refusing to set aside the judgment, and grant a judgment, in favor of the Appellant notwithstanding the verdict, since it appeared that the verdict of the jury was contrary to all the testimony in the case."
Plaintiff Beulah Lewis testified that she bought the 221/16-acre tract from D. W. Rogers in 1935, paying part cash and giving a vendor's lien note and further agreed that Rogers could continue to draw the delay rentals under an existing lease, to Magnolia Petroleum Company on the land for the balance of the life of the lease, which was five years at the time. She further testified that defendant Sheffield came to her home a few days before she signed the instrument in controversy on April 30, 1936; and that he asked her about leasing her land and that she told him that it was already under lease and that Rogers was drawing the delay rentals and that Sheffield told her "that man that sold me the land could not hold the lease." She further testified that she relied on what Sheffield told her, that he asked to see her deed and she *533 let him take it to have it recorded and that she agreed to lease the land to Sheffield because he said she had the right to do so and agreed to take $1.50 an acre for 20 acres. (Beulah Lewis later conveyed two acres out of the tract to plaintiff Homer D. Irby.)
Plaintiff Beulah Lewis further testified that defendant Sheffield came back on April 30, 1936, with a Notary Public and did not read the instrument to her but showed her where to sign; that she had not had any experience in oil and gas matters, but that she trusted and relied on Mr. Sheffield (who prepared the instrument and presented it to Beulah Lewis); and further testified that "I just looked on there and saw it was a lease, you know, and I was thinking he fixed it just like I told him, you know, before he fixed it. He fixed it himself, I didn't fix it."
The instrument in question is a mineral deed conveying all of Beulah Lewis' minerals in the tract. However, the following typewritten addenda is included in the instrument, to-wit:
"It is further agreed that I, J. E. Sheffield may have the right to all surface that is required to drill on, or to set tanks, or laying lines, or roads, or anything that may be required to develope this lease, without cost, except crop damage." (Italics ours.)
Beulah Lewis testified further as to her lack of experience and knowledge of oil and gas matters and testified that in 1938 she wrote defendant Sheffield, since he had not paid her the delay rentals on the lease she had executed to him, and wrote him that she wanted to "lease the land over" to him. Mr. Sheffield in his deposition as to the contents of the letters said: "Well, she is complaining about her lease rental mainly." Sheffield testified that he did not answer any of the letters Beulah Lewis wrote him, "Because I didn't want to." The evidence shows that Beulah Lewis wrote Sheffield several letters, but defendant only produced two of them and did not choose to answer any of them."
The two letters written by Beulah Lewis which were produced by defendant are somewhat illiterate, not too clearly legible, and the parties can not agree as to the exact wording of same. These original handwritten letters are sent up with the record as well as the court reporter's version of their contents. We respectfully refer to the original letters for their contents. The court reporter's version of these two letters is as follows:
"Henderson
"February 9 1938
"Mr. J. E. Sheffield
"Listen Rogel D W say that come and had hin and Wife sign sane paper and He Have not Draw no more many on my part Lease I will say like this I did not think you are the will my money on my Lease and Have not pay no money at all for my Lease $31.00 Dollars all you For some rolerty. You Due me $42.00 Dollars
/2
"Foe Pass Lease From the Magnolia Ptoleum Co I did not thin you the man will Steal my Wright why I Say thes you Have not Paide For my Lease at all I Did not aBoid the check untill the Land are Paide For I and Rogel will See the Law if you Dont Pay 42.00 Dollars to me in Short For you Haven Pade no money at all For no Lease you call at my Hone in Short on the Sane Place I Live there Main co your Pruf
"Beulah Lewis
"You Write Henderson For my address."
"If you Dont buy my Lease I will Have Lawyer to take off Record
"Mt Enterprise
"Box 243 R F D a
"Mr. J E Sheffield
"I write aBout Lease my Land 20 acris of Land I sold 2.00 acres pass years Roges Still Hold Lease with Magnolia Co andand was Piad Rental money 10 years and Did notifice Co you and Roges Give Forgive on my nane you Buy my Lease at $15.00 Dollars acris 20 acres of Land I can come over to my Home Monday 23 *534 I Will Be at Home if you Dont Pay for my Lease I will Get Lawyer to Fix My Lease on Part I am Gieng Get Lawer on Roges Part the Co. Give you Foure years of Roges Money and you was Put out and you Saw me at Henderson I and you made agreement for Four years to pay Rolety just $30 Dollas I Sold you Buy years 10 the time is out
Yours truly
Beulah Lewis."
(Envelope postmarked
July 19-12 M 1951)
Beulah Lewis also in her testimony explains in detail her purpose in writing these letters.
It is clearly apparent from the record that plaintiff Beulah Lewis was an ignorant colored woman who had very little knowledge or understanding of oil and gas matters. It is also clearly apparent from the record that Sheffield was a man experienced in oil and gas matters and possessed vastly superior knowledge to that of Beulah Lewis as to the nature and effect of the instrument in question.
The record further reveals that Beulah Lewis (Martin) and her then husband executed an oil and gas lease on the tract in question in 1941, to Curtis Vise, which lease was released in 1951. Beulah Lewis testified that at the time she executed this lease (the Vise lease in 1941) she thought she owned the minerals in controversy.
The record further shows that in September 1954, Beulah Lewis executed an oil and gas lease to Herman Whiteherst on the tract in question, and also executed a mineral deed to Whiteherst in September 1954, to an undivided 10 acres interest under the tract in question.
There was also testimony to the effect that Mr. Whiteherst, discovering the mineral deed from Beulah Lewis to Sheffield being on record, came to Beulah's house about three weeks later and told her that Mr. Sheffield was claiming her minerals and asked her for his money back. She testified to the effect that she wrote him a check (rescinding the Whiteherst lease and mineral deed) and that the following Monday she employed an attorney who field this suit against Sheffield. She further positively testified that she did not know that Sheffield was claiming her minerals until Whiteherst told her, which was in October 1954.
The testimony further showed that Sheffield paid $30, less $1 for recording Beulah's deed to the tract, for the instrument in question, which is a mineral deed to all of the minerals, yet which contains a typewritten addenda which refers to it as "this lease," and the testimony further shows that Sheffield drew $88.24 delay rentals from the Magnolia Company lease then existing on the land.
The record further shows that no wells have been drilled on the tract in question and no production had been had therefrom.
There was apparently some confusion in the questions asked by appellant's counsel and some of the answers given by the various witnesses, including Beulah Lewis, with respect to the difference between minerals, royalty and leases, all of which is more fully shown by the record. Appellant points out in his brief these inconsistencies, as for example, he points out this testimony from Beulah Lewis, to-wit: "Q. Did you understand that this was in a fact a mineral deed? A. Yes, sir, that is what I was thinking it was, really." Appellant stops with the above question and answer; however, appellees take the position that Beulah Lewis, an ignorant colored woman, misunderstood the question and later corrected this testimony by the testimony then immediately following, which was as follows:
"Q. Do you understand the question. Did you understand at the time you executed the instrument there on April 30, 1936, that that instrument was a mineral deed and not an oil and gas lease? A. Yes, sir, I was thinking that it was just a lease, that is what I was thinking.
*535 "Q. Well, do you mean by that that you did not know it was a mineral deed or that you did know? A. No, I mean by that that I didn't know the royalty was in it. I just mean that I just had it in mind it was just a lease, just a lease, that is what I am talking about."
Appellant also points out what he deems inconsistencies in Beulah's testimony as he put it in a question framed by his counsel as to when Beulah first found out when she had been "frauded" as appellant's counsel put it. Appellees' brief quotes her subsequent testimony at length which explains that she first found out that she had been defrauded by Sheffield when Whiteherst told her (in October 1954) that Sheffield had a deed to her minerals. Irrespective of any and all inconsistencies in any prior testimony, Beulah Lewis testified positively to the effect that the first notice she had that Sheffield was claiming he had a mineral deed to her minerals was when she made the refund to Whiteherst in October 1954, when Whiteherst told her about it. She also testified that she had never had any occasion to check the deed records as she thought the lease she had supposedly given Sheffield had expired.
Beulah Lewis, in accounting for the fact that she did not know the instrument was a mineral deed (instead of the lease she thought it was) until October 1954, also testified that Sheffield told her that the lease had expired. We quote from her testimony as follows: "Well, I told him that was what I wanted him to do when he came to me. I saw him (referring to Sheffield) at the Courthouse and he said it has run out, and I went on ahead with it myself and leased it to Mr. Vise and later I leased it to Mr. Whiteherst." The above testimony would show that Sheffield by telling Beulah Lewis that the lease had "run out" had lulled her to sleep and into a sense of false security. She, being lulled to sleep by Sheffield's statement, thereafter leased her land to Vise and later to Whiteherst; and when informed for the first time by Whiteherst in October 1954 of Sheffield's mineral deed, she promptly filed this suit.
The testimony, circumstances in the case, and the logical inferences therefrom, also show that appellee Beulah Lewis and appellant Sheffield were not dealing solely at arm's length but that a relationship of trust and confidence existed between the parties, and the jury found in response to Special Issue No. 11, upon sufficient evidence, that the actions, conduct and representations of J. E. Sheffield were such as to cause Beulah Lewis to place confidence in and rely upon his representations.
The recent case of Alvis v. McDonald, by this Court, 282 S.W.2d 425, 428, writ ref., NRE, opinion by Justice Davis points out the distinction in cancellation cases where the instrument in question is prepared by the grantee, and quotes from Hutchins v. Birdsong, Tex.Civ.App., 258 S.W.2d 218, writ ref., NRE. We quote from Alvis v. McDonald, supra, as follows:
"If the evidence had shown that appellants as grantors had prepared or caused the instrument they signed to be prepared under their instructions, the position of the trial court and of the appellees would be correct, but there is a well-recognized exception to that rule wherein the deed or instrument sought to be cancelled was prepared by the grantee or under his instructions. As pointed out by Chief Justice Hall in the case of Hutchins v. Birdsong, Tex.Civ.App., 258 S.W.2d 218, 221, w/r, n.r.e., where the deed was prepared by the grantee or under his instructions, the grantor is not charged with notice of any fraudulent insertion or omission until such time as conditions arise to put grantor on notice of such fraud, and the mere signing and filing of the instrument of more than 12 years prior to the filing of suit for cancellation is not sufficient to charge one with notice of the contents of the instrument as a matter of law. In speaking of the exception we quote:
*536 "The burden of appellants' contention is that, under the facts in this case, appellee, grantor in the deed from him and Amos Ward to Belitsky, is charged, as a matter of law, with knowledge of the contents of the deed. They cite the cases of Kennedy v. Brown, Tex.Civ.App., 113 S.W.2d 1018 (writ dismissed) and Kahanek v. Kahanek, Tex.Civ.App., 192 S.W.2d 174.
"`We have been requested by the appellants to discuss those two cases in relation to the facts of this case. Those cases hold that as a general rule a grantor is charged with knowledge of the provisions in his deed; and that limitation begins to run against any action by him to correct a mistake in his deed from the date of the execution and delivery of the instrument. We recognize that as being a general rule, but both of these cases cited above reveal that they each recognize an exception to that rule. This exception is clearly set out in the Kennedy case (113 S.W.2d 1020) as follows: "It is equally well established by the authorities that in such cases limitation does not begin to run until the mistake is discovered or should have been discovered by the exercise of such diligence as would be exercised by a person of ordinary care and prudence." Citing cases. Great stress in those cases is laid upon the fact that the grantor in each case had the deed prepared and delivered to the grantee. And in the Kennedy case it is stated further: "It is neither alleged nor shown by the evidence that appellants did any act or thing which could be construed as an assurance to appellee (grantor) that the deed was written as contemplated by the contract (reserving the mineral interest) or that could have had the effect of lulling appellee into a sense of security in reference to the matter." (Italics ours.) We think that the above holding is also the holding of the court in the Kahanek case, which cites the Kennedy case as a basis for its holding. Thus it is clear that in the above cases had the facts shown that the grantees in the deeds involved in those cases had done any act or made statements which would have been sufficient to lull the grantor to sleep, then it seems to us that limitation under the exception set out above would not have begun to run against the grantor until they had discovered the mistake.'" (Italics ours.)
Also in the Hutchins v. Birdsong case, supra, 258 S.W.2d at page 222, it is further stated:
"The trial court heard these facts and circumstances surrounding the transaction, and concluded that the evidence was sufficient to excuse Birdsong, a technical grantor in the deed to Belitsky, from the harsh rule that would charge him as a matter of law with knowledge of the contents of the deed he signed. It is our opinion that the evidence is sufficient to sustain the finding of the trial court with regard to tolling the statute of limitation * * *. There was nothing to call his attention to the misrepresentations of Belitsky, that his mineral rights had been taken care of in the deed prepared by Belitsky's attorney, until Birdsong saw drilling operations in the vicinity of the land."
In 7 Tex.Jur., Sec. 41, page 952, it is further stated:
"The period of limitation begins to run from the time of discovery of the fraud, or the time when it ought to have been discovered by the exercise of proper diligence and inquiry in the circumstances. Actual knowledge of the fraud is necessary, however, when a relationship of trust exists between the parties. A party will not be allowed to avail himself of the statute of limitations if by his misrepresentation or fraud he had prevented the other party to the transaction from ascertaining a knowledge of his right to the relief sought." (Italics ours.)
*537 In Franklin County v. Title, Tex.Civ.App., 189 S.W.2d 773, 775, wr. ref., it is stated:
"Where a relationship of trust and confidence exists between the parties, the rule is that limitation starts to run only from the time of actual discovery of the fraud. Moore v. Waco Bldg. Ass'n, 19 Tex.Civ.App., 68, 45 S.W. 974; 43 Am.Jur. 209, Sec. 445; 22 R.C.L. 510, Sec. 196."
Any and all inconsistencies, if any, in the testimony of Beulah Lewis and the illiterate letters written by her, which might be inconsistent with her other testimony in the case, were for the jury to reconcile and pass on as stated in Tunnell v. Van School Dist. No. 53, Tex.Civ.App., 129 S.W.2d 825, 829, error dis., judg. corr., as follows:
"The fact that other testimony of Wells may be inconsistent with the above statements does not take from the whole of his testimony its probative force as regards the construction the jury decided to place upon it. It is for that fact-finding body to reconcile such inconsistencies. Norwich Union Indemnity Co. v. Wilson, Tex. Civ.App., 17 S.W.2d 68, 76; Austin Fire Ins. Co. v. Adams-Childers Co., Tex.Com.App., 246 S.W. 365."
Appellant's first point, contending that the trial court erred in not instructing a verdict in favor of appellant because the undisputed evidence showed that appellees had knowledge of the fraud (if any) more than four years prior to the commencement of the suit in question, is overruled. It is our view that there was sufficient positive evidence of probative force to raise fact issues for the jury to pass on with respect to this matter, and that it was within the jury's province to reconcile the inconsistencies, if any, in the evidence.
Appellant's second point, contending that the trial court erred in refusing to set aside the judgment and in not rendering judgment for appellant non obstante veredicto, because the verdict of the jury was contrary to all the testimony, is overruled. After carefully reviewing the record, it is our opinion that all of the findings of the jury are sufficiently supported by evidence of probative force and that the judgment of the trial court is a correct judgment on the merits of the case.
Appellant's fourth point reads as follows:
"4. This case should be reversed because the Special Issues, No. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17 of the Court's charge are not based upon the evidence before the court, and the answers thereto are not supported by the evidence before the Court."
Appellant's fourth point is clearly multifarious. Hudspeth v. Hudspeth, Tex. Civ.App., 206 S.W.2d 863; Carnes v. Kay, Tex.Civ.App., 210 S.W.2d 882. However, as heretofore stated, we think that all of the findings of the jury were sufficiently supported by the evidence in the cause. Appellant's fourth point is overruled.
Appellant's third point reads as follows:
"3. The court erred fundamentally in often commenting on the evidence, in the presence of the jury, especially the testimony of appellee, Beulah Lewis."
Appellant has not brought forward any bill of exception on this matter; however, the matter apparently complained of is shown by the record as follows:
"The Court. I don't think she understood your question, Mr. Dennard.
"The Court. Rephrase your question or ask it again. Now listen carefully to what the attorney asks you.
"The Court. All right. Now you listen to Mr. Barton's question, now he asked you and if you don't understand let him ask it again.
"Mr. Barton. (To Court Reporter) Will you please read the question back?
*538 "The Court. Well, just strike the question, because you didn't intend to ask her what you asked her. You asked her whether or not he intended to buy half her lease.
"Mr. Dennard. Your Honor, I have not taken exception to the action of the Court in that regard because Counsel for Plaintiff is well aware that this witness does her best to answer questions. * * * and Counsel for Plaintiff appreciates the action of the Court in so trying to keep her on the point and instructing the jury that it is not to be considered comment by the Court upon the credibility or weight or anything pertaining to the veracity of the testimony.
"The Court. That is all true, Gentlemen, and that is my occasion for suggesting to the jury and instructing them not to be in any manner prejudiced by the action of the Court to have her answers responsive to the questions."
Appellant made no objection to any of the remarks made by the trial court and there is no showing that the remarks of the trial court were reasonably calculated to and probably did prejudice the rights of appellant in any material matter of any import. In Texas Mexican R. Co. v. Bunn, Tex. Civ.App., 264 S.W.2d 518, 527, it is said:
"The record discloses several colloquies between counsel for appellant and the trial judge, and it is here contended that in such conversations the trial judge made remarks which amounted to comments upon the evidence, and which were prejudicial to appellant. The cold written record does not bear out the claims of prejudice. A trial judge is necessarily allowed some discretion in expressing himself while controlling the trial of a case, and a reversal of a judgment should not be ordered unless a showing of impropriety, coupled with probable prejudice, is made." (Italics ours.)
As we view it, the able and learned trial court was merely trying to assist counsel and the parties in developing the facts of the case in an orderly and intelligent manner. We do not think that the remarks of the trial court were improper under the circumstances. Appellant by failing to object to the remarks of the trial court also waived the alleged error. 41-B Tex.Jur., Sec. 61, p. 87. Appellant's third point is overruled.
Appellant's fifth point reads as follows:
"5. The case should be reversed because of the misconduct of Appellee's attorney, Mr. Norris Dennard, when he wrote upon a blackboard, in the absence of the Court, and in the presence of the jury, certain references to the evidence in the case, that had gone before the jury."
Appellant in the statement under this point does not give the wording or substance of the writing complained of but says that the attorney who wrote it immediately erased it upon the arrival of the judge in the courtroom; that appellant objected to it and the trial court sustained appellant's objection and instructed the jury not to consider same for any purpose, and the trial court further instructed appellees' counsel that if he desired to use the blackboard in argument of the case he should erase what he had written on the blackboard. Not having the wording or substance of the writings on the blackboard legally and properly before us (appellees make the statement in their brief that the writings in question were the dates and types of the instruments which had been introduced in evidence), we would certainly be unable to say that such writings were improper and prejudicial to such an extent that they constituted reversible error, especially in view of the trial court's instruction to the jury to disregard same. Appellant's fifth point does not reflect reversible error under the record in this case, and is overruled.
Appellant's sixth point reads as follows:
"6. Appellee's attorney, Mr. Norris Dennard, was guilty of gross misconduct *539 in his closing argument to the jury when he made the following remarks:
"`Gentlemen, this instrument that says that it is a lease, is a mineral deed, is a wolf in sheep's clothing, and no wolf ever cut an innocent lamb out of a flock of sheep quicker and surer than this instrument cut all the oil, gas and other minerals from under Beulah's land forever, and no lamb was ever more innocent than Beulah was at the time she signed this instrument as to the nature and effect thereof.'"
Appellant's objection to the above argument was as follows:
"Your Honor, I object to that line being prejudicial to the juryand take my exception."
As shown by the record, appellant objected and excepted in the same statement and no ruling was actually made by the trial court on the objection. Also the record reveals that appellant did not request the trial court to instruct the jury not to consider the argument in question.
It is well-settled law in Texas that the facts of a case may in argument be related to history, fiction, personal experience, anecdotes, Bible stories or jokes. 41-B, Tex.Jur., Sec. 222, p. 264.
It appears to us that the argument in question is primarily directed at the instrument in question rather than at the appellant personally. The instrument in question is in fact a mineral deed, but it does have a typewritten provision in it referring to it as "this lease."
However, if the argument in question was improper, it is our opinion that same was not reasonably calculated to cause and probably did not cause the rendition of an improper judgment in the case; and if error, would not constitute reversible error. Rules 434 and 503, Texas Rules of Civil Procedure; Aultman v. Dallas Ry. & Terminal Co., 152 Tex. 509, 260 S.W.2d 596; Benefit Ass'n of Ry. Employees v. Dahn, Tex.Civ.App., 272 S.W.2d 762, error ref., NRE; Roosth & Genecov Production Co. v. White, Tex.Civ.App., 281 S.W.2d 333, error ref., NRE. Appellant's sixth point is overruled.
The judgment of the trial court is affirmed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443320/
|
6 A.3d 1180 (2010)
124 Conn.App. 823
FRIENDS OF ANIMALS, INC.
v.
UNITED ILLUMINATING COMPANY.
No. 30006.
Appellate Court of Connecticut.
Argued November 20, 2009.
Decided November 9, 2010.
*1182 Kathleen Eldergill, Manchester, with whom were Danielle B. Omasta and, on the brief, Bruce S. Beck, Manchester, for the appellant (plaintiff).
Jonathan M. Freiman, with whom was Robert J. Klee, New Haven, for the appellee (defendant).
HARPER, ROBINSON and WEST, Js.
ROBINSON, J.
In this equitable action, the plaintiff, Friends of Animals, Inc., sought a declaration and injunction restraining the defendant, United Illuminating Company, from gassing, killing or capturing monk parakeets (parakeets) that were nesting on power lines and electrical equipment. The plaintiff appeals from the judgment rendered by the trial court when it granted the defendant's motion to dismiss for failure to make out a prima facie case. On appeal, the plaintiff claims that the court (1) abused its discretion by (a) precluding from evidence excerpts from the deposition transcripts of three of the defendant's employees and the defendant's expert witness, (b) precluding the plaintiff from calling the defendant's expert witness as its own expert witness, (2) improperly granted the defendant's motion to dismiss for failure to make out a prima facie case and (3) improperly held that General Statutes § 26-92 (wild bird act) provides the applicable standard for unreasonableness under the Connecticut Environmental Protection Act of 1971(act), General Statutes § 22a-14 et seq. We affirm the judgment of the trial court.
In its complaint, filed January 25, 2006, the plaintiff alleged, in part, that it is an international organization dedicated to the protection and preservation of wildlife. The defendant is a regional utility distributor, providing electricity to the greater New Haven and Bridgeport areas, and is responsible for maintaining electric lines, poles, transformers, substations and other equipment necessary to provide electric power to its customers.
The plaintiff also alleged that the parakeets are pigeon-sized birds that build large communal nests of sticks and other vegetation on elevated sites that exist naturally, such as trees, and commercially, such as utility poles and lines. The parakeets have lived wild in Connecticut for thirty to forty years and are enmeshed in the state's ecosystem.[1] Moreover, the parakeets may increase the number and variety *1183 of wildlife in an otherwise ecologically barren urban environment, and they feed on undesirable species of weed plants.
The plaintiff further alleged that on or about November, 2005, the defendant destroyed parakeet nests on the power lines and utility poles it maintained in West Haven, Milford, Stratford and Bridgeport. The defendant claimed that the nests were a nuisance and a hazard. At the time in question, the plaintiff alleged that the defendant gassed the parakeets in the nests on utility lines and poles to capture and transfer them to be killed. Moreover, the defendant had failed to implement feasible and prudent methods of dissuading the parakeets from nesting on utility poles by routinely inspecting and maintaining equipment, removing pre-nesting structures or installing devices to prevent or dissuade parakeets from nesting on power equipment. In addition, the defendant's failure to implement measures to prevent the parakeets from nesting on utility poles and lines is likely to result in the parakeets continuing to build nests on utility poles, a potential public hazard, resulting in the defendant's lethal removal of the parakeets. Finally, the plaintiff alleged that "[t]he killing or removal of [parakeets] from the local ecosystem by the [d]efendant will, unless restrained, constitute conduct which is reasonably likely to unreasonably impair or destroy the public trust in a natural resource of the state, to wit, the [parakeets] and other interdependent local and indigenous species in violation of [General Statutes] § 22a-16[2]...." (Emphasis added.)
In its prayer for relief, the plaintiff requested that the court declare the defendant's failure to implement routine maintenance and measures to prevent the parakeets from nesting on utility poles and its gassing, killing or capturing the parakeets a violation of § 22a-16. The plaintiff also sought a permanent injunction restraining the defendant from gassing, killing or capturing the parakeets, and requested reasonable costs, attorney's fees and other relief the court may deem just and proper.
The case was tried over three days in May, 2008. The plaintiff presented the testimony of its expert witness, Dwight G. Smith, professor and chair of the biology department at Southern Connecticut State University, Priscilla Feral, the plaintiff's president, and Donna Dwyer, a member and volunteer of the plaintiff. Although the court permitted the plaintiff's counsel to read into evidence portions of the deposition of Robert Manning, the defendant's manager of system integrity,[3] it ruled that the plaintiff could not put into evidence excerpts of the depositions of William Cook, director of project management, Kathleen Shanley, director of environmental safety and real estate, and Steve Siedzik, project manager, all of whom were employed by the defendant and present in the courtroom waiting to be called to testify. The court encouraged the plaintiff to call the defendant's *1184 employees to testify, noting that counsel would have "a lot of leeway" in questioning them and that their deposition testimony could be used to impeach their courtroom testimony. Counsel for the plaintiff elected not to call the employees because she did not want to give the defendant the opportunity to cross-examine its employees. The court also denied the plaintiff's request to read into evidence excerpts from the deposition transcript of the defendant's expert witness, James R. Newman of Pandion Systems, Inc., a firm involved in environmental science, research, communications and training, and denied the plaintiff's request to call Newman as its expert witness.
After presenting the testimony of Smith, Feral and Dwyer, and marking excerpts of the employees' deposition transcripts for identification, the plaintiff rested. The defendant immediately moved, pursuant to Practice Book § 15-8, to dismiss the action for the plaintiff's failure to make out a prima facie case "that there is no threat to public health or public safety posed by the monk parakeet nests on the electrical equipment." The court granted the motion to dismiss, stating: "Well, it's rare for this court to engage in a personal response to a case that's just been presented. But I have to say ... that this is a unique experience for this court. And I have been on the bench since 1981....
"I took this case on as I try to take every other one, and as I think every Superior Court judge that I know who takes on a delicate public issue case like this takes on, with the thought that this is a serious question that involves a lot of the public, that affects varied interests, and people's feelings are at stake. There is the humane aspect of these poor creatures who look to us for protection and survival. And I wanted to hear what this was all about. And I will be very candid and tell you that I feel disappointed and let down by the way this case has been put on. I don't think I have any alternative, but to dismiss the action. And I dismiss the action with reluctance because I don't feel I've heard the whole story, if there is another side to this story. I haven't heard it from the plaintiff.
"And I think, at this point, I will say no more because it's ... for appellate courts to decide if ... I'm correct in my perception. But I do not feel that you've sustained your burden of proof.... [Y]our expert made no bones about the fact that most of these alternative methods, which had been mentioned, had not been tested. He ... offered no alternatives. And I was hoping to hear from the attack on the [defendant's] people why alternatives didn't exist or ... whatever there might be. I wasn't given the opportunity to hear that. And as counsel has pointed out, the deposition testimony is a lame excuse, or the argument over that is a lame excuse for not putting the people on. They are here. They would have been under the gun. They would have been before the court. I could have registered my response to their responses ... evaluated their answers, maybe even had questions of my own to ask them. You chose not to do that. And I respect counsel's wishes, and decisions of a tactical nature, but you leave me with no alternative but this one. So, the case is dismissed."
The plaintiff subsequently filed a motion for articulation, asking the court to articulate thirteen points. In its articulation, the court stated, in part, that "[w]hat the court found totally lacking was any action by the defendant reasonably likely `unreasonably to pollute, impair or destroy the public trust in the air, water or other natural resources of the state'," quoting General Statutes § 22a-17 (a). The plaintiff *1185 has appealed from the judgment of dismissal.
I
The plaintiff claims that the court abused its discretion by (1) excluding certain deposition testimony of (a) the defendant's employees and (b) the defendant's expert witness, and (2) failing to permit the plaintiff to call the defendant's expert witness as its own witness. The plaintiff also claims that the exclusion of the evidence was harmful error. We conclude that the court properly exercised its discretion when ruling on the admission of the subject evidence.
"The trial court's ruling on the admissibility of evidence is entitled to great deference.... [T]he trial court has broad discretion in ruling on the admissibility... of evidence ... [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion ... and a showing by the [appellant] of substantial prejudice or injustice." (Internal quotation marks omitted.) Jacobs v. General Electric Co., 275 Conn. 395, 406, 880 A.2d 151 (2005).
A
We first examine the plaintiff's claim that the court abused its discretion by failing to permit it to read portions of the deposition transcripts of Cook, Shanley and Siedzik (collectively employees) into evidence. Specifically, the plaintiff claims that the court failed to abide by § 8-3(1)(A) and (C) of the Connecticut Code of Evidence,[4] Practice Book § 13-31(a)(3) and Gateway Co. v. DiNoia, 232 Conn. 223, 236-42, 654 A.2d 342 (1995). We disagree.
The following facts are relevant to the plaintiff's claim. During the presentation of its evidence, the plaintiff offered into evidence the transcript of Cook's deposition as a statement of a party opponent, pursuant to § 8-3(1) of the Connecticut Code of Evidence. The defendant's counsel objected, stating first that Cook was available to testify and, second, that Practice Book § 13-31(a)(3) was more relevant to the admission of the proffered evidence, as Cook had never been designated to speak for the defendant pursuant to Practice Book § 13-27(h).[5] The plaintiff argued that, under Practice Book § 13-31(a)(3), the availability of the witness was immaterial and that under Gateway Co. v. DiNoia, supra, 232 Conn. at 223, 654 A.2d 342, statements of a party opponent may be admitted for any reason, regardless of the witness' availability.
*1186 The court was troubled by the plaintiff's request. "What troubles me is a process by which, in the middle of the trial ... you offer transcripts. Well, suppose ... at this point I say, `okay, fine, mark it.' Do we recess while I absorb the deposition testimony, and then we do the same thing for the next ... four depositions? And ... when is the court enlightened as to what the claim is that's contained in these depositions that you are relying on?... I mean you ... expect me to comb and say, `oh, this is good, this is bad, or this is maybe.' ... This is [a] very unusual tactic." The defendant objected to the plaintiff's putting the transcripts into evidence because there was no way for it to object to deposition testimony that might not be admissible at trial. The court agreed with the defendant and expressed further concern about the amount of time it would take to sift through the deposition and deal with objections from opposing counsel.
The plaintiff's counsel again argued that the depositions were admissible pursuant to Gateway Co. The court disagreed with the plaintiff's interpretation of the case and ruled that the transcript of Cook's deposition testimony was not admissible. The court noted, however, that the plaintiff could use the deposition testimony for impeachment purposes. The plaintiff also offered the deposition transcripts of Shanley, Siedzik and Newman as exhibits, but the court ruled that the transcripts were not admissible. The defendant agreed to produce its employees and expert witnesses to testify.
On the next scheduled day of trial, the plaintiff's counsel announced that, for tactical reasons, she would not call the employees, who were then present in the courtroom, but asked the court to admit excerpts from the transcripts of their deposition testimony into evidence, arguing that the excerpts were statements of a party opponent. The defendant objected and asked the court to abide by its previous ruling that the deposition testimony of the employees was not admissible. The court sustained the defendant's objection and clarified its ruling at the request of the plaintiff's counsel, to wit: "I think the Practice Book dictates the court's position. I think the court has discretion under certain circumstances to circumvent or sidestep, as the case may be, adherence, strict adherence to the rule. This is not one of those situations, as far as I can tell, first of all, because we have the parties[6] present. And the very nature of the dispute is such that credibilityfrom what I've heard so far, at least, credibility could very well be an issue in the case. And hearing from the witnesses would be something that the trier should be exposed to. So, I'm aware of the Practice Book restriction. I would consider relaxing it but not under these circumstances."
On appeal, the plaintiff has argued that § 8-3 of the Connecticut Code of Evidence, Practice Book § 13-31(a)(3) and Gateway Co. v. DiNoia, supra, 232 Conn. at 236-42, 654 A.2d 342, preclude the court's exercise of discretion regarding the admission of the employees' deposition testimony into evidence. The plaintiff's argument is not persuasive because Gateway Co. holds that the "trial court has discretion to admit or exclude deposition testimony offered as evidence"; id., at 239, 654 A.2d 342; under the rules of practice. Moreover, the court's ruling with respect to the subject deposition testimony is in keeping with our rules of evidence and practice.
*1187 In Gateway Co., Lena DiNoia was a defendant in a breach of contract action. Id., at 225, 654 A.2d 342. To prove agency, the plaintiff sought to put portions of DiNoia's deposition testimony into evidence pursuant to Practice Book § 248(c),[7] which is now codified at § 13-31(a)(3).[8] Id., at 236, 654 A.2d 342. The trial court in that case "determined, however, that because the plaintiffs had failed to show that DiNoia was unavailable to testify at trial as required by Practice Book § 248(d),[9] her deposition testimony could not be admitted into evidence." Id., at 228, 654 A.2d 342. Our Supreme Court disagreed that Practice Book § 248(d) controlled, concluding rather that the circumstances were governed by Practice Book § 248(c); id., at 239, 654 A.2d 342; which is now Practice Book § 13-31(a)(3).
Our Supreme Court reversed the trial court explaining that "the trial court has discretion to admit or exclude deposition testimony offered as evidence under § 248.... While it is normally true that this court will refrain from interfering with a trial court's exercise of discretion ... this presupposes that the trial court did in fact exercise its discretion. [D]iscretion imports something more than leeway in decision-making.... It means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.... In this case, the trial court improperly based its decision to exclude evidence on § 248(d) and, accordingly, failed to exercise its discretion properly. We therefore reverse the trial court's determination and conclude that the admission of DiNoia's deposition testimony should have been determined by § 248(c)." (Citations omitted; internal quotation marks omitted.) Id.
*1188 Moreover, our Supreme Court clarified the difference between Practice Book § 248(c) and (d), now § 13-31(a)(3) and (4). "Although § 248(c) is analogous to the rule of evidence that permits an admission of a party opponent to be admitted as an exception to the hearsay rule, § 248(d) broadens the rules of evidence by permitting otherwise inadmissible evidence to be admitted.... Because a party may not introduce its own statement under the admission of a party opponent exception ... § 248(d) authorizes the admission into evidence of a deposition of a nonparty or of a party's own deposition provided certain requirements are satisfied. Therefore, § 248(c) and (d) each apply to distinct and different circumstances." (Citations omitted.) Id., at 238 n. 11, 654 A.2d 342.
In this case, Cook, Shanley and Siedzik are not parties, but employees of the defendant, and the plaintiff has not pointed to anything in the record indicating that the defendant had designated any one of them to speak for it pursuant to Practice Book § 13-27(h). Not only did the plaintiff fail to demonstrate that the employees were unavailable to testify, but also the record demonstrates that the defendant produced them and that they were in the courtroom waiting for the plaintiff to call them to the witness stand. Under the circumstances, we conclude that the court properly exercised its discretion by precluding the deposition transcripts of the employees from evidence.[10]
*1189 B
The plaintiff's next claim is that the court abused its discretion by precluding the plaintiff from (1) reading portions of the deposition transcript of the defendant's expert into evidence and (2) calling the defendant's expert as its own witness. We disagree.
On the second day of trial, the plaintiff sought to place Newman's deposition transcript into evidence as an exhibit, claiming that Newman was not available to testify because he resided out of state. The defendant objected, noting that Newman had been in court on the first day of trial but returned home until the next week when he would be called to testify in the defendant's case. Moreover, the defendant pointed out that the plaintiff had never disclosed Newman as an expert or listed him on its witness list. The court denied the plaintiff's motion to mark Newman's deposition as a full exhibit and to call him as its own expert witness.
1
The plaintiff claims that the court abused its discretion by failing to admit the deposition transcript of Newman into evidence because he was an out-of-state witness. The plaintiff relies on Practice Book § 13-31(a)(4)(B). We conclude that the court did not abuse its discretion by precluding Newman's deposition transcript from evidence.
Practice Book § 13-31(a)(4) provides in relevant part: "The deposition of a witness... whether or not a party, may be used by any party for any purpose if the judicial authority finds ... (B) that the witness is... out of the state and will not return before the termination of the trial...." In its articulation on this claim, the court stated that it "denied the use of [Newman's] deposition transcript because it was not shown by the plaintiff that ... Newman was unavailable. The defendant had indicated [that] this witness was available for the first day of trial. It wasn't until the second day that the plaintiff indicated it planned to call him as a witness. The court denied the plaintiff's request to call... Newman because it was untimelyin the middle of the trialand the defendant claimed surprise. At the very least, the defendant would have been entitled to a delay to meet with its own expert and prepare for his testimony, were the motion to be granted. Of course, as with all of the potential witnesses, Newman would have been made available to testify had the plaintiff not chosen to rest its case when the court refused to let the case proceed via deposition excerpts only." We conclude that the court properly denied the use of Newman's deposition testimony because *1190 the plaintiff failed to demonstrate that he was unavailable.
2
The plaintiff claims that the court improperly barred it from calling the defendant's expert witness as its own expert. We disagree.
In support of its claim, the plaintiff relies on Lane v. Stewart, 46 Conn.App. 172, 176-77, 698 A.2d 929, cert. denied, 243 Conn. 940, 702 A.2d 645 (1997). In Lane, a personal injury action, the defendant retained and disclosed an expert witness who was deposed by the plaintiffs. Id., at 175, 698 A.2d 929. Thereafter, the defendant, for tactical reasons, decided not to call its expert at trial and sought to quash the subpoena duces tecum served on its expert by the plaintiffs. Id. The trial court in that case granted the motion to quash, but this court held that the granting of the motion to quash was an abuse of discretion. Id., at 175, 177, 698 A.2d 929. This court reasoned that "[b]y disclosing the witness, the defendant made it possible for the plaintiffs to discover evidence that the plaintiffs decided was beneficial to their case and should be brought before the trier of fact. To allow the defendant to prevent this witness from testifying may have deprived the trier of fact of material and relevant information that would have assisted it in reaching a decision in the case." Id., at 177, 698 A.2d 929. That is not the situation before us in this case. The defendant intended to call Newman, and the plaintiff would have had the opportunity to cross-examine him.
In this case, the plaintiff announced in the middle of trial that it intended to call Newman as its own witness. Practice Book, 2008, § 13-4(4) provides in relevant part: "[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial.... If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subdivision, or if an expert witness who is expected to testify is retained or specially employed after a reasonable time prior to trial, such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party ...." (Emphasis added.) See also Cavallaro v. Hospital of Saint Raphael, 92 Conn.App. 59, 65-66, 882 A.2d 1254, cert. denied, 276 Conn. 926, 888 A.2d 93 (2005).
The plaintiff stated that it wanted to call Newman as its witness and read his deposition testimony into evidence during the middle of trial. The court stated that counsel for the defendant is "telling us that he plans to bring [Newman] in as his witness next week.... That will make him available for cross-examination, impeachment and everything else. If you are telling me that you'd now like to call [Newman] as your witness, we are then confronted with the late disclosure and the late request for you toand I don't know how you are going to get him at this late date anyhow and since they are offering and will bring him next Wednesday, I think that's ... kind of ... playing games." In its articulation, the court stated that it had denied the plaintiff's request to call Newman because it was untimely. See Practice Book, 2008, § 13-4(4).
*1191 Moreover, in response to the plaintiff's request for a clarification of the ruling, the court stated that the defendant was planning to call Newman in its case at which time the plaintiff would have an opportunity to cross-examine him. The court did not permit the plaintiff to call Newman as its expert witness due to the plaintiff's late disclosure. Counsel for the plaintiff then stated that she might not get the opportunity to cross-examine Newman if the defendant's motion for judgment was granted and that she "just wanted to cover my bases." The court responded, in part: "Counselor, this is something that I think you ... should have thought of when you decided on these tactics. You don't try a case in this unique fashion without running some risks. And that's why you put your case on and not adopt this sudden turnabout in the normal presentation of evidence."
On the basis of the record and our rules of practice, we conclude that the court properly precluded the plaintiff from calling Newman, the defendant's expert, as its own expert during the middle of trial. The court's rulings with respect to Newman are consistent with our rules of practice and case law as set forth herein.
C
The plaintiff's last evidentiary claim is that the court's exclusion of the deposition testimony of the defendant's employees and expert was harmful error. Because we conclude that the court did not abuse its discretion by excluding the evidence, we need not reach this claim.
II
The plaintiff claims that the court improperly dismissed its case for failure to make out a prima facie case pursuant to Practice Book § 15-8.[11] We do not agree.
"[W]hether the plaintiff has established a prima facie case is a question of law, over which our review is plenary." (Internal quotation marks omitted.) John H. Kolb & Sons, Inc. v. G & L Excavating, Inc., 76 Conn.App. 599, 605, 821 A.2d 774, cert. denied, 264 Conn. 919, 828 A.2d 617 (2003). Here, the court heard all of the plaintiff's evidence in a trial on the merits of the case. See Windels v. Environmental Protection Commission, 284 Conn. 268, 933 A.2d 256 (2007). "It is appropriate, therefore, for this court to consider whether the trial court correctly determined that the plaintiffs had not met their burden of proving a violation of [General Statutes] §§ 22a-16 and 22a-18. See Cadle Co. v. D'Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004) (`notwithstanding the trial court's characterization of its ruling as a dismissal for failure to establish a prima facie case, the question before us is not whether the evidence was sufficient to present the claim to a finder of fact, but whether, having presented its case to the fact finder at trial, the plaintiff sustained its burden of proof')." Windels v. Environmental Protection Commission, supra, at 290-91, 933 A.2d 256.[12]
*1192 In this case, the plaintiff presented the testimony of three witnesses, including an expert, and read portions of a deposition transcript of one of the defendant's employees into evidence. Our review of the transcript reveals the following testimony of the plaintiff's witnesses. According to Smith, who has taught at Southern Connecticut State University for forty years, the parakeets were introduced into Connecticut in the 1970s and have become an integral component of the ecosystem they inhabit, both urban and suburban. They are integral components of the ecosystem because they obtain resources, food and the means to construct nests from the environment. The parakeets alert other species to the presence of predators. Smith based his testimony on his observations of the parakeets and the observations of his students. The parakeets are most likely herbivores, but on occasion they may eat an insect.
According to Smith, monk parakeets are the only species of parrots, parakeets, paralets and lorikeets that build a stick nest. The number of parakeets in a nest can range from a single pair to seven pairs. A nest occupied by a single pair of birds ranges in size from one and one-half feet in diameter to two to three feet high. The largest nest Smith has seen in Connecticut was about three feet in diameter and five or six feet in height. Large nests can weigh as much as a ton. There is, however, no typical nest size. During breeding season, other species of birds use the parakeets' nests as nesting structures or as a source of nesting material to build their own nests elsewhere. Smith testified that some people enjoy watching the colorful parakeets.
The parties stipulated that the defendant captured between 179 and 189 parakeets in 2005 and 2006 and turned them over to the United States Department of Agriculture. On the basis of that stipulation, Smith opined that the capture of parakeets resulted in an overall reduction of the parakeet population in the coastal region of Connecticut.[13] He also opined, on the basis of "common sense," that the parakeet population is impaired by the defendant's capture program because 189 parakeets were "slaughter[ed]" and the remainder of the population was reduced *1193 by some percentage, thereby reducing its ability to nest and reproduce. Smith did not know the size of the parakeet population prior to the capture or its size thereafter.
According to Smith, when the parakeets' nests are removed, depending on the stress associated with the nest removal program, the parakeets band together and immediately build a new nest because the nest is the center of the colony, its social and living structure and, thus, is necessary for the parakeets' survival. The parakeets tend to build new nests on the same structures where the nests that were removed were located. Smith suggested that alternative nesting platforms should be erected so that parakeets will not renest on power lines and poles. To erect a nesting platform, land must be available for that purpose. The nesting platforms cost approximately $100 to construct. Smith conceded that he was not an expert on the construction or design of the alternative nesting platforms.[14]
Smith suggested alternatives to capturing parakeets: placing parakeet effigies on sites where nests have been removed to deter renesting, repeatedly removing nests within a short period of time and covering transformers with sleeves.[15] Smith also testified that "a large proportion of the population that nested on poles, once the nests were removed, within a few days and certainly within a few weeks, they were back renesting on the poles."
On cross-examination, Smith testified that he has never studied the effects of parakeet nests on the electrical system but acknowledged that the material parakeets use to construct their nests is flammable and that putting flammable material on a high voltage electrical wire can have adverse effects on worker safety. According to Smith, 90 percent of parakeets will renest on the same structure where their former nest was located due to biological imprinting. Smith considers the killing of parakeets to be an unreasonable impairment of the natural resources in the state and considers it an acceptable means of controlling the parakeets only if there are no alternatives. Smith had no opinion as to whether capturing parakeets by itself was an unreasonable impairment of the natural resources of the state.[16] In his opinion, taking down nests is a feasible and prudent alternative. He testified that other methods of dealing with the nests have not been tested adequately. He was not aware of studies regarding the success of repeated nest removal on imprinting or the interval of removal required to affect imprinting.
Smith did not know the cost of removing a parakeet nest, and he has not considered the cost of acquiring land and building alternative nesting platforms for parakeets whose nests have been removed. He agreed that, to date and with known methods, capturing parakeets and removing their nests is more successful than merely removing the nests to control the building *1194 of nests on the defendant's equipment. He considers capturing the parakeets to be "uncompassionate," unimaginative and without regard for the urban wildlife habitat.
Feral, the plaintiff's president, testified that the plaintiff was founded in 1957 as an international animal advocacy group and has approximately 5000 household members. In November, 2005, Feral alerted the plaintiff's membership that the defendant was capturing the parakeets and that the birds subsequently were killed. Two hundred thirty-six of the plaintiff's members voiced opposition to the defendant's plan to eradicate the parakeets by posting comments on the plaintiff's Internet site. Feral telephoned the defendant's headquarters and spoke with Al Carbone, who explained that the eradication program was a public safety issue.
According to Feral, the plaintiff paid for the materials that were used to construct alternative nesting platforms for the parakeets.[17] Marc Johnson, a resident of Massachusetts, owns a parrot sanctuary and has demonstrated to the plaintiff's members how to construct alternative nesting platforms. On cross-examination, Feral testified that she has no scientific background and no expertise in electrical equipment or public health or safety.
The portions of Manning's deposition that were entered into evidence[18] reveal that he was employed by the defendant in 1988 and was the defendant's manager of system integrity. He first became aware of problems involving the parakeets and the defendant's delivery equipment in 2001 to 2002. In 2003, the defendant removed parakeet nests to perform maintenance, if nests were causing power outages or posed an imminent threat to hardware. The defendant also removed nests at the request of customers and to perform construction. Prior to 2005, the defendant most likely removed fewer than twenty nests. The defendant removed parakeets' nests for the public health and safety to avoid a power outage or fire. Since the 2005-2006 capture and nest removal, the defendant has observed and documented nest rebuilding where nests were removed. According to the defendant's 2007 annual report, the number of power outages attributable to birds and animals more than doubled from 2005 to 2006, due mostly to squirrels. Manning testified that the increase did not mark a trend because the number of such outages between 2002 and 2006 had gone down. In dealing with outages, the defendant determines whether the cause of the outages in certain areas is repeated, and, if so, it takes corrective action.
Counsel for the defendant read into evidence other portions of Manning's deposition testimony pursuant to Practice Book § 13-31(a)(5). According to Manning, the defendant did not attempt to control the parakeets by its capture program but to prevent nests from causing outages and impacting the public health. The defendant used the capture and remove method of dealing with the parakeets because simply removing the nests did not produce good enough results. Before implementing the capture and remove method, the defendant contacted the Florida Power and Light Company, the Connecticut department of environmental protection and the United States Department of Agriculture, and retained the services of Pandion Systems, Inc., a firm involved in environmental science, research, communications *1195 and training. The agencies the defendant consulted concluded that merely removing nests caused the parakeets to rebuild a similar or multiple nests. In Manning's opinion, the capture and removal method has provided the defendant with a better means of dealing with parakeet nests than the defendant had in the past. Moreover, the defendant's experience with nest removal alone resulted in nests being rebuilt on existing poles or adjacent utility structures. In 2005, the parakeet nest problem was worsening. Following the capture and nest removal effort, the parakeet nest problem on electrical equipment was reduced.[19]
Donna Dwyer, a special education paraprofessional in the Waterbury school system, testified on behalf of the plaintiff. She has observed the parakeets in Connecticut, New York and New Jersey for fifteen years and has participated in the construction of alternative nesting platforms that were erected on land voluntarily made available for that purpose. Experience with the alternative platforms has demonstrated that, in areas where alternative platforms have been erected after parakeet nests were removed, the alternative platforms utilized by the parakeets to rebuild were those in closest proximity to the location of the original nest. In West Haven, two of the fourteen nesting platforms that were erected were used by the parakeets. Dwyer testified that on May 1, 2008, the defendant removed parakeet nests on electrical equipment on Ocean Avenue in West Haven. On May 18, 2008, Dwyer observed four or five nests on electrical lines on Ocean Avenue opposite an artificial nesting platform.
When the plaintiff rested, the defendant moved pursuant to Practice Book § 15-8 to dismiss the matter for the plaintiff's failure to make out a prima facie case. The court granted the motion stating, in part, "I dismiss the action with reluctance because I don't feel I've heard the whole story. If there is another side to this story, I haven't heard it from the plaintiff.... But I do not feel that you've sustained your burden of proof. Your expert made no bones about the fact that most of these alternative methods, which had been mentioned, had not been tested. He offered no alternatives. And I was hoping to hear from the attack on the [defendant's] people why alternatives didn't exist or whatever there might be. I wasn't given the opportunity to hear that."
The plaintiff filed a motion for articulation, requesting, in part,[20] "an articulation of the trial court's judgment of dismissal for failure to meet the plaintiff's `burden of proof' with respect to the following: A. [t]he basis upon which the [c]ourt found that the [p]laintiff did not establish the elements of its prima facie case and which elements were not established; B. [t]he extent to which the [c]ourt concluded that [the] [p]laintiff had a burden of proof with regard to the [d]efendant's affirmative defense, which elements of that burden of proof the [p]laintiff failed to establish...."
*1196 The court responded to the motion for articulation, stating, in part: "Initially, it must be noted that the plaintiff's `Demand for relief' states ... 1. Enter a judgment declaring that the acts and practices of the [d]efendant in failing to implement routine maintenance and enact preventing measures to prevent the nesting of [m]onk [p]arakeets upon utility poles and the gassing, killing or capturing of [m]onk parakeets violate [General Statutes] § 22a-16; 2. Issue a permanent injunction, restraining the [d]efendant from gassing, killing or capturing of [m]onk [p]arakeets...."
The court continued, stating that "[t]he plaintiff's expert ... Smith testified that while he believed there are alternatives (to nest removal), they haven't been tested or proved. An examination of his testimony contains no suggestion that the defendant's `routine maintenance' was wanting and contributed to the nesting. [Smith] could not predict where these birds would go if the nests were removed, but conceded that 90 [percent] would return to the site of the removed nest. He also said he had no opinions about fires or loss of power but admitted the nests are flammable. It stands to reason that the court had no basis to enter the judgment and issue a permanent injunction as requested by the plaintiff....
"The plaintiff seeks an articulation of what elements of a prima facie case the court found were not established. What the court found totally lacking was any action by the defendant reasonably likely `unreasonably to pollute, impair or destroy the public trust in the air, water or other natural resources of the state....' [General Statutes § 22a-17 (a)]. From the plaintiff's evidence, the court found that the defendant's failure to take appropriate action would impact the public trust in the air, water or other natural resources. The flammable nests described by ... Smith would appear to be unpleasant at best and a serious health and safety hazard when ablaze. Further, there was no evidence offered to support any claim that the defendant's actions, particularly its aggressive stance in 2005, had an adverse impact on the environment or natural resources even if one were to accept ... Smith's unsupported statement that these birds are a natural resource. The plaintiff offered no evidence and made no statement that the defendant's activity was likely to cause environmental harm that required the court to intervene. (See Waterbury v. Washington, 260 Conn. 506, 557, 800 A.2d 1102 [2002])." (Emphasis in original.)
Our Supreme Court has stated that "the term `unreasonable impairment' must be evaluated through the lens of the entire statutory scheme, if any, that the legislature has created to regulate the conduct underlying the impairment." Waterbury v. Washington, supra, 260 Conn. at 549, 800 A.2d 1102. "What constitutes an unreasonable impairment for purposes of deciding whether a violation of [the act] has occurred ... is a question of statutory construction." Id. Under the act, "[t]he plaintiff must first make a prima facie showing that the conduct of the defendant, acting alone, or in combination with others, has, or is reasonably likely unreasonably to... impair, or destroy the public trust in the ... natural resources of the state...." (Emphasis in original; internal quotation marks omitted.) Id., at 550, 800 A.2d 1102. "[T]he legislature did not intend for a plaintiff to be able to establish a prima facie case under [the act] on the sole basis that the defendant's conduct was causing something more than a de minimis impairment." Id., at 553, 800 A.2d 1102. To make out a prima facie case, the plaintiff must demonstrate a "protectible natural resource ... and that the action of the defendants would impair this resource." *1197 (Internal quotation marks omitted.) Id., at 554, 800 A.2d 1102, quoting Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 58, 441 A.2d 68 (1981). "[W]hen there is an environmental legislative and regulatory scheme in place that specifically governs the conduct that the plaintiff claims constitutes an unreasonable impairment under [the act], whether the conduct is unreasonable under [the act] will depend on whether it complies with that scheme." Waterbury v. Washington, supra, at 557, 800 A.2d 1102.
On appeal, the plaintiff claims that the court improperly determined that it had failed to make out a prima facie case because it had presented no evidence from which the court could have inferred that the defendant's unilateral decision to capture and to destroy the parakeets, in addition to removing their nests, results in impairment or destruction of a natural resource that is wholly unnecessary given the defendant's long-term reliance on its more conservative practice of nest removal alone and the success of that practice.
At trial, the plaintiff identified the wild bird act; General Statutes § 26-92;[21] as providing the standard by which to judge the reasonableness of the defendant's conduct toward the parakeets.[22] The wild bird act, however, excludes the parakeets from its protection "when concentrated in such numbers as to constitute a public health or public safety hazard...." General Statutes § 26-92. The court concluded that the exception imposed on the plaintiff the burden of proving that the parakeets were not concentrated in such numbers as to constitute a public health or public safety issue. The court found that the testimony of Smith and the excerpts from Manning's deposition "render[ed] that proposition impossible to adopt." The court also cited Dwyer's testimony that she had observed that after nests had been removed from Ocean Avenue on May 1, 2008, four or five nests had been rebuilt by May 17, 2008. The record supports the court's findings and conclusion that the parakeets in this instance are not protected by the wild bird act. The court found, in accordance with Smith's testimony, that the nests are flammable and cause power outages. Moreover, the plaintiff itself referred to legislative history that demonstrates that parakeets nesting on electrical equipment were excluded from the protection of the wild bird act. Representative Mary M. Mushinsky presented the bill for the wild bird act, stating: "It allows the destruction of certain birds if they are degradating crops or wildlife or when they are concentrated in such numbers as to constitute a public health or safety hazard. For example, birds building a nest in an electric transformer, or interfering with landing of aircraft. Those would be two examples."[23] 46 H.R. Proc., Pt. 14, 2003 *1198 Sess., p. 4606. The evidence presented by the plaintiff supports the court's conclusion that the parakeets' nests on electrical equipment presents a public health or safety hazard and, in such instances, the birds are not protected under the wild bird act.
Given the prima facie evidence standard established in Waterbury v. Washington, supra, 260 Conn. at 557, 800 A.2d 1102, and our thorough review of the evidence, we conclude that the court properly determined that the plaintiff failed to make out a prima facie case by failing to present evidence that the defendant's acts, as alleged in the complaint, reasonably were likely "unreasonably to pollute, impair or destroy the public trust in the air, water or other natural resources of the state...." General Statutes § 22a-17 (a). The parakeets are not protected by the regulatory scheme that affords protection to wild birds when they nest on electrical equipment in such numbers as to represent a public health and safety hazard. See H.R. Proc., supra, at p. 4606. In its brief on appeal, the plaintiff has failed to identify admissible evidence[24] that the defendant's conduct with respect to the parakeets impaired the public trust in the natural resources of the state in that it violated a regulatory or statutory scheme or that there was a feasible and prudent alternative to the defendant's conduct. See Waterbury v. Washington, supra, 260 Conn. at 560, 800 A.2d 1102 (no feasible and prudent alternative to conduct). The plaintiff's own witnesses testified that 90 percent of the parakeets will rebuild their nests where the one that was removed was located. The court, therefore, properly dismissed the action.
III
The plaintiff's last claim is that the court improperly relied on § 26-92, the wild bird act, as the standard for determining unreasonableness under § 22a-16. We disagree.
This claim concerns statutory construction and is a question of law to which the plenary standard of review applies. See Saunders v. Firtel, 293 Conn. 515, 525, 978 A.2d 487 (2009). "Statutes must be interpreted to give meaning to their plain language and to provide a unified body of law." U.S. Vision, Inc. v. Board of Examiners for Opticians, 15 Conn.App. 205, 214, 545 A.2d 565 (1988).
The plaintiff argues that the department of environmental protection's regulatory scheme for water flow at issue in Waterbury v. Washington, supra, 260 Conn. at 558, 800 A.2d 1102, is complex and specific, which the wild bird act is not. The plaintiff claims that the wild bird act provides no specific criteria to quantify either "`such numbers'" or the nature and extent of the hazard that must exist before the statutory exemption applies. See footnote 21 of this opinion. The plaintiff has identified no legal support for its argument that the degree of specificity in the statute or regulatory scheme governing the conduct in question is relevant to whether the conduct *1199 complained of constitutes an unreasonable impairment under the act. See Waterbury v. Washington, supra, at 557, 800 A.2d 1102. Although the Washington case involved a more comprehensive regulatory scheme, that case held that courts are to look to more specific statutes to give content to the term unreasonable in § 22a-16. See footnote 2 of this opinion. The wild bird act regulates the natural resource in question, addressing the parakeets by name. It identifies when the parakeets are exempt from its protections. The wild bird act therefore governs the defendant's conduct in question and provides the standard by which the court was to judge the evidence. We, therefore, conclude that the court properly relied on the wild bird act when it dismissed the plaintiff's cause of action.
The judgment is affirmed.
In this opinion the other judges concurred.
NOTES
[1] The plaintiff alleged that the parakeets are enmeshed in the ecosystem because some other species of birds, including song sparrows, house finches and great horned owls, nest in the parakeets' nests and that the parakeets are part of the food chain because they are eaten by predatory birds such as hawks. Moreover, the plaintiff alleged, the parakeets are herbivores, and their presence has a benign effect on other local species.
[2] General Statutes § 22a-16 provides in relevant part: "[A]ny person, partnership, corporation, association, organization or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business ... for declaratory and equitable relief against ... any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction...."
[3] Manning did not attend trial, and the defendant did not object to portions of his deposition being read into evidence.
[4] Section 8-3 of the Connecticut Code of Evidence provides in relevant part: "The following are not excluded by the hearsay rule, even though the declarant is available as a witness... (1) [a] statement that is being offered against a party and is (A) the party's own statement, in either an individual or a representative capacity ... (C) a statement by a person authorized by the party to make a statement concerning the subject...."
[5] Practice Book § 13-27(h) provides in relevant part: "A party may in the notice and in the subpoena name as the deponent a public or private corporation ... and designate with reasonable particularity the matters on which examination is requested. The organization... so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. The persons so designated shall testify as to matters known or reasonably available to the organization...."
[6] We believe the court misspoke and meant to say "witnesses," as the defendant's employees are not parties to this action.
[7] "Practice Book § 248(c) provides: The deposition of a party or of anyone who at the time of the taking of the deposition was an officer, director, or managing agent or employee or a person designated under Sec. 244(g) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose." (Internal quotation marks omitted.) Gateway Co. v. DiNoia, supra, 232 Conn. at 228 n. 4, 654 A.2d 342.
[8] Practice Book § 13-31(a) provides in relevant part: "At the trial of a civil action ... any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were there present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions ...
"(3) The deposition of a party or of anyone who at the time of the taking of the deposition was an officer, director, or managing agent or employee or a person designated under Section 13-27(h) to testify on behalf of a public or private corporation ... which is a party may be used by an adverse party for any purpose...."
[9] "Practice Book § 248(d) provides: The deposition of a witness other than a person falling within the scope of (b) hereof, whether or not a party, may be used by any party for any purpose if the court finds: 1. that the witness is dead; 2. that the witness is at a greater distance than thirty miles from the place of trial or hearing, or is out of the state and will not return before the termination of the trial or hearing, unless it appears that the absence of the witness was procured by the party offering the deposition; 3. that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; 4. that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; 5. that the parties have agreed that the deposition may be so used; 6. upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used." Gateway Co. v. DiNoia, supra, 232 Conn. at 228 n. 5, 654 A.2d 342.
[10] On appeal, the plaintiff also claims that the discretion granted to the court to manage trials; see Krevis v. Bridgeport, 262 Conn. 813, 818-19, 817 A.2d 628 (2003); does not permit it to ignore the Connecticut Code of Evidence and the rules of practice. This claim stems from the court's articulation of its rulings with respect to the deposition transcripts of Cook, Shanley, Siedzik and Manning. The court articulated its decision as follows:
"To evaluate the court's response to the totally unexpected advisement by the plaintiff that the plaintiff was planning to rest its case after offering excerpts from the deposition testimony of [the defendant's employees], it is necessary to view this case from the bench.
"Though assigned the case on short notice, the court was aware of the dispute and the prior legal activity it generated. Having attracted wide media coverage, there was considerable public interest on each side of the controversy. This was illustrated by the number of people who gathered in the courtroom when the trial was commenced.
"The court was aware of the intense feelings the dispute had produced and approached the trial knowing there would be vigorous argument and legal issues advanced by both sides.
"Also, based on the pleadings and counsels' remarks to the court, the credibility of witnesses could well have become a vital factor in the court's deliberations.
"Consequently, the court was not receptive to the plaintiff's tactic, which would have entailed the laborious and time-consuming process of `screening' the proffered excerpts and possibly never getting to the witnesses to hear them out.
"The witnesses were present, the deposition transcripts were available, the parties were on notice and the stage was set for a full presentation of the issues.
"The court did not relish the prospect of several days of unnecessary court activity for no pronounced reason for this process to be allowed. It would hamper and not help the court in what appeared to be a difficult case, and the matter would probably drag on for several days with additional expense to the litigants. There would be the accompanying waste of judicial system resources and an end product that was likely to be a nightmare for any appellate tribunal wading through the trial transcripts."
The court relied on Gateway Co. v. DiNoia, supra, 232 Conn. at 239, 654 A.2d 342, and Krevis v. Bridgeport, supra, 262 Conn. at 819, 817 A.2d 628 (deference afforded court in making case management decisions because it is in much better position to determine effect particular procedure will have on both parties) for discretionary authority to manage trial proceedings.
The court further articulated, stating: "A waste of resources for no pronounced reason, which this court was concerned about, was actually demonstrated when the plaintiff was permitted to read into the record excerpts of [Manning's] deposition testimony. After what began to resemble a Ping-Pong match, the court interceded and terminated the Manning inquiry. This was appropriate for all of the reasons outlined above, and this `sample' illustrates the validity of the court's decision."
On the basis of our review of the trial transcript and the court's well stated articulation, we conclude, under the circumstances presented at trial, that the court properly exercised its discretion to manage the trial proceedings by precluding the reading of deposition transcripts at trial when the witnesses were present and able to testify. See also West Haven Lumber Co. v. Sentry Construction Corp., 117 Conn.App. 465, 469, 979 A.2d 591 ("The trial court has a responsibility to avoid unnecessary interruptions, to maintain the orderly procedure of the court docket, and to prevent any interferences with the fair administration of justice.... In addition, matters involving judicial economy, docket management [and control of] courtroom proceedings... are particularly within the province of a trial court." [Internal quotation marks omitted.]), cert. denied, 294 Conn. 919, 984 A.2d 70 (2009).
[11] Practice Book § 15-8 provides in relevant part: "If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case...."
[12] The parties disagree as to the standard by which the court should have decided the motion to dismiss. The plaintiff argued that "[t]he standard for determining whether the plaintiff has made out a prima facie case, under Practice Book § 15-8, is whether the plaintiff put forth sufficient evidence that, if believed, would establish a prima facie case, not whether the trier of fact believes it." (Emphasis in original.) Moss v. Foster, 96 Conn.App. 369, 378, 900 A.2d 548 (2006). The defendant, however, argued that the issue in this case is not whether the plaintiff made out a prima facie case, but whether it sustained its burden of proof, citing Windels v. Environmental Protection Commission, supra, 284 Conn. at 290, 933 A.2d 256, and Cadle Co. v. D'Addario, supra, 268 Conn. at 462, 844 A.2d 836.
We need not determine whether the court, in this instance, predicated its decision on prima facie evidence or burden of proof. When it ruled orally in response to the defendant's Practice Book § 15-8 motion, the court made clear that the plaintiff had failed to produce the kind of evidence necessary for the court to consider the allegations of the complaint. The court, however, used the term burden of proof. Even if we assume, without deciding, that the court applied an improper standard by weighing the evidence when ruling on the defendant's motion to dismiss, the error was harmless. The merits of the plaintiff's case were tried to the court, which was the trier of fact, and it was within the province of the court to sua sponte dismiss the case on the merits. See Berchtold v. Maggi, 191 Conn. 266, 272, 464 A.2d 1 (1983) ("legally consistent for the trial court to determine that the plaintiff had established a prima facie case justifying a denial of the defendants' motions to dismiss, and then to render judgment in favor of the defendants even though they put on no evidence"); see also Windels v. Environmental Protection Commission, supra, 284 Conn. at 290-91, 933 A.2d 256.
[13] On cross-examination, Smith acknowledged that the defendant's capture program only concerned parakeets on electrical equipment. It did not involve parakeets nesting in trees or other objects in nature.
[14] Smith identified Marc Johnson as the expert on alternative platforms.
[15] In response to an objection from the defendant's counsel, the court allowed Smith to testify about possible alternatives pending further evidence. The court stated, however, that if the case were being tried to a jury, the testimony would have to be stricken, as it did not meet the legal standard for opinion testimony. The court noted that Smith "admits to some deficiencies in his ability to answer [questions from the plaintiff's counsel]."
[16] At that point in the defendant's cross-examination, counsel quoted from the transcript of Smith's deposition where he testified that capturing parakeets nesting on utility poles, knocking down their nests and handing them over to another entity was not an unreasonable destruction or unreasonable impairment.
[17] Feral testified that each platform cost about $50 to construct. The total paid by the plaintiff was $578.55.
[18] The plaintiff's counsel read the excerpts into the record.
[19] Counsel for the plaintiff wanted to read additional portions of Manning's deposition transcript into evidence, but the defendant objected, noting that Practice Book § 13-31(a)(5) does not provide for such a procedure. The court noted that reading the deposition into the record procedurally is not the same as examining a witness on the witness stand. In its articulation, the court stated that the procedure the plaintiff wanted to pursue was a waste of judicial resources, noting that "[a]fter what began to resemble a Ping-Pong match, the court interceded and terminated the Manning inquiry."
[20] The remainder of the plaintiff's requests for articulation concerned evidentiary matters.
[21] General Statutes § 26-92 provides in relevant part: "No person shall catch, kill ... or attempt to catch, kill ... any wild bird other than a game bird.... No person shall take or destroy any nest or any egg of any wild ... bird.... English sparrows, starlings and, when found depredating ornamental trees, agriculture crops, livestock or wildlife, or when concentrated in such numbers as to constitute a public health or public safety hazard ... monk parakeets ... shall not be included among the birds protected by this section...."
[22] But see part III of this opinion.
[23] Assistant commissioner of environmental protection David Leff testified before the legislature's joint standing committee on the environment, in part: "[O]n the issue of monk parakeets, this is not a death sentence for the monk parakeets. I would point out that English sparrows and starlings have long been within the jurisdiction of this statute, and they're quite plentiful. It merely makes them not a protected species, so when, as the commissioner points out, there is a particular problem, we can deal with it." Conn. Joint Standing Committee Hearings, Environment, Pt. 1, 2003 Sess., p. 166.
[24] In its brief on appeal, the plaintiff has referred us to portions of the deposition testimony of the defendant's employees and expert to establish facts that allegedly prove that the defendant's acts are reasonably likely to unreasonably impair the natural resources of the state. The testimony in question, however, was precluded from evidence at trial. In part I of this opinion, we concluded that the court properly excluded the proffered evidence in question. In considering the plaintiff's claims on appeal, we are limited to the evidence at trial.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443321/
|
287 S.W.2d 193 (1956)
Alrose LESAGE (formerly Gateley), Appellant,
v.
Jack H. GATELEY, Appellee.
No. 3319.
Court of Civil Appeals of Texas, Waco.
February 16, 1956.
Rehearing Denied March 1, 1956.
*194 C. C. Renfro, Dallas, Forrester Hancock, Waxahachie, for appellant.
Rosenfield & Berwald, Dallas, Bruce Allen, Waxahachie, for appellee.
HALE, Justice.
This is an appeal from a decree which provided for a division of the estate of the parties to a divorce suit. The paramount question presented for decision is whether interest accrued and paid during marriage on an unsecured demand note owned by the wife before marriage is community property.
Appellee and appellant were married on June 11, 1951 and lived together as husband and wife until July 26, 1954. Thereafter, appellant instituted suit against appellee for divorce. Appellee answered with a general denial and a cross action against appellant for divorce, for partition and division of their community property and for an accounting of all monies and properties belonging to their community estate. On motion of appellant, and in pursuance of Rule 174(b) T.R.C.P., the court ordered a separate trial of the divorce action from the claim of appellee for an equitable partition of the community property alleged to belong to the parties. In a trial before the court without a jury, judgment was rendered granting appellant a divorce. A subsequent trial was had before a jury relating to the property matters. Based upon the verdict of the jury and upon extensive facts established by undisputed evidence and by stipulation of the parties, judgment was rendered awarding to appellee as his part of the estate of the parties a Cadillac automobile valued at $2,000, the interest appellee had purchased in an aeroplane, and the sum of $30,000. All other property involved in the suit was awarded to appellant as her separate property or as her equitable interest in the community estate. Appellant duly perfected her appeal from the judgment disposing of the property rights of the parties, but no appeal was perfected from the judgment rendered in the divorce action.
The record before us discloses that at the time of her marriage appellant owned certain real estate situated in Dallas and in San Antonio, and an unsecured promissory note or notes of the Lone Star Company in the principal sum of $1,787,339.29. These notes bore interest at the rate of 5% per annum payable monthly, with the entire principal payable on demand. Between June 11, 1951 and September 1, 1954, the total sum of $449,751 was paid to appellant on the principal of said notes and during the same interval of time interest on said notes accrued and was paid to her in the total sum of $194,736.41. The trial court concluded as a matter of law that the interest which accrued and was paid during marriage on the Lone Star Company notes was community income. Not only did the court instruct the jury in effect that such interest was community income, but in arriving at what he deemed to be a just and equitable division of the property involved in the suit the court treated such interest as community property.
Appellant timely objected to the action of the court in instructing the jury that the interest accrued and paid during marriage was community property and in her motion for new trial she also complained of the action of the court in overruling her objections and in treating such interest as community income for the purpose of effecting an equitable partition of the estate of the parties. In summarizing her contentions in the court below and here she says in her brief: "(1) The interest on appellant's Lone Star Company notes owned prior to marriage, of which approximately $200,000 was collected during the period of marriage, was separate income and never became community property; (2) the treatment *195 of the interest on appellant's separate property notes as community income caused the trial court to make an inequitable partition of the property involved in the suit; and (3) the trial court, in treating the foregoing interest as community income, committed errors in submitting the case to the jury with respect to the use and disposition thereof."
After due consideration of the foregoing contentions of appellant we have concluded that they are not well founded and should be overruled. We shall discuss briefly some of the reasons upon which our conclusion is based.
Art. XVI, § 15 of Vernon's Annotated Constitution of Texas provides in part as follows: "All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of the wife; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as that held in common with her husband; * * *." This provision has been contained in each Constitution of Texas since 1845. It is a part of the community system of property rights of husband and wife which we derived from the civil law of Spain. Under the Constitution and laws of this State the separate property of the husband or wife is that owned or claimed by such spouse before the marriage and that acquired afterward by gift, device or descent. All other property of the marital estate, regardless of how it may be acquired, is community property. Art. 4619 Vernon's Tex.Civ.Stats. This community estate, it has been said, is, therefore, "a variable one; it begins at the marriage with nothing and ends at the dissolution of marriage with everything, presumptively, of which the parties are possessed. The character of the estate is determined by operation of law according to the time and circumstances of acquisition."
Appellant does not contend that the interest which accrued during her marriage on the notes she owned before marriage was acquired by gift, devise or descent, but she says such interest was owned by her before marriage because it was a part of the debt owed to her as evidenced by the notes of the Lone Star Company. In support of her contention she cites, among other early decisions, the case of Carlisle v. Sommer, 61 Tex. 124, which she asserts is "directly in point with the case at bar." We do not think any of the cases cited by appellant are directly in point on the controlling question before us. None of them involves interest accruing after marriage on an unsecured demand note owned by the wife before marriage. But, be that as it may, we agree with the comment contained in the Third Edition of Speer on Marital Rights, page 499, Sec. 368, referring to the cases of Carlisle v. Sommer, 61 Tex. 124, and Scott v. Sloan, 3 Tex. Civ. App. 302, 23 S.W. 42, as follows: "In at least two cases, an individual view has been expressed that interest due on vendor's lien notes given for the wife's separate real estate would belong separately to her, upon the reasoning that such interest became a part of the purchase money. But this has never commended itself to the courts, and is not sound." See also 23 Tex.Jur., p. 126, Sec. 103.
In her brief, appellant says: "It is believed the decisions which hold that interest is community income were written because the authors were considering interest as damages rather than interest payable under a contract." However, it appears to us that the legal distinctions between "conventional interest," "legal interest" or "interest by way of damages," are wholly immaterial to a correct determination of the question here under consideration. Art. 5069 of Vernon's Tex.Civ.Stats. defines interest as being "the compensation allowed by law or fixed by the parties to a contract for the use or forbearance or detention of money." Consequently, interest which accrued after marriage on the unsecured demand notes owned by appellant before marriage was the compensation fixed by the parties to the note for the use of appellant's money as evidenced by the principal amount of the note, not for any definite period of time but from day to day, until such time as either *196 of the parties might see fit to terminate the further use by Lone Star Company of appellant's money.
A number of early decisions, such as Braden v. Gose, 57 Tex. 37, hold in effect that interest accruing during marriage on notes or funds belonging to the separate estate of the wife constitutes community property. But, regardless of any seeming conflict between the early decisions, we are of the opinion that the case of Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799, 801, not only sustains but requires the conclusion which we have reached in the case at bar. In 1917, the 35th Legislature attempted to amend the statutory law of this State as it had previously existed, by providing that rents and revenues of the wife's separate real property should be a part of her separate estate. In an exhaustive opinion with respect to the constitutionality of the attempted amendment, the Supreme Court held that the same was invalid because it was in violation of Art. XVI, § 15 of the Constitution, which prescribes the exclusive legal test "by which to determine when an acquest by the wife becomes a portion of the wife's separate estate." Although the case related directly to only such rents, revenues and income as might be derived during marriage from the wife's separate real property, we see no reason whatsoever why the holding in that case would not also be applicable to such income as might be derived during marriage from the wife's separate personal property. The purpose and effect of paying rent to a landlord is to compensate the landlord for the use of his land by the tenant. The purpose and effect of paying interest on a note to the lender of money is to compensate the lender for the use of his money by the borrower. If rents and revenues from land belonging to the wife constitute community property, then it appears to us that interest from promissory notes belonging to the wife must also be held to constitute community property.
In Cruse v. Archer, Tex.Civ.App., 153 S.W.2d 679, this court expressly held that interest which accrued during coverture on notes constituting the wife's separate property did not become the separate property of the wife, but was the community property of herself and her husband. In support of our holding in that case, we cited Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799, and Frame v. Frame, 120 Tex. 61, 36 S.W.2d 152, 73 A.L.R. 1512. Under the doctrine of stare decisis it is the duty of this court, as it is the duty of any appellate court, to let that stand which it has previously decided to be the law unless some clear, cogent and impelling reason requires that the prior decision be overruled.
The case of Arnold v. Leonard, supra, was decided in 1925. Since that time it has been cited and followed in many subsequent decisions. So far as we have been able to ascertain, the Supreme Court of this State has consistently and steadfastly adhered to the pronouncements and holdings contained in that case. In King v. Bruce, 1947, 145 Tex. 647, 201 S.W.2d 803, 171 A. L.R. 1328 certiorari denied 332 U.S. 769, 68 S. Ct. 82, 92 L. Ed. 355, rehearing denied 332 U.S. 820, 68 S. Ct. 151, 92 L. Ed. 396, the author of the opinion quoted copiously from the prior opinion in Arnold v. Leonard and again the Supreme Court held in effect that the Constitution of Texas provided the exclusive test by which to determine when an acquest by the wife becomes a portion of her separate estate. As a result of the holding in that case, Art. XVI, § 15 of the Constitution was amended in 1948 by the electorate of this State so as to extend the limits of what might become the separate property of the wife, but the limits of the amendment were not so extended as to include the accrued interest involved in this case.
Therefore, we hold that the trial court did not err in concluding that the interest which accrued during marriage on the unsecured demand notes owned by appellant prior to her marriage constituted the community income of appellant and appellee, and did not constitute any part of appellant's separate property as defined and limited by the Constitution and laws of Texas.
*197 Both parties to this appeal say the court's division of the property involved in the suit was inequitable, appellant contending that appellee was awarded too much, and appellee contending, by cross-assignment of error, that he was awarded too little.
Art. 4638 of Vernon's Tex.Civ. Stats. provides as follows: "The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate." In construing this article of the statutes, the courts have held uniformly that the trial judge is vested with broad discretion in the exercise of the equitable powers vested in him to divide the estate of the parties in such a way as the court shall deem just and right. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21; Ex parts Scott, 133 Tex. 1, 123 S.W.2d 306, pts. 18-21 and authorities; Thompson v. Thompson, Tex.Civ.App., 238 S.W.2d 218, pts. 5-6 (er. dis.); Coody v. Coody, Tex.Civ.App., 240 S.W.2d 377; Ingham v. Ingham, Tex.Civ.App., 240 S.W.2d 409 (mandamus overruled).
The evidence and stipulations of the parties relating to the estate belonging to them at the time their marriage was dissolved is voluminous and complicated, and we cannot do more in this opinion than to point out briefly some of the most significant facts relating to the transmutations through which prior receipts and disbursements of the estate passed. It was shown that the total amount of community income which the parties received from June 11, 1951 to September 4, 1954 was $231,514.56. Of this total amount the sum of $2,722.03 resulted from the efforts of appellee and the remaining sum of $228,852.53 was derived from interest payable on the Lone Star Company notes and the rents and revenues accruing from appellant's separate real property. Thus the total amount received during that time, including the community income and the separate income of appellant from payments on the principal of the Lone Star Company's notes, was $681,265.56. The funds to received were deposited from time to time in one or the other of two banks. From such receipts the sum of $160,098.07 was expended to purchase a 1,700 acre ranch in Ellis County and $105,488.48 was expended in erecting improvements thereon. $70,571.70 was expended for livestock and equipment placed on the ranch, upon which there was an outstanding indebtedness at the time of trial in the sum of $10,961.46. The sum of $15,000 was expended for the purchase of corporate stock in Hickory House, Inc. Thus, the total amount invested in the purchase of property, less the outstanding indebtedness against it, was $340,196.79. Therefore, it appears that the parties spent for their living expenses, income taxes, the purchase of a Cadillac automobile and an aeroplane, the sum of $339,165.97, such heavy expenditures being due in part to the high cost of living and in part to the cost of high living.
Neither party to the suit was compelled by the decree of the court to divest herself or himself of the title to real estate. Appellee did not own any property at the time of the marriage and he did not thereafter acquire any property by gift, devise or descent. His occupation prior to his marriage was that of a painting contractor from which, according to his testimony, he earned from $8,000 to $10,000 per annum. He is in good health, about 30 years of age at this time and is physically able to return to the pursuit of his business of painting, if he desires to do so. On the other hand, appellant appears to be a hopeless cripple from polio, she being confined to a wheel chair, and due to her affliction she will doubtless be required to continue in the future to expend large sums for nurse hire and medical and hospital bills. Although only $2,652 in money was on hand at the time of trial, the Lone Star Company had withheld $62,574.82 of interest which had accrued on its notes during the existence of the marriage and this amount was available for division as community property.
The jury found on special issues that appellant loaned to appellee prior to their marriage *198 the sum of $500, but that she did not loan him any money after their marriage; that the Cadillac automobile was purchased with separate funds of appellant; that appellant did not make a gift to appellee of the Hickory House stock; that appellant was able to trace the use of her separate funds into the improvements on the ranch in the sum of $51,416.51, and also into livestock and equipment placed on the ranch in the sum of $44,795.57; and that the market value of the ranch had been enhanced as a result of community funds expended in its improvements in the sum of $23,360.
The trial court inserted in his decree dividing the estate of the parties, extensive findings of fact and the detailed considerations upon which his judgment was based. Therein, the court said: "Viewing the case as a whole on the law and the evidence, and in the light of the contentions of both parties, and in view of the foregoing findings of the jury, the stipulations made by the parties, the independent findings made herein and the singular and extra-ordinary facts and circumstances of the case, the Court concludes that a fair, just and equitable division of the property rights of the parties, pursuant to Article 4638 of the Revised Civil Statutes of Texas is as follows: (Then follows the award to each of the parties, the substance of which has been stated above in this opinion.)"
From the record before us, we cannot say the trial court abused the sound discretion vested in him under the law in ordering a division of the estate of the parties in the manner shown by the judgment appealed from.
Appellant alleged that appellee was estopped to assert a claim that rents and interest payments had been used to improve her ranch and to pay in part for the livestock and equipment. She asserts that the trial court erred in his rulings on the admissibility of testimony which she offered under this plea. Without setting forth the testimony offered or the rulings of the trial court with respect thereto, it must suffice to say that we do not think any reversible error is shown thereby.
Accordingly, all points of error presented by appellant, as well as the cross-assignment of error on the part of appellee, are overruled, and the judgment appealed from is affirmed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443328/
|
287 S.W.2d 354 (1956)
Henry LIX (Plaintiff), Appellant,
v.
W. V. GASTIAN (Defendant), Respondent.
No. 29191.
St. Louis Court of Appeals. Missouri.
February 21, 1956.
*355 E. L. McClintock, Jr., McClintock & Medley, Flat River, for appellant.
Roberts & Roberts, Raymond S. Roberts, Farmington, for respondent.
PER CURIAM.
On the first appeal of this case we reversed a judgment for defendant both on plaintiff's cause of action and on defendant's counterclaim and remanded the cause, with directions, for a new trial of the issues raised by plaintiff's petition and defendant's answer. Lix v. Gastian, Mo.App., 261 S.W.2d 497. The trial of those issues resulted in a verdict and judgment for defendant, from which plaintiff has perfected a second appeal to this court. This opinion should be read in connection with our first opinion, cit. supra. We note the following respects in which the facts developed at the second trial differ from those adduced at the first trial. Wayne Adams, driver of the northbound Chevrolet, did not testify at the second trial. Two passengers in plaintiff's Chevrolet whose testimony was not produced at the first trial testified that when they first saw defendant's automobile it was turning to the left into but had not reached Hickory Street; that defendant's automobile was on their right (the east) side of Monroe Street at the time of the collision, which occurred north of the intersection; that when they first saw defendant's automobile Wayne Adams had already applied his brakes. One of them testified that defendant's car was traveling 10, 15 or 20 miles an hour; that plaintiff's Chevrolet was traveling about 40 or 50 miles per hour, and that Wayne Adams did not turn the Chevrolet any or move it over to the left-hand side of Monroe Street prior to the collision. Defendant Gastian testified at the second trial that his speed was 15 miles an hour (instead of 20); that he first saw plaintiff's Chevrolet when he reached a point 50 or 60 feet (instead of 60-80) north of the intersection, at which time plaintiff's Chevrolet was about 440 feet (instead of 444) south of the intersection; that when defendant reached a point 30 feet north of the center of Hickory Street or 15 or 20 feet from the north edge of Hickory Street he started to make his left turn, at which time plaintiff's Chevrolet was 148 steps from his car (instead of 350 feet south of Hickory Street); that the speed of plaintiff's Chevrolet was between 60 and 70 miles an hour (instead of 50-60). He testified more fully with respect to the triangular pile of chat or gravel in the intersection, stating that he started to make his left turn just north of the gravel for the reason that "the triangle of chat was there, and I just did not drive over it, because there were no tracks over it, * *." When asked if there was anything to keep him from proceeding to the center of the intersection before making his left turn he answered "Just that chat pile, which was not dangerous there, but there was no tracks across it at all." He testified that the chat was 2 or 3 inches deep and that while he did not suppose that there would be any danger in driving through the chat, he qualified it by saying, "if I would have driven slowly across it;" that it was "untracked or untraveled"; that "it would have been blazing a new trail, because no other cars had ever gone over it."
Plaintiff's first point is that the court erred in refusing to direct a verdict for plaintiff, for the reason that defendant was guilty of negligence as a matter of law as a result of his admitted violation of Section 304.020(6) RSMo 1949, V.A.M.S., which provides that motorists approaching an intersection on a highway with the intention of turning thereat shall in turning to the left, "run beyond the center of such intersection, passing to the right thereof, before turning such vehicle toward the left", and that defendant did not show facts justifying or excusing his failure to comply therewith. This point was decided adversely to plaintiff on the former appeal and the evidence on the issue is sufficiently like that in the record on the first appeal that we again rule that the trial court could not properly have directed the entry of judgment for plaintiff on this basis because *356 the jury, in considering the assignment of negligence relating to the violation of a statutory duty, might reasonably find a valid excuse for failure on the part of defendant to observe the statutory rule, in view of the evidence of a dangerous obstruction (the pile of chat or gravel).
Plaintiff's substantial point is that the court erred in giving Instruction No. IV, a sole cause instruction, for failure to hypothesize sufficient facts to establish that the collision was the result of the sole negligence of Wayne Adams. Instruction No. IV follows:
"The Court instructs the Jury that if you find and believe from the evidence in this case that the damage to plaintiff, Henry Lix's automobile, if any, received at the time and place complained of in this action and as shown by the evidence if so, was the result of the sole negligence, if any, of the driver of plaintiff, Henry Lix's, automobile, if so, and if you find that said sole negligence, if any, consisting of the speed and manner in which the driver of plaintiff, Henry Lix's automobile caused said automobile to be operated on Monroe Street in Desloge, Missouri, as shown by the evidence, if so, or by the failure, if any, of said driver to keep a lookout for traffic operating on Monroe Street in Desloge, Missouri, if so, and that said damage to plaintiff, Henry Lix's automobile, if any, was not due to any negligence on the part of the defendant, William V. Gastian, in any of the particulars set out in other instructions herein, then in that case plaintiff, Henry Lix, is not entitled to recover and you will find your verdict for the defendant, William V. Gastian, on plaintiff, Henry Lix's petition."
We are convinced that the giving of Instruction No. IV constituted reversible error. The instruction is insufficient in form. It does not sufficiently hypothesize the facts relating to excessive speed or failure to maintain a proper lookout. See Johnson v. Cox, Mo.Sup., 262 S.W.2d 13, 14, in which the following clause in a sole cause instruction was held to be an insufficient hypothesis of excessive speed; "* * * `operated the motorcycle as described in the evidence, * * * or at a rate of speed of approximately 45 to 50 miles per hour, and if you further find that such rate of speed, if any, was high, dangerous and excessive, * * *'" and Pearson v. Kansas City Ice Co., Mo.Sup., 234 S.W.2d 783, 787, in which the following clause in a sole cause instruction was held to be an insufficient hypothesis of failure to maintain a proper lookout: "`said Victor Lee Pearson, Jr. mentioned in evidence failed to keep a reasonably careful or vigilant lookout for traffic and the parked automobile mentioned in evidence.'"
For this reason the judgment must be reversed. On a re-trial the court should carefully consider the propriety of submitting any sole cause instruction to the jury. There is a grave question whether a sole cause situation exists if the evidence as to the distance which separated the two vehicles at the time defendant commenced his left turn is fully developed, in view of the holdings in Johnson v. Cox, supra; Wilkins v. Stuecken, 359 Mo. 1047, 225 S.W.2d 131, and Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853. In order to completely exonerate defendant and find him free of concurring negligence in causing the collision under the doctrine of sole cause or sole negligence there would have to be substantial record evidence from which it could be found or reasonably inferred that the northbound Chevrolet was in a position where no collision with defendant's southbound Chrysler would likely occur when defendant began and was proceeding with his left turn. See cases last cited, supra. If the evidence discloses that defendant is guilty of negligence as a matter of law (not for violation of the statute but at common law for entering the path of the northbound Chevrolet at a time when there was obvious danger of a collision) the giving of a sole cause instruction would constitute reversible error. Weis v. Melvin, Mo.Sup., 219 S.W.2d 310.
*357 The final question raised on this appeal relates to the propriety of the argument made to the jury by defendant's counsel. The same question may arise upon a new trial, so we will consider it. Wayne Adams, driver of the northbound Chevrolet, testified at the first but not at the second trial. The transcript of his testimony at the first trial was required to be and we will assume was on file with the clerk of the circuit court. Section 512.110 (1) RSMo 1949, V.A.M.S. During his argument to the jury counsel for defendant commented on the absence of Wayne Adams, plaintiff's stepson, and argued that plaintiff did not introduce in evidence the transcript of Adams' previous testimony for the reason that it would have shown Adams to be "guilty of sole negligence, and he [sic] could not have recovered and that is why they didn't introduce it," and stated that he, counsel for defendant, had no right to introduce the transcript. Such an argument was improper. The transcript of Adams' testimony could have been "used in the same manner and with like effect as if such testimony had been preserved in a deposition in said cause," Section 492.410 RSMo 1949, V.A.M.S., and was equally available to both parties. No inference may be drawn and no unfavorable comment made in argument on account of the nonproduction of witnesses whose evidence is equally available to both parties. Belding v. St. Louis Public Service Co., 358 Mo. 491, 215 S.W.2d 506; O'Donnell v. St. Louis Public Service Co., Mo.App., 246 S.W.2d 539; Wipfler v. Basler, Mo.Sup., 250 S.W.2d 982, loc. cit. 989. The argument was improper for the further reason that in it counsel undertook to state to the jury his conclusion as to what Adams' testimony would have established, when that was not revealed by the evidence. Mooney v. Terminal R. Ass'n of St. Louis, 353 Mo. 1080, 186 S.W.2d 450, loc. cit. 455, certiorari denied 326 U.S. 723, 66 S. Ct. 28, 90 L. Ed. 428.
The judgment is reversed and the cause remanded for a new trial on the issues raised by plaintiff's petition and defendant's answer, upon the determination of which final judgment shall be entered for the prevailing party, and, in accordance with our former opinion, for plaintiff on defendant's counterclaim.
M. C. MATTHES, Acting Presiding Judge, WM. R. COLLINSON and DOUGLAS L. C. JONES, Special Judges, concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443333/
|
287 S.W.2d 527 (1956)
Don R. BLYTHE, Appellant,
v.
The CITY OF GRAHAM et al., Appellees.
No. 15682.
Court of Civil Appeals of Texas, Fort Worth.
February 3, 1956.
Rehearing Denied March 2, 1956.
*528 Tom M. Miller, Graham, for appellant.
Rodgers & Stephens and T. J. Rodgers, Graham, for appellee City of Graham.
Lattimore & Lattimore and H. S. Lattimore, Fort Worth, for appellees Newton-Burkett, Inc., and Harry Newton, Inc.
MASSEY, Chief Justice.
The City of Graham engaged in a real estate subdivision development project in connection with the disposition of certain lands deeded to the city. It filed a plat and dedication and later on filed an instrument imposing restrictions, covenants and conditions upon the lots and blocks not dedicated for public purposes within the subdivision. Don R. Blythe purchased a lot in a certain block and erected a building thereon subsequent to the time instruments in connection with the foregoing were placed of record with the county clerk of Young County. Subsequently, the authorities of the city decided that a more ready and profitable sale of the real estate in the block of the subdivision located immediately opposite that in which Blythe had built his home could be accomplished by a reduction in the size of the lots as previously platted and by reducing the restrictions as to floor space and costs, etc., of the houses to be built thereon. Without resort to approval of their action on the part of any other person, the officers of the City of Graham passed ordinances by which they replatted the lots in the block across from the Blythe house and reduced the requirements as to square feet of floor space, costs, etc., of buildings erected thereon. With this done, the city was able to dispose of some of the lots. Two corporations, Newton-Burkett, Inc., and Harry Newton, Inc., purchased lots and built houses thereupon in accord with the later action of the city. Blythe brought a suit for declaratory judgment and for damages on account of trespass.
Upon the conclusion of the evidence of the plaintiff Blythe before the trial court, the defendants filed a motion for instructed verdict. The motion was granted and the jury was instructed to return a verdict for the defendants. Judgment was entered based thereupon. Blythe appealed.
Judgment reversed and remanded.
The city purported to act in every instance related to the case by way of enacting ordinances. It was a home rule city and its action was in accord with the provisions of its charter and Art. 1176b-1, V.A. T.S., except that it sometimes failed to publish its ordinances. In originally platting *529 and dedicating the subdivision of the city, it followed the procedure prescribed by Art. 974a, relating to the manner and mode of platting and recording subdivisions or additions. There is no question but what the circumstance was such that had the procedure followed been that of a private corporation the resulting situation would have been that of a subdivision accepted and approved by the proper authorities. We here consider that to be true as applied to the city, the matter of validity of its action not being at issue and not necessary to be considered in connection with any threatened private injury.
Subsequently, the city authorized its mayor to sell the lots within the subdivision which were not dedicated to public purposes. A little later, apparently believing that a more profitable and ready sale of these lots would thereby be possible, the city filed of record an instrument in the form of an ordinance, and denominated an ordinance, imposing restrictions and covenants and conditions "running with the land" upon the lots and blocks within the subdivision. In reliance thereon, Blythe purchased a lot in a certain block of the subdivision and caused his home to be built thereon. Immediately across the street from Blythe, in a different block of the subdivision, were lots considerably larger than those in the block in which Blythe bought. On these larger lots were restrictions which required any house built thereon to be of brick veneer construction and to have not less than 1600 square feet space per each house. It was also provided that any such house should cost at least "approximately" $10,000. We expressly decline to pass on the validity of the act of the city as here described. It is not under attack. We do not believe the nature of the case requires this court to pass upon the propriety of the venture undertaken.
The lots in the block where Blythe built found a ready sale. Those in the block across the street did not sell so well and the lots on the block remained vacant. The city decided that if the block could be replatted so as to reduce the lot sizes, and if the restrictions could be lifted to such degree that the houses to be built thereon need be no better than was required on the lots in the block where Blythe's home was situated, purchasers could be interested in the property. Wholly ignoring the provisions of Section 5 of Art. 974a, relating to precedure which should be taken pursuant to the vacation of any plat or plan, or replatting any subdivision, the City passed an amendment to the instrument denominated as an ordinance imposing the original restrictions. It likewise replatted the lots within the block. The city sought thereby to accomplish the reduction in lot sizes, and the imposition of lighter and less burdensome restrictions in the stead of those originally imposed. Two corporations engaged in the business of speculative building purchased some of the lots as so replatted and built several houses thereon which contained less than 1600 square feet space each, and which otherwise failed to come up to the requirements in the instrument or ordinance which imposed the original restrictions.
While such houses, or some of them, were in the process of being built, Blythe filed suit against the City of Graham and against Newton-Burkett, Inc., and Harry Newton, Inc., the corporations who had acquired the newly replatted lots. They had started constructing houses thereon. By the action as originally filed, an injunction was sought, but later on, before the trial was held, the plea for injunctive relief was abandoned. The state of Blythe's pleadings upon the trial was for a declaratory judgment, adjudicating his proprietary rights in the block of the subdivision which was replatted and wherein the restrictions as originally imposed were lifted, and for damages on account of trespass through such ineffective replatting and through the erection of the houses upon the lots as replatted.
Upon the trial of the case, Blythe's attorney proved the original plat and dedication, and proved the city's authorization of its mayor to sell the lots within the subdivision not dedicated to public purposes. He also proved that any replat of the subdivision *530 was not in accord with the provisions of Section 5 of Art. 974a, and that Blythe never consented to any change in the restrictions, covenants and conditions in existence at the time of the purchase of a lot in the subdivision. He ran into trouble, however, when he attempted to prove the instrument or ordinance which originally imposed the restrictions upon the lots and blocks within the subdivision. Finally, through a proof and tender of the official minutes of the city council of the City of Graham, he proved the enactment of the same as an ordinance. The minutes showed that it was duly and properly passed by the council. The instrument was shown to have been filed and of record at the time of Blythe's purchase. However, counsel was not in position to prove the publication of the ordinance. Under ordinary circumstances, it would be properly said that counsel had failed to offer sufficient proof to render an ordinance admissible in evidence. 30-A Tex.Jur., p. 285, "Municipal Corporations", sec. 294, "Proof of Publication". Believing that Blythe had never proven publication as required by law, the trial court held the instrument inadmissible. Blythe rested his case and a verdict was instructed against him.
Under the circumstances of this case, we are of the opinion that sufficient proof was tendered upon the instrument to compel its admission. Even though the instrument had never been published as the city charter required an ordinance to be published, and indeed this seems to have been the case, it was an instrument which had been filed of record with the county clerk of the county within which the property affected thereby was located. Blythe was shown to have acted in the good faith belief of the efficacy thereof and to have changed his position as the result in purchasing a lot in the subdivision. He was furnished an abstract of title in which appeared the original plat and dedication, the authorization to the mayor to sell the lots therein, and the instrument in question. In deciding upon his purchase, Blythe acted upon the belief that the instruments showed a general building scheme or plan which enhanced the value of the property he finally purchased and built upon. He was required by the city manager of the City of Graham to redraw the plans of his house so that the house as finally built would comply with the instrument's covenants, conditions and restrictions before he could obtain a building permit. Blythe testified that the subsequent changes effected or attempted to be effected by the city, and the action thereafter taken in light of the change by the building of the houses by the other defendants, had reduced the value of his own property. His proof established nominal damages as the result thereof.
Under these circumstances, we believe rules of law applicable to individuals and private corporations would be those proper to be applied, and that the City of Graham and those holding under it should have no greater dignity as regards the controversy presented than would any other person who subdivides property and imposes restrictions thereon. Let us suppose that the person who granted the property to the city first subdivided it, filed a plat and dedication of it, obtained its acceptance, filed an instrument imposing restrictions by way of covenants and conditions, sold Blythe his property, and then granted all the property remaining in the subdivision to the City of Graham, in that order. If the city thereafter desired to replat it or to ease the restrictions upon the lots and blocks belonging to it, surely it would have had to follow the procedure prescribed in Section 5 of Art. 974a in connection with the replat, and it would have to consider the rights of Blythe in connection with lifting the covenants, conditions and restrictions theretofore imposed upon the land in the subdivision, in which he had acquired an interest. 12 Tex.Jur., pp. 6-177, "Covenants and Conditions". The situation is not to be distinguished merely because the city did these things instead of its grantor. The city's act, as by ordinance, coupled with the placing of it of record, is analogous to a contract made by a municipal corporation in its proprietary capacity. As such, it is governed by the same rules and should receive the *531 same construction as contracts between individuals. 38 Am.Jur., p. 177, "Municipal Corporations", sec. 502, "Construction and Operation" (express contracts). See also 30-A Tex.Jur., p. 456, "Municipal Corporations", sec. 440, "Implied Contracts".
The court erred in declining to admit the instrument in question in evidence. Had it been admitted, Blythe's prima facie case would have been established.
Judgment is reversed and the cause remanded.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443588/
|
83 F. Supp. 2d 476 (2000)
CHARLIE H. and Nadine H., et al., Plaintiffs,
v.
Christine Todd WHITMAN, et al., Defendants.
No. Civ.A.99-3678(GEB).
United States District Court, D. New Jersey.
January 27, 2000.
*477 *478 *479 David L. Harris, Jeffrey B. Gracer, Carmela Cannistraci, Lowenstein Sandler, PC, Roseland, New Jersey, Marcia Robinson Lowry, Susan Lambiase, Eric E. Thompson, Shirim Nothenberg, Children's Rights, Inc., New York City, for plaintiffs, Charlie and Nadine H., et al.
John J. Farmer, Attorney General of New Jersey, Stefanie A. Brand, Deputy Attorney General, Office of New Jersey Attorney General, Newark, New Jersey, Alan C. Kessler, Dana B. Klinges, Charles M. Hart, Wolf, Block, Schorr and Solis-Cohen LLP, Camden, New Jersey, for defendants, Christine Todd Whitman, et al.
OPINION
BROWN, District Judge.
Table of Contents
I. Introduction ................................................................. 480
II. Factual Background and Procedural History .................................... 480
III. Discussion ................................................................... 481
A. Motion to Dismiss Standard ................................................ 481
B. Defendants' Motion to Dismiss ............................................. 481
1. Plaintiffs' Federal Statutory Claims .................................. 481
a. Adoption Assistance Act and MPA .................................... 482
i. Adoption Assistance Act ......................................... 482
1. right to pre-placement preventive services program .......... 484
2. right to timely written case plans .......................... 485
3. right to placement in the least restrictive, most family-like
setting ................................................... 489
4. right to nationally recommended professional standards 490
5. right to adequate information system ........................ 492
ii. MPA ............................................................. 493
b. Child Abuse Prevention and Treatment Act ........................... 496
c. EPSDT .............................................................. 497
d. ADA and RHA ........................................................ 499
2. Plaintiffs' Federal Common Law Claim .................................. 502
3. Plaintiffs' Federal Constitutional Claims ............................. 504
a. Substantive Due Process ............................................ 504
i. non-custodial children ......................................... 505
ii. custodial children ............................................. 506
b. Procedural Due Process ............................................. 508
c. First and Ninth Amendments ......................................... 512
4. Abstention ............................................................ 514
*480
IV. Conclusion ................................................................... 514
I. Introduction
This matter is before the Court upon the motion of Defendants, Christine Todd Whitman, as Governor of the State of New Jersey, Michele K. Guhl, as Commissioner of the Department of Human Services (hereinafter "DHS"), and Charles Venti, as Director of the Division of Youth and Family Services (hereinafter "DYFS") of the State of New Jersey (hereinafter "Defendants"), to dismiss Plaintiffs' complaint for declaratory and injunctive relief (hereinafter "Complaint" or "Compl.") for failure to state a claim upon which relief can be granted (hereinafter "Def. Motion").[1] For the reasons set forth herein, the Defendants' motion to dismiss is granted with respect to the Second, Third, Fourth, Fifth, Sixth, Eighth, and Ninth Counts of Plaintiffs' Complaint. Moreover, Defendants' motion to dismiss is granted in part and denied in part as discussed more fully herein with respect to the First and Seventh Counts of Plaintiffs' Complaint.
II. Factual Background and Procedural History
There is no term other than tragic to summarize the facts as alleged by Plaintiffs. The Complaint discusses twenty named Plaintiffs: Charlie and Nadine H., siblings aged eleven and nine who have been in DYFS custody for over five years; Jason, Jennifer, and Patti W., siblings aged ten, eight, and six who were removed from their mother's custody three years ago; Dennis M. and Denise R., siblings aged eight and seven who were removed from their mother's custody in 1995; Marco and Juan C., siblings aged eight and ten who were removed from their mother's care for the second time in 1995; Ricardo O., age thirteen-and-a-half who has been in DYFS custody since June 1997; Dolores and Anna G., siblings aged four and seventeen months who have been in DYFS custody since August 1998; Kyle J., age one-and-a-half who has been in foster care since birth; Ryan, Christopher, and Melissa H., siblings who currently live with their mother despite numerous reports of abuse and neglect; Ricky, Daniel, and Thomas M., siblings who currently live with their mother, but have spent most their lives in DYFS custody; and Barry M., age seventeen who has been in and out of DYFS custody since the age of four (hereinafter "Plaintiffs"). Compl. at ¶¶ 1, 3, 5, 7, 9, 11, 13, 15, 17, and 19. Moreover, the Complaint also seeks to maintain a class action pursuant to Federal Rule of Civil Procedure 23 on behalf of approximately 9,250 children who are in the legal and/or physical custody of DYFS and on behalf of more than 50,000 children who currently have open DYFS cases for services. Id. at ¶¶ 34-36.
Generally speaking, Plaintiffs allege systemic failure on Defendants' part to protect both the individual Plaintiffs and the purported class and to provide them and their families with services which failure has jeopardized their health and safety by subjecting them to significant harm. Id. at ¶ 27. Plaintiffs attribute this systemic failure on Defendants' part to poor management and gross overburdening of the child welfare system in New Jersey. Id. at ¶ 28. Moreover, Plaintiffs generally allege that Defendants have failed to provide effective leadership or the resources and support necessary to ensure that the child welfare system provides adequate protection and services to New Jersey's most vulnerable children. Id. at ¶ 31. Plaintiffs also allege that this failure in leadership and resources has, in turn, led to high turnover rates for front-line caseworkers, which further jeopardizes New Jersey's *481 children. Id. Finally, Plaintiffs allege that while Defendants are well-aware of the institutional shortcomings, as documented in a 1998 report submitted to Governor Whitman by a Blue Ribbon panel of social service administrators and service providers, lawyers and court personnel, children's advocates, and medical experts, they have failed to engage in aggressive reform efforts. Id. at ¶¶ 31 and 32. See also Compl. at ¶¶ 205-400.
More specifically, the Complaint explores the circumstances surrounding Plaintiffs' interaction with DYFS and DHS in heart-wrenching detail. For example, the Complaint alleges instances in which Plaintiffs were sexually, physically, and psychologically abused, and in at least one instance, nearly killed, while in DYFS custody. See, e.g. Compl. at ¶¶ 84, 85, 108, 127, 134, and 74. Moreover, the Complaint alleges instances in which the Plaintiffs have not received medical treatment while in DYFS custody. Id. at ¶¶ 93 and 132. Finally, the Complaint alleges instances in which the Plaintiffs' special needs have not been addressed while in DYFS custody. Id. at ¶¶ 105, 107, 122, 131, 139, and 180.
Given all of these alleged institutional deficiencies, Plaintiff seek: i) to be allowed to maintain a class action pursuant to Federal Rule of Civil Procedure 23; ii) a declaration that Defendants' actions and inactions are unconstitutional and unlawful; iii) a permanent injunction requiring Defendants' to cease practices that violate Plaintiffs' rights; iv) appropriate remedial relief to ensure Defendants' future compliance with legally mandated services to Plaintiffs; v) appointment of an expert panel with full access to Defendants, their records and their personnel, to develop and oversee the implementation of a plan for reform; vi) an award of reasonable attorneys' fees; and vii) other equitable relief. See Compl. at pp. 129-130. In response, Defendants have moved to dismiss Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.
III. Discussion
A. Motion to Dismiss Standard
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) may be granted only if, accepting all allegations in the complaint as true and viewing them in the light most favorable to a plaintiff, the plaintiff is not entitled to relief. Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir.1986). The Plaintiffs' nine causes of action may not be dismissed unless Plaintiffs can prove no set of facts which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). Importantly, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974). In setting forth a valid claim, a party is required only to plead "a short plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a).
B. Defendants' Motion to Dismiss
1. Plaintiffs' Federal Statutory Claims
Plaintiffs allege five causes of action pursuant to various federal statutes. Specifically, Plaintiffs allege that they are being deprived of the rights conferred upon them by the federal Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997 (hereinafter "AACWA" or "Adoption Assistance Act") and the federal Multiethnic Placement Act of 1994, as amended by the Interethnic Adoption Provisions of 1996 (hereinafter "MPA"). See Compl. at Fourth Count and Seventh Count. Plaintiffs also allege that they are being deprived of the rights conferred upon them by the federal Child Abuse Prevention and Treatment Act (hereinafter "CAPTA"). Id. at Fifth Count. Plaintiffs also allege violations of the federal Early and Periodic *482 Screening, Diagnostic and Treatment provisions of the of the federal Medicaid Act (hereinafter "EPSDT"). Id. at Eighth Count. Finally, Plaintiffs allege that they are being deprived of rights conferred upon them by the federal Americans with Disabilities Act (hereinafter "ADA") and the Rehabilitation Act of 1973 (hereinafter "RHA"). Id. at Ninth Count.
Plaintiffs' statutory claims are brought pursuant to 42 United States Code § 1983 which imposes liability on anyone who, under color of state law, deprives a person "of any rights, privileges, or immunities secured by the Constitution and laws." Blessing v. Freestone, 520 U.S. 329, 340, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997). Section 1983 safeguards certain rights conferred by federal statutes. Id. (citation omitted). However, in order to seek redress under Section 1983, Plaintiffs "must assert the violation of a federal right, not merely a violation of federal law." Id. (citation omitted). In order to determine whether "a particular statutory provision gives rise to a federal right," courts have "traditionally looked at three factors." Id.
First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so `vague and amorphous' that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory rather than precatory terms.
Id. (citations omitted). With this framework in mind, each of the Plaintiffs' federal statutory claims shall be considered in turn.
a. Adoption Assistance Act and MPA
Plaintiffs' MPA claim appears to fall within a subset of the code provisions Plaintiffs cite in support of their AACWA claim. Specifically, Plaintiffs point to 42 U.S.C. §§ 620-627 and 670-679a in support of their Adoption Assistance Act claim and 42 U.S.C. §§ 622(b)(9), 671(a)(18), and 674(d) in support of their MPA claim. See Compl. at ¶ 39. Therefore, these claims and their respective code provisions shall be examined in conjunction with each other. However, generally speaking, 42 U.S.C. §§ 620-627 deal with the program established to supply federal funds to states for child welfare services and 42 U.S.C. §§ 670-679a deal with the program established to supply federal funds to states for foster care and adoption assistance. More specifically, these code sections fit into the larger scheme of funding established in Parts A through E of Subchapter IV of Chapter 7 of the Social Security Act, which generally deals with grants to states for aid and services to needy families with children and for child-welfare services. For example, 42 U.S.C. §§ 620-627 fall within Part B, Subpart 1 and 42 U.S.C. §§ 670-679a fall within Part E of Subchapter IV of Chapter 7 of the Social Security Act.
i. Adoption Assistance Act
Plaintiffs allege that, under the federal Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, states, including New Jersey, receive federal money so long as they have submitted a plan approved by the United States Department of Health and Human Services, certify that the plan provides the child welfare services required by the Adoption Assistance Act, and comply with the terms of the plan. See Compl. at ¶ 61. Without citing any specific statutory provisions, Plaintiffs allege that they are being deprived of the following rights conferred upon them by the Adoption Assistance Act: i) right to have Defendants implement a pre-placement preventive services program designed to help children remain with their families or be returned to their families when appropriate; ii) right to timely written case plans that contain *483 mandated elements and to the implementation and review of these plans; iii) right to placement in foster homes or facilities that conform to nationally recommended professional standards; iv) right to placement in the least restrictive, most family-like setting; v) right to proper care while in custody; vi) right to be freed for adoption in accordance with the time frames established by law; vii) right to planning and services to secure their permanent placement at the earliest possible time; viii) right to regular judicial and administrative reviews of their foster care placements; ix) right to dispositional hearings within twelve months of entering custody and periodically thereafter; and x) right to receive services in a child welfare system with an adequate information system to permit decision-makers to make fully informed choices in the children's best interests. Id. at ¶ 404.
With respect to each right asserted, Defendants argue that under the Blessing framework, the Adoption Assistance Act provisions at issue are not so clear and unambiguous so as to create rights enforceable under § 1983. See Def. Motion at p. 4. Plaintiffs counter that under "established standards of statutory interpretation, the statutes create specific, enforceable rights." Pl.Opp. at p. 19. In their reply, Defendants reiterate their disagreement under the Blessing framework.
Initially, Defendants argue that any analysis of the Adoption Assistance Act provisions at issue must begin with the Supreme Court's analysis and decision in Suter v. Artist M., 503 U.S. 347, 112 S. Ct. 1360, 118 L. Ed. 2d 1 (1992), which reviewed an attempt to enforce a private right pursuant to § 1983 for an alleged violation of 42 U.S.C. § 671(a)(15). See Def. Motion at p. 6. Specifically, § 671(a)(15) provides that in order for a state to be eligible for federal payments for foster care and adoption assistance under § 670, the state shall have a Plan approved by the Secretary of Health and Human Services which provides that "reasonable efforts shall be made to preserve and reunify families." 42 U.S.C. § 671(a)(15)(B). The Suter Court noted that the pertinent inquiry under the Blessing framework with respect to § 671(a)(15) was did "Congress, in enacting the Adoption Act, unambiguously confer upon the child beneficiaries of the Act a right to enforce the requirement that the State make `reasonable efforts' to prevent a child from being removed from his home, and once removed to reunify the child with his family." Suter, 503 U.S. at 357, 112 S. Ct. 1360. The Suter Court found that § 671(a)(15) did not unambiguously confer an enforceable right on individual children within the child welfare system because only "a rather generalized duty" was imposed upon the state, "to be enforced not by private individuals, but by the Secretary" in the manner set forth in the AACWA. Id. at 363, 112 S. Ct. 1360. Thus, the Suter Court found that the subject class of plaintiffs could not use § 1983 to enforce § 671(a)(15) of the AACWA. See Suter, 503 U.S. at 363, 112 S. Ct. 1360 (holding that "[c]areful examination of the language relied upon by [plaintiffs], in the context of the entire Act, leads us to conclude that the `reasonable efforts' language does not unambiguously confer an enforceable right upon the Act's beneficiaries"). To the extent that Suter may have intimated that § 671(a)(15), or any other section of the Adoption Assistance Act for that matter, did not confer a private right enforceable under § 1983 simply because of its inclusion in a section requiring a State plan or specifying the required contents of such a plan, Congress amended the Social Security Act in 1994, specifically mentioning Suter. This amendment noted
[i]n an action brought to enforce a provision of this chapter, such provision is not to be deemed unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying the required contents of a State plan. This section is not intended to limit or expand grounds for determining the availability of private actions to enforce State plan requirements other than by overturning *484 any such grounds applied in Suter v. Artist M., 503 U.S. 347, 112 S. Ct. 1360, 118 L. Ed. 2d 1 (1992), but not applied in prior Supreme Court decisions respecting such enforceability; provided however, that this section is not intended to alter the holding in Suter v. Artist M. that section 671(a)(15) of this title is not enforceable in a private right of action.
42 U.S.C. § 1320a-2. However, this amendment did not overrule Suter. The amendment only forecloses the refusal to find a federal right enforceable under § 1983 because the statutory provision may be included in a section requiring a State plan or specifying the required contents of such a plan. See Harris v. James, 127 F.3d 993, 1002 (11th Cir.1997) (noting that 42 U.S.C. § 1320a-2 "does not purport to reject any and all grounds relied upon in Suter; it purports only to overrule certain grounds i.e., that a provision is unenforceable simply because of its inclusion in a section requiring a state plan or specifying the contents of such a plan"). Therefore, with this important guideline in mind, each of Plaintiffs' asserted rights is examined in the context of whether, as noted in Suter, the provision at issue unambiguously confers a private right enforceable pursuant to § 1983 under the Blessing framework.
1. right to pre-placement preventive services program
Plaintiffs allege that the Adoption Assistance Act "requires defendants, as a condition to receiving federal funds, to implement and operate in New Jersey a preplacement preventive services program designed to help children remain with their families, when safe and appropriate." Compl. at ¶ 63a. See also Compl. at ¶ 63b (alleging that the Adoption Assistance Act "requires defendants, as a condition to receiving federal funds, to implement and operate in New Jersey a service program designed to help children, when safe and appropriate, return to the families from which they have been removed, and when this is not possible to be placed for adoption, for legal guardianship, or in some other planned, permanent living arrangement"). In this regard, Plaintiffs allege that as a result of Defendants' "actions and inactions," Plaintiffs are being deprived of their right "to have defendants implement a pre-placement preventive services program designed to help children remain with their families or be returned to their families when appropriate." Id. at ¶ 404. In their motion to dismiss, Defendants argue that, to the extent Plaintiffs are relying upon 42 U.S.C. § 622(b)(10)(B)(iii)(I) or 42 U.S.C. § 622(b)(10)(B)(iv) in support of this right, these subsections create no right enforceable under § 1983. See Def. Motion at p. 9. Plaintiffs respond that the Complaint "alleges that the lack of an operating preplacement preventive services program is demonstrated by the fact that there are virtually no available preventive services available, that DYFS has failed to promote and secure access to such services, and that there is no coordination of preventive services at either the state or county level." Pl.Opp. at p. 36 (citation omitted). Defendants reply that there is "no objective measure for the adequacy of pre-placement services contained in AACWA," and therefore, 42 U.S.C. § 622(b)(10)(B) does not unambiguously confer upon Plaintiffs the right enforceable pursuant § 1983 to a pre-placement preventive services program designed to help children remain with their families or be returned to their families when appropriate. Def. Reply at p. 8.
42 U.S.C. § 622(b)(10) provides, in relevant part, that "[e]ach plan for child welfare services under [42 U.S.C. § 622(a)] shall provide assurances that the State is operating, to the satisfaction of the Secretary a service program designed to help children where safe and appropriate, return to families from which they have been removed ...; and a preplacement preventive services program designed to help children at risk of foster care placement remain safely with their families." 42 U.S.C. § 622(b)(10)(B)(iii)(I) *485 and 42 U.S.C. § 622(b)(10)(B)(iv). First, the plain language of 42 U.S.C. § 622(b)(10)(B) indicates that such preplacement preventive services programs must be operating "to the satisfaction of the Secretary." Clearly, this Court does not sit to oversee New Jersey's child welfare system to determine whether certain components of the system are "operating, to the satisfaction of the Secretary." See Blessing, 520 U.S. at 341 and 345, 117 S. Ct. 1353 (noting that a request by plaintiffs for a "broad injunction requiring the director of Arizona's child support agency to achieve `substantial compliance'" and "[a]ttributing the deficiencies in the State's program primarily to staff shortages and other structural defects" inappropriately "invited the District Court to oversee every aspect of Arizona's Title IV-D program") (citation omitted).
Moreover, under the Blessing test, 42 U.S.C. § 622(b)(10)(B) does not unambiguously confer upon Plaintiffs the right enforceable pursuant § 1983 to "preplacement preventive services program designed to help children remain with their families or be returned to their families when appropriate." See Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 24-25, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1981) (holding that "[i]t is difficult to know what is meant by providing `appropriate treatment' in the `least restrictive' setting"); B.H. v. Johnson, 715 F. Supp. 1387, 1401 (N.D.Ill.1989) (examining purpose of Title IV-B [of the Social Security Act, 42 U.S.C. §§ 620-628b,] as set forth in language of 42 U.S.C. § 620(a) in light of "similar language [set forth in the Developmentally Disabled Assistance and Bill of Rights Act] in Pennhurst" and holding that "Congress intended Title IV-B to be an expression of goals and guiding principles rather than an enactment that creates enforceable federal rights" and that "[n]othing in Title IV-B can be said to intend the creation of the kind of rights to which a remedy in favor of persons such as plaintiffs could attach") (emphasis added). See also Eric L. v. Bird, 848 F. Supp. 303, 312 (D.N.H.1994) (holding that "plaintiffs enjoy no enforceable rights under" 42 U.S.C. § 627(a)(2)(C), which is the predecessor to, and contains nearly the identical language as, 42 U.S.C. § 622(b)(10)(B)(iii)(I) and (II)). Therefore, for these reasons, Plaintiffs' § 1983 claim under 42 U.S.C. § 622(b)(10)(B) for a "pre-placement preventive services program designed to help children remain with their families or be returned to their families when appropriate" is dismissed.
2. right to timely written case plans
Plaintiffs also allege that "[t]he Adoption Assistance Act and relevant regulations further require that if defendants accept federal funds, they shall take steps necessary to ensure that each foster child is provided with a written case plan, containing specified elements, that is reviewed and updated at specified intervals, and that services are provided in accordance with that plan." Compl. at ¶ 64d. In this regard, Plaintiffs allege that as a result of Defendants "actions and inactions," Plaintiffs are being deprived of their right "to timely written case plans that contain mandate elements and to the implementation and review of these plans." Id. at ¶ 404. In their motion to dismiss, Defendants argue that, to the extent Plaintiffs are relying upon 42 U.S.C. § 671(a)(16) in support of this right, this subsection does not create a right enforceable under § 1983. See Def. Motion at p. 12. Specifically, Defendants argue that "Plaintiffs do not complain that New Jersey has failed to provide case plans." Id. Instead, Plaintiffs disagree "with the contents and `implementation' of these plans." Id. For example, Defendants note that Barry M. is the only Plaintiff to allege that Defendants have failed to provide him a written case plan. Id. However, on closer examination, Defendants also note that Barry M. alleges "that DYFS has failed `to provide a written case plan, reviewed annually, to prepare him for self-sufficient living.'" Id. (citing *486 Compl. at ¶ 204) (emphasis added). Defendants argue that such disagreement is not actionable under 42 U.S.C. § 671(a)(16) pursuant to § 1983. Plaintiffs respond that not only do Plaintiffs have a right to "an enforceable written case plan and a case review system" under 42 U.S.C. § 622(b)(10)(B)(ii), 42 U.S.C. § 671(a)(16), and 42 U.S.C. § 675(1) and (5), but Plaintiffs also have an "enforceable right to implementation of case plan services." Pl. Opp. at pp. 22-26 and 26-29. Defendants reply that even if there is a right to a case plan and/or review system, there is no right of each individual child to enforce the particulars of his or her plan, because to do so would require a court to act without an objective measure against which to gauge a state's actions. See Def. Reply at pp. 4-5. Therefore, Defendants argue that the AACWA does not unambiguously confer upon Plaintiffs the right enforceable pursuant § 1983 to "timely written case plans that contain mandate elements and to the implementation and review of these plans." Id.
42 U.S.C. § 622(b)(10)(B)(ii) provides, in relevant part, that "[e]ach plan for child welfare services under [42 U.S.C. § 622(a)] shall provide assurances that the State is operating, to the satisfaction of the Secretary a case review system (as defined in section 675(5) of this title) for each child receiving foster care under the supervision of the State." 42 U.S.C. § 671(a)(16) provides, in relevant part, that "[i]n order for a State to be eligible for payments under [42 U.S.C. § 670], it shall have a plan approved by the Secretary which provides for the development of a case plan (as defined in section 675(1) of this title) for each child receiving foster care maintenance payments under the State plan and provides for a case review system which meets the requirements described in section 675(5)(B) of this title with respect to each such child." Finally, 42 U.S.C. § 675(1) and (5) define, in detail, "case plan" as used in 42 U.S.C. § 671(a)(16) and "case review system" as used in 42 U.S.C. § 622(b)(10)(B)(ii). Specifically, "case plan" means a written document which includes at least the following:
(A) A description of the type of home or institution in which a child is to be placed, including a discussion of the safety and appropriateness of the placement and how the agency which is responsible for the child plans to carry out the voluntary placement agreement entered into or judicial determination made with respect to the child in accordance with section 672(a)(1) of this title.
(B) A plan for assuring that the child receives safe and proper care and that services are provided to the parents, child, and foster parents in order to improve the conditions in the parents' home, facilitate return of the child to his own safe home or the permanent placement of the child, and address the needs of the child while in foster care, including a discussion of the appropriateness of the services that have been provided to the child under the plan.
(C) To the extent available and accessible, the health and education records of the child, including
(i) the names and addresses of the child's health and educational providers;
(ii) the child's grade level performance;
(iii) the child's school record;
(iv) assurances that the child's placement in foster care takes into account proximity to the school in which the child is enrolled at the time of placement;
(v) a record of the child's immunizations;
(vi) the child's known medical problems;
(vii) the child's medications; and
(viii) any other relevant health and education information concerning the child determined to be appropriate by the State agency.
(D) Where appropriate, for a child age 16 or over, a written description of the programs and services which will help *487 such child prepare for the transition from foster care to independent living. (E) In the case of a child with respect to whom the permanency plan is adoption or placement in another permanent home, documentation of the steps the agency is taking to find an adoptive family or other permanent living arrangement for the child, to place the child with an adoptive family, a fit and willing relative, a legal guardian, or in another planned permanent living arrangement, and to finalize the adoption or legal guardianship. At a minimum, such documentation shall include child specific recruitment efforts such as the use of State, regional, and national adoption exchanges including electronic exchange systems.
42 U.S.C. § 675(1). Moreover, "case review system" means a procedure for assuring that
(A) each child has a case plan designed to achieve placement in a safe setting that is the least restrictive (most family like) and most appropriate setting available and in close proximity to the parents' home, consistent with the best interest and special needs of the child, which
(i) if the child has been placed in a foster family home or child-care institution a substantial distance from the home of the parents of the child, or in a State different from the State in which such home is located, sets forth the reasons why such placement is in the best interests of the child, and
(ii) if the child has been placed in foster care outside the State in which the home of the parents of the child is located, requires that, periodically, but not less frequently than every 12 months, a caseworker on the staff of the State agency of the State in which the home of the parents of the child is located, or of the State in which the child has been placed, visit such child in such home or institution and submit a report on such visit to the State agency of the State in which the home of the parents of the child is located,
(B) the status of each child is reviewed periodically but no less frequently than once every six months by either a court or by administrative review (as defined in paragraph (6)) in order to determine the safety of the child the continuing necessity for and appropriateness of the placement, the extent of compliance with the case plan, and the extent of progress which has been made toward alleviating or mitigating the causes necessitating placement in foster care, and to project a likely date by which the child may be returned to and safely maintained in the home or placed for adoption or legal guardianship,
(C) with respect to each such child, procedural safeguards will be applied, among other things, to assure each child in foster care under the supervision of the State of a permanency hearing to be held, in a family or juvenile court or another court (including a tribal court) of competent jurisdiction, or by an administrative body appointed or approved by the court, no later than 12 months after the date the child is considered to have entered foster care (as determined under subparagraph (F)) (and not less frequently than every 12 months thereafter during the continuation of foster care), which hearing shall determine the permanency plan for the child that includes whether, and if applicable when, the child will be returned to the parent, placed for adoption and the State will file a petition for termination of parental rights, or referred for legal guardianship, or (in cases where the State agency has documented to the State court a compelling reason for determining that it would not be in the best interests of the child to return home, be referred for termination of parental rights, or be placed for adoption, with a fit and willing relative, or with a legal guardian) placed in another planned permanent living arrangement and, in the case of a child *488 described in subparagraph (A)(ii), whether the out-of-State placement continues to be appropriate and in the best interests of the child, and, in the case of a child who has attained age 16, the services needed to assist the child to make the transition from foster care to independent living; and procedural safeguards shall also be applied with respect to parental rights pertaining to the removal of the child from the home of his parents, to a change in the child's placement, and to any determination affecting visitation privileges of parents;
(D) a child's health and education record (as described in paragraph (1)(A)) is reviewed and updated, and supplied to the foster parent or foster care provider with whom the child is placed, at the time of each placement of the child in foster care;
(E) in the case of a child who has been in foster care under the responsibility of the State for 15 of the most recent 22 months, or, if a court of competent jurisdiction has determined a child to be an abandoned infant (as defined under State law) or has made a determination that the parent has committed murder of another child of the parent, committed voluntary manslaughter of another child of the parent, aided or abetted, attempted, conspired, or solicited to commit such a murder or such a voluntary manslaughter, or committed a felony assault that has resulted in serious bodily injury to the child or to another child of the parent, the State shall file a petition to terminate the parental rights of the child's parents (or, if such a petition has been filed by another party, seek to be joined as a party to the petition), and, concurrently, to identify, recruit, process, and approve a qualified family for an adoption, unless
(i) at the option of the State, the child is being cared for by a relative;
(ii) a State agency has documented in the case plan (which shall be available for court review) a compelling reason for determining that filing such a petition would not be in the best interests of the child; or
(iii) the State has not provided to the family of the child, consistent with the time period in the State case plan, such services as the State deems necessary for the safe return of the child to the child's home, if reasonable efforts of the type described in section 671(a)(15)(B)(ii) of this title are required to be made with respect to the child;
(F) a child shall be considered to have entered foster care on the earlier of
(i) the date of the first judicial finding that the child has been subjected to child abuse or neglect; or
(ii) the date that is 60 days after the date on which the child is removed from the home; and
(G) the foster parents (if any) of a child and any preadoptive parent or relative providing care for the child are provided with notice of, and an opportunity to be heard in, any review or hearing to be held with respect to the child, except that this subparagraph shall not be construed to require that any foster parent, preadoptive parent, or relative providing care for the child be made a party to such a review or hearing solely on the basis of such notice and opportunity to be heard.
42 U.S.C. § 675(5).
Initially, as noted above and as will be repeated herein, this Court does not sit to oversee New Jersey's child welfare system to determine whether the implementation of case plans is "appropriate" or "successful." See Blessing, 520 U.S. at 341 and 345, 117 S. Ct. 1353. This is especially true where "[w]hether a child has a plan satisfying [each] provision is as individual as each child" and "there is no way to measure the normal or average needs of a child in foster care." Del A. v. Roemer, 777 F. Supp. 1297, 1309 (E.D.La.1991). Moreover, regardless of the detailed nature *489 of the definitions of "case plan" and "case review system," the statutory provisions relied upon by Plaintiffs in support of their alleged right "to timely written case plans that contain mandate elements and to the implementation and review of these plans" are not so unambiguous so as to confer upon Plaintiffs a right enforceable under § 1983. See Eric L. v. Bird, 848 F. Supp. 303, 312 (D.N.H.1994) (holding that "plaintiff enjoy no enforceable rights" to "compel New Hampshire's full implementation of the programs" under 42 U.S.C. § 627(a)(2)(B), the predecessor to 42 U.S.C. § 622(b)(10)(B)(ii), because the provision "places no direct obligation on the state"); Baby Neal v. Casey, 821 F. Supp. 320, 328 (E.D.Pa.1993) (holding that the language of § 627(a)(2)(B), the predecessor to 42 U.S.C. § 622(b)(10)(B)(ii), "examined in the context of the entire Adoption Act" does not "unambiguously confer an enforceable right on behalf of its beneficiaries under 42 U.S.C. § 1983"); Del A. v. Roemer, 777 F. Supp. 1297, 1308-09 (E.D.La.1991) (holding 42 U.S.C. § 627(a)(2)(B), the predecessor to 42 U.S.C. § 622(b)(10)(B)(ii), and 42 U.S.C. § 671(a)(16) "so vague and amorphous as to evade judicial enforcement" of plaintiffs' claim for "case plans that address specific issues in their placements and care" because "[t]here is no objective benchmark" against which compliance with these provisions can be measured).
Finally, as discussed below in connection with Plaintiffs' MPA claim, both parties have failed to note the important point, which hinders Plaintiffs' claim under 42 U.S.C. § 671(a)(16) with respect to case plans, that Congress specifically examined the numerous State plan elements required under 42 U.S.C. § 671 and determined that only one such required element confers a private right enforceable pursuant to § 1983. Specifically, in 1996, Congress amended 42 U.S.C. § 674 by adding subsection (d) which explicitly provides that "[a]ny individual who is aggrieved by a violation of Section 671(a)(18) of this title by a State or other entity may bring an action seeking relief from the State or other entity in any United States district court." 42 U.S.C. § 674(d)(3)(A) (emphasis added). That Congress recently chose to amend 42 U.S.C. § 674 to include a private right of action under § 1983 for a state or other entity's failure to comply with 42 U.S.C. § 671(a)(18), but did not include the other various elements enumerated in 42 U.S.C. § 671(a) and relied upon by Plaintiffs, is strong evidence that Congress did not intend these other various State plan elements in 42 U.S.C. § 671(a) to confer rights enforceable pursuant to § 1983. See Wright v. Roanoke Redevelopment and Hous. Auth., 479 U.S. 418, 423, 107 S. Ct. 766, 93 L. Ed. 2d 781 (1987) (noting that a court may look to "other specific evidence from the statute itself" to determine whether § 1983 provides a remedial cause of action). Therefore, for this and the other reasons set forth herein, Plaintiffs § 1983 claim to "an enforceable written case plan and a case review system" under 42 U.S.C. § 622(b)(10)(B)(ii), 42 U.S.C. § 671(a)(16), and 42 U.S.C. § 675(1) and (5) and an "enforceable right to implementation of case plan services" is dismissed.[2]
3. right to placement in the least restrictive, most family-like setting
Further, based upon the definition of "case review system" in 42 U.S.C. § 675(5), Plaintiffs allege that, "if defendants accept federal funds, they shall take steps necessary to ensure that each child *490 in need of a foster care placement is placed in the least restrictive, most family-like setting available, consistent with her best interests and individual needs." Compl. at ¶ 64b. In this regard, Plaintiffs allege that Defendants' "actions and inactions" deprived them of the right to "placement in the least restrictive, most family-like setting." Id. at ¶ 404. Having already determined that 42 U.S.C. § 622(b)(10)(B)(ii), which incorporates the definition of "case review system" in 42 U.S.C. § 675(5), does not confer rights upon Plaintiffs enforceable pursuant to § 1983, it is not necessary to go further to determine whether 42 U.S.C. § 675(5), standing alone, confers a right upon Plaintiffs enforceable pursuant to § 1983. See B.H. v. Johnson, 715 F. Supp. 1387, 1401 (N.D.Ill.1989) (noting "[i]t would be strange for Congress to create enforceable rights in the definitional section of a statute" and holding that while the "AAA creates an enforceable right to an individualized `case plan' and `case review system,' ... [b]eyond the narrow requirements of a case plan and case review system, the AAA does not impose on the state the sweeping duties alleged by plaintiffs" and specifically holding that "we do not believe Congress intended to create an enforceable individual right of placement in the least restrictive (most family-like) setting"). Moreover, it is important to note that several courts have rejected similar claims under § 1983 to enforce the right to placement in the least restrictive, most family-like setting because such a right is too vague and amorphous to be judicially enforceable. See Pennhurst, 451 U.S. at 24-25, 101 S. Ct. 1531 (holding that "[i]t is difficult to know what is meant by providing `appropriate treatment' in the `least restrictive' setting"); Aristotle P. v. Johnson, 721 F. Supp. 1002, 1012 (N.D.Ill. 1989) (holding that the "right to be placed `in the least restrictive, most family like setting' ... [is] amorphous and not subject to precise definition") (citing Pennhurst, 451 U.S. at 24-25, 101 S. Ct. 1531). Therefore, Plaintiffs' § 1983 claim under 42 U.S.C. § 622(b)(10)(B)(ii) and/or 42 U.S.C. § 675(5) to placement in the least restrictive, most family-like setting is dismissed.[3]
4. right to nationally recommended professional standards
Plaintiffs allege that the Adoption Assistance Act and "relevant regulations" require "that if defendants accept federal funds, they shall take the steps necessary to ensure that foster family homes and child care institutions are licensed, relicensed and operated in conformity with appropriate national standards." Compl. at ¶ 64a. In this regard, Plaintiffs allege that as a result of Defendants' "actions and inactions," Plaintiffs are being deprived of their right "to placement in foster homes or facilities that conform to nationally recommended professional standards." Id. at ¶ 404. In their motion to dismiss, Defendants argue that, to the extent Plaintiffs are relying upon 42 U.S.C. § 671(a)(10) in support of this right, this Court should agree with the number of courts that have held that because the Adoption Assistance Act and any relevant regulations do not specify any such national standards, § 671(a)(10) does not support such a right. See Def. Motion at p. 14 (citations omitted). Plaintiffs respond that § 671(a)(10) *491 "refers explicitly to external, objective standards: `recommend standards of national organizations concerned with standards for such institutions or homes'" and that "[s]ince such standards are routinely promulgated by national organizations such as the Child Welfare League of America, § 671(a)(10) is sufficiently clear to be enforceable." Pl.Opp. at p. 32. Defendants reply that the plain language of § 671(a)(10) does not allow the "state [to be] subject to suit in federal court," as Plaintiffs have alleged, where "a single `foster family home' or `child care institution' is not in compliance with the state-promulgated standards." Def. Reply at p. 6.
42 U.S.C. § 671(a)(10) provides, in relevant part, that "[i]n order for a State to be eligible for payments under [42 U.S.C. § 670], it shall have a plan approved by the Secretary which provides for the establishment or designation of a State authority ... which shall be responsible for establishing and maintaining standards for foster family homes and child care institutions which are reasonably in accord with recommended standards of national organizations concerned with standards for such institutions or homes, including standards related to admission policies, safety, sanitation, and protection of civil rights, and provides that the standards so established shall be applied by the State to any foster family home or child care institution receiving funds under this part or part B of this subchapter." Plaintiffs' alleged right to "placement in foster homes or facilities that conform to nationally recommended professional standards" based upon 42 U.S.C. § 671(a)(10) is too vague and amorphous under the Blessing test to be enforced pursuant § 1983. First, the very provision relied upon by Plaintiffs in support of their claim "to placement in foster homes or facilities that conform to nationally recommended professional standards" has been flatly rejected as the basis for such a right enforceable under § 1983. See Yvonne L. v. New Mexico Dep't of Human Serv., 959 F.2d 883, 889, 890 (10th Cir.1992) (holding that "[t]he language of § 671(a)(10) by itself does not support ... a cause of action [for a right to care in a foster home with standards reasonably in accord with those of national organizations]. It only references `standards of national organizations concerned with standards for such institutions or [foster] homes.' That is the type of vague and amorphous language identified in Wilder ... and Wright ... that cannot be judicially enforced.") (citations omitted) (emphasis added); Baby Neal v. Casey, 821 F. Supp. 320, 326-327 (E.D.Pa.1993) (holding that "§ 671(a)(10) fails to unambiguously confer upon [p]laintiffs a private right of enforcement under this provision" because "[t]he language of this section does not confer upon [p]laintiffs a `right' to foster homes or institutions which are in accord with recommended standards of national organizations but clearly states that the state plan must provide for the designation of a state authority or authorities which shall establish and maintain such standards. Moreover, `reasonably in accord' is as vague and ambiguous as `reasonable efforts' under § 671(a)(15).") (emphasis added); Doe v. Johnson, 1993 WL 50845, *3 (N.D.Ill. Feb.24, 1993) (dismissing plaintiff's action "to the extent that it seeks private relief for an alleged violation of § 671(a) of the Adoption Assistance and Child Welfare Act" because "the Act places its enforcement mechanism in hands other than those of private plaintiffs under § 1983"); Del A. v. Roemer, 777 F. Supp. 1297, 1310 (E.D.La.1991) (comparing "reasonably in accord with" language of 42 U.S.C. § 671(a)(10) with "reasonable efforts" language of 42 U.S.C. § 671(a)(15) and holding that the "provision requiring placement in foster homes and institutions that are `reasonably in accord with' national standards is vague and unenforceable"). Moreover, as discussed above, that Congress recently chose to amend 42 U.S.C. § 674 to include a private right of action under § 1983 for a state or other entity's failure to comply with 42 U.S.C. *492 § 671(a)(18), but did not include the other various elements enumerated in 42 U.S.C. § 671(a) and relied upon by Plaintiffs, is strong evidence that Congress did not intend these other various State plan elements in 42 U.S.C. § 671(a) to confer rights enforceable pursuant to § 1983. Therefore, Plaintiffs § 1983 claim under 42 U.S.C. § 671(a)(10) for "placement in foster homes or facilities that conform to nationally recommended professional standards" is dismissed.
5. right to adequate information system
Plaintiffs allege that the Adoption Assistance Act requires Defendants, "as a condition to receiving federal funds, to implement and operate in New Jersey an information system from which the status, demographic characteristics, location and goal of every foster child can readily be determined." Compl. at ¶ 63c. In this regard, Plaintiffs allege that as a result of Defendants' "actions and inactions," Plaintiffs are being deprived of their right "to receive services in a child welfare system with an adequate information system to permit decision-makers to make fully informed choices in the children's best interests." Id. at ¶ 404. In support of their motion to dismiss, Defendants argue that numerous courts have rejected such a right to an "information system" to the extent Plaintiffs are relying upon 42 U.S.C. § 622(b)(10)(B) in support of this right. See Def. Motion at p. 21 (citing Eric L. v. Bird, 848 F. Supp. 303) (D.N.H. 1994); Baby Neal v. Casey, 821 F. Supp. 320 (E.D.Pa.1993)). Plaintiffs respond that the decisions relied upon by Defendants are "no longer good law" for various reasons, including Suter and the 1994 amendment to the Social Security Act. See Pl.Opp. at p. 35. Defendants reply that, while cases such as Eric L. and Baby Neal may have been decided prior to Suter and the 1994 amendment to the Social Security Act, such cases should still be considered for their general holdings that this section of the Adoption Assistance Act "simply does not demonstrate a congressional intent to benefit individual children." Def. Reply at p. 7.
42 U.S.C. § 622(b)(10)(B) provides, in relevant part, that "[e]ach plan for child welfare services under [42 U.S.C. § 622(a)] shall ... provide assurances that the State ... is operating, to the satisfaction of the Secretary a statewide information system from which can be readily determined the status, demographic characteristics, location, and goals for the placement of every child who is ... in foster care." 42 U.S.C. § 622(b)(10)(B)(i). Plaintiffs' alleged right to "receive services in a child welfare system with an adequate information system to permit decision-makers to make fully informed choices in the children's best interests" based upon 42 U.S.C. § 622(b)(10)(B)(i) is too vague and amorphous under the Blessing test to be enforced under § 1983. First, this Court does not sit to oversee New Jersey's child welfare system and determine whether a state information system "operating, to the satisfaction of the Secretary," is also "adequate." See Blessing, 520 U.S. at 341 and 345, 117 S. Ct. 1353 (noting that a request by plaintiffs for a "broad injunction requiring the director of Arizona's child support agency to achieve `substantial compliance'" and "[a]ttributing the deficiencies in the State's program primarily to staff shortages and other structural defects" inappropriately "invited the District Court to oversee every aspect of Arizona's Title IV-D program" and holding that enforcement of "such an undefined standard" as the right to a "sufficient staff" would "certainly `strain judicial competence'") (citation omitted). Moreover, similar attempts under § 1983 to enforce the right to information systems provided for in federal funding statutes have been flatly rejected. For example, in Blessing, Title IV-D of the Social Security Act laid out "detailed requirements for the State's data processing system." Blessing, 520 U.S. at 344, 117 S. Ct. 1353. Specifically, 42 U.S.C. § 654a and implementing regulations required "[a]mong other things, [that] this *493 system must sort information into standardized data elements specified by the Secretary; transmit information electronically to the State's AFDC system to monitor family eligibility for financial assistance; maintain the date necessary to meet federal reporting requirements; and provide for the electronic transfer of funds for purposes of income withholding and interstate collections." Id. (citations omitted). Despite the fact that this provision and its implementing regulations "may ultimately benefit individuals who are eligible for Title IV-D services," the Blessing Court found that such benefit was only achieved "indirectly," and held that "these complex standards do not give rise to individualized rights to computer services." Id. at 344 and 345, 117 S. Ct. 1353. Indeed, the Blessing Court held that the provision for computer services did "not fit our traditional three criteria for identifying statutory rights," but instead, was "simply intended to improve overall efficiency of the States' child support enforcement scheme." Id. Finally, the very provision relied upon by Plaintiffs in support of their claim "to receive services in a child welfare system with an adequate information system to permit decision-makers to make fully informed choices in the children's best interests" has been flatly rejected as a basis for the "right to an information system" enforceable under § 1983. See Del A. v. Roemer, 777 F. Supp. 1297, 1305-06 (E.D.La.1991) (holding that the "information system [under 42 U.S.C. § 622(b)(10)(B)(i)] clearly serves only an administrative tool and is not intended as a benefit to the putative plaintiffs. Thus, plaintiffs have no enforceable right to an information system."). Therefore, Plaintiffs § 1983 claim under 42 U.S.C. § 622(b)(10)(B)(i) for an "adequate information system" is dismissed.
For all these reasons, Defendants' motion to dismiss is granted with respect to the Fourth Count of Plaintiffs' Complaint.[4]
ii. MPA
As noted, some of the general code provisions cited by Plaintiffs in support of their claims under the Adoption Assistance Act include those provisions identified by Plaintiffs in support of their claims under the federal Multiethnic Placement Act of 1994, as amended by the Interethnic Adoption Provisions of 1996. In this regard, Plaintiff allege that the MPA "requires that public agencies engage in aggressive efforts to recruit potential foster and adoptive parents who reflect the racial and ethnic diversity of the children for whom such foster and adoptive placements are needed." Compl. at ¶ 69. Further, Plaintiffs allege that the MPA "prohibits ... [the denial to] any person the opportunity to become an adoptive or a foster parent on the basis of the race, color or national origin of the child or adoptive or foster parent and prohibits the delay or denial of the placement of a child for adoption or into foster care on that same basis." Id. Plaintiffs specifically cite 42 U.S.C. §§ 622(b)(9), 671(a)(18), and 674(d) in support of their claims under the MPA and allege that due to Defendants' "actions and inactions," Plaintiffs are "being deprived of the rights conferred upon them by the [MPA]," including, but not limited to, "the right not to have adoptive or foster placements delayed or denied on the basis of the race, color or national origin of the foster or adoptive parent or of the child." Id. at ¶¶ 39 and 407.
42 U.S.C. § 622(b)(9) provides that, in order to be eligible for the federal funding *494 provided in 42 U.S.C. § 620 to states for "establishing, extending, and strengthening child welfare services," see 42 U.S.C. § 620(a), each plan for child welfare services developed pursuant to 42 U.S.C. § 622(a) shall "provide for the diligent recruitment of potential foster and adoptive families that reflect the ethnic and racial diversity of the children in the State for whom such foster and adoptive homes are needed." Section 671(a)(18) provides that, in order to be eligible for federal funding provided in 42 U.S.C. § 670 to states for "foster care and transitional living" and "adoption assistance for children with special needs." each State plan for foster care and adoption assistance developed pursuant to Section 670 shall provide that "neither the State nor any other entity in the State that receives funds from the Federal Government and is involved in adoption or foster care placements" may "deny to any person the opportunity to become an adoptive or a foster parent, on the basis of the race, color or national origin of the person, or of the child, involved," or "delay or deny the placement of a child for adoption or into foster care" on that same basis. Finally, 42 U.S.C. § 674(d) provides that if a state is found to have failed to comply with 42 U.S.C. § 671(a)(18), "the Secretary shall reduce the amount otherwise payable to the State under this part ... until the program is found ... to have implemented a corrective action plan with respect to such violation...." 42 U.S.C. § 674(d)(1).[5]
With respect to these provisions, Defendants argue that Plaintiffs lack standing to bring a claim under the MPA because Plaintiffs have failed to allege that: i) they have been "injured by the purported lack of adoptive parents of all races;" or ii) there has been discrimination in foster care placements or they have been injured as a result of discrimination in foster care placements. See Def. Motion at p. 25. Defendants further argue that Plaintiffs cannot stand in the shoes of the Secretary and demand a reduction in the amounts otherwise payable to the State for child welfare services. Id. Plaintiffs counter that they have alleged a "quintessential violation" of the MPA and provide by way of example the placement of Marco and Juan C., "who are Hispanic, [and] were placed in foster home with foster parents that speak almost exclusively Spanish, despite the fact that the boys speak only English." Pl. Opp. at p. 43. Given this, Plaintiffs allege that Defendants made a foster placement decision "based on an ethnic `match' between Juan and Marco and the foster parents." Id. Defendants reply that the sections of the MPA relied upon by Plaintiffs specifically prohibit "delay or denial of placement because of race or ethnicity." and Plaintiffs have not alleged that Juan and Marco C., or any other Plaintiffs, have experienced any delay or denial of foster or adoptive placement because of race or ethnicity. See Def. Reply at p. 10.
With respect to 42 U.S.C. § 671(a)(18)(A), which requires that a State plan provide that the State may not "deny to any person the opportunity to become an adoptive parent or a foster parent, on the basis of race, color, or national origin of the person, or of the child, involved," Plaintiffs do not assert a claim on behalf of any person who was denied the opportunity to become an adoptive or foster parent because of race, color, or national origin. See Compl. at ¶ 407 (asserting claim on behalf of "the plaintiff children ... being deprived of ... the right not to have adoptive or foster placements delayed or denied on the basis of race, color or national origin of the foster or adoptive parent or of the child").[6] Thus, to the extent Plaintiffs fail to allege *495 a cause of action on behalf of any person who was denied the opportunity to become an adoptive or foster parent because of race, color, or national origin, Defendants' motion to dismiss is granted.
However, with respect to Plaintiffs' claim under 42 U.S.C. § 671(a)(18)(B), which requires that a State plan provide that the State may not "delay or deny the placement of a child for adoption or into foster care, on the basis of race, color, or national origin of the adoptive or foster parent, or the child, involved," an examination of the language and structure of Part E of Subchapter IV of Chapter 7 of the Social Security Act compels a determination that Plaintiffs may assert a right under 42 U.S.C. § 671(a)(18)(B) pursuant to § 1983. Specifically, as noted above, 42 U.S.C. § 674(d) explicitly provides that "[a]ny individual who is aggrieved by a violation of Section 671(a)(18) of this title by a State or other entity may bring an action seeking relief from the State or other entity in any United States district court." 42 U.S.C. § 674(d)(3)(A). Thus, while it may present a statute of limitations question to be addressed in the future, to the extent Plaintiffs allege a violation of 42 U.S.C. § 671(a)(18)(B) on behalf of Marco and Juan C., which requires that a State plan provide that the State may not "delay or deny the placement of a child for adoption or into foster care, on the basis of race, color, or national origin of the adoptive or foster parent, or the child, involved," under § 1983, and as permitted in 42 U.S.C. § 674(d)(3)(A), Defendants' motion to dismiss is denied.[7]
Therefore, for these reasons, Defendants' motion to dismiss is granted in part *496 and denied in part to the extent as noted herein with respect to the Seventh Count of Plaintiffs' Complaint.
b. Child Abuse Prevention and Treatment Act
Similar to their claims under the Adoption Assistance Act and MPA, Plaintiffs also allege that under the federal Child Abuse Prevention and Treatment Act, states, including New Jersey, receive federal money so long as they have submitted and complied with a plan approved by the United States Department of Health and Human Services which certifies that the state has in effect, and is enforcing, state law or programs relating to child abuse and neglect as required by CAPTA. See Compl. at ¶ 66. Generally, Plaintiffs cite to 42 U.S.C. §§ 5101-5106a in support of their CAPTA claim. Id. at ¶ 39. Specifically, in opposition to Defendants' motion to dismiss, Plaintiffs point to 42 U.S.C. § 5106a(b)(2), see Pl.Opp. at p. 38, n. 11, which provides
[a] State plan submitted under [42 U.S.C. § 5106a(b)(1)] ... shall contain an outline of the activities that the State intends to carry out using amounts received under the grant to achieve the purposes of this subchapter, including an assurance ... that the State has in effect and is enforcing a State law, or has in effect and is operating a Statewide program, relating to child abuse and neglect that includes provisions and procedures for the reporting of known and suspected instances of child abuse and neglect; procedures for the immediate screening, safety assessment, and prompt investigation of such reports; [and] procedures for immediate steps to be taken to ensure and protect the safety of the abused or neglected child and any other child under the same care who may also be in danger of abuse or neglect and ensuring their placement in a safe environment.
42 U.S.C. § 5106a(b)(2)(A)(i)-(iii). Given this provision, Plaintiffs allege that they are being deprived of the right, conferred upon them by CAPTA, "to the enforcement of laws requiring prompt and professional investigations of allegations of abuse or neglect" and the right "to protection from those who endanger their health and welfare." Id. at ¶ 405.
With respect to Plaintiffs' CAPTA claim, Defendants argue that while CAPTA provides that states that accept federal grants for child abuse and neglect prevention and treatment programs must have in place a State plan which outlines procedures for dealing with child abuse and the protection of children, every federal court to have addressed the issue, save one, has agreed "it does not mandate that particular procedures or protective steps be taken," and therefore, CAPTA does not confer a private right enforceable pursuant to § 1983. Def. Motion at p. 22 (citing 42 U.S.C. § 5106a(b)(2)). Plaintiffs counter that CAPTA does provide a private right enforceable under § 1983 because "plaintiffs' allegations are that defendants are not `enforcing' state law or `operating' a statewide program with the required `provisions and procedures' to protect abused and neglected children." Pl.Opp. at p. 39. Defendants reply that regardless of Plaintiffs' factual allegations, the provisions of CAPTA cited by Plaintiffs have been held far too vague and amorphous to create private rights enforceable under § 1983. See Def. Reply at p. 9, n. 3.
Clearly, under the Blessing test, the weight of case law dictates that 42 U.S.C. § 5106a(b)(2) "does not create a private right of action" under § 1983. Jordan v. City of Philadelphia, 66 F. Supp. 2d 638, 648-49 (E.D.Pa.1999) (holding that "CAPTA clearly does not create a private right of action under 42 U.S.C. § 1983"). See also Doe v. District of Columbia, 93 F.3d 861, 868 (D.C.Cir.1996) (holding that "Section 5106a(b)(2) of CAPTA fails to unambiguously confer an enforceable right upon its beneficiaries, therefore [plaintiff's] claim under § 1983 was appropriately rejected by the district court"); Tony L. v. Childers, 71 F.3d 1182, 1189 (6th Cir.1995) *497 (holding that "neither CAPTA nor the relevant regulations mandate a particular means of investigation or state what type of actions must be taken to protect abused or neglected children"), cert. denied, 517 U.S. (1996); A.S. v. Tellus, 22 F. Supp. 2d 1217, 1224 (D.Kan.1998) (agreeing with "the majority of courts" and holding that the requirements of 42 U.S.C. § 5106a(b)(2) "are too vague to create an enforceable right"); Baby Neal v. Ridge, 1995 WL 728589, *5 (E.D.Pa. Dec. 7, 1995) (reaffirming its holding on reconsideration "that [CAPTA] does not give rise to an enforceable private right of action under 42 U.S.C. § 1983"); Eric L. v. Bird, 848 F. Supp. 303, 313 (D.N.H.1994) (holding that CAPTA does not confer a right subject to private enforcement under § 1983 to have the state's child protection laws "effectively" enforced); Baby Neal v. Casey, 821 F. Supp. 320, 329 (E.D.Pa.1993) (holding that CAPTA "does not create enforceable rights under 42 U.S.C. § 1983"); Jensen v. Conrad, 570 F. Supp. 91, 112-13 (D.S.C.1983) (holding that CAPTA does not give plaintiff a "right to be unqualifiedly protected from, or free from, abuse within the contemplation of § 1983"), aff'd, 747 F.2d 185 (4th Cir.1984), cert. denied, 470 U.S. 1052, 105 S. Ct. 1754, 84 L. Ed. 2d 818 (1985). In the face of this support for the conclusion that 42 U.S.C. § 5106a(b)(2) does not confer a private right enforceable under 42 U.S.C. § 1983, Plaintiffs' reliance on the reasoning of Marisol A. v. Giuliani, 929 F. Supp. 662 (S.D.N.Y.1996), see Pl. Opp. at p. 39, is unconvincing. Specifically, under Blessing, the right to "prompt and professional investigations of allegations of abuse or neglect" and the right "to protection from those who endanger their health and welfare" simply are too vague and amorphous as to be beyond the realm of judicial enforcement. See Jordan, 66 F.Supp.2d at 648, n. 6 and 649 (considering reasoning of Marisol A. and dismissing plaintiff's claims under § 1983 that 42 U.S.C. § 5106a(b)(2) guaranteed "the right to prompt and appropriate investigation of reports of abuse and neglect" and the right "to protection from those who endanger their health and welfare" because "CAPTA fails to mandate a particular means of investigation or state what type of actions must be taken to protect abused or neglected children," and therefore, such rights were "vague and amorphous") (citation omitted).[8]
Thus, for these reasons, Defendants' motion to dismiss is granted with respect to the Fifth Count of Plaintiffs' Complaint.
c. EPSDT
Plaintiffs allege that the Early and Periodic Screening, Diagnostic and Treatment provisions of the federal Medicaid Act, specifically, 42 U.S.C. §§ 1396a and 1396d(a) and (r), require that "all Medicaid-eligible children up to the age of twenty-one receive comprehensive physical, developmental, and mental health care, if the state receives Medicaid funding." Compl. at ¶¶ 39 and 70. In this regard. Plaintiffs allege that "[a]ll foster children in New Jersey are Medicaid eligible and are entitled to receive the comprehensive health care required by the EPSDT program since New Jersey receives medicaid funding." Id. at ¶ 70. Plaintiffs allege that as a result of the "actions and inactions of the defendants," Plaintiffs are being denied the rights conferred upon them by the EPSDT program, including the *498 "right to receive periodic general physical health examinations administered by competent medical professionals at age-appropriate intervals determined by a panel of independent health care experts," the "right to receive periodic hearing and eye examinations, mental health examinations, dental examinations and lead blood tests, administered by competent medical professionals at age-appropriate intervals," the "right to receive any and all treatments deemed necessary by a qualified medical professional conducting any of the above-mentioned periodic health examinations." Id. at ¶ 408.
With respect to Plaintiffs' EPSDT claim, Defendants argue that while there is limited case law indicating that a § 1983 action may be brought "to enforce payment for specific treatments," Def. Motion at p. 27, n. 14, EPSDT "does not create an openended benefit," and to the extent Plaintiffs have failed to "identify the treatment plaintiffs allege they were denied," Plaintiffs' EPSDT claim should be dismissed. Id. at p. 27. Plaintiffs counter the Defendants have conceded that there is "extensive case law" recognizing that EPSDT creates "enforceable rights" and that Defendants incorrectly assert that Plaintiffs have failed to allege their EPSDT claim with specificity. See Pl.Opp. at pp. 44-45.[9] Defendants respond that Plaintiffs "simply allege a list of ailments without reference to which are treated under [EPSDT] and without even saying that treatment was sought and denied." Def. Reply at p. 12, n. 6.
In opposition to Defendants' motion to dismiss, Plaintiffs point to 42 U.S.C. § 1396d(r) in support of their alleged right under EPSDT enforceable pursuant to § 1983. See Pl.Opp. at p. 44 (citing 42 U.S.C. §§ 1396d(r)(1)(A) and (B), 1396d(r)(2), 1396d(r)(3), 1396d(r)(4), and 1396d(r)(5)). Importantly, 1396d(r) defines "early and periodic screening, diagnostic, and treatment services" for purposes of, inter alia, 42 U.S.C. § 1396 which makes available federal appropriations for "payments to States which have submitted, and had approved by the Secretary, State plans for medical assistance" and for purposes of 42 U.S.C. § 1396a which delineates, in painstaking detail, what constitutes such "State plans for medical assistance." See 42 U.S.C. §§ 1396a(a)-(z). Thus, if anything provides support for the rights Plaintiffs seek to assert under EPSDT pursuant to § 1983, it certainly is not 42 U.S.C. § 1396d(r) alone, as this only defines a term used in a much larger and more complicated statutory scheme, but that provision taken in conjunction with, at a minimum, 42 U.S.C. §§ 1396 and 1396a. See B.H. v. Johnson, 715 F. Supp. 1387, 1401 (N.D.Ill.1989) (noting "[i]t would be strange for Congress to create enforceable rights in the definitional section of a statute").[10]
As has been expressed earlier, this Court cannot dispute that the individual examples offered by Plaintiffs are tragic. However, no matter how tragic, these unfortunate circumstances do not give rise to the § 1983 rights alleged by Plaintiffs, especially when the EPSDT provisions cited by Plaintiffs are examined under the Blessing test. For example, the "right to receive any and all treatments deemed necessary by a qualified medical professional conducting any of the ... periodic health examinations, [as defined in 42 *499 U.S.C. § 1396d(r),]" Compl. at ¶ 408, is not unlike the claim examined in Blessing wherein the plaintiffs argued that Title IV-D of the Social Security Act granted them "individual rights to all mandated services delivered in substantial compliance with Title IV-D and its implementing regulations." Blessing, 520 U.S. at 341, 117 S. Ct. 1353. As was the holding in Blessing, the "right to receive any and all treatments deemed necessary" is too vague and amorphous to lend itself to proper judicial administration. Indeed, to allow such a right would improperly require this Court to oversee the entire State plan developed pursuant to 42 U.S.C. § 1396a. See Blessing, 520 U.S. at 341, 117 S. Ct. 1353. Moreover, as was the holding in Blessing, enforcement of such undefined rights like the "right to receive periodic general physical health examinations administered by competent medical professionals at age-appropriate intervals," as well as the "right to receive periodic hearing and eye examinations, mental health examinations, dental examinations and lead blood tests, administered by competent medical professionals at age-appropriate intervals," would certainly strain the judicial competence.[11] Thus, under the Blessing framework, EPSDT does not confer the § 1983 rights alleged by Plaintiffs.
Moreover, the Supreme Court's examination of the language and structure of Title IV-D of the Social Security Act also compels a determination that EPSDT does not confer the § 1983 rights alleged by Plaintiffs. Importantly, "[i]f the Secretary, after reasonable notice and opportunity for hearing to the State agency administering or supervising the administration of the State plan approved under [§ 1396a(b)], finds that in the administration of the plan there is a failure to comply substantially with any such provision [of § 1396a(a)]; the Secretary shall notify such State agency that further payments will not be made to the State ..., until the Secretary is satisfied that there will no longer be any such failure to comply." 42 U.S.C. § 1396c. Thus, EPSDT specifically provides that the federal government may revoke the funding provided to the states pursuant to 42 U.S.C. § 1396. However, the Secretary cannot compel New Jersey, or any other state, to act in a certain way. Thus, as was the finding in Blessing, the federal funding scheme established in EPSDT does not give rise to an individual right enforceable pursuant to § 1983. See Blessing, 520 U.S. at 344, 117 S. Ct. 1353 (noting that "even upon a finding of substantial noncompliance, the Secretary can merely reduce the State's AFDC grant by up to five percent; she cannot, by force of her own authority, command the State to take any particular action or to provide any services to certain individuals. In short, the substantial compliance standard is designed simply to trigger penalty provisions that ... reduce the State's AFDC grant by a maximum of five percent. As such, it does not give rise to individual rights.") (emphasis added).
Therefore, for the foregoing reasons, Defendants' motion to dismiss is granted with respect to the Eighth Count of Plaintiffs' Complaint.
d. ADA and RHA
Plaintiffs also allege that the ADA and RHA "require that programs such as child welfare and foster care be administered to enable children with handicaps or disabilities to participate fully in, and receive *500 all the benefits of, the programs and to be placed in the least restrictive setting appropriate." Compl. at ¶ 72. In this regard, Plaintiffs argue that as a result of Defendants' "actions and inactions" Plaintiffs are being deprived of rights conferred upon them by the ADA and RHA including, but not limited to, the "right to participate fully and receive the benefits of the state child welfare and foster care programs; to be placed in the least restrictive placement; and to receive any and all services necessary for them to participate fully in the state foster care program despite their handicaps or disabilities." Id. at ¶ 409.
With respect to these allegations, Defendants argue that Plaintiffs' Complaint seeks "additional programs and services and therefore fails to state a claim under the ADA or RHA." Def. Motion at p. 28. In this regard, Defendants argue that the provisions of the ADA and RHA applicable to public entities, Title II of the ADA, 42 U.S.C. § 12131, et seq., and Section 504 of the RHA, 29 U.S.C. § 794, do not require Defendants "to provide or develop special services or programs to assist the disabled." Id. at pp. 28 and 30.[12] Specifically, Defendants assert that Plaintiffs cannot claim a violation of the ADA or RHA for Defendants' failure to provide "any and all services necessary [for Plaintiffs] to participate fully in the foster care in the state foster care program," Compl. at ¶ 409, because such a claim does not allege that any Plaintiff "has been excluded from any program because of his or her disability," as is required under either of the applicable sections of the ADA or RHA. Def. Motion at p. 31. Plaintiffs respond that the Complaint "[f]airly construed, ... alleges that defendants are failing to accommodate the needs of disabled children by placing them in foster homes and the either not providing them with services or providing services that are less effective than those provided to non-disabled children." Pl. Opp. at p. 48. For example, Plaintiff allege that Defendants "are unnecessarily segregating disabled children by maintaining them in settings that are more restrictive than is necessary to meet their needs, or by sending them out of state" and "fail to challenge the rejection of disabled children by residential treatment centers, thereby protracting their confinement and segregation." Id. Defendants reply that Plaintiffs' response demonstrates the inappropriateness of Plaintiffs' ADA and RHA claims. Specifically, Defendants argue that "Plaintiffs themselves characterize their claim as one that `[f]airly construed, ... alleges that defendants ... are not providing services' which they contend would ameliorate these unidentified disabilities." Def. Reply at p. 11.
While not so limited as Defendants would suggest, Plaintiffs' argument with respect to their claims under the ADA and RHA is a novel approach to say the very least. Specifically, while the ADA defines discrimination as encompassing not only adverse actions motivated by prejudice and fear of disabilities, but also failing to make reasonable accommodations of disabilities, see Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.1999) (citing 42 U.S.C. §§ 12112(a), (b)(5)(A)), there is a clear lack of support for the type of accommodation sought here. Specifically, Plaintiffs seek "to receive any and all services necessary for them to participate fully in the state foster care program despite their handicaps or disabilities." Compl. at ¶ 409. Plaintiffs are not simply seeking access to the foster care system, but instead, *501 are seeking "to participate fully" in New Jersey's foster care system. Id. To highlight Plaintiffs' inability "to participate fully" in the foster care system, Plaintiffs offer the following examples:
Dennis and Denise M. "have learning disabilities and severe emotional and behavioral problems." The "current foster parent is unable to meet their needs." While "DYFS has recently acknowledged that the children should be in a therapeutic foster home that could provide specialized care, DYFS has failed to secure such a home for them or to otherwise provide adequately for the children's special needs."
Marco and Juan C. "suffer from neurological and behavioral problems." Marco's foster parents "have no training in caring for children with [his] neurological and behavioral problems."
Ricky, Daniel, and Thomas M. are disabled and have severe special needs. Ricky "is hearing impaired," has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), Post-Traumatic Stress Disorder (PTSD), and Intermittent Explosive Disorder. Daniel has a spastic bladder, sleep apnea, epilepsy with a seizure disorder, is neurologically impaired, has been diagnosed with severe APHD [sic], PTSD, is learning disabled and developmentally delayed. Thomas is vision and hearing impaired, is being tested for a seizure disorder, and is learning disabled and developmentally delayed. Defendants have repeatedly rejected pleas for services by their mother, Ms. M.
"Disabled children are placed in regular foster homes with foster parents lacking any specialized training as to how to care for them, and suffer harm as a result. Such disabled children receive lower quality foster care services than is provided to non-disabled foster children in similar placements."
Pl.Opp. at pp. 47-48 (citations to Compl. omitted).
However, Plaintiffs' view of what is actionable under 42 U.S.C. § 1983 for alleged violations of the ADA and RHA is not sustainable. For example, if, in order "to participate fully" in the foster care system, Plaintiffs seek special services or affirmative assistance to the disabled, this is not actionable under the ADA or RHA. See, e.g. Bowen v. American Hosp. Ass'n, 476 U.S. 610, 640, 106 S. Ct. 2101, 90 L. Ed. 2d 584 (1986) (noting that "`neither the language, purpose, nor history of [the RHA] reveals an intent to impose an affirmative obligation' on recipients of federal financial assistance"). Thus, that children with learning disabilities or neurological and behavior problems may be placed in "regular foster homes," does not support a cause of action under the ADA or RHA, especially where Plaintiffs have not alleged that they are treated any differently than similarly situated non-disabled foster children. See Doe v. Pfrommer, 148 F.3d 73, 83 (2d Cir.1998) (noting that "the central purpose of the ADA and § 504 of the Rehabilitation Act is to assure that disabled individuals receive `evenhanded treatment' in relation to the able-bodied"). Moreover, if, in order "to participate fully" in the foster care system, Plaintiffs are challenging "the substance of services provided," this is not actionable under the ADA or RHA. See Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir.1999) (noting that appellees' challenge to "the substance of the services provided" not actionable under the ADA or RHA, as compared to "illegal discrimination against the disabled"). Thus, that foster parents of children with neurological and behavioral problems "have no training in caring for children with neurological and behavioral problems," does not support a cause of action under the ADA or RHA, especially where Plaintiffs have not alleged that parents of non-disabled children are provided with training for caring for their children, and therefore, are treated differently than foster parents of children with neurological or behavioral problems or learning disabilities, or any other disabilities for that matter. *502 Id. (noting that a state "cannot unlawfully discriminate against [the disabled] by denying a benefit it provides to no one"). Finally, Plaintiffs have not alleged that the accommodations sought exist. Thus, that "DYFS has recently acknowledged that the children should be in a therapeutic foster home that could provide specialized care, [but] failed to secure such a home for them or to otherwise provide adequately for the children's special needs" or "Defendants have repeatedly rejected pleas for services" by foster parents, does not state a cause of action under the ADA or RHA, especially where Plaintiffs have not alleged that such services exist or are available and were not offered because of the Plaintiffs' disabilities. See P.C. v. McLaughlin, 913 F.2d 1033, 1042 (2d Cir.1990) (noting that "[n]o proof has been offered to suggest that more suitable accommodations were available and not offered to [plaintiff]").
For these reasons, Defendants' motion to dismiss for failure to state a claim is granted with respect to the Ninth Count of Plaintiffs' Complaint.
2. Plaintiffs' Federal Common Law Claim
In the Sixth Count of Plaintiffs' Complaint, Plaintiffs assert "a separate cause of action for breach of the `State Plans' agreed to by New Jersey pursuant to the Adoption Assistance Act and CAPTA under established federal common law principles governing third party beneficiary rights." Pl.Opp. at p. 49 (citations omitted). Specifically, Plaintiffs allege that "[a]s a result of the foregoing actions and inactions of the defendants, the plaintiff children, as third-party beneficiaries to the Adoption Assistance Act and CAPTA contractual agreements entered into between the defendant[s] and Congress, are being denied their rights under the federal common law to the services and benefits that New Jersey is contractually obligated to provide to them under these federal funding statutes." Compl. at ¶ 406. Defendants argue that Plaintiffs' federal common law claim is faulty in two respects: 1) that a funding statute constitutes a contract; and 2) Plaintiffs are third-party beneficiaries who may enforce such a contract. See Def. Motion at p. 34. Plaintiffs counter that any determination of Plaintiffs' rights as third-party beneficiaries under the Adoption Assistance Act and/or CAPTA constitutes a "mixed question of law and fact," and therefore, cannot be addressed on Defendants' motion to dismiss. See Pl.Opp. at pp. 49-50 (citing Thomas v. New York City, 814 F. Supp. 1139, 1152 (S.D.N.Y.1993)).[13] Defendants respond that the Court should never get to the "mixed question" of Plaintiffs' rights as third-party beneficiaries because Plaintiffs' Sixth Count is not cognizable as a matter of law. See Def. Reply at p. 12. Specifically, Defendants argue that there is no precedent offered by Plaintiffs for the assertion that a "`State plan' formulated under AACWA and CAPTA and approved by the Secretary of Health and Human Services pursuant to those statutes somehow constitutes a contract." Id.
Defendants are correct. First, Plaintiffs have failed to offer any support for the proposition that New Jersey's State plans formulated under the Adoption Assistance Act or CAPTA and approved by the Secretary of Health and Human Services pursuant to these statutes constitute a contract. Second, Plaintiffs have not offered support for their contention that New Jersey may be sued in contract for an alleged failure to appropriately carry out a State plan drafted under the Adoption Assistance Act or CAPTA. For example, Plaintiffs cite Davis v. Philadelphia Housing Authority, 121 F.3d 92, 100 (3d Cir.1997) for the proposition that Plaintiffs' claims for breach of the State plans agreed to by New Jersey pursuant to the Adoption Assistance *503 Act and CAPTA may be brought against the State under established federal common law principles governing third party beneficiary rights. See Pl.Opp. at p. 49. However, the Third Circuit in Davis clearly noted the limited scope of its holding:
At the outset, we note the limited scope of the issue we are asked to review; namely, whether the district court erred by dismissing the Davis's claims for lack of standing. This issue is analytically distinct from the related question of whether the Lead Act provides Section 8 participants or their successor tenants with either an express or implied cause of action against the Housing Authority for an alleged breach of its duties to inspect for lead-based hazards and to ensure removal of such hazards in apartment units which are, or at some time were, part of the Section 8 program. [W]e [have] explicitly noted the distinction between a dismissal of a claim for lack of standing based upon a failure to satisfy the zone of interest test and a dismissal for failure to state a cause of action.
Davis, 121 F.3d at 94 (citations omitted) (emphasis added). Plaintiffs also cite Thomas v. New York City, 814 F. Supp. 1139, 1152 (E.D.N.Y.1993) as an example of a situation where the Eastern District of New York denied "defendants' motion to dismiss plaintiffs' claim as third party beneficiaries to contracts between city and foster care contractors under Fed.R.Civ.P. 12(b)(6) or (c), because claim was `mixed question of law and fact' and contracts were not before the Court." See Pl.Opp. at pp. 49-50. However, given the Suter holding, the Thomas court clearly indicated that it did not address any claim by the plaintiffs as third party beneficiaries, or otherwise, under the Adoption Assistance Act. See Thomas, 814 F.Supp. at 1152 (noting "[t]he City defendants next argue, and plaintiffs concede, that there is no private right of action under the Federal Adoption Assistance and Child Welfare Act, 42 U.S.C. §§ 670 et seq.") (citing Suter v. Artist M., 503 U.S. 347, 112 S. Ct. 1360, 118 L. Ed. 2d 1 (1992)). Thus, neither Davis, nor Thomas, stand for the proposition that Plaintiffs may sue New Jersey in contract for an alleged failure to appropriately carry out a State plan drafted under the Adoption Assistance Act or CAPTA. The other cases cited by Plaintiffs also fail to support Plaintiffs contentions with respect to their third-party beneficiary claim. For example, Plaintiffs cite D'Amato v. Wisconsin Gas Company, 760 F.2d 1474, 1479 (7th Cir.1985) for the proposition that a "claim as third party beneficiary to contract entered into pursuant to federal statute is governed by federal common law." Pl.Opp. at p. 49. However, D'Amato, while noting that "[t]his case concededly implicates federal common law rather than state common law, because rights allegedly arising out of a federal statute are at issue," D'Amato, 760 F.2d at 1478-79, also found that not only could the plaintiff not enforce a private right under Section 503 of the Rehabilitation Act, the plaintiff could not circumvent this conclusion by asserting a common law cause of action as a third-party beneficiary. Id. (holding that "plaintiff seeks to avoid the well-settled rule ... that no private right of action arises under Section 503"). Therefore, given that Plaintiffs cannot state a § 1983 cause of action upon which relief may be granted under the Adoption Assistance Act or CAPTA, Plaintiffs cannot circumvent the Court's holding by asserting a third-party beneficiary claim.[14]
*504 For these reasons, Defendants' motion to dismiss for failure to state a claim is granted with respect to the Sixth Count of Plaintiffs' Complaint.
3. Plaintiffs' Federal Constitutional Claims
Plaintiffs also allege three constitutional causes of action. Specifically, Plaintiffs allege that they "are being deprived of their substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution." See Compl. at First Count. Plaintiffs also allege that they "are being deprived of state created liberty or property rights without due process of law" in violation of the Fourteenth Amendment to the United States Constitution. Id. at Second Count. Finally, Plaintiffs allege that they "are being deprived of their right conferred upon them by the First and Ninth Amendments to the United States Constitution not to be deprived of a family relationship absent compelling reasons." Id. at Third Count.
a. Substantive Due Process
Plaintiffs allege that the "Fourteenth Amendment of the United States Constitution guarantees to each child in state custody the substantive due process right to be free from harm and the right to conditions of custody reasonably related to the purpose of custody." Compl. at ¶ 57. Specifically, Plaintiffs allege that the "right to be free from harm encompasses the right to treatment in accordance with reasonable professional standards, and the right to the services necessary to prevent children from deteriorating physically, psychologically or otherwise while in state care, including but not limited to safe, secure foster care placements, appropriate monitoring and supervision, case planning and management, permanency planning and medical, psychiatric, psychological and educational services." Id. In this regard, Plaintiffs allege that the "actions and inactions of the defendants are inconsistent with the exercise of reasonable professional judgment and also amount to a pattern, practice and custom of deliberate indifference to plaintiff children's constitutional rights." Id. at ¶ 401. Consequently, Plaintiffs allege that they "are being deprived of their substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution." Id. Specifically, Plaintiffs allege the deprivation of the following rights: i) right to protection from harm; ii) right not to be harmed, "physically, emotionally, developmentally, or otherwise while in state custody;" iii) right not to remain in state custody "unnecessarily;" iv) right to be housed in the "least restrictive, most appropriate and family-like placement" while in state custody; v) right to treatment; vi) right to treatment related to the cause of their confinement; and vii) right to receive care, treatment and services consistent with "competent professional judgment." Id.
With respect to Plaintiffs' substantive due process claim, Defendants first argue that only those children in state custody can assert a substantive due process constitutional claim. See Def. Motion at p. 42 (citations omitted). Thus, Defendants assert that the substantive due process claims by Ryan, Christopher, and Melissa H. and Ricky, Daniel, and Thomas M. must be dismissed because these Plaintiffs "allege that they are in the custody of their families." Id. In this regard, Defendants note that "over 40,000 of the alleged 50,000 [children in the putative class] fall into this category of non-custodial cases," and therefore, any such substantive due process claim on behalf of this group must also be dismissed. Id. (citing Compl. at ¶ 36 (noting that "approximately 9,250 children [are] in the custody of DYFS")).[15]*505 Defendants next argue that Plaintiffs are merely trying to bootstrap state statutory provisions onto the Constitution and the Constitution does not guarantee the broad services demanded by Plaintiffs. Id. at p. 42. Plaintiffs respond first that Defendants concede that Plaintiffs who are in state custody have properly alleged substantive due process violations. See Pl. Opp. at p. 6. Plaintiffs next argue that the non-custodial Plaintiffs have stated a § 1983 cause of action under the "state-created danger doctrine." Id. at pp. 6-7 (citations omitted). Finally, with respect to the number of substantive due process rights asserted by Plaintiffs, Plaintiffs argue that "[t]he exact parameters of plaintiffs' substantive due process rights will be developed at trial," but "[t]he Complaint contains specific allegations that plaintiff children who are in the state's custody have been harmed by the defendants' failure to exercise reasonable professional judgment and their pattern and practice of deliberate indifference to plaintiffs' needs." Id. at p. 8.[16] Defendants reply that "none of the allegations by the non-custodial plaintiffs suggests a state-created danger," and therefore, the substantive due process claims of Plaintiffs like Ryan, Christopher, and Melissa H. and Ricky, Daniel, and Thomas M. must be dismissed. See Def. Reply at p. 13. Further, with respect to the remaining Plaintiffs, Defendants argue that Plaintiffs are incorrect in asserting that "[t]he exact parameters of plaintiffs' substantive due process rights will be developed at trial," because the parameters of such rights are a matter of law, not fact to be determined at trial, and as a matter of law, Plaintiffs' substantive due process rights are rather limited, as compared to the "laundry list of rights" asserted by Plaintiffs. Id.
Initially, as noted, Plaintiffs begin their discussion of their substantive due process claim by asserting that the Fourteenth Amendment "guarantees to each child in state custody the ... right to be free from harm and the right to conditions of custody reasonable related to the purpose of custody." Compl. at ¶ 57. However, later in the Complaint, Plaintiffs do not draw as clear a distinction between custodial and non-custodial children with respect to Plaintiffs' substantive due process claim. See Compl. at ¶ 401. Any analysis of Plaintiffs' substantive due process claim must begin by drawing a clear distinction between custodial and non-custodial children. See DeShaney v. Winnebago County Dep't of Social Serv., 489 U.S. 189, 201, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989) (noting that "Estelle-Youngberg" line of cases had "no applicability in the present case" because plaintiffs "concede that the harms Joshua suffered occurred not while he was in the State's custody, but while he was in the custody of his natural father, who was in no sense a state actor" and noting "[t]hat the State once took temporary custody of Joshua does not alter the analysis"). Thus, Plaintiffs' substantive due process claim will be analyzed in light of this distinction.
i. non-custodial children
With respect to Plaintiffs' substantive due process claims on behalf of the over 40,000 non-custodial children, Plaintiffs argue that these children have the "right to be protected from harm when the state places them in a situation that the state knows to be dangerous." Pl.Opp. at pp. 7-8 (citations omitted). While on its *506 face, such a claim may have some appeal because of the tragic circumstances alleged by Plaintiffs, a closer examination of the "state-created danger doctrine" reveals that what is required is something much more than being "aware of the dangers that [non-custodial children] face[] in the free world." D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1373 (3d Cir.1992), cert. denied, 506 U.S. 1079, 113 S. Ct. 1045, 122 L. Ed. 2d 354 (1993) (citing DeShaney, 489 U.S. at 201, 109 S. Ct. 998). Instead, what is required is that the state "affirmatively acted to create plaintiff's danger, or to render him or her more vulnerable to it." Id. (citation omitted). Indeed, "[l]iability under the state-created danger theory is predicated upon the states' affirmative acts which work to plaintiffs' detriments in terms of exposure to danger." Id. at 1374. Thus, there must be a "level of intermingling of state conduct with private violence" in order to support liability under the state-created danger doctrine for the harm alleged by Plaintiffs to non-custodial children. Id. at 1375.
In support of their claim that Defendants violated a constitutional duty by creating or exacerbating a danger to non-custodial children, Plaintiffs offer the following example:
Dennis M. and Denise R. were placed by defendants with their grandparents even though the grandparents were mentally "low functioning" and "incapable of protecting" the children. The defendants did not remove the children from that home or seek formal custody until two years later, when they finally concluded the children were unsafe, poorly supervised and being neglected. Dennis and Denise "remain seriously emotionally disturbed due to the Division's failure to protect them."
Pl.Opp. at p. 9 (citations to Compl. omitted). However, such alleged nonfeasance on Defendants' part is not actionable under the state-created danger doctrine. See D.R., 972 F.2d at 1376 (holding that showing of nonfeasance does "not rise to the level of a constitutional violation"). Moreover, no matter how tragic the circumstances as alleged, or that children may be involved, see Pl.Opp. at pp. 6-7 (citing Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) and arguing that "even incarcerated criminals are entitled to protection against deliberate indifference to their medical needs"), this does not suffice to show that the Defendants affirmatively "create[d][P]laintiffs' peril, increase[d] their risks of harm, or act[ed] to render them more vulnerable." See D.R., 972 F.2d at 1374 (holding that "[a]lthough we find this to be ... a tragedy," the facts did not support liability under state-created danger doctrine). Finally, to the extent Plaintiffs may argue that Defendants increased the risk of harm to non-custodial children by failing to comply with a duty imposed by state law, such a claim is not cognizable pursuant to the Due Process Clause. Id. at 1375 (holding that "a violation of a state law duty, by itself, is insufficient to state a § 1983 claim"). For these reasons, to the extent Plaintiffs' seek to assert a substantive due process claim on behalf of non-custodial children in the First Count of Plaintiffs' Complaint, Defendants' motion to dismiss is granted.
ii. custodial children
Initially, with respect to the approximately 9,250 children in state custody, a distinction must be drawn between those children involuntarily within state custody and those voluntarily within state custody, if such children exist. DeShaney, 489 U.S. at 201, 109 S. Ct. 998 (holding that "[i]n the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf through incarceration, institutionalization, or other similar restraint of personal liberty which is the `deprivation of liberty' triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interest against *507 harms by other means"). See also Milburn v. Anne Arundel County Dep't of Social Serv., 871 F.2d 474, 476 (4th Cir.) (noting that "[t]he State of Maryland by the affirmative exercise of its power had not restrained the plaintiff's liberty; he was voluntarily placed in the foster home by his natural parents"), cert. denied, 493 U.S. 850, 110 S. Ct. 148, 107 L. Ed. 2d 106 (1989). It is not clear from the face of Plaintiffs' Complaint whether there are children in state custody voluntarily. However, Defendants' motion to dismiss is granted with respect to the First Count of Plaintiffs' Complaint to the extent Plaintiffs' allege a substantive due process claim on behalf of children voluntarily in state custody.
With respect to those children involuntarily in state custody, although DeShaney "express[ed] no view on the validity of [the] analogy" that "[h]ad the State by the affirmative exercise of its power removed [plaintiff] from free society and placed him in a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect," DeShaney, 489 U.S. at 201, n. 9, 109 S. Ct. 998, other courts have recognized that the analogy is appropriate. See, e.g. Taylor v. Ledbetter, 818 F.2d 791, 796 (11th Cir.1987) (holding that the "such similarities exist between a prisoner's situation and the situation of a minor forced into a foster home that we are justified in holding that the situations are sufficiently analogous to support a section 1983 action"), cert. denied, 489 U.S. 1065, 109 S. Ct. 1337, 103 L. Ed. 2d 808 (1989). Indeed, courts have recognized the right of children "who have been involuntarily placed in the custody of [the state] may state a claim for violation of their substantive due process rights based upon their right to freedom from harm under the fourteenth amendment of the United States Constitution." Baby Neal v. Casey, 821 F. Supp. 320, 335 (E.D.Pa.1993). However, this right to freedom from harm under the Due Process Clause of the Fourteenth Amendment does not entitle Plaintiffs to an "optimal level of care and treatment." B.H. v. Johnson, 715 F. Supp. 1387, 1397-98 (N.D.Ill.1989). Moreover, this right to freedom from harm is not without boundaries. Specifically, under the Fourteenth Amendment, the State is required to provide to individuals within state custody their "basic human needs," such as "food, clothing, shelter, medical care, and reasonable safety." DeShaney, 489 U.S. at 200, 109 S. Ct. 998 (citations omitted). Thus, Plaintiffs do not have a substantive due process right to "not remain in state custody unnecessarily," nor do Plaintiffs have a substantive due process right "to be housed in the least restrictive, most appropriate and family-like placement while in state custody." See Baby Neal, 821 F.Supp. at 335 (dismissing plaintiffs' claims for "permanent placements or placement in preadoptive homes pending their adoption"). Therefore, Defendants' motion to dismiss is granted with respect to the First Count of Plaintiffs' Complaint to the extent Plaintiffs assert a substantive due process claim on behalf of children involuntarily in state custody to "not remain in state custody unnecessarily" or "to be housed in the least restrictive, most appropriate and family-like placement while in state custody." See Compl. at ¶ 401. With respect to Plaintiffs' remaining substantive due process claims in the First Count of Plaintiffs' Complaint on behalf of children involuntarily in state custody, specifically, Plaintiffs' substantive due process claim based upon the right not to be harmed, which includes the right to reasonable protection from harm and Plaintiffs' substantive due process claim to the right to treatment, which includes the right to receive care, treatment and services consistent with competent professional judgment, Defendants' motion to dismiss is denied.[17]
*508 Therefore, Defendants' motion to dismiss is granted in part and denied in part as noted herein with respect to the First Count of Plaintiffs' Complaint.
b. Procedural Due Process
Plaintiffs also allege that the "Fourteenth Amendment further guarantees the right not to be deprived of state-created liberty or property interests [arising from Title Nine and Title Thirty of New Jersey's statutes] without due process of law." Compl. at ¶ 58. Specifically, Plaintiffs allege that Title Nine and Title Thirty of the New Jersey statutory code confer certain benefits upon them, and as such, may not be deprived without due process of law, in that the said statutory schemes require Defendants to:
operate, on a twenty-four daily basis, a system for receiving allegations of child abuse or neglect; initiate investigations into screened reports of child abuse and neglect within the mandated time frame (either immediately, within twenty-four hours, seventy-two hours or up to ten days, depending on the nature of the report); conduct a full investigation, including face-to-face interview with, among others, the child, the parent or caretaker responsible for the child at the time of the incident, any other child who resides in the home and each alleged perpetrator, and obtain information from collateral sources who might have relevant information regarding the child or family; forward all reports of abuse and neglect to the central registry within seventy-two hours; and unless good cause is shown, make a final determination within forty-five days as to whether the allegation is substantiated, not substantiated, or unfounded;
take immediate steps, upon receipt of a report of abuse or neglect, necessary to ensure the safety of the child; initiate a judicial proceeding by the next business day if a child determined to be in imminent danger is taken into custody;
provide an immediate medical examination to each child taken into custody pursuant to an emergency removal or temporary removal with consent;
begin a search for relatives willing and able to care for a child within thirty days of taking the child into custody, and make their best effort to place the child who has been removed with a relative; provide each child determined to be eligible for pre-placement services, or services while in foster care, with a comprehensive assessment and case plan that includes all required elements within thirty days from the date the child enters placement or forty-five days from the date of referral, and a reassessment and case plan review with all required elements within six months from the completion of the initial case and assessment plans and [sic] every six months thereafter;
make reasonable efforts, in the circumstances articulated by statute, prior to placing a child outside of the home to preserve the family in order to prevent the need for removing the child from the home, and make reasonable efforts after placement to make it possible for the child to safely return home;
provide each child placed outside of the home with a placement plan; provide each child who is placed outside of the home, returned home, and then once again removed, with a repeated placement plan within thirty days of the repeated placement;
provide each child placed outside of the home with a visitation plan, and ensure than a child placed outside of the home is accorded visitation with parents and siblings, and contact with the caseworker in accordance with visitation and case plans; *509 identify and provide each child and family with services in accordance with the child's case plan, including, but not limited to, case planning and case management services, casework contacts, clothing allowances, day care services, homemaker services, emergency maintenance services, clinical services, family preservation services, transportation services, shelter care, and maintenance services;
ensure that the type or level of foster care placement in which a child resides is the least restrictive and appropriate to the individualized needs of the child; ensure that a child placed outside of the home receives services of a high quality that are designed to maintain and advance the child's mental and physical well being, an educational program that will maximize the child's potential, and safe and appropriate food, clothing and medical care;
adequately investigate potential foster homes in the manner required by law before approving foster parents and placing children in their homes, and appropriately evaluate and review the foster homes annually;
ensure that all foster children achieve permanency either by being returned to their families at the earliest date on which it is safe to do so, or, when reunification is not appropriate, by petitioning for long-term foster care or terminating parental rights and arranging for adoption within the time frames established by law;
provide each child with a permanency hearing within 30 days after a determination that reasonable efforts to reunify the family are not required or no later than 12 months after the child has entered placement in all other cases;
provide children placed in foster care with annual judicial reviews as well as annual administrative reviews; provide children who have been freed for adoption and who are in a pre-adoptive home when no adoption petition has been filed with an administrative review every six months; and
provide each child 16 years of age or older with a written plan, reviewed annually, to prepare the youth for self-sufficient living.
Compl. at ¶ 60a-p. In this regard, Plaintiffs allege that the "actions and inactions of defendants are inconsistent with the exercise of reasonable professional judgment and also amount to a pattern, practice and custom of deliberate indifference to plaintiff children's procedural due process rights." Id. at ¶ 402. Consequently, Plaintiffs allege that they are being deprived of the following liberty or property rights created by state statute without due process of law: i) the right to have allegations of child abuse or neglect investigated within specified time frames and in a specified manner; ii) the right of each child who is determined to be eligible for pre-placement services or who is in foster care to be provided with a service assessment and a service plan within specified time frames and in a specified manner; iii) the right of each child and her family to receive services in accordance with the child's service assessment and plan, including case contact, case planning and case management services; iv) the right of children in foster care to reside in a placement appropriate to her particular needs and to receive necessary supportive and rehabilitative services; v) the right to a visitation plan and visits with family members in accordance with that plan; vi) the right to have all potential foster homes, foster parents and other placements investigated and monitored in a specified manner before any children are placed in them; vii) the right to have those homes and placements supervised, visited and inspected periodically in a specified manner; viii) the right of all foster children to either be returned to their families or freed for adoption and adopted so as not to languish in foster care; and ix) the right to have their cases judicially and administratively reviewed at *510 specified intervals and in specified manners. Id.
With respect to Plaintiffs' procedural due process claim, Defendants argue that: i) Plaintiffs may not enforce New Jersey law against the State in federal court; ii) the provisions of New Jersey law in question do not create liberty or property interests such as traditionally protected under the Fourteenth Amendment; and iii) even if Plaintiffs could point to an entitlement, they have not sufficiently pled a deprivation of their rights without due process. See Def. Motion at p. 36. Plaintiffs respond that: i) Plaintiffs are not attempting to enforce state law, but instead, are attempting to enforce federal interests created by state law; ii) New Jersey law creates legal entitlements for children in foster care under the Fourteenth Amendment; and iii) the Complaint properly alleges systematic deprivation of procedural due process protections. See Pl.Opp. at pp. 13-17. Defendants reply that "[a]ssuming, without conceding, that New Jersey law creates one or more entitlements in children in foster care," Plaintiffs never set forth how these entitlements are being denied without due process of law. See Def. Reply at p. 13.
Initially, the due process rights alleged by Plaintiffs mirror, almost identically, the rights asserted by Plaintiffs under CAPTA and AACWA, even though such alleged rights were apparently lifted from New Jersey statutes. See Compl. at ¶ 60. For example, Plaintiffs allege that they are being deprived of the right, without due process of law, "to have allegations of child abuse or neglect investigated within specified time frames and in a specified manner." Compl. at ¶ 402. This mirrors the right alleged by Plaintiffs under CAPTA, "to the enforcement of laws requiring prompt and professional investigations of allegations of abuse or neglect" and the right "to protection from those who endanger their health and welfare." Id. at ¶ 405. Also, Plaintiffs allege that they are being deprived of the right, without due process of law, "to be provided with a service assessment and a service plan within specified time frames and in a specified manner." Id. at ¶ 402. This language is nearly identical to the right alleged by Plaintiffs under AACWA to have Defendants "implement a pre-placement preventive services program designed to help children remain with their families or be returned to their families when appropriate" and the right to "timely written case plans that contain mandated elements." Id. at ¶ 404. Similarly, Plaintiffs further allege that they are being deprived of the right, without due process of law, "to receive services in accordance with the child's service assessment and plan, including case contact, case planning and case management services." Id. at ¶ 402. This right is nearly identical to the right alleged by Plaintiffs under AACWA to "the implementation and review of [timely written case plans that contain mandated elements]" and to "planning and services to secure their permanent placement at the earliest possible time." Id. at ¶ 404. Moreover, Plaintiffs claim that they are being deprived of the right, without due process of law, "to reside in a placement appropriate to her particular needs and to receive necessary supportive and rehabilitative services." Id. at ¶ 402. This is no different than the right alleged by Plaintiffs under AACWA to "placement in the least restrictive, most family-like setting." Id. at ¶ 404. Similarly, Plaintiffs allege that they are being deprived of the right, without due process of law, "to a visitation plan and visits with family members in accordance with that plan." Id. at ¶ 402. However, this is simply another way to describe the right alleged by Plaintiffs under AACWA to "placement in the least restrictive, most family-like setting." Id. at ¶ 404. Further, Plaintiffs allege that they are being deprived of the right, without due process of law, "to have all potential foster homes, foster parents and other placements investigated and monitored in a specified manner before any children are placed in them" and "to have those homes *511 and placements supervised, visited and inspected periodically in a specified manner." Id. at ¶ 402. This right is nearly identical to the right alleged by Plaintiffs under AACWA to "placement in foster homes or facilities that conform to nationally recommended professional standards." Id. at ¶ 404. Plaintiffs also allege that they are being deprived of the right, without due process of law, "to either be returned to their families or freed for adoption and adopted so as not to languish in foster care." Id. at ¶ 402. This is identical to the right alleged by Plaintiffs to exist under AACWA to "be freed for adoption in accordance with the time frame established by law." Id. at ¶ 404. Finally, Plaintiffs allege that they are being deprived of the right, without due process of law, "to have their cases judicially and administratively reviewed at specified intervals and in specified manners." Id. at ¶ 402. This is no different than the rights asserted by Plaintiffs under AACWA to "regular judicial and administrative reviews of their foster care placements" and "dispositional hearings within twelve months of entering custody and periodically thereafter." Id. at ¶ 404.
This somewhat mechanical exercise is extremely important to the analysis of Plaintiffs' procedural due process claim because in order for Plaintiffs to properly assert a claim for deprivation of a protected interest without due process of law, a protected interest must exist under either state or federal law. See Pl.Opp. at pp. 13-14 (citing Olim v. Wakinekona, 461 U.S. 238, 249, 103 S. Ct. 1741, 75 L. Ed. 2d 813 (1983) and Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983) for the proposition that "[s]tatutory language creates a legitimate claim to [an] entitlement if it contains (1) particularized substantive standards or criteria to guide official discretion" and "(2) mandatory language which obligates state officials to follow the standards or criteria"). Whether Plaintiffs cite to certain state statutes in support of their procedural due process claim is of little consequence to the determination of Defendants' motion to dismiss with respect to Plaintiffs' procedural due process claim because Plaintiffs have based their procedural due process claim on interests identical to those asserted under AACWA and CAPTA. Indeed, many of the state statutes cited by Plaintiffs in support of their alleged liberty or property interests simply mirror the language of AACWA and CAPTA. Compare, e.g. N.J.S.A. 9:6B-4g (listing one of the "[r]ights of child placed outside the home" as the right to "placement in the least restrictive setting appropriate to the child's needs and conducive to the health and safety of the child") with 42 U.S.C. § 675(5)(A) (defining "case review system" as a "procedure for assuring that each child has a case plan designed to achieve placement in a safe setting that is the least restrictive (most family like) and most appropriate setting available"). Thus, it is easy to understand why Plaintiffs' alleged procedural due process rights are identical to Plaintiffs' alleged rights enforceable pursuant to § 1983 under AACWA and CAPTA. For the numerous reasons discussed above, including that the statutory provisions relied upon by Plaintiffs are too vague and amorphous to lend themselves to judicial enforcement, it has already been determined that Plaintiffs have no enforceable rights under either AACWA or CAPTA or the regulations promulgated pursuant thereto. Because of this resolution, and because the test to determine whether rights exist under § 1983 and the test to determine whether liberty or property rights exist requiring procedural due process are so similar, compare Blessing v. Freestone, 520 U.S. 329, 340, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997) with Olim v. Wakinekona, 461 U.S. 238, 249, 103 S. Ct. 1741, 75 L. Ed. 2d 813 (1983) and Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983), and because the liberty and property rights alleged by Plaintiffs are nearly mirror images of the § 1983 rights alleged by Plaintiffs because such rights are based on nearly identical *512 statutory language, whether it be state or federal, Plaintiffs cannot establish the existence of any liberty or property interests that would entitle them to due process under the Fourteenth Amendment. Therefore, Defendants' motion to dismiss is granted with respect to the Second Count of Plaintiffs' Complaint.[18]
c. First and Ninth Amendments
Plaintiffs allege that the "First and Ninth Amendments of the United States Constitution guarantee the rights to privacy and family integrity, and grant children the right not to be removed from their families absent a showing of compelling necessity." Compl. at ¶ 59. In this regard, Plaintiffs allege that the "actions and inactions of defendants are inconsistent with the exercise of reasonable professional judgment and also amount to a pattern, practice and custom of deliberate indifference to plaintiff children's constitutional rights." Id. at ¶ 403. Specifically, Plaintiffs allege that they "are being deprived of their right conferred upon them by the First and Ninth Amendments of the United States Constitution not to deprived of a family relationship absent compelling reasons." Id.
With respect to Plaintiffs' First and Ninth Amendment claim, Defendants note that the facts alleged with regard to many of the individual Plaintiffs, specifically, Charlie and Nadine H., Dennis M. and Denise R., Ricardo O., Delores and Anna G., Christopher and Melissa H., Ricky, Daniel and Thomas M., and Barry M., fail to state a claim under Plaintiffs' First and Ninth Amendment claim for violation of the right to family integrity because "[f]ar from seeking to be reunited with their parents, many of children are seeking faster and more permanent separation from them." Def. Motion at p. 39 and 40. Further, Defendants argue that, with respect to Jason, Jennifer and Patti W., Plaintiffs cannot assert a right to family integrity by arguing that DYFS has failed to provide services to the children's father, because "the Constitution does not guarantee the right to services necessary to reunite children with their biological parents." Def. Motion at p. 40. Moreover, Defendants argue that, with respect to Marco and Juan C., there is no "constitutional right [for siblings] to be placed together," and that there is little support for a constitutional right to "contact and visitation." Id. at p. 41 (citations omitted). Plaintiffs counter that their "fundamental right not to be deprived of a family relationship absent compelling reasons is rooted in the First Amendment's broad right of association and the Ninth Amendment's right to privacy" and "the right to family integrity extends to children who are denied visitation with siblings or parents." Pl.Opp. at pp. 17-18 (citing Aristotle P. v. Johnson, 721 F. Supp. 1002, 1007-08 (N.D.Ill.1989) and Marisol A., 929 F.Supp. at 676-77). In this regard, Plaintiffs specifically note that: i) "Marco and Juan C. allege that defendants separated them after failing to provide training to their foster parents on how to care for their `neurological and behavioral problems[,]'" and "fail[ed] to ensure contact and visitation between them when they were placed separately;" ii) "Barry M. alleges that because DYFS did not have an appropriate residential treatment program in-state he was twice placed out of state, and remains in Georgia, far from his grandfather, who is his guardian and is the only family he has left. As a result, Barry's contact with his father is limited;" and iii) "Jason, Jennifer and Patti W. allege that DYFS is arbitrarily denying their right to family integrity by *513 keeping them from their father's custody even though the Division has now `placed another child the siblings' cousin with [their] father." Id. at p. 18 (citations to Compl. omitted). Defendants reply that Plaintiffs concede that "with respect to a great majority of the named plaintiffs, they can allege no impact whatsoever on any family relations." Def. Reply at p. 16. Further, Defendants argue that, with respect to Plaintiffs' argument regarding Barry M., the Complaint fails to state a claim under the First and Ninth Amendments, and even if it did, no such right to grand-parental visitation exists. Id. at pp. 16-17. Finally, with respect to the W. children and Marco and Juan C., Defendants reiterate their earlier arguments that there is no constitutional right to certain services, Plaintiff deem necessary, in order to preserve, or reunite, the family. Id. at p. 16.
Initially, a majority of individual Plaintiffs fail to state a claim for relief under Plaintiffs' theory of liability under the First and Ninth Amendments. Thus, Defendants' motion to dismiss is granted with respect to those Plaintiffs. With respect to Barry M., the Complaint fails to allege a deprivation of the "right to family integrity" on behalf of Barry M. See Compl. at ¶ 204.[19] Moreover, even if the Complaint alleged such a deprivation, putting aside for the moment whether a right to grandparental visitation exists, the facts as alleged by Plaintiffs would not support such a claim. Specifically, Barry M. has not alleged that his grandfather has been denied visitation, but instead alleges that due to inadequacies in New Jersey's child welfare system, "[c]ontact with his grandfather, the only family he has left, is now limited." Compl. at ¶ 202. Clearly, the case law cited by Plaintiffs in support of their claim under the First and Ninth Amendment does not establish an absolute right to family integrity. See, e.g. Marisol A., 929 F.Supp. at 676 (noting that "the only courts to apply the concept of family integrity to the child welfare context have done so when children in foster care were denied visitation with siblings and parents") (emphasis added). Thus, given the limited breadth of holdings in this area, the so-called right to family integrity will not be extended to situations where a plaintiff, such as Barry M., alleges limited familial contact, as compared to no contact.
More importantly, with respect to the general nature of Plaintiffs' claim under the First and Ninth Amendments, as highlighted by Plaintiffs' allegations with respect to the W. children, even the case most relied upon by Plaintiffs recognizes that "[c]ourts have held ... that plaintiffs `do not have a constitutional right to rely on an agency to strengthen and reunite their families even if that agency has a statutory duty to do so.'" Marisol A., 929 F.Supp. at 677 (rejecting plaintiffs' challenge of defendants' "general failure to provide services that function to preserve the family unit" under the First, Ninth, and Fourteenth Amendments) (citation omitted). Therefore, that Plaintiffs may allege that Defendants have failed to provide training to the foster parents of Marco and Juan C. or failed to take "steps to assist the father [of the W. children] in *514 securing housing for his children," Compl. at ¶¶ 91 and 119, does not state a cause of action under the First and Ninth Amendments. Thus, for this and the other reasons set forth above, Defendants' motion to dismiss is granted with respect to the Third Count of Plaintiffs' Complaint.
4. Abstention
Giving the foregoing, the majority of Plaintiffs' claims have been dismissed. However, the following claims remain: i) Plaintiffs' § 1983 claim on behalf of Marco and Juan C. to the extent Plaintiffs allege Defendants violated 42 U.S.C. § 671(a)(18)(B), which requires that a State plan provide that the State may not "delay or deny the placement of a child for adoption or into foster care, on the basis of race, color, or national origin of the adoptive or foster parent, or the child, involved," and 42 U.S.C. § 674(d)(3)(A), which explicitly provides that "[a]ny individual who is aggrieved by a violation of Section 671(a)(18) of this title by a State or other entity may bring an action seeking relief from the State or other entity in any United States district court;" and ii) Plaintiffs' substantive due process claim on behalf of children involuntarily in state custody not to be harmed, which includes the right to reasonable protection from harm, and the right to treatment, which includes the right to receive care, treatment and services consistent with competent professional judgment. With respect to these claims, Defendants argue that the Court should abstain from hearing Plaintiffs' claims under Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). See Def. Motion at p. 46. With respect to Plaintiffs' § 1983 claim on behalf of Marco and Juan C., as explicitly provided for in 42 U.S.C. § 674(d)(3)(A), Younger abstention is not appropriate. Moreover, with respect to the remaining substantive due process claims, which are similar in nature to substantive due process claims brought of behalf on incarcerated and institutionalized individuals, Younger abstention is not appropriate.[20] Thus, at this juncture, abstention is not warranted.
IV. Conclusion
It would be the height of federal judicial arrogance for this Court to supplant the efforts of New Jersey's legislative, executive, and judicial branches with respect to the everyday functioning of the child welfare system in the broad, over-reaching way suggested by Plaintiffs. A review of the relief sought by Plaintiffs confirms this sentiment. For example, Plaintiffs seek the appointment of "an expert panel with full access to defendants, their records and their personnel, to develop and oversee the implementation of a plan for reform, to ensure that defendants protect the constitutional and federal statutory rights of the plaintiff class." Compl. at pp. 129-30. However, this Court has not been named the Commissioner or Director of any state agency charged with the task of administering what, admittedly, is a troubled child welfare system. Moreover, this Court is not a cure-all elixir for the many ills of society, even if it appears to some members of the public that the state governmental units charged with curing these ills do not move fast enough. Indeed, while some may describe the situation of many of the children in New Jersey's welfare system as a "plight," this Court cannot ease this plight under many of the theories offered by Plaintiffs.
For these reasons, and for the reasons set forth throughout this Opinion, Defendants' motion to dismiss for failure to state a claim upon which relief can be granted is granted with respect to the Second, Third, Fourth, Fifth, Sixth, Eighth, and Ninth Counts of Plaintiffs' Complaint. Moreover, Defendants' motion to dismiss is granted in part and denied in part as discussed herein with respect to the First and Seventh Count of Plaintiffs' Complaint. *515 An appropriate form of Order is filed herewith.
ORDER
This matter having come before the Court on the motion of Defendants, Christine Todd Whitman, as Governor of the State of New Jersey, Michele K. Guhl, as Commissioner of the Department of Human Services, and Charles Venti, as Director of the Division of Youth and Family Services of the State of New Jersey, to dismiss Plaintiffs' complaint for failure to state a claim upon which relief can be granted; the Court having heard oral argument in this matter on November 15, 1999; for the reasons set forth in the Opinion filed in the above-captioned matter on this date; and for good cause shown;
IT IS on this 27th day of January, 2000;
ORDERED that the Defendants' motion to dismiss Plaintiffs' Complaint for failure to state a claim upon which relief can be granted be and hereby is GRANTED with respect to the Second, Third, Fourth, Fifth, Sixth, Eighth, and Ninth Counts of Plaintiffs' Complaint; and
IT IS FURTHER ORDERED that Defendants' motion to dismiss Plaintiffs' Complaint for failure to state a claim upon which relief can be granted be and hereby is GRANTED IN PART and DENIED IN PART with respect to the First and Seventh Counts of Plaintiffs' Complaint; and
IT IS FURTHER ORDERED that Plaintiffs be and hereby are directed to initiate a telephonic conference call with all parties and the Court on Monday, February 7, 2000 at 11:00 a.m. for a scheduling conference to discuss the further progress of this action.
NOTES
[1] In opposition to Defendants' motion to dismiss, Plaintiffs submitted "Plaintiffs' Brief in Opposition to Defendants' Motion to Dismiss" (hereinafter "Pl.Opp."). In response to Plaintiffs' opposition, Defendants submitted a "Reply Brief in Support of Defendants' Motion to Dismiss" (hereinafter "Def. Reply").
[2] For the very same reasons, Plaintiffs' § 1983 claims asserting a right to "planning and services to secure their permanent placement at the earliest possible time, including documentation of the steps taken to secure permanency" under 42 U.S.C. § 675(1)(E) and to "regular judicial and administrative reviews of foster care placements" and to "dispositional hearings within twelve months of entering custody and periodically thereafter" under 42 U.S.C. § 671(a)(16), 42 U.S.C. § 671(b)(10)(B)(ii), and 42 U.S.C. § 675(5), are similarly dismissed. See Compl. at ¶ 404.
[3] Moreover, Plaintiffs' § 1983 claim for "safe and proper care," see Compl. at ¶ 63e and Pl.Opp. at p. 31, under 42 U.S.C. § 675(1)(B) and/or 42 U.S.C. § 671(a)(22) is dismissed for the same reasons as set forth herein with respect to Plaintiffs' claims for: i) a "case plan" and a "case review system" under 42 U.S.C. § 622(b)(10)(B)(ii), 42 U.S.C. § 671(a)(16), and 42 U.S.C. § 675(1) and (5); ii) "planning and services to secure their permanent placement at the earliest possible time, including documentation of the steps taken to secure permanency" under 42 U.S.C. § 675(1)(E); iii) "regular judicial and administrative reviews of foster care placements" and to "dispositional hearings within twelve months of entering custody and periodically thereafter" under 42 U.S.C. § 671(a)(16), 42 U.S.C. § 671(b)(10)(B)(ii), and 42 U.S.C. § 675(5); and iv) "placement in the least restrictive, most family-like setting" under 42 U.S.C. § 622(b)(10)(B)(ii) and/or 42 U.S.C. § 675(5).
[4] The decision to grant Defendants' motion to dismiss with respect to the Fourth Count of Plaintiffs' Complaint includes the alleged right "to be freed for adoption," see Compl. at ¶ 404, which appears to have been given little attention in the parties' briefing. See Pl.Opp. at p. 29, n. 7 and Def. Reply at p. 3, n. 1. In this regard, Plaintiffs' alleged right to be freed for adoption in accordance with "the time frames established by law" suffers from many of the same flaws as Plaintiffs' other claims under the AACWA, including improperly asking this Court to oversee DYFS's compliance with state law, which although not discussed at length herein, also raises serious Eleventh Amendment concerns.
[5] Further, although neither party mentions it, 42 U.S.C. § 674(d) also explicitly provides that "[a]ny individual who is aggrieved by a violation of section 671(a)(18) of this title by a State or other entity may bring an action seeking relief from the State or other entity in any United States district court." 42 U.S.C. § 674(d)(3)(A).
[6] Even if Plaintiffs had attempted to assert such a claim, it would raise serious questions of standing. Further, with respect to 42 U.S.C. § 622(b)(9) which provides that, in order to be eligible for the federal funding provided in 42 U.S.C. § 620 to states for "establishing, extending, and strengthening child welfare services," see 42 U.S.C. § 620(a), each plan for child welfare services developed pursuant to 42 U.S.C. § 622(a) shall "provide for the diligent recruitment of potential foster and adoptive families that reflect the ethnic and racial diversity of the children in the State for whom such foster and adoptive homes are needed," Plaintiffs have failed to assert a claim that there has not been diligent recruitment. See Compl. at ¶ 407 (asserting claim on behalf of "the plaintiff children ... being deprived of ... the right not to have adoptive or foster placements delayed or denied on the basis of race, color or national origin of the foster or adoptive parent or of the child"). Even if Plaintiffs had asserted a claim for "diligent recruitment of potential foster and adoptive families that reflect the ethnic and racial diversity of the children in the State for whom such foster and adoptive homes are needed," under Blessing, such a claim would be too vague and amorphous to lend itself to proper judicial administration. Indeed, as was the holding in Blessing, enforcement of such undefined rights like the right to "diligent recruitment of potential foster and adoptive families that reflect the ethnic and racial diversity of the children in the State for whom such foster and adoptive homes are needed," would certainly strain the judicial competence.
[7] However, to the extent Plaintiffs rely upon 42 U.S.C. § 674(d)(1), which provides that "[i]f, ..., a State's program operated under [Part E of Subchapter IV of Chapter 7 of the Social Security Act] is found, as a result of a review conducted under section 1320a-2a of this title, or otherwise, to have violated paragraph (18) ... of section 671(a) of this title with respect to a person or to have failed to implement a corrective action plan within a period of time not to exceed 6 months with respect to such violation, then, ..., the Secretary shall reduce the amount otherwise payable to the State under this part, ..., until the program is found, ..., to have implemented a corrective action plan with respect to such violation," Defendants' motion to dismiss is granted. This section of the MPA specifically provides that the federal government may reduce the funding provided pursuant to 42 U.S.C. § 670. However, the Secretary cannot compel New Jersey, or any other state, to act in a certain way with respect to a certain individual. See Blessing, 520 U.S. at 344, 117 S. Ct. 1353 (noting that "even upon a finding of substantial noncompliance, the Secretary can merely reduce the State's AFDC grant by up to five percent; she cannot, by force of her own authority, command the State to take any particular action or to provide any services to certain individuals. In short, the substantial compliance standard is designed simply to trigger penalty provisions that ... reduce the State's AFDC grant by a maximum of five percent. As such, it does not give rise to individual rights.") (emphasis added).
[8] Moreover, that Plaintiffs may allege that Defendants are not "enforcing" state law or "operating" a statewide program with the required "provisions and procedures" to protect abused and neglected children, see Pl. Opp. at p. 39, is of little consequence to the result under the Blessing analysis. Indeed, such a claim creates greater problems for Plaintiffs; specifically, that it would violate the Eleventh Amendment for this Court to order the State to enforce or comply with its own laws. See Jeanine B. v. Thompson, 967 F. Supp. 1104, 1118-19 (E.D.Wis.1997) (noting that "the 11th Amendment precludes this Court from ordering the State to properly enforce or comply with its own laws, and CAPTA cannot be interpreted in a manner that effectively overrides the State's 11th Amendment immunity in this regard") (citations omitted).
[9] In support of their EPSDT claim, Plaintiffs also offer "specific allegations [where] medical screening services and treatment have been systematically denied not only to specific children, but also to the putative class as a whole." Pl.Opp. at pp. 44-45. However, nowhere do Plaintiffs allege that they sought to enforce, but were denied, payment for specific treatments.
[10] In their Complaint, Plaintiffs do point to §§ 1396a and 1396d(a). See Compl. at ¶ 39b. As noted, § 1396a delineates what must be provided for in a "State plan for medical assistance." § 1396d(a), like § 1396d(r), is part of the definitional section for § 1396. Specifically, § 1396d(a) defines the term "medical assistance."
[11] In an apparent effort to avoid the argument that the rights Plaintiffs seek to enforce under EPSDT are standardless, Plaintiffs offer that the "age-appropriate intervals" sought may be "determined by a panel of independent health care experts." Compl. at ¶ 408. However, as noted above, this Court does not sit to oversee every aspect of the State plans as enunciated in 42 U.S.C. § 1396a, including supplanting the State's determination with respect to "reasonable standards of medical and dental practice" reached "after consultation with recognized medical and dental organizations involved in child health care." 42 U.S.C. § 1396d(r).
[12] In this regard, Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Section 504 of the RHA similarly provides that "[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from participation in, or be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a).
[13] Thomas was decided in the Eastern District of New York, not the Southern District as cited by Plaintiffs.
[14] Plaintiffs also cite McNeill v. New York City Housing Authority, 719 F. Supp. 233, 248 (S.D.N.Y.1989), and Concerned Tenants of Father Panik Village v. Pierce, 685 F. Supp. 316, 323 (D.Conn.1988). Both cases, however, are limited by the facts which supported their holdings and will not be extended to support Plaintiffs' contention that State plans formulated by New Jersey constitute a contract. Indeed, McNeill specifically noted that "[i]n finding that plaintiffs are intended third-party beneficiaries, the Court does not open the door to all beneficiaries of government contracts to attempt to enforce such contracts. This case is limited to the facts at hand." McNeill, 719 F.Supp. at 249.
[15] With respect to the 9,250 children in state custody, Defendants also argue that a distinction must be drawn between those children voluntarily placed in foster care and those placed involuntarily. See Def. Motion at p. 42, n. 19 (citations omitted). However, Defendants argue that this distinction cannot be drawn based upon the face of Plaintiffs' Complaint, and therefore, "[s]hould any of plaintiffs' substantive due process claims survive, defendants will address this issue at a later date when the record is more fully developed." Id.
[16] With respect to these allegations regarding Defendants' failure to exercise reasonable professional judgment, Plaintiffs argue that this standard is fact-sensitive, and therefore, cannot be determined on Defendants' motion to dismiss. See Pl.Opp. at p. 10.
[17] Of course, as to what exactly these due process rights encompass may be the subject of future motion practice. For example, the Court questions the extent to which Plaintiffs may claim a substantive due process right to "treatment related to the cause of their confinement" within the right to medical treatment. Compl. at ¶ 401. However, issues such as this may be visited in future.
[18] Moreover, Plaintiffs' Prayer for Relief highlights the inappropriateness of Plaintiffs' procedural due process clause claim. Specifically, Plaintiffs request that this Court "[d]eclare ... unlawful ... defendants' ... failure to comply with Titles 9 and 30 of the New Jersey State Statutes." Compl. at p. 129. However, such a request to enforce state law against a state in federal court raises serious Eleventh Amendment concerns which need only be mentioned at this juncture to note a further problem with Plaintiffs' procedural due process claim.
[19] Specifically, with respect to Barry M., the Complaint alleges that "defendants have violated Barry's constitutional and statutory rights by failing to protect him from harm; by failing to provide an appropriate placement that can manage Barry's psychiatric and behavioral problems; by failing to provide him with a written plan, reviewed annually, to prepare him for self-sufficient living; by failing to ensure that the services he received were designed to maintain and advance his mental and physical well-being; and by leaving him for months without adequate psychiatric and other care in a secure detention facility which was not the least restrictive placement to which Barry was entitled and which was inappropriate for his individual needs; failing to provide Barry, who has a disability, with the least restrictive placement and services appropriate to his particular needs; and by failing to ensure Barry receives all the benefits of the Division's child welfare program without discrimination for his handicap or disability, all of which are required by law and by reasonable professional standards."
[20] This does not foreclose, however, the possibility that other abstention doctrines may apply. Consideration of this issue, if appropriate, is left for the future.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443593/
|
83 F. Supp. 2d 256 (2000)
MICROSOFT CORPORATION, et al., Plaintiffs,
v.
COMPUTER WAREHOUSE, et al., Defendants.
No. Civ. 98-2136(SEC).
United States District Court, D. Puerto Rico.
February 11, 2000.
*257 Jorge E. Pérez-Díaz and Heidi L. Rodriguez-Benitez, Pietrantoni Mendez & Alvarez, San Juan, P.R., for plaintiffs.
Carlos Rodríguez-García, San Juan, P.R., for defendants.
Ivan Diaz-Lopez, San Juan, PR, for defendants.
OPINION AND ORDER
CASELLAS, District Judge.
This case is before the Court on the plaintiffs' motion to dismiss a counterclaim filed by defendants Metro Computers, Inc., Manuel González and the conjugal partnership with his wife (hereinafter, collectively, "Metro") for the alleged wrongful procurement of an ex parte seizure and impounding order. (Docket # 37). Because Metro's counterclaim (Docket # 47) fails to state a claim upon which relief can be granted the Court dismisses it pursuant to Fed.R.Civ.P. 12(b)(6).[1]
Rule 12(b)(6) Standard
In assessing whether dismissal for failure to state a claim is appropriate, "the trial court, must accept as true the well-pleaded factual allegations of the complaint, draw all reasonable inferences therefrom in the plaintiff's favor, and determine whether the complaint, so read, limns facts sufficient to justify recovery on any cognizable theory." LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir.1998) (citations omitted). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957), quoted in Davis v. Monroe County Bd. of Education, 526 U.S. 629, 119 S. Ct. 1661, 1676, 143 L. Ed. 2d 839 (1999). See also Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st *258 Cir.1990) (dismissal for failure to state a claim is warranted "only if it clearly appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory").
But "[a]lthough this standard is diaphanous, it is not a virtual mirage." Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir.1997) (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988)). In order to survive a motion to dismiss, "a complaint must set forth `factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.'" Id. In judging the sufficiency of a complaint, courts must "differentiate between well-pleaded facts, on the one hand, and `bald assertions, unsupportable conclusions, periphrastic circumlocution, and the like,' on the other hand; the former must be credited, but the latter can safely be ignored." LaChapelle, 142 F.3d at 508 (quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)). See also Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.1999). Courts, moreover, "will not accept a complainant's unsupported conclusions or interpretations of law." Washington Legal Foundation v. Massachusetts Bar Foundation, 993 F.2d 962, 971 (1st Cir.1993).
While in ruling upon a motion to dismiss the court must ordinarily ignore matters outside the pleadings, see, e.g., Maldonado v. Dominguez, 137 F.3d 1, 6 (1st Cir.1998), Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83 (1st Cir.1997); Vega-Rodriguez v. Puerto Rico Telephone Co., 110 F.3d 174, 177 (1st Cir.1997), it may consider any documents which are referred to in the nonmovant's pleadings and which are central to his or her claim. Cf. Beddall v. State Street Bank and Trust Co., 137 F.3d 12, 17 (1st Cir.1998). Thus, we set forth the relevant facts as alleged in Metro's amended counterclaim, aided by the various documents therein referred, drawing all reasonable inferences in Metro's favor. See Doe v. Walker, 193 F.3d 42, 42 (1st Cir.1999).
Background
The plaintiffs are the copyright and trademark owners of various software programs. On October 13, 1998, they filed this action for infringement of their copyrights and trademarks and for unfair competition, tort and unjust enrichment stemming from the illegal reproduction and sale of their products. (Docket # 1). They also moved for a temporary restraining order, an order for impoundment, a writ of seizure, and an order to show cause pursuant to 17 U.S.C. §§ 502, 503(a) and Fed. R.Civ.P. 65(b). (Docket # 2). In support of this motion, the plaintiffs submitted, inter alia, an unsworn declaration under penalty of perjury by Roberto Morales Rivera, a private investigator. (Id., Exhibit # 7).
In his declaration, Morales Rivera affirms as follows. On September 5, 1998, "a person under [Morales Rivera's] supervision" (hereinafter the "unidentified person") visited Metro's computer store. There he was assisted by Manuel González, Metro's purported owner. (Id., Exhibit # 7, at ¶¶ 2-3). González offered to sell the unidentified person a tower clone central processing unit ("CPU") with the plaintiffs' programs installed for a purchase price of $800.00. A few days later, Morales Rivera telephoned González at the store to inquire whether the offer made to the unidentified person was still good. González said that it was. Morales Rivera further asked González whether he could additionally install another one of plaintiffs' programs for the same purchase price. González said that he could.
Morales Rivera subsequently went to the store to pick up his CPU. There, González, who was still in the process of installing the programs, asked Morales Rivera if he would like yet another one of plaintiffs' programs installed as well, to which Morales Rivera agreed. Morales Rivera was able to see how González installed the software. After all the components had been installed, Morales Rivera *259 paid González the purchase price and left with the CPU. The software programs in the CPU's hard disk were subsequently examined by a computer technician and determined to have been illegally installed. (Id., Exhibit # 8).
On October 14, 1998, upon the motion by the plaintiffs which was in part supported by Morales Rivera's unsworn declaration, the Court issued a "Temporary Restraining Order, and Order for Impoundment, Seizure and Delivery, and Order to Show Cause Why Preliminary Injunction Should Not Be Issued." (Docket # 5). The Court ordered that following items in Metro's control be seized, impounded, photographed and video filmed and/or recorded:
1. All copies, or reproductions of Plaintiffs' copyrighted software programs, including, but not limited to, Microsoft Office 97 (Professional Edition), Microsoft Office 97 (Standard Edition); Microsoft Excel 97; Microsoft Access 97; Microsoft Power Point 97; Microsoft Outlook 97; Microsoft Windows 95, Microsoft Windows 98, Adobe Pagemaker 6.5 (Windows), Adobe Photoshop 4.0, and works derivative thereof, among others; and of other copyrighted works owned by Plaintiffs as identified by Plaintiffs' representatives;
2. All 3.5" and 5.25" computer disks, CD-ROM's, or any other storage media, containing unlawful copies of Plaintiffs' software programs as described in paragraph 1 above;
3. All copies of manuals for Plaintiffs' software programs;
4. All licence documents and copies of such documents related to the copying of Plaintiffs' software programs and related copyrighted words as described in paragraph 1 above; [and]
5. All computers which have installed in their hard disk any unlicenced copy of Plaintiffs' copyrighted programs[.]
(Id. at 9-10).
Metro initially alleged in its original counterclaim that the plaintiffs wrongfully obtained the seizure order through the use of fraud because Morales Rivera's unsworn declaration is perjured. In support of this contention, Metro alleged that "[t]he investigator," presumably Morales Rivera, "perjured himself and issued a statement that does not conform to the real facts of the case and furthermore, constitute entrapment." (Docket # 26, at 5). Additionally, Metro averred as follows:
Plaintiffs employees (sic), investigators and/or contractors, who benefited (sic) economically from this transaction, entramped (sic) defendant by deceiving, representing, and inducing defendant to include in the purchased central processing unit (CPU) other programs that were not included in the program bundle available from the manufacturer.
Plaintiffs employees (sic), investigators, and/or contractors made specific representations to defendant that they were licenced users and therefore made false statements and pretenses in order to entramp (sic) Defendant.
On the basis of the false and incorrect statement issued by Plaintiffs' investigator, the Court was moved to issue an order on October 14, 1998[,] to seize, impound and photograph [certain items].
....
Said order was served on appearing Defendant's premises and property immediately ... through a much media publicized operation. This media operation incorrectly and falsely depicted appearing Defendant as a copyright and trademark infringer who prayed on unsuspecting clients and patrons.
....
Furthermore, the negative publicity generated by the illegal search and seizure conducted by Plaintiff's (sic) based on self-serving and fabricated statements and over acts by Plaintiffs investigators, hired "help" and technicians caused and are intimately related to extreme prejudice and damage to appearing Defendant.
*260 Plaintiff retained hired and/or selected the investigators and individuals who planned and executed the entrampment (sic) of Defendant.
(Id.). Metro also alleged that the plaintiffs impounded materials outside the scope of the seizure and impounding order. (Id.). Premised on the these allegations, Metro prayed for damages under article 1802 of the Civil Code of Puerto Rico, P.R.Laws Ann. tit. 31 § 5141 (1991) and 42 U.S.C. § 1983.
The plaintiffs countered by filing the instant motion contending, inter alia, that Metro's allegations fell short of establishing a damages claim under article 1802. In response, Metro amended its counterclaim "to more specifically allege specifics (sic) acts of negligence and or fault." (Docket # 48). These amendments, Metro contends, "are more than enough to withstand successfully plaintiffs' contention of lack of specificity." (Id.). Metro, however, voluntarily dismissed its § 1983 claim. In regard to its claim for damages under 1802, Metro's amended counterclaim additionally charges that the "plaintiffs' agents perjured themselves to deceive and illegally manipulate this Honorable Court into issuing the seizures and impounding order (sic) ...." (Docket # 47). Metro contends, moreover, that:
Metro [] at no time offered plaintiffs' agents to sell them the computer loaded with plaintiffs' protected programs, contrary to what was asserted under penalty of perjury by them.
It was plaintiffs' agents insistence, almost to the point of begging, and only after assuring [] Metro [] that they possessed valid licenses to the protected programs of defendant's which they wanted installed in their new computer that induced the latter to reluctantly do so.
It is a complete falsehood that plaintiffs' agents could observe [González] installing plaintiffs' legally-protected products from the front part of the store as stated in thei[r] declaration made under penalty of perjury.
(Id.). Finally, Metro asserts that it does not "engage, as a matter of course, in the offering or sale of any of the plaintiffs' legally-protected products without the proper licenses, as evidenced by the fact that in none of the computer equipment which was seized by virtue of the court order illegally obtained by the plaintiffs through false testimony, were these products found to have been illegally installed." (Id.).
Applicable Law/Analysis
The Supreme Court of Puerto Rico has consistently held that an action for malicious prosecution based on a prior civil suit generally does not lie under article 1802 of the Puerto Rico Civil Code. See, e.g., Gimenez Alvarez v. Silen Maldonado, 1992 WL 754904, 131 D.P.R. 91, 96 (1992); Commonwealth Loan Corp. v. Garcia Montanez, 1968 WL 17164, 96 D.P.R. 773, 774 (1968); Diaz v. Distribuidores RCA Victor, 1934 WL 4665, 47 D.P.R. 562, 564 (1934). The Court has recognized, however, that article 1802 may adequately support an action for malicious prosecution based on a prior civil action in certain extreme circumstances, when the facts of the case reveal something more than mere negligence. See Gimenez Alvarez, 1992 WL 754904, 131 D.P.R. at 96. See also Reyes-Cardona v. J.C. Penney & Co., Inc., 694 F.2d 894, 897 (1st Cir.1982) (noting that tort actions bases on a prior civil suit generally require a showing of recklessness, bad faith, intent to cause harm, gross error, abuse of the right to bring a suit, or the like). To establish a prima facie case of malicious prosecution based on the prior bringing of a civil suit the plaintiff must allege (1) that a civil action was initiated by, or by direction of, the defendant, (2) maliciously and without probable cause, (3) that the litigation terminated in the plaintiff's favor, and (4) that the plaintiff suffered damages resulting from the litigation. See Gimenez Alvarez, 1992 WL 754904, 131 D.P.R. at 96; Abreu-Guzman *261 v. Ford, 69 F. Supp. 2d 274, 285 (D.P.R. 1999); Boschette v. Buck, 916 F. Supp. 91, 100 (D.P.R.1996). Because no prior civil suit has terminated in its favor, Metro has failed to state a colorable claim of malicious prosecution under article 1802. See Boschette, 916 F.Supp. at 100. Accordingly, Metro's counterclaim, to the extent that it is framed as an action for malicious prosecution under article 1802, should be dismissed.
In its opposition to the instant motion, Metro further argues that its counterclaim may also lie under article 1802 pursuant to the doctrine of abuse of process. (Docket # 18). Contrary to malicious prosecution, which "is the appropriate cause of action for challenging the whole of a lawsuit," abuse of process "covers the allegedly improper use of individual legal procedures after a suit has been filed properly." Simon v. Navon, 71 F.3d 9, 15 (1st Cir.1995). Therefore, we address Metro's allegations that plaintiffs obtained the seizure and impounding order by presenting false or perjured statements to the court as a claim under the doctrine of abuse of process.
It is not altogether clear whether article 1802 of the Civil Code of Puerto Rico supports a general cause of action for abuse of process in its common-law sense, that is: "the use of a legal process to accomplish a purpose for which it was not designed." Boschette, 916 F.Supp. at 99. See also Abreu-Guzman, 69 F.Supp.2d at 284. Notwithstanding, assuming that article 1802 does support a cause of action for abuse of process, some judges in this district have applied the general requisite elements for such a claim under common law in testing the sufficiency of a claimant's allegations. See Abreu-Guzman, 69 F.Supp.2d at 284-85 (Dominguez, J.); Boschette, 916 F.Supp. at 99 (Pieras, J.). We find this approach adequate and thus we use it in this case.
"The two basic elements of abuse of process are a bad motive, and the use of a legal process for an improper, collateral objective." Simon, 71 F.3d at 15. "When abuse of process is based on conduct subsequent to initiation of the lawsuit, the requirement of an `act' of abuse typically would be satisfied by showing use of the individual legal process in an improper manner." Id. at 15 n. 6 (collecting cases). Requesting an ex parte order for seizure and impoundment of copyright-infringing articles is not an improper act. To the contrary, is it one of the remedies specifically provided for in the Copyright Act of 1976 and the Copyright Practice Rules. See, e.g., 17 U.S.C. § 503(a) ("At any time while an action under this title is pending, the court may order the impounding ... of all copies ... claimed to have been made or used in violation of the copyright owner's exclusive rights...."). Furthermore, Metro does not allege that the plaintiffs used the seizure and impounding order for "an improper, collateral objective," Simon, 71 F.3d at 15, or in an otherwise "improper manner." Id. at 15 n. 6. Procuring an order for seizure and impoundment under the Copyright Act does not constitute an improper use of a legal procedure. Therefore, Metro has failed to establish the second element of a cause of action for abuse of process.
Metro avers in its counterclaim that in executing the seizure and impounding order, the plaintiffs went beyond the scope of the order by seizing, impounding and photographing articles bearing no relation at all with this action, and of which some consisted of "personal property, confidential information and business secrets and documents." (Docket # 47). While in some cases the use of a similar order for the purpose of obtaining a tactical advantage in the underlying infringement action and to disrupt the alleged infringer's business for competitive reasons has been determined an ulterior or bad motive, see Skierkewiecz v. Gonzalez, 711 F. Supp. 931, 935 (N.D.Ill.1989) (involving an ex parte seizure order pursuant to the Lanham Act, 15 U.S.C. § 1116(d)(11)), Metro does not allege that this is such a case, thereby also failing to establish the first element of an *262 abuse of process claim. Having Metro failed to establish a colorable claim of abuse of process, its counterclaim against the plaintiffs should be dismissed.
In a final effort to fathom a viable theory which would entitle Metro to relief, the Court shall consider whether Metro has asserted a prima facie case of fraud. "In order to prove fraud under Puerto Rico law, a plaintiff must establish: (1) that a false representation was made; (2) that the plaintiff reasonably and foreseeably relied thereon; (3) that the plaintiff was injured by his reliance; and (4) that the defendant intended to defraud the plaintiff." Wadsworth, Inc. v. Schwarz-Nin, 951 F. Supp. 314, 323 (D.P.R.1996). It should be clear, however, that to the extent that it is premised on the allegation that plaintiffs obtained the seizure and impounding order by presenting false or perjured statements to the Court, Metro's purported claim of fraud should be dismissed because, if even taking the supporting allegation as true, such allegation would only establish fraud on the Court, not the requisite reliance on the part of Metro.
The only averments which could be arguably construed, albeit very liberally, as an allegation of fraud are contained in the following paragraphs in Metro's counterclaim:
Plaintiffs employees (sic), investigators and/or contractors, who benefited (sic) economically from this transaction, entramped (sic) defendant by deceiving, representing, and inducing defendant to include in the purchased central processing unit (CPU) other programs that were not included in the program bundle available from the manufacturer.
Plaintiffs employees (sic), investigators, and/or contractors made specific representations to defendant that they were licenced users and therefore made false statements and pretenses in order to entramp (sic) Defendant.
....
It was plaintiffs' agents insistence (sic), almost to the point of begging, and only after assuring The Metro Defendants that they possessed valid licenses to the protected programs of defendant's which they wanted installed in their new computer that induced the latter to reluctantly do so.
(Docket # 47). These averments, even assuming, arguendo, that they meet the applicable pleading standard,[2] are irrelevant under the circumstances of this case.
The plaintiffs do not charge Metro with selling copies of their software to unauthorized users, but with selling a computer loaded with illegal copies of their software, thereby infringing their copyrights. It is thus immaterial to the plaintiffs' action that plaintiffs' investigator led Metro to believe that he was licensed to use the software, because Metro was not authorized to copy it in the first place. Proper licensing to use the software would not have made Metro's illegal reproduction of the plaintiffs' software legal. Therefore, any injury that Metro may have suffered in relation to the seizure and impounding order was caused by Metro's allegedly infringing conduct, not by the investigator's purported misrepresentations. Perhaps this is why Metro has no problem in admitting that the programs loaded into the *263 computer it sold to the plaintiffs' investigator were "found to have been illegally installed." (Docket # 47). Accordingly, Metro's purported claim of fraud should also be dismissed.
For the foregoing reasons, the Court hereby GRANTS the plaintiffs' motion (Docket # 37), and DISMISSES Metro's amended counterclaim (Docket # 47).
SO ORDERED.
NOTES
[1] "Challenges to the sufficiency of a counterclaim ... under Rule 12 ... are subject to the same rules as when they are directed toward an original complaint." 6 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1407, at 38 (2d ed.1990).
[2] Rule 9(b) of the Federal Rules of Civil Procedure "imposes a heightened pleading requirement for allegations of fraud in order to give notice to the defendants of the plaintiffs' claim...." Doyle v. Hasbro, Inc., 103 F.3d 186, 194 (1st Cir.1996). This standard "requires specification of the time, place, and content of an alleged false representation, but not the circumstances or evidence from which fraudulent intent could be inferred." Id. Moreover, "`mere allegations of fraud ..., averments to conditions of the mind, or referral to plans and schemes are too conclusional to satisfy the particularity requirement, no matter how many times such accusations are repeated.'" Id. (quoting Hayduk v. Lanna, 775 F.2d 441, 444 (1st Cir.1985)). Because the Court finds that Metro's assertions, even if construed as alleging fraud, are unavailing under the circumstances of this case, it is not necessary to decide whether such assertions meet Rule 9's heightened pleading standard.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443579/
|
83 F. Supp. 2d 668 (2000)
VIRGINIA SOCIETY FOR HUMAN LIFE, INC., Plaintiff,
v.
FEDERAL ELECTION COMMISSION, Defendant.
No. CIV.A. 3:99CV559.
United States District Court, E.D. Virginia, Richmond Division.
January 4, 2000.
*669 John Lyons Marshall, Jr., McSweeney, Burtch & Crump, Patrick Michael McSweeney, McSweeney, Burtch And Crump, Richmond, James Bopp, Jr., Bopp, Coleson & Bostrom, Terre Haute, IN, for Virginia Society for Human Life, Inc., plaintiff.
Stephen E. Hershkowitz, Federal Election Commission, Lawrence M. Noble, Federal Election Commission, Richard B. Bader, Federal Election Commission, Office of General Counsel, Washington, DC, for Federal Election Commission, defendant.
MEMORANDUM OPINION
SPENCER, District Judge.
THIS MATTER is before the Court on cross-Motions for Summary Judgment and a Motion to Dismiss. For the reasons discussed below,
*670 1. the Motion for Summary Judgment brought by Plaintiff VIRGINIA SOCIETY FOR HUMAN LIFE, INC. (herein "VSHL") is GRANTED;
2. the Motion for Summary Judgment brought by Defendant FEDERAL ELECTION COMMISSION (herein "FEC") is DENIED;
3. the Motion to Dismiss brought by the FEC is DENIED.
The FEC is hereby ENJOINED from enforcing 11 C.F.R. § 100.22(b) against the VSHL or against any other party in the United States of America.
I. Background
The VSHL is a non-profit, tax-exempt Virginia corporation established "to educate the general public on issues relating to the protection of individual human life regardless of stage of development or state of dependency, and to promote the pro-life cause however possible within the bounds of the law." (Compl. ¶ 7.). To further these objectives, the VSHL undertakes a variety of public relations measures in both election years and non-election years, all of which are funded by the VSHL treasury. (Id. ¶¶ 9, 10.). While the VSHL has no formal policy regarding corporate donations to its treasury, it has accepted donations from corporations in the past and anticipates doing so in the future. (Id. ¶ 8.). The VSHL is not associated with any political party, candidate or campaign committee, nor does it coordinate its public relations activities with any political party, candidate or campaign committee. (Id. ¶¶ 5, 9.). The VSHL reports that it plans to distribute "voter guides" in connection with the upcoming federal election cycle. (Id. ¶ 12.). These voter guides "will not contain any express or explicit words of advocacy of the nomination, election, or defeat of any candidate. The voter guides will tabulate candidates' positions on abortion-related issues ...." (Id. ¶ 13.). The VSHL acknowledges that a recipient of a voter guide could reasonably discern the VSHL's preferences as to the election or defeat of a particular candidate, but it insists that the voter guides will not call expressly for "a vote for or against any candidate"; the voter guides will simply outline the VSHL's stance on various issues relating to abortion. (Id. ¶¶ 14-15.). While the VSHL does not state in the Complaint where it intends to distribute these voter guides, it notes in subsequent pleadings that it has never decided to distribute them only within the Fourth Circuit; the VSHL also plans to purchase radio advertising which might be heard by persons residing outside of the Fourth Circuit. (Pl.'s Resp. to Mot. to Dismiss §§ I, I(A).).
The FEC is an independent agency created by the Federal Election Campaign Act (herein the "FECA"), 2 U.S.C. §§ 431 et seq. The FECA prohibits corporations from making "expenditure[s] in connection with any [federal] election ...." 2 U.S.C. § 441b(a). The Supreme Court has interpreted this prohibition to bar only that corporate spending which contains express or explicit words of candidate advocacy. See FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 249, 107 S. Ct. 616, 93 L. Ed. 2d 539 (1986); Buckley v. Valeo, 424 U.S. 1, 44, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (per curiam). On October 5, 1995, the FEC promulgated 11 C.F.R. § 100.22(b) pursuant to its statutory duty to enforce the FECA. (Compl. ¶ 6.). Subsection (b) (herein the "regulation") supplements § 100.22(a), which sets forth a number of activities held by the FEC to constitute "express advocacy" (and thus subject to regulation by the FEC if conducted by a corporation):
Expressly advocating means any communication that
(a) Uses phrases such as "vote for the President," "re-elect your Congressman," "support the Democratic nominee," "cast your ballot for the Republican challenger for U.S. Senate in Georgia," "Smith for Congress," "Bill McKay in '94," "vote Pro-life" or "vote Pro-choice" accompanied by a listing of *671 clearly identified candidates described as Pro-Life or Pro-Choice, "vote against Old Hickory," "defeat" accompanied by a picture of one or more candidate(s), "reject the incumbent," or communications of campaign slogan(s) or individual word(s), which in context can have no other reasonable meaning than to urge the election or defeat of one or more clearly identified candidate(s), such as posters, bumper stickers, advertisements, etc. which say "Nixon's the One," "Carter '76," "Reagan/Bush" or "Mondale!"
(b) when taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s) because
(1) The electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and
2) Reasonable minds could not differ as to whether it encourages actions to elect or defeat one or more clearly identified candidate(s) or encourages some other kind of action.
11 C.F.R. §§ 100.22(a)-(b) (emphasis original). The regulation was challenged immediately in several federal courts, which have held uniformly that the regulation (and/or the analysis underlying the regulation) is unconstitutional. The VSHL filed a Petition for Rulemaking on January 11, 1999, asking the FEC to repeal the regulation. (Compl. ¶¶ 28, 41.). Although it solicited comments as to whether the regulation should be repealed, the FEC declined to do so by a 3-to-3 vote of the Commissioners. (Id. ¶ 42.). The VSHL filed the instant Complaint on August 9, 1999. The Complaint prays for a judgment
(a) declaring [the regulation] to be unconstitutionally overbroad, void-for-vagueness and contrary to law on the grounds that it violates the First and Fifth Amendments to the Constitution of the United States and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-706, and that it exceeds the [FEC's]statutory authority under [FECA]; (b) overturning the FEC's failure to act on VSHL's petition for rulemaking in which VSHL petitioned the FEC to repeal the regulation; (c) setting aside the regulation under 5 U.S.C. § 706; and (d) permanently enjoining the [FEC] from enforcing the FECA based on the regulation and from relying on or citing the regulation as legal authority in any future enforcement action.
(Id. ¶ 2.). The VSHL brought its Motion for Summary Judgment on October 6, 1999. The FEC brought a Motion to Dismiss on October 12, 1999, and a cross-Motion for Summary Judgment on October 22, 1999.
II. Standards of Review
A. Motions for Summary Judgment
A motion for summary judgment lies only where "there is no genuine issue as to any material fact" and where the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985). The Court must view the facts and the inferences drawn therefrom in the light most favorable to the party opposing the motion. Ballinger v. North Carolina Agr. Extension Serv., 815 F.2d 1001, 1004 (4th Cir.), cert. denied, 484 U.S. 897, 108 S. Ct. 232, 98 L. Ed. 2d 191 (1987). While viewing the facts in such a manner, the Court looks to the affidavits or other specific facts to determine whether a triable issue exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). According to the Fourth Circuit,
In determining whether summary judgment may be granted, the district court must perform a dual inquiry into the genuineness and materiality of any purported factual issues. Whether an issue *672 is genuine calls for an examination of the entire record then before the court in the form of pleadings, depositions, answers to interrogatories, admissions on file and affidavits, under Rule 56(c) and (e) .... Genuineness means that the evidence must create fair doubt; wholly speculative assertions will not suffice. A trial, after all, is not an entitlement. It exists to resolve what reasonable minds would recognize as real factual disputes.
Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir.1985) (emphasis original). Finally, summary judgment is not appropriate if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S. Ct. 2505.
B. Motions to Dismiss
A plaintiff bears the burden of proving that the federal district court has subject matter jurisdiction over his or her claim; this burden does not shift when defendants challenge the assertion of jurisdiction by a federal district court. Materson v. Stokes, 166 F.R.D. 368, 370 (E.D.Va.1996). The non-movant has the burden of alleging and proving subject matter jurisdiction upon the filing of a motion to dismiss for lack of such jurisdiction. Marks v. U.S. Social Sec. Admin., 906 F. Supp. 1017, 1020 (E.D.Va.1995). The function of motions to dismiss is to test the law governing claims, not the facts which support them. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); Spell v. McDaniel, 591 F. Supp. 1090 (E.D.N.C. 1984). The Court should not dismiss any count unless it appears beyond a doubt that the plaintiff could not recover under any set of facts which could be proven. See Doby v. Safeway Stores, Inc., 523 F. Supp. 1162 (E.D.Va.1981); Austin v. Reynolds Metals Co., 327 F. Supp. 1145 (E.D.Va.1970).
Federal courts enjoy subject matter jurisdiction only over those cases which concern actual cases or controversies. See U.S. CONST.ART.III; Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992); Marshall v. Meadows, 105 F.3d 904, 906 (4th Cir.1997). Essential to a finding that a case or controversy is present in a given case is a showing that a party has standing to sue. See, e.g., Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984). For a party to have standing, all three of the following elements must exist: (1) an injury-in-fact; (2) a causal connection between the injury and the challenged conduct; and (3) a likelihood that the injury will be redressed by a favorable decision of the court. Lujan, 504 U.S. at 560-61, 112 S. Ct. 2130; Burke v. City of Charleston, 139 F.3d 401, 405 (4th Cir. 1998). The party invoking federal jurisdiction must demonstrate that the elements of standing exist. Lujan, 504 U.S. at 561, 112 S. Ct. 2130. Standing must exist when the original pleading is filed. Id. at 571 n. 4, 112 S. Ct. 2130.
III. Analysis
The Court must make two determinations before it may consider the constitutionality of the challenged regulation: (1) whether the VSHL has standing to challenge the regulation; and (2) whether the VSHL has pleaded its Motion for Summary Judgment sufficiently, in accordance with the Local Rules. For the reasons discussed below, the Court finds in favor of the VSHL on both of these inquiries, and also as to the constitutionality of the challenged regulation. The Court need not rule upon the FEC's dismissal of the VSHL's Petition for Rulemaking in order to hold in favor of the VSHL on the cross-Motions for Summary Judgment.
A. Standing
The FEC argues that the Complaint should be dismissed for lack of subject matter jurisdiction, on the ground that the VSHL lacks standing to sue. (Def.'s Mot. to Dismiss ¶ 1.). The FEC maintains that the VSHL lacks standing because it cannot demonstrate an injury-in-fact, one *673 of the three bedrock requirements for a demonstration of standing. (Def.'s Mot. to Dismiss Mem. § II(B). See also Lujan, 504 U.S. at 560-61, 112 S. Ct. 2130; Burke v. City of Charleston, 139 F.3d 401, 405 (4th Cir.1998).). According to the Supreme Court, an injury-in-fact is an invasion of a legally protected interest which is concrete and particularized; this invasion must be actual or imminent, not conjectural or hypothetical. See Lujan, 504 U.S. at 560, 112 S. Ct. 2130 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990).). See also United States v. Jones, 136 F.3d 342, 348 (4th Cir.1998).
The FEC grounds this argument largely upon its own decision not to enforce the regulation in either the First or Fourth Circuits, which have both reportedly held the regulation to be unconstitutional. (Def.'s Mot. to Dismiss Mem. § II(B).). The FEC argues that because the VSHL will not be prosecuted by the FEC in the Fourth Circuit, where the VSHL is based, it cannot meet the Supreme Court's standard for an injury-in-fact, and thus it lacks standing to sue. (Id.). The FEC notes the Fourth Circuit's recent holding in North Carolina Right to Life, Inc. v. Bartlett, in which it held that plaintiffs bringing pre-enforcement challenges to a statute or regulation enjoy standing to sue only if they face "a credible threat of prosecution" by the enforcing government agency. North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705, 710 (4th Cir.1999). The FEC also notes the Supreme Court's decision in Babbitt v. United Farm Workers National Union, in which it held that plaintiffs having no fear of government prosecution "except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs." Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298, 99 S. Ct. 2301, 60 L. Ed. 2d 895 (1979) (quoting Younger v. Harris, 401 U.S. 37, 42, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971)). The FEC also cites a number of cases to support the proposition that an agency's express disavowal of any intention to enforce a statute eliminates any reasonable fear a party may have of prosecution under that statute. (Def.'s Mot. to Dismiss Mem. § II(B).). As it has decided not to enforce the regulation in the VSHL's home circuit, the FEC argues that the VSHL cannot demonstrate an injury-in-fact. (Id.).
Upon further examination, however, the FEC's argument crumbles. First, the VSHL has never indicated that it plans to distribute voter guides within the Fourth Circuit exclusively, nor that its other communications would not reach federal circuits in which the FEC is enforcing the regulation. (Pl.'s Resp. § II.). Indeed, the VSHL plans to broadcast radio advertisements in connection with the upcoming federal election from a radio station in the District of Columbia. (Id. § II(A).). While the VSHL does not say so expressly, broadcasts from this location will certainly be heard by residents of the Fourth Circuit (Virginia and Maryland), the D.C. Circuit, and possibly by residents of the Third Circuit (Pennsylvania). The FEC continues to enforce the regulation in both the Third Circuit and the D.C. Circuit. The VSHL notes that the FEC is empowered to "institute a civil action ... in the district court of the United States for the district in which the person against whom such action is brought is found, resides, or transacts business." 2 U.S.C. § 437g(a)(6)(A) (emphasis added). As observed by the VSHL, the FEC has chosen to bring enforcement actions in the districts where potential violators have transacted business on numerous occasions, rather than in the districts where those parties were found or resided. (Pl.'s Resp. § II(A).). The VSHL therefore reasonably fears prosecution by the FEC in the District of Columbia, both for its radio advertisements and for any advertising collaborations between the VSHL and D.C.-based organizations, such as the National Right to Life Committee. (Id.). While the FEC argues that any fear of prosecution in the District of Columbia is *674 too speculative to be "imminent," this fear appears to be perfectly reasonable. The VSHL has stated that it plans to broadcast in D.C., and it has never stated that its voter guides shall be distributed only within the confines of the Fourth Circuit.
The FEC's argument also fails to consider the prospect of FECA litigation initiated by private citizens within the Fourth Circuit. Any person may file a complaint with the FEC if that person suspects a violation of the FECA, and to challenge the FEC's decision not to enforce in the United States District Court for the District of Columbia. 2 U.S.C. §§ 437g(a)(1),(8)(A). The D.C. Circuit recognized this possibility in Chamber of Commerce of the United States v. FEC, in which it dismissed the FEC's contention that no enforcement actions could be forthcoming absent a majority vote of the Commissioners. Chamber of Commerce of the United States v. FEC, 69 F.3d 600, 603 (D.C.Cir.1995). Noting the FECA's unusual provision allowing challenges by private parties, the D.C. Circuit noted that "even without a Commission enforcement decision, appellants are subject to litigation challenging the legality of their actions if contrary to the Commission's rule." Id. It is therefore possible for the VSHL to face litigation stemming from its activities in the Fourth Circuit even if the FEC decides not to enforce the regulation here. A private party may bring a complaint before the FEC on the basis of the VSHL's activities within the Fourth Circuit; if the FEC decides not to bring an enforcement action for these Fourth Circuit-specific activities, the private party may appeal this decision to the United States District Court for the District of Columbia. It therefore makes little difference where the FEC chooses to enforce the regulation the VSHL has a "credible threat of prosecution," and thus has standing to bring a pre-enforcement challenge in this case. The FEC devotes much energy at oral argument to characterizing the threat of pre-enforcement challenges by private parties as remote or unlikely, but even if these characterizations can be accepted as true such challenges still pose a very real threat of prosecution. An enforcement action under the FECA need not prevail in order to cast an unacceptable pall upon free speech; the mere possibility that such a challenge may be brought by a private citizen is enough to do so.
The Fourth Circuit's recent decision in North Carolina Right to Life demonstrates why the VSHL has standing in this case:
When a plaintiff faces a credible threat of prosecution under a criminal statute he has standing to mount a pre-enforcement challenge to that statute. A non-moribund statute that "facially restrict[s] expressive activity by the class to which the plaintiff belongs" presents such a credible threat, and a case or controversy thus exists in the absence of compelling evidence to the contrary. This presumption is particularly appropriate when the presence of a statute tends to chill First Amendment rights.
North Carolina Right to Life, Inc., 168 F.3d at 710 (alteration in original) (quoting New Hampshire Right to Life PAC v. Gardner, 99 F.3d 8, 15 (1st Cir.1996)). The mere existence of the regulation chills potential speech, and this chill does not dissipate merely because the FEC has decided at present not to enforce the regulation within the Fourth Circuit. Such non-binding decisions offer little comfort to those who wish to speak freely in the public square. For these reasons, the FEC's Motion to Dismiss for Lack of Standing is DENIED.
B. Sufficiency of Pleadings
The FEC argues that the VSHL has not pleaded its Motion for Summary Judgment sufficiently, and thus that the Motion should be dismissed as a matter of law. *675 (Def.'s Summ J. Mem.[1] § II.). The FEC contends that the VSHL has offered no evidence to support any of the factual allegations made in its Memorandum in Support of Motion for Summary Judgment, in apparent violation of Local Rule 56. (Id.). Local Rule 56(B) requires any parties moving for summary judgment to include "a specifically captioned section listing all material facts as to which the moving party contends there is no genuine issue and citing the parts of the record relied on to support the listed facts as alleged to be undisputed." E.D. VA. R. 56(B). The FEC argues that by neglecting to submit copies of its Petition for Rulemaking or of the FEC General Counsel's Memorandum to the Commission, the VSHL has not met its burden under Local Rule 56(B). (Def.'s Mem. § II.). The FEC argues that this failure alone is grounds for the Court to deny the VSHL's Motion for Summary Judgment. (Id.).
A cursory look at the VSHL's Memorandum in Support of Motion for Summary Judgment demonstrates that the FEC's argument is without merit. The VSHL has indeed provided a section in its Memorandum in Support of Motion for Summary Judgment entitled "List of Undisputed Facts Required by Local Rule 56(B)." (Pl.'s Summ. J. Mem. § I.). This section refers to a number of material facts, virtually all of which are supported by a specific citation to the Complaint, to a statute, to a regulation, or to case law. (Id.). While the VSHL has not submitted a copy of its Petition for Rulemaking or of the FEC General Counsel's Memorandum to the Commission, neither document appears to be required under the terms of Local Rule 56(B) in order to grant the VSHL's Motion for Summary Judgment. Assuming that it has devoted a section in its brief to all material facts as to which there is allegedly no genuine issue, a party seeking summary judgment need only cite the parts of the record relied upon to show that certain material facts are not in dispute. E.D. VA. R. 56(B). None of the facts asserted by the VSHL in its Memorandum appear to depend upon the contents of its Petition for Rulemaking or the FEC General Counsel's Memorandum to the Commission to demonstrate that they are not in dispute. Nor does the VSHL appear to cite documents which have not been made part of the record. Indeed, the VSHL makes specific reference to its attachments to the Complaint, which include an FEC Notice clarifying the agency's position on the term "express advocacy." (Pl.'s Summ. J. Mem. § I, ¶ 15, citing FEC Notice 1998-6, at 3, February 13, 1998, attached as "Exhibit A" to Complaint.). For these reasons, it appears clear that the VSHL has complied with Local Rule 56(B), and thus the FEC's argument as to sufficiency of pleadings is without merit.
C. Validity of the Regulation
As noted above, the FEC has expanded its definition of "express advocacy" to include communications that
(b) when taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s) because
(1) The electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and
2) Reasonable minds could not differ as to whether it encourages actions to elect or defeat one or more clearly identified candidate(s) or encourages some other kind of action.
11 C.F.R. § 100.22(b). The FEC adopted the regulation on the basis of the Ninth *676 Circuit's decision in FEC v. Furgatch, in which the Ninth Circuit concluded that the phrase "don't let him do it" in an ad critical of a particular candidate constituted "express advocacy." FEC v. Furgatch, 807 F.2d 857, 864-65 (9th Cir.1987), cert. denied, 484 U.S. 850, 108 S. Ct. 151, 98 L. Ed. 2d 106 (1987). The FEC relied on the following passage from Furgatch in creating the regulation:
We conclude that speech need not include any of the words listed in Buckley [v. Valeo, discussed below] to be express advocacy under the Act, but it must, when read as a whole, and with limited reference to external events, be susceptible of no other reasonable interpretation but as an exhortation to vote for or against a specific candidate. This standard can be broken into three main components. First, even if it is not presented in the clearest, most explicit language, speech is "express" for present purposes if its message is unmistakable and unambiguous, suggestive of only one meaning. Second, speech may only be termed "advocacy" if it presents a clear plea for action, and thus speech that is merely informative is not covered by the Act. Finally, it must be clear what action is advocated. Speech cannot be "express advocacy of the election or defeat of a candidate" when reasonable minds could differ as to whether it encourages a vote for or against a candidate or encourages the reader to take some other kind of action.
Furgatch, 807 F.2d at 864 (alteration added).
This regulation is blatantly unconstitutional, despite the Ninth Circuit's holding in Furgatch. The Court looks first to the Supreme Court's decision in Buckley v. Valeo, in which it ruled upon the constitutionality of various provisions within the FECA. Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). The Buckley Court drew a key distinction between types of advocacy. "Express advocacy" was defined as "communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office," and thus funds spent on such advocacy could be regulated by the FEC. Buckley, 424 U.S. at 44, 96 S. Ct. 612. Funds spent on "issue advocacy," by contrast, could not be regulated by the FEC, for the following reasons:
Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order "to assure [the] unfettered exchange of ideas for the bringing about of political and social changes desired by the people."
Id. at 14, 96 S. Ct. 612 (quoting Roth v, United States, 354 U.S. 476, 484, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957).). The Buckley Court ruled that express advocacy contains explicit words of advocacy or defeat ("such as `vote for,' `elect,' `support,' `cast your ballot for,' `Smith for Congress,' `vote against,' `defeat,' `reject,' etc."), whereas issue advocacy does not contain such words. Id. at 44 n. 2, 96 S. Ct. 612. The Buckley Court recognized that the line between express advocacy and issue advocacy could be a fuzzy one, but it argued against classifying advocacy according to an audience's reasonable interpretations of the communication at issue. Id. at 43, 96 S. Ct. 612. In the Buckley Court's view, "no speaker, under such circumstances, safely could assume that anything he might say upon the general subject would not be understood by some as an invitation." Id. The Fourth Circuit echoed this view when it ruled that by blurring the boundary between express (i.e., regulated) advocacy and issue (unregulated) advocacy, "the right of citizens to engage in the vigorous discussion of issues of public interest without fear of reprisal would be intolerably chilled." FEC v. Christian Action Network, 110 F.3d 1049, 1051 (4th Cir.1997) (herein CAN II). The Supreme Court applied the Buckley "express advocacy" *677 test to communications by non-profit corporations in FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 107 S. Ct. 616, 93 L. Ed. 2d 539 (1986).
The regulation allows the FEC to regulate communications that do not contain express or explicit words of advocacy as required under Buckley, and thus not only exceeds the FEC's statutory authority under the FECA but also runs afoul of the First Amendment. By allowing the FEC to regulate advocacy based upon the understandings of the audience rather than the actual message of the advocate, the regulation trips over the Buckley test, which seems clearly to have been designed in order to prevent such an occurrence. While an advocate may have a reasonable understanding of his or her own message, no one can say for certain how that message will be filtered into the minds of its recipients. Even the Ninth Circuit's decision in Furgatch acknowledges that express advocacy must contain a "clear plea for action," but the regulation contains no such requirement it in fact is broader than Furgatch, which itself appears to run afoul of the Buckley test. Of even greater concern, however, the FEC has adopted a regulation which empowers it in effect to delve into a realm clearly forbidden by Buckley: the realm of issue advocacy regulation. As worded presently, the regulation includes within the broad sweep of "express advocacy" all communications clearly understood to be for or against one or more candidates, as well as any communication which "encourages some other kind of action." 11 C.F.R. § 100.22(b). Such language clearly permits the FEC to regulate activities at the heart of issue advocacy, and the FEC's assurances to the contrary do not rid the regulation of its clearly unconstitutional scope. Public debate concerning significant issues of the day is a fundamental requirement of republican democracy. Public debate requires uninhibited discussion, and such discussion by design and by necessity often calls for action of some type in the public arena. An enforcement action (by the FEC or by a private citizen) need not loom on the horizon for participants in the public arena to feel the chill generated by this unconstitutional encroachment upon free speech. For these reasons, the regulation violates the First Amendment and is invalid.
IV. Conclusion
The Court hereby GRANTS the VSHL's Motion for Summary Judgment and DENIES the FEC's Motion for Summary Judgment. In addition, First Amendment protections do not cease at the boundaries of the Eastern District, and the Court is unwilling to perpetuate the state of uncertainty faced across the land by potential participants in the public arena. The FEC is hereby ENJOINED from enforcing 11 C.F.R. § 100.22(b) against the VSHL or against any other party in the United States of America.
Let the Clerk send a copy of this Memorandum Opinion to all counsel of record.
And it is SO ORDERED.
NOTES
[1] This memorandum would ordinarily be referred to as "Defendant's Response" or "Def.'s Resp.", but the FEC has consolidated its response to the VSHL's Motion for Summary Judgment along with its own Memorandum in Support of Summary Judgment. The memorandum is therefore designated "Def.'s Summ. J. Mem."
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443607/
|
729 S.W.2d 355 (1987)
Robert Arthur HUPP, Appellant,
v.
The STATE of Texas, Appellee.
Nos. 05-86-00531-CR, 05-86-00532-CR.
Court of Appeals of Texas, Dallas.
April 15, 1987.
Discretionary Review Granted July 29, 1987.
*356 John H. Hagler, Dallas, for appellant.
Michael A. Klein, Dallas, for appellee.
Before ROWE, HOWELL and LAGARDE, JJ.
ROWE, Justice.
Robert Arthur Hupp appeals his convictions for aggravated sexual assault of two children. The jury assessed punishment at life imprisonment in each case. In three points of error, appellant contends that 1) he was denied the effective assistance of counsel at his trial, 2) the jury instructions regarding the parole law and good conduct time violated the separation of powers doctrine, and 3) the jury instructions regarding the parole law and good conduct time constituted a denial of due process. We overrule all points of error and affirm the convictions.
Appellant's first point of error alleges ineffective assistance of counsel. This claim is based upon three alleged omissions by counsel: 1) the defense attorney's failure to request a pretrial hearing on the voluntariness of appellant's written confession pursuant to TEX.CODE CRIM.PROC. ANN. art. 38.22, § 6 (Vernon 1979) and his failure to object to the confession's admissibility as involuntarily given; 2) failure to object to the mother's testimony that the *357 children had told her that appellant had sexually assaulted them; and 3) failure to determine whether Dr. Grigson, a psychiatrist, would be violating appellant's fifth amendment rights by testifying for the State during the guilt/innocence phase and counsel's subsequent failure to object to portions of Dr. Grigson's testimony.
The sixth amendment right to counsel means that the accused is entitled to reasonably effective assistance of counsel. This does not, however, mean that the accused is entitled to errorless or perfect counsel. In general, isolated errors of commission or omission do not cause counsel to become ineffective, and in determining whether there was ineffective assistance of counsel, we look at the trial as a whole. Indeed, judicial scrutiny of counsel's performance must be highly deferential and every effort made to eliminate the distorting effects of hindsight. Moore v. State, 700 S.W.2d 193, 205 (Tex.Crim. App.1985); Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App.1984).
The Court of Criminal Appeals has recently held that neither TEX.CONST. art. I, § 10 nor TEX.CODE CRIM.PROC.ANN. art. 1.05 (Vernon 1977) creates a standard in ineffective assistance cases that is more protective of a defendant's rights than the standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53 (Tex.Crim. App.1986). Therefore, we must follow Strickland in evaluating claims of ineffective assistance.
Under Strickland, 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. Next, a two-prong test must be applied. First, the defendant must show that counsel's performance was deficient, i.e., that his assistance was not reasonable under prevailing professional norms. Second, and assuming the defendant has first shown deficient performance, the defendant must affirmatively show prejudice. That is, the defendant must show 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, 104 S.Ct. at 2066-68. However, in evaluating claims of ineffective assistance there is no reason for a reviewing court to approach the performance component prior to the prejudice component or even to address both components of the inquiry if the defendant has made an insufficient showing on one. Strickland, 104 S.Ct. at 2069.
Appellant first identifies the defense attorney's failure to request a pretrial hearing as to the written confession's admissibility or to object to its admissibility during trial as involuntarily given. Appellant testified that he did not remember making a voluntary statement and that he suffers "black-out spells." An officer testified that he read appellant his Miranda warnings both upon arrest and before he made his confession. There is testimony that appellant was alert and attentive and that he knowingly and voluntarily waived his rights. The confession was signed by appellant and states that it was voluntarily made. Therefore, the defense attorney's failure to request a pretrial hearing as to voluntariness may have been a tactical decision based on his perception that the statement was voluntary.
Appellant next identifies the defense attorney's failure to object to the mother's "outcry" testimony. The mother testified that both children approached her and told her that appellant had sexually assaulted them. A conviction under TEX. PENAL CODE ANN. § 22.021 (Vernon Supp.1987) is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed another person, other than the defendant, within six months of the alleged offense. The requirement that the victim inform another person of an alleged offense does not apply if the victim, as in the present cases, was younger than fourteen years of age at the time of the alleged offense. TEX.CODE CRIM.PROC.ANN. art. 38.07 (Vernon *358 Supp.1987). However, under article 38.07 the uncorroborated testimony of a witness in whom the victim confides is admissible to show that a complaint was made and the basic nature of the complaint when the outcry was made within six months of the attack. Heckathorne v. State, 697 S.W.2d 8, 12 (Tex.App.Houston [14th Dist.] 1985, pet. ref'd). Accordingly, the mother's testimony was admissible. The only procedural requirements under TEX.CODE CRIM. PROC.ANN. art. 38.072 (Vernon Supp. 1987) that the State failed to meet were the notice and hearing requirements, the purpose of which are to prevent surprise to appellant's counsel. Since the children did testify and there is no evidence in the record that appellant's attorney was surprised by the mother's testimony, there was no prejudice to appellant's case by admission of the mother's testimony.
Appellant next identifies the defense attorney's failure to object to the testimony of Dr. Grigson, the psychiatrist who testified for the State. The fact that appellant's statements were uttered in the context of a psychiatric examination does not automatically remove them from the reach of the fifth amendment. Estelle v. Smith, 451 U.S. 454, 466, 101 S. Ct. 1866, 1874-75, 68 L. Ed. 2d 359 (1981). However, the State used Dr. Grigson's testimony to impeach the testimony of appellant and refute the testimony of Dr. Cook, the appellant's psychologist, who had testified earlier in the trial. Appellant's election to testify as well as the introduction by the defense of psychiatric testimony constituted a waiver of appellant's fifth amendment privilege. Battie v. Estelle, 655 F.2d 692, 701-02 (5th Cir.1981). Once a defendant decides to testify, the interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination. Jenkins v. Anderson, 447 U.S. 231, 239, 100 S. Ct. 2124, 2129-30, 65 L. Ed. 2d 86 (1980). Furthermore, counsel made several objections during Dr. Grigson's testimony and also asked for and obtained an instruction to disregard as to questions concerning the sincerity of appellant's religious beliefs.
In applying the two-prong Strickland test to the alleged omissions of defense counsel, we are unable to find a reasonable probability that, absent the asserted errors, the fact finder would have had a reasonable doubt respecting guilt. Accordingly, appellant's first point of error is overruled.
In his second point of error, appellant contends that TEX.CODE CRIM. PROC.ANN. art. 37.07, § 4(a) (Vernon Supp.1987) deprived the appellant of his right to a fair trial because it violates the separation of powers doctrine. We disagree. This court has held that article 37.07, § 4(a), does not violate the separation of powers doctrine under the Texas and United States Constitutions. Rose v. State, 724 S.W.2d 832 (Tex.App.Dallas, 1986, pet. granted); Joslin v. State, 722 S.W.2d 725 (Tex.App.Dallas 1986, pet. granted). Appellant's second point of error is overruled.
In his third point of error, appellant contends that the statute is unconstitutional because it violates the due process clause. We disagree on the basis of our holdings, in Rose and Joslin, that article 37.07, § 4, does not violate the due process clauses of the Texas and United States Constitutions. Appellant's third point of error is overruled.
The judgment is affirmed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443597/
|
83 F. Supp. 2d 42 (1999)
PRORIVER, INC., t/a Red River Barbeque & Grille, Plaintiff,
v.
RED RIVER GRILL, LLC, t/a Red River Grill, Defendant.
Civil Action No. 96-1799 SSH.
United States District Court, District of Columbia.
November 24, 1999.
Stephen W. Grafman, Stephen G. Topetzes, Washington, DC, for Plaintiff.
Robert N. Levin, William D. Dickerson, Levin & Tepper, Rockville, MD, Derrick Howard (pro hace vice), Koepken, Keevican & Weiss, Pittsburgh, PA, for Defendant.
OPINION
STANLEY S. HARRIS, District Judge.
Before the Court are plaintiff's motion for partial summary judgment, defendant's motion for summary judgment, and plaintiff's supplemental motion for summary judgment, as well as certain oppositions, replies, and supplements thereto. Upon consideration of the entire record, the Court (1) grants in part, and denies in part, plaintiff's motion for partial summary judgment; (2) grants in part, and denies in part, defendant's motion for summary judgment; and (3) grants plaintiff's supplemental motion for summary judgment. Although "[f]indings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56," the Court nonetheless sets forth its reasoning. See Fed.R.Civ.P. 52(a).
*43 BACKGROUND
At the heart of this case is a dispute over the right to use conjointly the words "Red River" and "Grill" (or "Grille") in the names of restaurants located in the greater Washington, D.C., area. Plaintiff Proriver, Inc., operates restaurants in northern Virginia and Maryland under the name "Red River Authentic Barbeque & Grille." Defendant Red River Grill, LLC, operates a restaurant in Washington, D.C., under the name "Red River Grill."[1] Both parties trace their rights to use these restaurant names to separate agreements that they entered into with Cattle Barons, Inc. ("CBI"), an Ohio corporation which once owned the rights to the federal trademark RED RIVER CATTLE COMPANY, Registration No. 1,498,999.[2]
Defendant entered into a "License Agreement" with CBI in May 1995. The agreement purported to give defendant a license to use RED RIVER in connection with the offering of restaurant services in Maryland, Virginia, and the District of Columbia, and provided that CBI would not open or operate any restaurant incorporating the terms "Red River" and "Grill" in its name. The License Agreement also provided that if CBI did not use the RED RIVER CATTLE COMPANY mark for a consecutive period of eighteen months, CBI would voluntarily assign that mark, as well as all of the rights and goodwill associated with it, to defendant.
For its part, plaintiff entered into an "Assignment and Option Agreement" with CBI in November 1995. In that agreement, CBI assigned the RED RIVER CATTLE COMPANY mark to plaintiff. Although the agreement contained several references to CBI's agreement with defendant, plaintiff did not accept the assignment of all of CBI's rights and obligations under the License Agreement, but rather only those regarding the voluntary assignment of the RED RIVER CATTLE COMPANY mark to defendant if the mark fell into disuse for eighteen months. In the agreement, plaintiff also warranted that it would not "bring an action for infringement against the Licensee [defendant] based solely" on the RED RIVER CATTLE COMPANY mark.
Plaintiff's motivation for acquiring the RED RIVER CATTLE COMPANY mark from CBI grew out of its inability to register the marks RED RIVER and RED RIVER AUTHENTIC BARBEQUE & GRILLE with the Patent and Trademark Office ("PTO"); on May 5, 1995, the PTO had denied registration of these marks, primarily on the ground that, when used in connection with restaurant services, they so resembled the RED RIVER CATTLE COMPANY mark "as to be likely to cause confusion, to cause mistake, or to deceive." The subsequent assignment of CBI's trademark, however, enabled plaintiff to successfully register its desired marks with the PTO on May 7, 1996.[3] At this point, therefore, plaintiff owned the rights to three trademarks: RED RIVER CATTLE COMPANY, RED RIVER, and RED RIVER AUTHENTIC BARBEQUE & GRILLE. Nevertheless, on May 15, 1996, defendant sent plaintiff a letter informing it that operating a restaurant in Maryland, Virginia, or the District of Columbia under a name incorporating the terms "Red River" and "Grill" would violate defendant's *44 rights under the License Agreement. Plaintiff filed the instant action shortly thereafter, apparently to pre-empt legal action that defendant had threatened in its letter. As amended, plaintiff's complaint requests, inter alia, a declaration that defendant has no right to use the RED RIVER mark in the relevant territory, an injunction barring defendant from using that mark, and damages for defendant's alleged infringement of plaintiff's RED RIVER trademark. Defendant counterclaimed for breach of the Licensing Agreement, trade-mark infringement, unfair competition, and breach of the Assignment and Option Agreement.[4]
The parties filed several dispositive motions. Plaintiff filed a motion for partial summary judgment asserting that it was entitled to judgment as a matter of law that defendant did not possess any rights in the name RED RIVER, and also filed a motion to dismiss defendant's amended counterclaim. For its part, defendant moved for summary judgment on plaintiff's amended complaint and its own amended counterclaim on the grounds that defendant had acquired superior rights to RED RIVER through the License Agreement and its own use of the mark, and that plaintiff was contractually estopped from asserting any claims or defenses against defendant.
The Court ruled on the parties' motions in its June 25, 1998, Opinion. The Court denied plaintiff's motion to dismiss defendant's amended counterclaim as to Counts 1-3; as to Count 4, however, the Court converted plaintiff's motion to dismiss into one for summary judgment, and granted it. Proriver, Inc. v. Red River Grill, LLC, 27 F. Supp. 2d 1, 7-8 (D.D.C.1998). As to the parties' summary judgment motions, the Court first found that defendant had not acquired any trademark rights in RED RIVER through the License Agreement or defendant's prior use of the mark. Id. at 4-5. The Court then considered whether the License Agreement gave defendant any contract rights in RED RIVER. Although the Court concluded that the License Agreement created contractual rights between defendant and CBI regarding use of the name, it found that these rights were not binding on plaintiff because, as an assignee, plaintiff was responsible only for those obligations of CBI, an assignor, that it had contracted to undertake. Id. at 6 (citing Rittenberg v. Donohoe Constr. Co., 426 A.2d 338, 341 (D.C. 1981)). Finding that plaintiff had assumed only those rights and obligations in the License Agreement regarding the transfer of the RED RIVER CATTLE COMPANY mark to defendant if the mark fell into disuse for eighteen months, the Court concluded that plaintiff was not bound by defendant's contractual right to use RED RIVER.
Despite finding that defendant had no affirmative contract right that was enforceable against plaintiff, the Court indicated that defendant may have a complete defense to plaintiff's infringement claims insofar as the Assignment and Option Agreement bars plaintiff from bringing an action for infringement against defendant based solely on the RED RIVER CATTLE COMPANY mark. The Court found that plaintiff's infringement claims against defendant were in fact based solely on the RED RIVER CATTLE COMPANY mark because they alleged violations of plaintiff's rights to the RED RIVER and RED RIVER AUTHENTIC BARBEQUE & GRILLE marks, the registration of which the PTO had approved solely on the basis of the rights to the RED RIVER CATTLE COMPANY mark that plaintiff had acquired from CBI. Accordingly, the Court tentatively concluded that plaintiff was "contractually estopped from bringing a claim of infringement against defendant." Id. This conclusion was tentative because it relied on the assumption that the relevant provision in the Assignment and Option Agreement was enforceable, which first requires a finding that enforcement of *45 the contract provision would not result in "injury to the public through confusion." Proriver, 27 F.Supp.2d at 6 (quoting VISA Int'l Serv. Ass'n v. Bankcard Holders of Am., 784 F.2d 1472, 1473 (9th Cir.1986)). Because the parties had presented no evidence on the likelihood of confusion or injury to the public, the Court directed the parties to submit supplemental memoranda on this issue, and deferred consideration of plaintiff's motion for partial summary judgment and defendant's motion for summary judgment pending those submissions. See id. at 4, 7. The parties have since addressed the enforceability of the contract provision in filings with the Court. In one of those filings, plaintiff also moved for summary judgment on defendant's claim that it is entitled to assignment of the RED RIVER CATTLE COMPANY mark under the terms of the Assignment and Option Agreement.
In sum, the Court is presented with two questions: (1) whether the provision in the Assignment and Option Agreement barring plaintiff from suing defendant for infringement is enforceable; and (2) whether defendant is contractually entitled to assignment of the RED RIVER CATTLE COMPANY mark. Resolution of the first question will enable the Court to reach a final decision on plaintiff's motion for partial summary judgment and defendant's motion for summary judgment on plaintiff's amended complaint, while resolution of the second question will determine the outcome of plaintiff's supplemental motion for summary judgment and defendant's motion for summary judgment on its amended counterclaim.
STANDARD OF REVIEW
Summary judgment may be granted only if the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, all evidence and the inferences to be drawn from it must be considered in the light most favorable to the non-moving party. See Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Mere allegations in the pleadings, however, are not sufficient to defeat a summary judgment motion; if the moving party shows that there is an absence of evidence to support the non-moving party's case, the non-moving party must come forward with specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
DISCUSSION
1. Enforcing the Provision in the Assignment and Option Agreement
As the Court explained in its earlier Opinion, "a party entering into a ... [contract] with respect to a trademark will be held to his contract unless enforcement of the contract would result in injury to the public through confusion." Proriver, 27 F.Supp.2d at 6 (quoting VISA Int'l, 784 F.2d at 1473). First, the party seeking rescission must show that enforcement of the contract will create confusion that will cause harm to the consuming public, as opposed to mere harm to a party's business.[5]See VISA Int'l, 784 F.2d at 1473-4 *46 & n. 2; T & T Mfg. Co., 587 F.2d at 538. If the party makes this showing, the court must then weigh this confusion and resulting harm against contract law's policy of holding parties to the terms of their agreements, in order to determine whether enforcement of the contract ultimately violates public policy. See VISA Int'l, 784 F.2d at 1474 & n. 2; T & T Mfg. Co., 587 F.2d at 538; Beer Nuts, Inc. v. King Nut Co., 477 F.2d 326, 328 (6th Cir.1973).
In this case, enforcement of the provision in the Assignment and Option Agreement barring plaintiff from suing defendant will result in the simultaneous operation of similarly-named restaurants in the greater Washington, D.C., area: defendant's Red River Grill restaurant and plaintiff's Red River Authentic Barbeque & Grille restaurants. The parties agree that the co-existence of these restaurants may confuse the public, see Pl.'s Resp. to Def.'s Reply Mem. at 8-9; Def.'s Reply Mem. at 3, but disagree over the extent of injury such confusion will cause. Plaintiff argues that allowing the restaurants to operate under similar names poses a risk of serious injury to the public because, in the event of "an outbreak of botulism or some other problem with food sources," confusion over the restaurant names could lead an individual to believe "that one restaurant is safe to eat at, when it is not."[6] Pl.'s Resp. in Opp. to Supp. Mem. at 3. By contrast, defendant argues that allowing them to co-exist will not cause any cognizable injury because, at most, restaurant goers will be inconvenienced when, as a result of the name confusion, they show up at one restaurant and learn that it is not the restaurant that they had intended to patronize.[7] As discussed below, the Court finds a threat of only minimal injury to the public from allowing Red River Grill and Red River Authentic Barbeque & Grille to operate simultaneously, and concludes that this level of injury does not outweigh the public interest in holding parties to their contractual commitments.
As the parties suggest, confusion over the restaurant names occasionally may lead restaurant goers in the area to show up at Red River Grill when they actually intended to patronize Red River Authentic Barbeque & Grille, or vice versa. Nevertheless, the extent of possible harm resulting from this mistake is minimal. First, those misguided patrons who never realize their mistake will not suffer any injury because the quality of food in one restaurant is not alleged to be inferior to that in the other; the main difference between the restaurants is in the type of cuisine they serve.[8]See T & T Mfg. Co., 587 F.2d at 538 (noting importance of absence of allegation that one product was inferior to the other). Second, those misguided patrons who do realize their mistake will suffer more of an inconvenience or annoyance than injury. At most, the patron will be forced to either correct his mistake by traveling to the desired restaurant, settle by patronizing the non-desired restaurant, or patronize neither restaurant. None of these outcomes can be deemed a significant injury to the public. Indeed, cases finding non-negligible injuries to the public *47 involve a greater level of harm. See, e.g., VISA Int'l, 784 F.2d at 1473 n. 1 & n. 2 (noting possible injury from confusion over credit card insurers would not "necessarily be insignificant" because confusion would lead consumers to choose wrong insurers; identity of insurer is important insofar as consumers rely on reputation and financial strength of insurers they select); Kegan v. Apple Computer, Inc., 1996 WL 667808, *3 (N.D.Ill.1996) (finding that enforcement of agreement recognizing Apple Computer's appropriation of the rights to the word GUIDE "could harm the public in that other businesses would be estopped from using that word to describe their products").
The Court does not agree with plaintiff's assertion that, in the event of an outbreak of food poisoning that affects one of these restaurants, confusion over the names will lead people to erroneously frequent the unsafe restaurant.[9] First, if people come to know of such an outbreak, it is probably because they acquired the relevant information from the media or public health authorities; in all likelihood, these entities would publicize such information in a way that clearly informed consumers of the location of the unsafe establishment. Second, assuming people with knowledge of the outbreak even decided to patronize a restaurant with the words "Red River" and "Grill[e]" in its name during this period, they would likely take additional precautions to ensure that they were not patronizing the unsafe restaurant. Thus, plaintiff's allegation of harm is not credible.
Balanced against the risk of confusion and minimal harm from allowing Red River Grill and Red River Authentic Barbeque & Grille to operate simultaneously is the interest of contract law in holding plaintiff to the terms of the Assignment and Option Agreement. In that agreement, which contains clear references to defendant's use of the RED RIVER CATTLE COMPANY mark under the License Agreement, plaintiff expressly warranted that it would not bring an action for infringement against defendant based solely on that mark. In all likelihood, this warranty facilitated plaintiff's successful negotiation of CBI's assignment of the mark, which in turn enabled it to register the two related marks it desired. Given the nature of plaintiff's warranty, the Court finds that there is a strong contract law interest in holding plaintiff to its terms. Because enforcing this contractual provision imposes a risk of only minimal injury through confusion, the interests of contract law dictate that the Court enforce that provision here.
The Court's conclusion closely resembles the conclusion reached by the district court in T & T Mfg. Co. In that case, Cross Company ("Cross") had entered into a settlement with The Quill Company ("Quill") in which it agreed not to sue Quill for infringement of Cross's pen trademark, as long as Quill adhered to certain manufacturing restrictions. T & T Mfg. Co. v. A.T. Cross Co., 449 F. Supp. 813, 815 (D.R.I.), aff'd, 587 F.2d 533 (1st Cir.1978). In determining whether this agreement was enforceable, the court found that similarity in *48 the pens manufactured by Cross and Quill would in fact create a likelihood of confusion, but found no risk of significant harm from this confusion because there were no allegations that one company's product was inferior to the other's, even though "a consumer might claim harm because he sought the prestige of Cross but got Quill instead." Id. at 827. The court then found that the risk of harm did not out-weigh the interest in enforcing contracts because Cross had "voluntarily contracted with ... Quill in a way which allowed for the possibility of confusion." Id. Similarly, in this case, a risk of significant harm does not exist because the parties have not alleged that the quality of one restaurant is inferior to that of the other; at most, restaurant patrons will suffer annoyance or inconvenience should they confuse the two restaurants. Moreover, a strong policy reason exists for holding plaintiff to its contractual undertaking because plaintiff voluntarily agreed not to sue defendant over its use of the RED RIVER CATTLE COMPANY mark, and did so with notice of the manner in which defendant was using the related RED RIVER mark. Thus, as in T & T Mfg. Co., the Court concludes that plaintiff is estopped from asserting its infringement claims against defendant.
The Court's conclusion has the following effect on the parties' summary judgment motions. Plaintiff's motion for partial summary judgment argues that plaintiff is entitled to judgment as a matter of law that defendant possesses no rights in RED RIVER. The Court has already concluded both that defendant does not possess any trademark rights in RED RIVER, and that any affirmative rights to use that name acquired by defendant under the License Agreement are not binding on plaintiff. See Proriver, 27 F.Supp.2d at 4-5. To that extent, therefore, the Court grants plaintiff's motion for partial summary judgment. However, to the extent that plaintiff's motion asserts that defendant possesses no contract rights whatsoever in RED RIVER, it is denied. As discussed above, defendant does possess rights in that mark the right not to be sued by plaintiff for infringement over its use.
Defendant's motion for summary judgment is similarly granted in part and denied in part. Defendant's motion asserts that it is entitled to judgment as a matter of law on plaintiff's amended complaint.[10] As amended, plaintiff's complaint contains three counts: Count 1 seeks declaratory relief, while Counts 2 and 3 allege that defendant's operation of the Red River Grill restaurant infringes its trademark rights to RED RIVER and RED RIVER AUTHENTIC BARBEQUE & GRILLE, respectively. Because the Court has concluded that plaintiff is estopped from asserting infringement claims against defendant, defendant's summary judgment motion is granted with respect to Counts 2 and 3 of plaintiff's amended complaint. The Court, however, denies defendant's motion as to Count 1 because Count 1 does not assert an infringement claim.[11]
*49 2. Assignment of the RED RIVER CATTLE COMPANY Mark to Defendant
Plaintiff has filed a supplemental motion for summary judgment on defendant's claim that it is entitled to assignment of the RED RIVER CATTLE COMPANY mark from plaintiff under the terms of the Assignment and Option Agreement. In that agreement, plaintiff assumed CBI's obligations in the provision of the License Agreement requiring CBI to assign the mark to defendant if CBI did not use the mark for restaurant services for eighteen months. In its supplemental motion, plaintiff argues that the condition for assignment of the mark has not been met because it has not failed to use the RED RIVER CATTLE COMPANY mark within an eighteen-month period. Defendant counters that it is CBI's non-use of the mark, not plaintiff's, that triggers the assignment obligation; because CBI has not used that mark within the requisite period, defendant asserts that it is entitled to assignment of the mark. Thus, the outcome of plaintiff's supplemental summary judgment motion turns on whose non-use of the mark CBI's or plaintiff's triggers the duty to assign under the terms of the Assignment and Option Agreement.[12] The Court finds that plaintiff's non-use is controlling.
In construing the relevant provision in the Assignment and Option Agreement, the Court's principal objective is to ascertain and give effect to the intent of the parties to the agreement.[13]See Hamilton Ins. Services, Inc. v. Nationwide Ins. Cos., 86 Ohio St. 3d 270, 714 N.E.2d 898, 900 (1999); Foster Wheeler Enviresponse, Inc. v. Franklin County Convention Facilities Auth., 78 Ohio St. 3d 353, 678 N.E.2d 519, 526 (1997). "The intent of the parties to a contract is presumed to reside in the language they chose to employ in the agreement." Foster Wheeler, 678 N.E.2d at 526 (quoting Kelly v. Medical Life Ins. Co., 31 Ohio St. 3d 130, 509 N.E.2d 411 (1987)). The Court must give unambiguous terms in the provision their "ordinary meaning, unless manifest absurdity results, or unless some other meaning is clearly evidenced from the face or contents" of the contract. Id. (quoting Alexander v. Buckeye Pipe Line Co., 53 Ohio St. 2d 241, 374 N.E.2d 146 (1978)); accord Hamilton Ins. Services, 714 N.E.2d at 901; Winningham v. North American Resources Corp., 42 F.3d 981, 985 (6th Cir.1994).
The relevant provision in the Assignment and Option Agreement states:
CATTLE BARONS also hereby assigns to PRORIVER, and PRORIVER accepts the assignment of, the rights and obligations of CATTLE BARONS in that provision in the License Agreement which provides essentially as follows:
If CATTLE BARONS does not use the mark RED RIVER CATTLE CO. for restaurant services for eighteen (18) months[,] CATTLE BARONS agrees to voluntarily assign Registration No. 1,498,999 and all rights and goodwill associated with the mark RED RIVER CATTLE CO. to Licensee.
Assignment and Option Agreement ¶ 1. The parties' disagreement as to whose non-use of the mark triggers the duty to assign is based on conflicting understandings of the scope of the obligations that CBI delegated to plaintiff in this provision.[14]*50 In plaintiff's view, the provision should be construed as delegating the performance of two duties to plaintiff: the duty not to let the mark fall into disuse for eighteen months and the duty to assign the mark to defendant if it does. In defendant's view, the provision should be construed as delegating the performance of only one duty: the duty to assign the mark if CBI stopped using it within the specified period.
The Court finds that the provision should be construed as delegating to plaintiff both the duty not to let the RED RIVER CATTLE COMPANY mark fall into disuse and the duty to assign the mark if it does. First, this construction is consistent with the intent of the parties, as evidenced by the language they employed in their agreement. The provision states that CBI assigns to plaintiff "all" of its rights and obligations in the relevant provision in the License Agreement. Because not letting the mark fall into disuse is an implied obligation of the obligation to assign the mark if it does, it falls within the ambit of the obligations that CBI delegated to plaintiff.[15] Indeed, it would be nonsensical to find that, in delegating "all" of its obligations under the License Agreement provision to plaintiff, CBI sought to reserve in itself the obligation not to let the mark fall into disuse.
Despite the clear implication of this term, defendant argues that the language of the provision in the Assignment and Option Agreement still supports its interpretation because it differs from the language of the parallel provision in the License Agreement. The License Agreement identifies the party whose disuse triggers the duty to assign as "Licensor," while the Assignment and Option Agreement identifies that party as "CATTLE BARONS."[16] According to defendant, because plaintiff had the option to acquire all of CBI's rights and obligations in the License Agreement, and could thereby succeed to the title of "Licensor" under that agreement, it was necessary to substitute "CATTLE BARONS" for "Licensor" to clarify that CBI's non-use of the mark triggered the duty to assign, and would continue to do so even if plaintiff later became the "Licensor." Def.'s Reply Mem. at 8. The Court disagrees. First, the provision in the Assignment and Option Agreement used the word "essentially" to indicate that it was summarizing the parallel provision in the License Agreement. As this summary served only to give plaintiff notice of the obligations it was assuming, defendant's emphasis on its choice of terminology is misplaced. Second, defendant's argument cannot be applied consistently. The provision in the Assignment and Option Agreement also substituted "CATTLE BARONS" for "Licensor" in describing the party that must assign the RED RIVER CATTLE COMPANY mark if it falls into disuse. Under the logic of defendant's argument, *51 this change in terminology indicates that CBI also retained the obligation to assign the mark to defendant. This conclusion, however, is obviously incorrect because CBI no longer possessed any rights in the mark after entering into the Assignment and Option Agreement. Thus, defendant's argument is able to account for one substitution of "CATTLE BARONS" for "Licensor," but not the other. This inconsistency indicates that the change in terminology simply does not carry the significance that defendant alleges.[17]
The nature of the Assignment and Option Agreement also evidences the parties' intent to make plaintiff's non-use of the RED RIVER CATTLE COMPANY mark trigger the duty to assign. Plaintiff acquired all of the rights to the RED RIVER CATTLE COMPANY mark from CBI in the Assignment and Option Agreement. Defendant would have the Court believe that, in acquiring those rights, plaintiff allowed another party to determine whether it could keep them by letting CBI's non-use of the mark trigger its duty to assign the mark. Such a scenario strains credulity. Because CBI gave up all its rights to the mark by entering into the Assignment and Option Agreement, it was likely that CBI would not use the mark from that point forward.[18] Thus, under defendant's interpretation of the provision, plaintiff would have been obligated to relinquish the mark within eighteen months of acquiring it because CBI's non-use would have triggered the duty to assign. The Court does not believe that the parties intended for the provision in the Assignment and Option Agreement to have this effect. Rather, the Court finds that the parties intended to give plaintiff control over whether it kept the rights to the RED RIVER CATTLE COMPANY mark by making plaintiff's non-use of the mark trigger the duty to assign.[19]
In sum, the Court finds that the language and nature of the Assignment and Option Agreement indicate that plaintiff's non-use of the RED RIVER CATTLE COMPANY mark triggers the obligation to assign. Because defendant does not dispute that plaintiff has complied with its obligation to ensure that the mark does not fall into disuse, the Court concludes that defendant is not entitled to assignment of the mark. Accordingly, the Court denies defendant's motion for summary judgment on its amended counterclaim, and grants plaintiff's supplemental motion for summary judgment on Counts 1 and 2 of defendant's amended counterclaim.[20]*52 As the Court granted summary judgment on Count 4 in its previous Opinion, Count 3 is all that remains of defendant's amended counterclaim.[21]
CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part plaintiff's motion for partial summary judgment. The Court grants defendant's motion for summary judgment as to Counts 2 and 3 of plaintiff's amended complaint, denies defendant's motion as to Count 1 of that complaint, and denies defendant's motion as to its amended counterclaim. Finally, the Court grants plaintiff's supplemental motion for summary judgment on Counts 1 and 2 of defendant's amended counterclaim. An appropriate Order accompanies this Opinion.
ORDER
For the reasons stated in the accompanying Opinion, it hereby is
ORDERED, that plaintiff's motion for partial summary judgment is granted to the extent that defendant does not possess any trademark rights in RED RIVER, or any rights in RED RIVER under the License Agreement that are enforceable against plaintiff, but denied to the extent that defendant has the right to use the RED RIVER mark without being sued by plaintiff for infringement. It hereby further is
ORDERED, that defendant's motion for summary judgment is granted as to Counts 2 and 3 of plaintiff's amended complaint, denied as to Count 1 of that complaint, and denied as to defendant's amended counterclaim. It hereby further is
ORDERED, that summary judgment is granted in plaintiff's favor on Counts 1 and 2 of defendant's amended counterclaim. It hereby further is
ORDERED, that the parties shall confer on the status of the remaining claims in this case and the manner in which they should be resolved, and shall submit a joint statement as to any agreement they are able to reach on those questions within twenty-one days of the date of this Order. If, however, they are unable to reach an agreement on either one of those questions, they shall submit separate statements outlining their respective positions within the noted time-frame.
SO ORDERED.
NOTES
[1] Plaintiff's Red River Authentic Barbeque & Grille restaurants specialize in barbeque, while defendant's Red River Grill restaurant specializes in Southwestern food.
[2] To clarify, when the Court uses capital letters to spell out a name, it is referring to the name as a trademark. Thus, for example, RED RIVER CATTLE COMPANY refers to the RED RIVER CATTLE COMPANY trademark.
[3] CBI's assignment of the RED RIVER CATTLE COMPANY mark to plaintiff removed the impediment to plaintiff's registration of RED RIVER and RED RIVER AUTHENTIC BARBEQUE & GRILLE because plaintiff's desired marks no longer resembled "a mark registered in the Patent Trademark Office ... by another ... as to be likely, when used," to cause confusion with the other mark. See 15 U.S.C. § 1052(d).
[4] Defendant filed an amended counterclaim on December 23, 1997.
[5] The Court emphasizes that whether enforcement of the contract will cause confusion and whether it will cause injury are separate inquiries under this analysis. Although one case has identified public confusion with public injury, see Peyrat v. L.N. Renault & Sons, Inc., 247 F. Supp. 1009, 1013 (S.D.N.Y.1965) (stating that "[c]onfusion as to the source of origin of a consumer product would be the type of public injury which must be prevented"), the trend of more recent cases is to distinguish the two, see, e.g., VISA Int'l, 784 F.2d at 1474 n. 2 (noting that inquiries are separate); T & T Mfg. Co. v. A.T. Cross Co., 587 F.2d 533, 538 (1st Cir.1978) (stating that "the Degree or Extent of public confusion must be examined in order to ascertain whether there is any significant harm to the public").
[6] Botulism is "[a]n extremely virulent, dangerous food poisoning caused by botulin and characterized by vomiting, abdominal pain, coughing, muscular weakness, and visual disturbance." The American Heritage Dictionary 200 (2d ed.1982).
[7] Plaintiff argues that defendant is taking inconsistent positions by making light of the risk of confusion after previously warning of the gravity of this risk. See Pl.'s Resp. to Def.'s Reply Mem. at 7. Defendant, however, does not deny that there is a risk of confusion; rather, defendant argues only that the confusion does not pose a risk of serious injury to the public. Whether enforcement of a contractual term will create public confusion and whether it will inflict public injury are separate inquiries. See supra note 5. Plaintiff does not show that defendant has ever made any allegations of public injury. Thus, plaintiff's argument is unavailing.
[8] Some restaurant goers may not realize their mistake if, for example, they have never dined at any of these restaurants before, or are not familiar with the type of cuisine they serve.
[9] In raising this argument, plaintiff implies that the PTO made a determination that allowing these similarly-named restaurants to operate simultaneously created this risk. See Pl.'s Resp. in Opp. to Supp. Mem. at 3 ("it is likely, as the PTO determined, that an out-break of botulism ... might result in an individual believing that one restaurant is safe to eat at, when it is not"). Plaintiff, however, does not indicate where the PTO made this determination. In denying plaintiff's original application to register RED RIVER and RED RIVER AUTHENTIC BARBEQUE & GRILLE, the PTO did determine that a risk of confusion existed between those marks and the RED RIVER CATTLE COMPANY mark. The PTO's decision, however, did not mention any risk of harm flowing from this confusion in the event of a possible outbreak of food poisoning. Nor is the PTO's finding of confusion synonymous with a finding of the harm plaintiff alleges. Because plaintiff's suggestion that the PTO made a determination of this risk of harm is, at best, unclear, the Court gives it no weight.
[10] Defendant's motion for summary judgment also asserts that it is entitled to judgment as a matter of law on its amended counterclaim. Because the Court has already determined that defendant has no trademark rights in RED RIVER, the fate of defendant's motion as to its counterclaim turns on whether defendant is entitled to assignment of the RED RIVER CATTLE COMPANY mark under the terms of the Assignment and Option Agreement. The Court addresses this question in Part 2 of its Discussion.
[11] Count 1 seeks, inter alia, a declaration that, as between the parties: (1) plaintiff has exclusive ownership of, and right to use, the RED RIVER mark; (2) defendant has no such ownership or right of use; and (3) plaintiff's use of that mark does not infringe any rights possessed by defendant. Although plaintiff is not contractually estopped from asserting Count 1, the Court notes that, with the issuance of this Opinion, it will have resolved most if not all of the issues underlying plaintiff's request for declaratory relief in the course of ruling on the parties' various summary judgment motions.
[12] Defendant's summary judgment motion on its amended counterclaim also turns on this issue. See supra note 10.
[13] The Court applies Ohio law because the Assignment and Option Agreement provides that it "shall be governed by the law of the State of Ohio." Assignment and Option Agreement ¶ 7(d). Furthermore, as a general rule, questions as to the validity or "effect of an assignment are governed by the law of the place where the assignment was made." 6 Am.Jur.2d Assignments § 11 (West 1999). Here, CBI's assignment to plaintiff of certain rights and obligations under the License Agreement was made in Ohio. See Assignment and Option Agreement ¶ 7(d).
[14] Although the provision in the Assignment and Option Agreement refers to this transfer as an "assignment" of CBI's rights and obligations under the particular provision in the License Agreement, the Court more appropriately refers to it as a "delegation." "The word `assignment' is generally associated with rights under a contract, while `delegation' refers to duties." 6 Am.Jur.2d Assignments § 3 (West 1999). When a transfer of both rights and duties occurs, "it is permissible to characterize the transaction as an `assignment' of the contract." Id. However, because the relevant provision in the License Agreement imposed obligations, but did not confer rights, on CBI, the Court considers CBI to have delegated the performance of those obligations under the License Agreement.
[15] The Court notes that it has already found that plaintiff assumed "the obligation not to let RED RIVER CATTLE COMPANY fall into disuse." Proriver, 27 F.Supp.2d at 7.
[16] In relevant part, the License Agreement states: "If Licensor does not use the Mark for restaurant services for eighteen (18) months Licensor agrees to voluntarily assign Registration No. 1,498,999 and all rights and good will associated with the Mark to Licensee...." License Agreement ¶ 6.
[17] Defendant also emphasizes that plaintiff did not succeed to the title of "Licensor" as used in the License Agreement. Def.'s Reply Mem. at 7-8. The relevance of this fact is unclear. Although the Licensor's non-use of the RED RIVER CATTLE COMPANY mark triggers the duty to assign under the terms of the License Agreement, the Licensor CBI delegated the performance of the obligation to use the mark to plaintiff, which it was entitled to do. See infra note 19. That plaintiff never succeeded to the title of Licensor does not affect the validity of CBI's delegation; plaintiff still stepped into the shoes of CBI for the purpose of determining whether the mark had fallen into disuse for eighteen months.
[18] Although CBI reserved "to itself any common law rights it may have [had] in the name RED RIVER," there is no indication that CBI retained any rights to use the RED RIVER CATTLE COMPANY mark when it transferred its "entire right, title and interest" in the mark to plaintiff. Assignment and Option Agreement ¶ 1 and Appendix A.
[19] Defendant does not allege, nor does the Court find, that it was improper for CBI to delegate performance of its obligation to ensure that the RED RIVER CATTLE COMPANY mark did not fall into disuse. As a general rule, the performance of duties in a contract may be delegated unless they require the "exercise of personal skill or discretion." Restatement (Second) Contracts § 318, Comment c (1981); accord 3 Williston Contracts § 411 (3d. ed.1960). Here, it does not appear that use of the mark required the exercise of any personal skill or discretion by CBI. Thus, CBI was free to delegate that obligation.
[20] Summary judgment is warranted on Count 1 because that count alleges that defendant is entitled to assignment of the RED RIVER CATTLE COMPANY mark under the terms of the Assignment and Option Agreement. Count 2 alleges that plaintiff's use of the RED RIVER, RED RIVER AUTHENTIC BARBEQUE & GRILLE, and RED RIVER CATTLE COMPANY marks violates its "rights under the laws of the United States of America concerning trademarks." Countercl. ¶ 35. The Court previously concluded that defendant has no trademark rights in RED RIVER, see Proriver, 27 F.Supp.2d at 4-5, and now concludes that defendant has no trademark rights in RED RIVER CATTLE COMPANY because it is not entitled to assignment of that mark from plaintiff. Thus, because the Court has determined that defendant does not possess the trademark rights it alleges, summary judgment is warranted on Count 2.
[21] Count 3 of defendant's amended counterclaim alleges that plaintiff's use of the terms "Red River" and "Grille" in connection with restaurant services constitutes unfair competition.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443581/
|
729 S.W.2d 344 (1987)
VANGUARD INSURANCE COMPANY, Appellant,
v.
Howard M. HUMPHREY, Jr., Individually and as Executor of the Estate of Howard M. Humphrey, Sr., and Emma Marjorie Humphrey, Appellees.
No. C14-86-519-CV.
Court of Appeals of Texas, Houston (14th Dist.).
March 19, 1987.
Rehearing Denied April 16, 1987.
*345 Neal H. Paster, Stephen W. Hanks, Houston, for appellant.
Otway Denny, Jr., Houston, for appellees.
Before JUNELL, SEARS and DRAUGHN, JJ.
OPINION
SEARS, Justice.
This is an appeal from a judgment in which appellant, intervenor in a negligence and product liability suit brought by appellees (plaintiffs below), was ordered to pay appellees $45,402.00 in attorney's fees. Appellant contends that the trial court *346 erred in its calculation of appellant's subrogated interest, in its award to appellant of settlement proceeds and in its award of attorney's fees. We find no error and affirm.
Howard M. Humphrey, Sr., died from injuries sustained while operating a tractor for his employer. The tractor was manufactured and sold by Massey-Ferguson, Inc., against whom appellees brought a negligence and product liability suit. Appellant provided workers' compensation insurance for Mr. Humphrey's employer and filed a Petition in Intervention to become subrogated to the rights of appellees for the benefits paid to Mrs. Humphrey under workers' compensation insurance.
Appellees settled with Massey-Ferguson before trial for $400,000.00 and trial to the court proceeded on appellant's subrogation claim. The trial court found that appellant had paid $39,564.00 in past compensation benefits to Mrs. Humphrey, that appellant was relieved of paying $96,642.00 in future benefits by virtue of the settlement between appellees and Massey-Ferguson, and that the total amount of appellant's subrogated interest was $136,206.00. The trial court then awarded appellees' attorney 33 1/3% of the total subrogated interest, or $45,402.00, and ordered it to be paid by appellant. Finally, the trial court ordered appellees to reimburse appellant $39,564.00 from the settlement proceeds for the past benefits already paid to Mrs. Humphrey.
In its first two points of error, appellant contends the trial court erred in including future widow benefits in its calculation of appellant's subrogated interest and in awarding attorney's fees based on this total amount.
Subrogation recovery and attorney's fees in workers' compensation cases are governed by Tex.Rev.Civ.Stat.Ann. art. 8307, § 6a (Vernon Supp.1987), which provides for the award and apportionment of attorney's fees allowable out of the carrier's subrogation recovery, taking into account the benefit accruing to the carrier as a result of each attorney's service. Appellant argues that the statute speaks only to past paid benefits and expenses since it is worded in the past tense. Further, as there is no statutory or case law authority for the carrier to seek recovery from a third party for the relief from benefits to be paid in the future, the total subrogated interest of the carrier should not include any calculation of relief from future benefits.
While appellant's statutory interpretation might be persuasive, a recent appellate decision dealt with this exact issue and held contrary to appellant's position. In Ischy v. Twin City Fire Insurance Co., 718 S.W.2d 885 (Tex.App.Austin 1986, writ ref'd n.r.e.), the court held that a workers' compensation carrier's release from future liability for death benefits constitutes a "subrogation recovery" thereby creating an obligation for payment of attorney's fees. See also Chambers v. Texas Employers Insurance Assoc., 693 S.W.2d 648 (Tex.App.Dallas 1985, writ ref'd n.r. e.), in which the court held that, for the purpose of awarding attorney's fees, the "benefit accruing" to the carrier includes the amount paid and the relief from liability for future payments.
We therefore hold that the "benefit accruing" in Tex.Rev.Civ.Stat.Ann. art. 8307, § 6a (Vernon Supp.1987), is the sum total of all past benefits paid and the relief from liability of any and all future benefits that would have been due and payable but for the recovery and settlement of claims against a third party tortfeasor. The first two points of error are overruled.
In its third point of error appellant asserts the trial court erred in its award of attorney's fees. It contends future benefits, upon which part of the fees was awarded, are not supported by the evidence, are speculative, and do not consider the remarriage contingency.
Mr. James Orr, a claims supervisor with an insurance managing agent, testified that, based on a certified copy of the Life Tables of the Vital Statistics of the United States, Mrs. Humphrey's life expectancy was 17.7 years. Further, based on this life expectancy, the insurance carrier would have owed her $96,642.00 in future death *347 benefits; therefore, appellees' attorney had saved the insurance company $96,642.00 by bringing this suit and obtaining a settlement. There was no objection to this testimony nor were the Life Tables offered into evidence.
Appellant contends that appellees failed in their burden of proving the value of future benefits as a matter of law because the remarriage contingency was not addressed and the Widow's Pension Table was not used to calculate the future benefits. A review of case authority shows that, while some states have provided for the use of remarriage tables to calculate the probability that a widow or widower will remarry, our legislature has provided no such specific guidelines. See Twin City Fire Insurance Co. v. Cortez, 576 S.W.2d 786, 790 (Tex.1978). See also Walden v. Royal Globe Insurance Co., 577 S.W.2d 296, 301 (Tex.Civ.App.Beaumont 1978, writ ref'd n.r.e.), in which the court stated that "[T]he propensity or the likelihood of a widow remarrying is not, in our opinion, subject to such actuarial proof." While the Widow's Pension Table has been accepted as a means of calculating future death benefits, see, e.g., Stott v. Texas Employers Insurance Assoc., 645 S.W.2d 778, 779 (Tex.1983), appellant does not cite, nor do we find, case or statutory authority mandating its use. Accordingly, appellant's third point of error is overruled.
In its fourth point of error appellant contends the trial court erred in ordering appellant to pay appellees' attorney's fees because, as a matter of law, the payment must come from the settlement proceeds. Appellant relies on the first part of article 8307, § 6a(a), which states that "[T]he amount of such recovery shall first pay costs and attorney's fees and then reimburse the association, and if there be any excess it shall be paid to the beneficiaries..." Appellant ignores, however, further language in § 6a(a) stating: "[W]hen the claimant is represented by an attorney, and the association's interest is not actively represented by an attorney, the association shall pay such fee to the claimant's attorney not to exceed one-third (1/3) of said subrogation recovery ... payable out of the association's part of the recovery." We hold the trial court properly ordered appellant to pay attorney's fees. Point of error four is overruled.
In the fifth and sixth points of error appellant argues the trial court erred in awarding appellees' counsel the full legal limit of 33 1/3% of the subrogated interest without apportioning a share to appellant's counsel. Appellant contends there was no evidence, or insufficient evidence, to support the award, and that the award was an abuse of discretion. Appellant relies on University of Texas System v. Melchor, 696 S.W.2d 406 (Tex.App.Houston [14th Dist.] 1985, no writ), to support its argument that its counsel was entitled to an apportionment of attorney's fees under article 8307, § 6a. This court in Melchor dealt with the apportionment of attorney's fees under article 8307, § 6a(b), in a situation requiring evaluation of whether the attorney representing the insurance carrier (or "association" as identified in the statute) "actively" represented its interest. Appellant focuses on language in Melchor which suggests that in order to apportion fairly the attorney's fees in this type of situation, the trial judge must assess three relevant factors: (1) the degree of participation requested of the subrogation attorney by the claimant's attorney, (2) whether such requests were reasonable, and (3) the degree to which the subrogation attorney responded to these requests. Id. at 409. Appellant claims that appellees' attorney never requested participation or help in the case, and argues that it is entitled to an apportionment of fees between the attorneys. However, Melchor does not mandate apportionment. This court interpreted other cases as requiring that a proper apportionment turns upon the facts of each individual situation and requires an assessment of the contributions of each attorney towards the recovery of the subrogation amount. Id. at 407-08.
Appellees' attorney testified that he started working on the case in 1978, that he hired two expert witnesses, made two trips to Kansas and one to Michigan to *348 obtain records and file suit in a related matter, that he took two depositions from people at Massey-Ferguson, and expended 300 hours and $8,000.00 in preparing the lawsuit. He further testified that he never received an investigative report from appellant's counsel, that appellant's counsel attended only a few of the depositions, sent only one set of interrogatories, and did not participate in any of the expense of investigating or preparing for trial. He testified the only contact he had in two years from appellant's counsel was one phone call asking if he was going to settle, and that the only papers on file from appellant's counsel were the Petition in Intervention, two letters and the set of interrogatories. The third party's attorney (defense counsel) testified that he and appellees' counsel worked out the settlement and that they did so in spite of appellant's counsel, who presented "great obstacles" in obtaining the settlement. Appellant's counsel offered no definitive evidence to dispute this testimony.
Allowance of attorney's fees rests in the sound discretion of the trial court, and its judgment will not be reversed without a clear showing of abuse of discretion. Hartford Insurance Co. v. Branton & Mendelsohn, Inc., 670 S.W.2d 699, 703-04 (Tex.App.San Antonio 1984, no writ). We cannot say the trial court abused its discretion in refusing to award a portion of attorney's fees to appellant's counsel. Points of error five and six are overruled.
In the seventh point of error appellant contends the trial court erred in awarding appellant only $39,564.00 after finding appellant's subrogated interest to be $136,206.00. Appellant does not concede that the total subrogated amount was properly determined as $136,206.00, but that if it is correct, then appellant should receive the entire amount from the settlement proceeds.
Article 8307, § 6a(c), states clearly that "[T]he net amount recovered by such beneficiary from the third party action shall be applied to reimburse the association for past benefits and medical expenses paid and any amount in excess of past benefits and medical expenses shall be treated as an advance against future benefit payments of compensation to which the beneficiary is entitled to receive under the Act" (emphasis added). Appellant was not entitled to reimbursement in excess of $39,564.00, the amount it actually paid in past benefits. The seventh point of error is overruled.
The judgment of the trial court is affirmed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1145765/
|
91 Cal. App. 2d 341 (1949)
M. W. ENGLEMAN, as Assignee for Creditors, etc., Respondent,
v.
MARIE F. MALCHOW, Appellant.
Civ. No. 16835.
California Court of Appeals. Second Dist., Div. Two.
Apr. 19, 1949.
Reay, Scharf & Reay and Russell H. Reay for Appellant.
Craig & Weller for Respondent.
MOORE, P. J.
The assignee of Universal Utilities, an insolvent limited partnership, sued a limited partner to enforce her agreed contribution to the capital. From an adverse judgment such limited partner appeals.
[1] The partnership consisted of two general and five limited partners. By her answer and her testimony as a witness, appellant admitted that she had never paid any part of her promised contribution. Such an admission in itself is sufficient to sustain the judgment of the trial court. However, she contends that other evidence tended to prove that her obligation was discharged. Such other evidence no matter how material or relevant, at its best, could serve only to produce a conflict in the total proof to be resolved by the trial court whose determination may not be disturbed on appeal. (Crawford v. Southern Pacific Co., 3 Cal. 2d 427, 429 [45 P.2d 183].) [2] Her contention that she should be relieved of all obligations to pay her own subscription by reason of the failure of her associates to pay theirs is no defense. Neither her pleading nor her proof avails her. A contract can be satisfied under law by nothing short of a complete compliance. The violation of every section of the Civil Code by any one or by all of the other partners would not relieve appellant from her primary obligation to creditors who relied upon her compliance with her subscription agreement. By it her liabilities *344 are measured and not by res inter alios acta or by the failure of her partners to abide by their obligations.
For the same reason it was not error for the court to exclude evidence of the failure of certain limited partners to pay in full their capital subscriptions. The clear-cut issue was whether appellant had paid the sum she had pledged. The proffered evidence was utterly foreign to that subject and could have served no beneficial purpose.
[3] It is asserted that the court disregarded the financial statements taken from the books and records of the partnership which had been lost. There are three answers to such contention. (1) Since the document was received in evidence it is presumed to have been considered. (2) It might properly have been excluded as having had no foundation laid for its admission. (3) But neither its exclusion nor its rejection after admission could have been prejudicial. Since the court adopted the proof that her agreed contribution was not paid, no prejudice could have resulted by a "disregard" of the statement. Hence a reversal on that ground would not be justified. (Mullanix v. Basich, 67 Cal. App. 2d 675, 681 [155 P.2d 130].)
[4] Prejudicial error did not result in refusing to grant a new trial for the purpose of hearing the testimony of an accountant with reference to what the books showed as to capital contributions. The testimony of such a witness would have been merely cumulative of the testimony of appellant who deposed that the lost books disclosed a credit to her capital account. It is not probable that such testimony could have effected a different result. When appellant at the trial discovered the need of the witness it was incumbent upon her then promptly to move for a recess in order to obtain the presence of the witness. Failing so to move she was not entitled to a new trial. (Coats v. General Motors Corp., 3 Cal. App. 2d 340, 356 [39 P.2d 838].) [5] Not only is the order denying a new trial supported by all presumptions of its correctness but the burden is upon appellant to show affirmatively that an order of denial is prejudicially erroneous.
[6] Appellant maintains that an assignment for the benefit of creditors dissolves a partnership and therefore plaintiff cannot maintain an action on behalf of a partnership which no longer exists. The answer to this contention is found in Civil Code, section 2424, "On dissolution the partnership is not terminated, but continues until the winding up of partnership affairs is completed." *345
[7] Appellant contends that the certificate of limited partnership in evidence shows that its organization was in contravention of section 2480 of the Civil Code and is therefore unlawful. That section forbids a contribution of "services" as a part of the capital of a limited partnership. While it is true that the certificate shows that one of the limited partners of Universal Utilities contributed "services rendered of the agreed value of $1,000" besides $2,500 cash, appellant is in no position for the first time on appeal to urge that issue. By her pleading she admitted the organization of the limited partnership "under the laws of the state of California" and admitted by name the personnel constituting the partnership and the amount of her own agreed contribution. The case was tried on the theory that the entity involved is a limited partnership; the findings were made accordingly without protest; motion for a new trial was based upon all the statutory grounds; the affidavit in support thereof made no mention of any defect in the certificate; and presumptively the matter was not argued to the court. Appellant cannot for the first time raise the question of a defective certificate without having first submitted the matter to the trial court. (Adams v. Petroleum Midway Co., 205 Cal. 221, 225 [270 P. 668]; Gerstner v. Scheuer, ante, p. 123 [204 P.2d 937]; Grimes v. Nicholson, 71 Cal. App. 2d 538, 543 [162 P.2d 934]; Drulinger v. Erskine, 71 Cal. App. 2d 492, 497 [163 P.2d 48].)
[8] Appellant finally contends that she was not obliged personally to pay her subscription but that it might as well be paid by another on her behalf. In this she is correct but an argument without proof is of no value. Her own testimony is the sum total of her evidence that it was not paid. In consideration of the money loaned by appellant to one of the general partners prior to the formation of the partnership, she received a promissory note secured by a trust deed on real property later transferred to the partnership. Part of the money loaned was subsequently contributed to the partnership by the borrower. However, there is no indication that he contributed it on appellant's behalf. He used it to discharge his own commitment to the partnership.
The judgment is affirmed.
McComb, J., and Wilson, J., concurred.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443575/
|
729 S.W.2d 866 (1987)
GRANADO, et al., Appellants,
v.
MADSEN, et al., Appellees.
No. A14-85-706-CV.
Court of Appeals of Texas, Houston (14th Dist.).
March 5, 1987.
Rehearing Denied April 2, 1987.
*868 John P. Holloway, Houston, for appellants.
Jay D. Hirsch, David A. Livingston, Gordon M. Carver, III, Stuart W. Lapp, Houston, for appellees.
*869 Before J. CURTISS BROWN, C.J., and MURPHY and ROBERTSON, JJ.
OPINION
J. CURTISS BROWN, Chief Justice.
This is an appeal from a medical malpractice action brought against two physicians, Dr. Alva C. Madsen, a surgeon, and Dr. Mary P. Maddock, an anesthesiologist. Suit was brought by Luis Granado as next friend of his minor children, Luis Granado, Jr., Rosa Linda Granado, Sylvia Granado, and Angeline Granado. All the plaintiffs, the appellants, were children of the decedent, Mary Irene Granado, whose medical treatment at St. Joseph's Hospital, Houston, Texas, in September of 1972 formed the basis of this lawsuit.
In their first three points of error appellants ("the Granados") attack (i) an order striking their pleadings and dismissing with prejudice their suit against Dr. Madsen and (ii) the grant of summary judgment for Dr. Madsen. The remaining twelve points of error relate to the trial on the merits of the Granados' claims against the other defendant, Dr. Maddock. The trial resulted in a final judgment ordering appellants take nothing against Dr. Maddock.
Finding that the court abused its discretion in striking appellants' pleadings and dismissing with prejudice the suit against Dr. A.C. Madsen, we reverse and remand as to appellee Dr. Madsen. We affirm as to Dr. Mary P. Maddock.
On September 8, 1972, Dr. A.C. Madsen performed an elective tonsillectomy on Mrs. Granado. The evening before her surgery Dr. Herman Barnett, an anesthesiologist, saw Mrs. Granado. (Dr. Barnett, now deceased, has never been a party to this law suit.) During that conference Mrs. Granado signed a standard consent form used by the hospital entitled "Authorization for Surgeon to Operate." The form stated that she certified that Dr. A.C. Madsen had explained the necessity, advantages and possible complications of the tonsillectomy to her and she authorized him to perform the surgery "under any anesthetic deemed advisable." During the surgery Dr. Mary P. Maddock, the anesthesiologist, administered the anesthetic Halothane to Mrs. Granado. The patient was discharged from the hospital on September 10th but was readmitted one week later, complaining of symptoms indicating a urinary tract infection. In the hospital she became progressively more jaundiced and mentally confused, lapsing into a coma a few days before her death on September 25, 1972. The autopsy reported the cause of death as "massive hepatic necrosis ... representing an ideosyncratic reaction to the recent Halothane anesthesia" or possibly "due to fulminating viral hepatitis."
The lawsuit, originally filed in 1974, was still pending in 1985 when the trial court entered a pre-trial order, pursuant to Rule 166 of the Texas Rules of Civil Procedure. The order required that the plaintiffs file any amended pleadings on or before February 25, 1985, and the defendants file any amended pleadings on or before March 4, 1985. Nine days after the defendants' deadline and without leave of the court, Dr. Madsen filed a motion for summary judgment. The Granados were permitted to respond to the motion. Without leave of the court they also filed "Plaintiffs' First Supplemental Petition," asserting two additional theories of liability. Dr. Madsen immediately filed a motion to strike, praying that the court strike "Plaintiffs' First Supplemental Petition" or, alternatively, continue the trial scheduled to begin in less than a week. The motion to strike was considered together with the motion for summary judgment on April 26th. The trial court's docket sheet notes that on April 26th the motion to strike was granted and "Order Signed" and that defendant Dr. Madsen's motion for summary judgment was granted, Dr. Madsen was dismissed and "Order to follow."
The language of the Order Granting Defendants' Motion to Strike is significant. After the customary sentence stating that the "Motion ... to Strike the `First Supplemental *870 Petition' of the Plaintiff" came on to be heard and should be granted, the court actually ordered that:
[T]he pleadings of the Plaintiff, LUIS GRANADO, AS NEXT FRIEND OF LUIS GRANADO, JR., ROSALINDA GRANADO, SYLVIA GRANADO, AND ANGELINA GRANADO, MINORS, shall be striken, that Plaintiffs' action against Defendant A.C. MADSEN, M.D., shall be and hereby is dismissed with prejudice, and judgment is hereby rendered in favor of the Defendant of the cause of action filed against him by Plaintiff.
Clearly, this order did much more than grant the prayed for relief of striking the supplemental petition; it struck all pleadings against Dr. Madsen and dismissed with prejudice the Granados' cause of action against him.
The Granados proceeded to trial April 30th against the remaining defendant, Dr. Maddock. After the jury trial, the court rendered a take nothing judgment, and the Granados timely filed their motion for new trial. On August 12th, during the period of the trial court's plenary power following the motion for new trial, the trial judge signed an order purporting to grant summary judgment in favor of Dr. Madsen.
Interesting questions of law arise from the trial court's attempted grant of mutually exclusive remedies. Our initial inquiry is to determine which order of the trial court controls this appeal.
On April 26th only one order was signed: the order dismissing plaintiffs' case against Dr. Madsen. By the time of trial, April 30th, the order had not been reformed or withdrawn and no order granting summary judgment to Dr. Madsen had been signed. Therefore, the only order that prevented the Granados from going to trial against Dr. Madsen on April 30th, was the dismissal order. At trial time only the docket notation indicated that the trial court had once considered granting Dr. Madsen's motion for summary judgment. The law in Texas is well established that a docket entry may not impeach the trial court's order. N-S-W v. Snell, 561 S.W.2d 798, 799 (Tex. 1977). To be effective a trial court order must be entered of record. A docket entry cannot be accepted as substitute for such record nor can a docket entry change or enlarge judgments or orders of the court. Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 110 S.W.2d 561, 566 (1937).
On August 12th, the trial court signed an order purporting to grant summary judgment in favor of Dr. Madsen. The order was of no effect for two reasons. First, on that date the plaintiffs had no live pleadings asserting claims against Dr. Madsen and, hence, there existed no cause of action against which summary judgment could have been granted. Second, the order signed by the trial judge purported to grant summary judgment against one who was not a party to the suit, the plaintiffs' father and next friend. The order stated: "It is, therefore, ORDERED, ADJUDGED and DECREED that the Plaintiff LUIS GRANADO, take nothing over and against the Defendant, ALVA C. MADSEN, M.D., and that ALVA C. MADSEN, M.D., go this day with his costs." The order failed to name the actual plaintiffs. Upon application of either party, an omission or misrecital of any name or names may be corrected. Tex.R.Civ.P. 317. No such application was made. Therefore, the record before this court reflects that summary judgment was not entered against the plaintiffs. The summary judgment order was nullity. We therefore find that the order of the court striking the Granados' pleadings and dismissing with prejudice their cause against Dr. Madsen to be the controlling order of this appeal.
In their first point of error the Granados complain that the trial court erred and abused its discretion in sustaining Dr. Madsen's motion to strike and in dismissing with prejudice the Granados' suit against him. We agree.
In deciding whether a trial court abused its discretion it is the duty of the appellate court to determine whether the trial court acted with reference to guiding *871 rules and principles or whether the court's action was arbitrary and unreasonable. Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex.1986); Downer v. Aquamarine Operations, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). The appellate court cannot substitute its judgment for that of the trial court. Yowell, 703 S.W.2d at 635. Dismissal when issues are disputed without affording the parties their right to a full trial on the merits is an extraordinary sanction allowed only in limited circumstances. Appellees Dr. Madsen argues that Rule 215 of the Texas Rules of Civil Procedure gives the trial court discretion to dismiss a cause of action for failure of a party to comply with a court order. The rule cited by the appellees is limited to sanctions for abuse of discovery orders and has no application to the issue of this case. Plaintiffs' First Amended Petition, alleging seven theories of liability, were properly before the court. No "guiding rules or principles" justify the dismissal of that pleading as a sanction for attempting to supplement those theories without leave of court after the court ordered deadline. The action was arbitrary and unreasonable. We hold that the trial court erred and abused its discretion in dismissing the Granados' cause of action against Dr. Madsen. Consequently, we reverse the trial court's summary dismissal, order that the trial court reinstate Plaintiffs' First Amended Petition and Plaintiffs' First Supplemental Petition, and remand the case for trial on the merits.
Appellants' second and third points of error complain of the order purporting to grant summary judgment in favor of Dr. Madsen. Having found the order to be a nullity, we need not address these points. However, we have compared Dr. Madsen's motion for summary judgment and supporting affidavit with Plaintiffs' First Amended Petition, and we do note that Dr. Madsen failed to negate one of the Granados' seven original claims: that the doctors "[failed] to institute immediate therapy for the liver damage at a time when they [sic] defendants knew or should have known that the patient was experiencing symptoms of liver involvement...." Dr. Madsen failed to show that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law as required by Rule 166-A of the Texas Rules of Civil Procedure.
Appellants' fourth through fifteenth points of error address the trial of claims against the anesthesiologist Dr. Maddock. Appellants allege the trial court erred and abused its discretion in framing the jury charge and in denying a new trial.
At the close of testimony the trial court submitted a special issue inquiring whether Dr. Maddock failed to obtain informed consent from Mrs. Granado for the anesthetic procedures. Informed consent was defined for the jury as "the consent given by a patient to whom such risks incident to anesthetic procedures with Fluothane (Halothane) had been disclosed as would be disclosed to the patient by an anesthesiologist of ordinary prudence under the same or similar circumstances." The jury answered the issue, "We do not."
Appellants contend in their fourth point of error that they were denied a correct submission of the term. The more detailed definition offered by the appellants includes the "prudent anesthesiologist" standard of the submitted definition but continues with additional requirements, i.e. that the information be such that it would "enable the patient to make a knowledgeable, intelligent, and fully informed decision to either accept the suggested anesthetic procedures under the circumstances or to refuse the suggested anesthetic procedures under the circumstances." Appellants argue that the definition contained in the court's charge improperly focused the jury's attention upon what information an anesthesiologist would normally disclose rather than on what information a patient would require to make a knowledgeable decision.
The injuries forming the basis of this lawsuit occurred before the effective date *872 of the Medical Liability and Insurance Act. Tex.Rev.Civ.Stat.Ann. art. 4590i § 1.01 et seq. (Vernon Supp.1977). In the absence of legislative enactment the case is governed by the Texas common law as it existed in 1972. Smith v. J. Weingarten, Inc., 120 S.W.2d 878, 881 (Tex.Civ.App.Beaumont 1938, writ dism'd). Appellants' reliance upon the duty imposed by the Medical Liability and Insurance Act and on subsequent decisions that construe the act is misplaced.
For suits arising prior to this legislative enactment, the landmark case in Texas on informed consent is Wilson v. Scott, 412 S.W.2d 299 (Tex.1967). The Court in Wilson acknowledged that physicians have a duty to make a reasonable disclosure of risks incidental to medical procedures. This duty to obtain a patient's informed consent is based upon the patient's right to sufficient information for him to give informed consent to or refusal of a medical procedure. Id. at 301. This portion of Wilson which appears to support appellants' requested definition is urged by appellants. However, appellants' argument ignores the remainder of the Wilson opinion. There the Court did not define adequate information in terms of what the patient would require or what a juror would disclose to the patient under the same or similar circumstances. Since the content of the disclosures should depend upon both the nature of the medical problem and the particular patient, expert medical evidence is required in each case to establish a standard by which a physician's conduct can be tested. The Court held that "the plaintiff had the burden to prove by expert medical evidence what a reasonable medical practitioner of the same school and same or similar community under the same or similar circumstances would have disclosed to his patient about the risks incident to a proposed diagnosis or treatment...." Id. at 302. The definition of informed consent submitted to the jury is parallel to the language of Wilson.
Appellants further urge that the definition submitted by them and refused by the trial court was approved in Gaut v. Quast, 505 S.W.2d 367 (Tex.Civ.App.Houston [14th Dist] 1974, writ ref'd n.r.e.) per curiam, 510 S.W.2d 90 (Tex.1972). The appellants' reading of Gaut is incorrect. There, as here, the plaintiff was the appellant. The complaint of the plaintiff/appellant before the appellate court was not the propriety of the definition of informed consent used by the trial court but whether plaintiff was entitled to submission of additional independent issues on fraud. Nowhere in the opinion does the court approve or disapprove of the trial court's definition.
We hold that the trial court did not err in its submission of the definition of informed consent. Appellants' fourth point of error is overruled.
In points of error five through seven appellants allege that the trial court erred in refusing certain requested instructions. Two of these described the duty of the anesthesiologist as requiring disclosure to the patient of the risks that could influence a reasonable person in making a decision to give or withhold consent. Such instruction is a misstatement of the law of Texas governing this case. As discussed earlier in this opinion, the standard by which the anesthesiologist's conduct is measured is not what information would influence a reasonable person but rather what information would a reasonable physician of the same school disclose under the same or similar circumstances. Wilson v. Scott, 412 S.W.2d 299, 302 (Tex.1967). The "reasonable person" standard has only become the law of Texas since passage of the Medical Liability Act in 1977. A third refused instruction advised the jury that the surgeon does not have the duty to obtain the patient's informed consent. This statement cannot be supported by Texas law. The duty of physicians and surgeons to obtain a patient's informed consent is well established in Texas. Id. at 301. To complain on appeal of the trial court's refusal to include an instruction in the charge the complaining party must have requested an instruction which is a substantially correct *873 statement of the law. Tex.R.Civ.P. 279. J. V. Harrison Truck Lines, Inc. v. Larson, 663 S.W.2d 37, 41 (Tex.App.Houston [14th Dist.] 1983, writ ref'd n.r.e.)
The two remaining instructions submitted by the appellants and refused were designed to inform the jury that where the duty to obtain informed consent has been delegated by the administering anesthesiologist to another anesthesiologist, the first anesthesiologist remains responsible to the patient. These instructions would constitute an impermissible comment on the weight of the evidence in that each presumes that the duty was delegated and implies that such procedure was improper, ignoring evidence presented at trial that Dr. Maddock spoke with Mrs. Granado before surgery and that it is standard practice in Houston for anesthesiologists to work as teams. The Texas Rules of Civil Procedure require that the trial court shall not comment directly on the weight of the evidence in its charge. Tex.R.Civ.P. 277. The trial court did not err in refusing the requested instructions. Appellants' points of error five, six and seven are overruled.
Appellants assert in their eighth point of error that the trial court erred in refusing their requested issues on Dr. Maddock's negligence in failing to inform Mrs. Granado of the risks involved in the administration of Halothane and the availability of alternative anesthetic procedures. Appellants contend that the negligence theory is a distinctly different legal theory from failure to obtain the patient's informed consent. We disagree. In special issue number one the jury was asked to determine whether the anesthesiologist failed to give Mrs. Granado the information a prudent anesthesiologist under the same or similar circumstances would give. A negligence issue in the charge would but cover another shade of the same ultimate issue and is improper. Texas & Pacific Railway Company v. Snider, 159 Tex. 380, 321 S.W.2d 280, 283-8 (1959). Where the trial court has submitted the controlling issues raised by the pleadings and the evidence, the appellate court shall not reverse because the trial court failed to submit various phases or different shades of the same issue. Tex. R.Civ.P. 279.
In their ninth point of error appellants contend that they were entitled to an issue as to whether Mrs. Granado was pregnant and whether the pregnancy was a proximate cause of her death. The question of Mrs. Granado's pregnancy was not an ultimate issue to a determination of liability. Mrs. Granado's mental and physical condition comprised part of the "same or similar circumstances" that the jury was called upon to evaluate in special issue number one; her condition was a part of the "medical evaluation of Mrs. Granado" in special issue number four and was an element of the "facts and circumstances relating to Mrs. Granado (sic) medical history and present medical condition" in special issue number ten. The trial court submitted the controlling issues and was not required to submit any additional phase or shade of those issues. Prudential Insurance Company of American v. Tate, 162 Tex. 369, 347 S.W.2d 556, 559 (1961). The point is overruled.
In reply to special issues one, four, and ten the jury failed to find that (1) Dr. Maddock failed to obtain the informed consent from Mrs. Granado for the anesthetic procedures; (2) Dr. Maddock failed to obtain an adequate medical history and medical evaluation of Mrs. Granado before administering the anesthetic; and (3) Dr. Maddock was negligent in not using an alternative anesthetic procedure under the circumstances. In points of error eleven, thirteen, and fifteen appellants urge that the jury's negative responses to these issues are contrary to the great weight and preponderance of the evidence.
Where the appellants' challenge is that the failure of a jury to find on an issue is against the great weight and preponderance of the evidence, then this court must consider all the evidence. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986).
*874 On the issue of informed consent appellants had the burden to establish the medical standard for anesthesiologists and then to prove that Dr. Maddock's conduct failed to meet that standard. Appellee admitted that she did not advise the patient of the risk of liver damage from Halothane. That risk was variously estimated by expert testimony to be between one incidence in 3,000 to one in 40,000. Appellants' expert testified that a patient such as Mrs. Granado should be advised of such risk. The witness was a board certified psychiatrist and a biochemist. He was not an anesthesiologist and had never practiced anesthesiology. His only participation in an anesthetic procedure was the administration of ether in 1947 as an intern. On the other hand, appellee presented the expert testimony of two anesthesiologists who were practicing anesthesiology in 1972 and had administered Halothane many thousands of times. The first testified that the risks of injury from Halothane was less than that with other anesthetics available in 1972. Unless a patient specifically inquired, it was not standard practice to discuss those risks. Presenting a chronicle of all possible injuries was more likely to create anxiety than to provide real help to the patient. The second anesthesiologist to testify for Dr. Maddock, a Houston physician, stated that Halothane was the preferred anesthetic in 1972; it was not standard practice of prudent anesthesiologists to discuss with patients the risks of liver damage related to Halothane, and it was standard practice for anesthesiologists practicing in a group to have one member of the anesthesiology team visit the patient the night before surgery to take the patient's medical history, to tell the patient who would administer the anesthetic and to explain the procedure. Dr. Maddock also testified as an expert, stating that it was standard practice among anesthesiologists practicing in Houston to work as a team and that it was not standard practice to advise a patient of the risk of an adverse reaction occurring less than one percent of the time. Finally, the evidence presented at trial included the hospital form, signed by Mrs. Granado, in which she consented to the use of "any anesthetic deemed advisable." From a review of the record we find that the refusal of the jury to find that Dr. Maddock failed to obtain Mrs. Granado's informed consent is not against the great weight and preponderance of the evidence.
With respect to the issue on Dr. Maddock's failure to obtain an adequate medical history and medical evaluation, the evidence urged by appellants is the testimony of Dr. Maddock that she did not personally take the patient's medical history the night before surgery, that the history taken by her associate anesthesiologist did not tell her what anesthetics had been used previously, and that she did not determine that Mrs. Granado was pregnant. The medical experts agreed that a prudent anesthesiologist would not give a general anesthetic to a pregnant patient except in an emergency. Dr. Maddock's expert acknowledged that Mrs. Granado's records when she was readmitted to the hospital following the tonsillectomy indicated she was pregnant. In support of the jury's negative response to the special issue, there was the testimony of Dr. Maddock that she met with the patient before surgery and specifically inquired as to allergies, medical illnesses, present medication and previous history of liver disease. She reviewed the patient's hospital records and the medical histories taken by Dr. Madsen and by her associate anesthesiologist. The existence of Mrs. Granado's pregnancy was controverted by the testimony of Dr. Madsen and the pathologist who performed the autopsy. In the light of the testimony of these doctors, we hold that the jury's response is not against the great weight and preponderance of the evidence.
In support of the allegation that Dr. Maddock should have chosen a local anesthetic instead of a general anesthetic, appellants argue that the patient was pregnant, that on at least three other occasions she had been administered Cyclopropane, *875 an anesthetic similar to Halothane in its effect on the liver, and that the manufacturer of Halothane warned against repeated use of any drug which causes liver problems. The controverting evidence of a possible pregnancy has been amply addressed. With respect to the choice of anesthesia used, Dr. Maddock and her experts testified as to the dangers of a local anesthetic and the strong preference among anesthesiologists for a general anesthetic, specifically Halothane. As for the possible cumulative injury from using Halothane more than a year after the last administration of Cyclopropane, the appellants' own expert admitted that the use of Cyclopropane was too remote in time to have had an effect. Other expert testimony showed that there was no relationship between the use of Halothane and prior exposure to Cyclopropane. We find that the refusal of the jury to find that Dr. Maddock was negligent in her choice of anesthetic was not against the great weight and preponderance of the evidence. Appellants' eleventh, thirteenth and fifteenth points of error are overruled.
In their tenth and twelfth points of error appellants assert that the trial court erred in denying a new trial because the uncontroverted evidence and judicial admissions of Dr. Maddock established as a matter of law that she failed to obtain the patient's informed consent and failed to obtain an adequate medical history and medical evaluation of the patient. In resolving points presented "as a matter of law" the reviewing court will consider only the evidence that supports the finding of the trial court. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1952). Evidence in support of the findings of the jury on both the informed consent issue and the medical history and evaluation issue has been recited in detail earlier in this opinion. Moreover, Dr. Maddock's statement that she did not personally advise Mrs. Granado of the risks of Halothane as an anesthetic does not in and of itself satisfy appellants' burden as a matter of law. The statement does not prove that the doctor's conduct did not conform to the standard of disclosure that would be exercised by an anesthesiologist of ordinary prudence under the same or similar circumstances. Appellants' "matter of law" points ten and twelve are overruled.
Finally, appellants contend that the jury's finding that the Granado children suffered no monetary damage by the loss of their mother was so contrary to the undisputed evidence as to establish that the appellants did not obtain a fair and impartial trial. It is well established in Texas that where the jury has found no liability the issue of damages becomes immaterial. Southern Pine Lunber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334, 335 (1939). Any error in the finding is harmless and is not cause for reversal. Tex.R.Civ. p. 434. Thus, we do not rule on this point of error.
Judgment as to defendant Dr. Madsen is reversed and remanded. Judgment as to Dr. Maddock is affirmed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443577/
|
729 S.W.2d 174 (1987)
Allen J. WEMYSS, Joey A. Griffin and State Farm Mutual Automobile Insurance Company, Appellants,
v.
Shelby Jean COLEMAN, Appellee.
Supreme Court of Kentucky.
April 30, 1987.
*175 William J. Rudloff, Bowling Green, for appellants.
J. Richard Downey, Franklin, for appellee.
LEIBSON, Justice.
This case arises out of a motor vehicle collision on October 7, 1981 in Simpson County, Kentucky. The appellee, Shelby Jean Coleman, was a passenger in a Volkswagon van owned and operated by her husband which was struck from the rear by another vehicle owned by appellant Wemyss and being driven by appellant Griffin. In the collision Mrs. Coleman's head was snapped back with such violence that it struck a factory installed icebox located behind the passenger seat. The passenger seat was equipped with a combination seat belt which Mrs. Coleman was not wearing at the time.
Before trial the defendants employed a physician who performed a medical examination of Mrs. Coleman on their behalf. On deposition this physician testified that had Mrs. Coleman fastened her seat belt she probably would not have been pitched as far forward and backward as she was, and she probably would not have sustained injuries necessitating medical care. The trial court sustained a motion in limine barring the defendants from presenting any evidence related to the lack of use of a seat belt or its probable consequences. The principal issue on this appeal is whether this ruling was erroneous.
The jury found for the appellee, Mrs. Coleman, and awarded her damages against Wemyss and Griffin in the sum of $24,050.72. The jury verdict for Mrs. Coleman was itemized as follows:
1) Mental and physical suffering (past and
future) $ 1.00
2) Permanent impairment to her power to
earn money 15,000.00
3) Reasonable medical and related expenses
incurred 4,664.72
4) Future reasonable medical and related
expenses 2,500.00
*176
5) Wages or income lost 1,885.00
__________
TOTAL $24,050.72
State Farm Mutual Automobile Insurance Co. carried the automobile insurance coverage on both the Wemyss and Coleman vehicles. Mrs. Coleman was covered by basic reparations benefits in her husband's policy, and Wemyss and Griffin were covered by liability insurance coverage provided by the same company.
The question whether that portion of Mrs. Coleman's claim which was paid or payable from basic reparations benefits should have been excluded from her claim as presented at trial against Wemyss and Griffin was not addressed by the court until after the verdict. The answer filed on behalf of Wemyss and Griffin made claim for credit or setoff against any judgment which might be obtained to the extent that basic reparations benefits were available to Mrs. Coleman. After judgment was entered the defendants moved the court to alter or amend the judgment by striking $10,000.00 of plaintiff's recovery as barred by KRS 304.39-060(2)(a), the section of the Motor Vehicle Reparations Act (MVRA) providing for limitation on tort recovery in certain specified instances.
Mrs. Coleman, in turn, was then permitted to file an amended complaint naming State Farm as a party and demanding judgment against State Farm in an amount equivalent to any setoff or credit against the judgment allowed to Wemyss and Griffin because of the MVRA.
The trial court held that Wemyss and Griffin were entitled to a setoff or credit against the plaintiff's judgment in the amount of $10,000.00, and reduced that judgment accordingly. But the trial court further held that Mrs. Coleman was entitled to judgment against her reparations obligor, State Farm, for such medical expenses and loss of wages as were proved at trial and covered by no-fault benefits, which had not yet been paid. The court entered an amended judgment as follows:
1) Original judgment $24,050.72
Setoff or credit to Wemyss and
2) Griffin 10,000.00
__________
Subtotal $14,050.72
Plaintiff's medical bills allowed in
the jury verdict and covered by
3) BRB $ 4,548.72
Plaintiff's lost wages as awarded
by the jury and covered by BRB
(six weeks lost wages at
$200/week less $530.56 previously
4) paid) 669.44
_________
Subtotal $ 5,218.16
__________
TOTAL $19,268.86
The court then entered final judgment in "the net sum of $19,268.86, to be assessed against State Farm and the defendants, Allen J. Wemyss and Joey A. Griffin in the amounts as set forth above."
The Court of Appeals has affirmed the decision of the trial court to exclude evidence related to the so-called seat belt defense. The Court of Appeals has reversed so much of the final judgment as provided Wemyss and Griffin a setoff or credit of $10,000.00, the maximum coverage for basic reparations benefits under Coleman's policy, ordering that the setoff or credit should be limited to the accrued benefits paid or payable at the time of trial. This would mean, in effect, that such amount as is deducted from the judgment against Wemyss and Griffin will be offset by an equal award against State Farm. The appellants have asked our Court for discretionary review to consider the following issues:
1) Did the trial court exclude relevant and competent evidence offered to prove that if Mrs. Coleman had fastened her seat belt her injuries would have been substantially less?
2) Did the trial court err when it refused to instruct the jury on the seat belt defense?
3) Did the trial court, and more so the Court of Appeals, err in refusing to order a $10,000.00 credit or set off against Mrs. Coleman's judgment against Wemyss and Griffin without further recoupment for basic reparations benefits from State Farm?
4) Did the trial court and Court of Appeals err in allowing Mrs. Coleman to file an amended complaint asserting a cause of action for basic reparations benefits against State Farm more than two years after the last payment of benefits?
*177 I. THE SEAT BELT DEFENSE
Both sides have made powerful arguments for and against requiring the use of seat belts as a public policy issue.
The appellants argue that "scientific studies show without equivocation that seat belts are effective safety devices" and "would reduce the severity of . . . personal injuries," that a decision that "states that the negligent failure of a claimant to fasten an available seat belt would diminish a recovery for damages in which lack of a seat belt restraint played a part . . . will be based upon sound public policy."
On the other hand the appellee argues with equal force "that the majority of people simply do not wear seat belts," and that the "failure of the Kentucky state legislature to adopt such a duty is evidence of the lack of public will to impose this duty upon the people of this state."
We consider that this argument about public policy begs the issue. The issue is not whether our Court believes that the law should require automobile occupants to wear seat belts, or should not. The issue is an evidentiary one, that is, did the defendants offer evidence against Coleman to prove contributory fault which was improperly excluded?
In Hilen v. Hays, Ky., 673 S.W.2d 713 (1984), we adopted the principle of comparative negligence, stating that:
"Henceforth, where contributory negligence has previously been a complete defense, it is supplanted by the doctrine of comparative negligence. In such cases contributory negligence will not bar recovery but shall reduce the total amount of the award in the proportion that the claimant's contributory negligence bears to the total negligence that caused the damages. The trier of fact must consider both negligence and causation in arriving at the proportion that negligence and causation attributable to the claimant bears to the total negligence that was a substantial factor in causing the damages." 673 S.W.2d at 720.
This formula for determining comparative negligence, and appropriate instructions, was extracted from the Uniform Comparative Fault Act, § 2, 12 U.L.A. Civil Procedural and Remedial Laws, Cum. Supp., now reported in the 1987 supplement at pp. 38-49. The Act uses the terms "negligence" and "fault" for purposes of determining comparative negligence as equivalent and interchangeable terms, as expressed in § 1 of the Uniform Comparative Fault Act (UCFA). In § 1 "fault" as applied to either claimant or defendant is defined as follows:
"(b) `Fault' includes acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability. The term also includes breach of warranty, unreasonable assumption of risk not constituting an enforceable express consent, misuse of a product for which the defendant otherwise would be liable, and unreasonable failure to avoid an injury or to mitigate damages. Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault." [Emphasis added.]
In the official "Comment" to the UCFA, in explaining the term "unreasonable failure to avoid an injury or to mitigate damages," the following is included which is pertinent to our case:
"`Injury attributable to the claimant's contributory fault' refers to the requirement of a causal relation for the particular damage. Thus, negligent failure to fasten a seat belt would diminish recovery only for damages in which the lack of a seat belt restraint played a part, and not, for example, to the damage to the car." Cum.Supp. 1987, p. 41.
Thus failure to wear a seat belt is utilized as an example of conduct which may constitute contributory fault, falling within the term "unreasonable failure to avoid an injury," if there is proof that "the lack of a seat belt restraint played a part."
It is true, as argued by the appellee, that the appellee's negligence played no part in the motor vehicle collision. The jury has found that Griffin was to blame, and there is ample evidence to support that finding. *178 On the other hand, taking the evidence from the defendants' physician as true, there was a causal relation between the claimant's failure to wear a seat belt and the degree of her subsequent injury. We agree with the appellants that the concept of antecedent negligence, covered in the UCFA by the term "unreasonable failure to avoid an injury," falls in the same class of conduct as the doctrine of avoidable consequences, covered in the UCFA as "unreasonable failure to . . . mitigate damages." UCFA, Sec. 1(b), supra.
Even before the advent of comparative negligence, our Court recognized the doctrine of avoidable consequences, applying it to a claimant's unreasonable failure to utilize recommended post accident medical treatment. Blair v. Eblen, Ky., 461 S.W.2d 370 (1970). We recognized that the doctrine of avoidable consequences, unlike contributory negligence which then would bar a claim, "serves to mitigate the damages. . . to the extent the patient's injury was aggravated or increased by his own negligence." 461 S.W.2d at 372.
The same principle should apply to the antecedent negligence of the plaintiff, if any, to the extent the injury was aggravated or increased by his own negligence.
The problem here resolves itself to a question of how should our law deal with negligence on the part of the claimant, antecedent or subsequent, which is not the legal cause of the occurrence initiating the injury, but which is antecedent or subsequent negligence on the part of the claimant which enhances the injury. Negligence calls for an apportionment where it is "found not to contribute in any way to the original accident or injury, but to be a substantial contributing factor in increasing the harm which ensues." Restatement (Second) of Tort, § 465, Comment c. We note that the Restatement states a caveat:
"There must, of course, be satisfactory evidence to support such a finding, and the court may properly refuse to permit the apportionment on the basis of mere speculation."
We agree with appellee's basic legal premise that the tortfeasor takes the claimant as he finds him and is entitled to neither credit nor setoff against the amount of the claimant's damages because of preexisting physical conditions which make the claimant more susceptible to injury, or to greater injury, than would have been the case with better health. But this is a different principle from the concept of "unreasonable failure to avoid an injury or to mitigate damages" as utilized in § 1 of the Uniform Comparative Fault Act, in the Restatement (Second) of Torts, or in Blair v. Eblen, supra.
We have already adopted § 2 of the Uniform Comparative Fault Act in Hilen v. Hays, supra, and it follows that in this case we should adopt the definition of "fault" as utilized in § 1 of that Act, so that the fabric of our law shall be whole, rather than inconsistent and conflicting.
We recognize that Reda Pump Co. v. Finck, Ky., 713 S.W.2d 818 (1986) conflicts with the UCFA, but our decision in Reda Pump stemmed from the express language of a statute, KRS 411.320(3). In the present case there is no conflicting statute.
KRS 189.125 is our only statute related to seat belts. KRS 189.125 requires that seat belt anchors be provided in new passenger vehicles, and also provides that a "child restraint system" shall be utilized by any "resident parent or legal guardian of a child, forty inches (40") in height or less, when transporting his child in a motor vehicle owned by that parent or guardian." Curiously, the statute further specifies that "there shall be no penalty" for its violation. We need not get involved in trying to interpret the meaning of this statute, because, whatever it means, except as to a small child as defined by the words of the statute, it is silent on the legal duty to utilize a seat belt restraint. We cannot construe this silence as a legislative expression of public policy for or against the use of a seat belt restraint.
The appellee argues that the sole cause of the collision was Griffin's negligence, and that a person should not be called upon to anticipate an accident caused by someone else's negligence. The opposite side of *179 the same coin is presented by the so-called "second impact" cases which recognize the liability of an automobile manufacturer when the vehicle is unreasonably unsafe because of a defect in design or construction, a defect which causes or enhances injury resulting from a collision caused by driver negligence. If Mrs. Coleman had been wearing a seat belt which failed to restrain her because of defect in design or construction, she would have a cause of action against the automobile manufacturer upon proof that such defect was a substantial contributing factor in her injury. In Nichols v. Union Underwear Co., Inc., Ky., 602 S.W.2d 429 (1980), we held that, upon satisfactory proof that clothing was unreasonably unsafe because of a high degree of flammability, a jury could find that a company engaged in the manufacture of such clothing was liable for burns sustained when the clothing was negligently set on fire by another person. The underlying fault principle that would apply to defective manufacture of a seat belt and to negligent failure to utilize a seat belt is essentially the same, except, of course, that the manufacturer of a defective product is presumed to know the characteristics of the product whereas the consumer's liability for failure to utilize a safety device turns on a jury's decision as to whether the consumer negligently failed to exercise ordinary care in the circumstances presented. Nichols v. Union Underwear Co., supra.
In the absence of statute it is not our function to declare that the law requires, or that it does not require, the occupants of an automobile to wear seat belts. On the contrary, we decide only that, as with any other question of contributory fault, if the defendant introduces relevant and competent evidence from which it can be reasonably inferred: (1) that the claimant's failure to utilize an available seat belt was contributory fault in the circumstances of the case, and (2) that such contributory fault, if any, was a substantial factor contributing to cause or enhance the claimant's injuries, the defendant is entitled to have the question of contributory fault submitted to the jury in conformity with the principles set out in the Uniform Comparative Fault Act.
The appellee, Coleman, claims that even if the seat belt defense can be a jury issue in a proper case, that in the present case the appellants failed to offer relevant and competent evidence sufficient to raise a jury issue. The defendants' evidence consisted of the testimony of an examining physician employed by the defendants who testified to the conclusion that had Mrs. Coleman "worn a seat belt she probably. . . would not have been pitched as far forward and would not have had as far to come back," and "she probably would not have had the injuries necessitating medical care had she had the seat belt fastened."
Proof of the doctor's competency to give such a testimony rested upon some brief leading questions about his familiarity "with the current and modern medical literature," and was, at best, debatable. However, the decision as to whether a witness is qualified to give expert testimony rests initially in the sound discretion of the trial court. Kentucky Power Co. v. Kilbourn, Ky., 307 S.W.2d 9 (1957); Alexander v. Swearer, Ky., 642 S.W.2d 896 (1983). In this case the decision not to admit evidence regarding the seat belt defense was made in response to a motion in limine to suppress such evidence regardless of competency. This was error, and it will remain for the trial court to decide the threshold question of whether the witness was qualified by sufficient training, special knowledge, or skill to testify on this subject.
Appellants' Brief is replete with citations to so-called "scientific studies" regarding the effectiveness of seat belts as safety devices. These studies were not introduced at the trial level and would not qualify as admissible evidence absent testimony as to their scientific authenticity and reliability from a credible source. Certainly our Court is not prepared to take judicial notice of the authenticity and reliability of the publications referred to in the Brief. For instance, appellants' brief refers to a "front page article in the Wall Street Journal." This was inappropriate in the brief and would be improper at trial. We disapprove *180 of those references in the Brief to any material which was not introduced as evidence in the trial court, and point out that such material will not be admissible in the trial court unless first appropriately authenticated as a scientifically reliable source. We have disregarded this material in the Appellants' Brief in making our decision.
Assuming that the appellants are able to produce relevant and competent evidence in support of the seat belt defense, the next question is what are the appropriate instructions to submit the issues raised by such evidence to the jury?
The appellants submitted an instruction which specifically designated failure to fasten an available seat belt as breach of a legal duty. On the other hand, the appellee claims that the statutory duties in KRS Chapter 189, Traffic Regulations, are the only measure of the standard of conduct for use of a motor vehicle, and that there should be no instruction where there is no statute.
As we have previously discussed, failure to utilize an available seat belt does not qualify as breach of a statutory duty even though it may be a breach of the general duty to exercise reasonable care for one's own safety. The duty to exercise ordinary care commensurate with the circumstances carries with it the same responsibility for damages sustained as a result of its breach regardless of whether there is a statute imposing the standard of conduct or whether a jury has determined the breach. And, of course, the duty to exercise ordinary care for one's own safety is no different from the duty to exercise ordinary care for the safety of others.
"The concept of liability for negligence expresses a universal duty owed by all to all." Gas Service Co., Inc. v. City of London, Ky., 687 S.W.2d 144, 148 (1985).
There are many aspects of the use of a motor vehicle which may represent breach of the duty of ordinary care which are not dependent upon a statute, as, for instance, riding as a guest passenger with a motorist known to be intoxicated. MacDaniel v. Douglas Motor Co., Ky., 438 S.W.2d 329 (1969).
The "general duty," breach of which gives rise to liability, is the duty to exercise ordinary care, and properly drafted instructions utilize "specific duties" as imposed by statutes only as amplification of the "general duty," and not as the source of such duty. Where there is a statutory duty, the usual instruction, after explaining the general duty, will then specify that such general duty "includes" certain enumerated specific duties. See illustrative instructions in Palmore, Kentucky Instructions to Juries, Vol. 2, Chapter 16, Automobiles.
The reason for expanding on the general duty by including statutory duties, if there are any, lies in the fact that breach of a duty imposed by statute or ordinance is negligence per se if the harm occasioned incident to violation of the statute is that type of harm which the statute was intended to prevent. See Kentucky Digest 2d, Vol. 17, Negligence, § 6, and cases cited therein. The proper and appropriate method for advising the jury of statutory duties is to take judicial notice of the same and incorporate them in the instructions as "specific duties" included within the "general duty . . . to exercise ordinary care." Palmore states:
"There is good argument for the position that the `duty' instructions in automobile accident cases should be confined to the general duty of ordinary care, . . . and such additional specific duties as are prescribed by statute, leaving it to counsel in their summations to suggest the subordinate or component duties encompassed by ordinary care. In any event, the trend in this jurisdiction is away from the so-called `concrete' instruction." Palmore, supra, § 16.56, Comment.
In Rogers v. Kasdan, Ky., 612 S.W.2d 133 (1981), we reversed because of error in instructions which specifically enumerated duties of the defendant hospital based upon an industry code, holding that this method of instruction "gives undue prominence to facts and issues . . . the instruction should not make a rigid list of ways in which a *181 defendant must act in order to meet his duty." Thus, the enumeration of specific duties is the exception to the rule, reserved for statutory duties, and the "general rule for the content of jury instructions" is to couch same in the terms of the general duty, to "provide only the bare bones of the question for jury determination, leaving this `skeleton' to `be fleshed out by counsel on closing argument.'" Id. at 136.
Applying these principles to the seat belt defense where there is no statutory duty, a proper instruction will not specifically refer to a seat belt defense, but will state the general duty to exercise ordinary care for one's own safety, leaving it to the jury to decide from the evidence whether the failure to utilize an available seat belt was a breach of that duty in the circumstances of this case, and, if so, whether such breach was a substantial factor contributing to cause or enhance the claimant's injuries.
In short, we recognize the potential use of the seat belt defense as an evidentiary matter for the jury's consideration dependent upon the evidence in the particular case, and we express no opinion as to whether the occupant of an automobile should or should not be required to wear a seat belt as a matter of law.
II. LIMITATION ON TORT RECOVERY REQUIRED BY THE MOTOR VEHICLE REPARATIONS ACT
Once again we are confronted by a procedural nightmare generated by the limitations on tort liability provided in the MVRA. KRS 304.39-060(2)(a) denies Mrs. Coleman the right to pursue a claim for damages based on tort liability against Wemyss and Griffin "to the extent the basic reparation benefits provided in this subtitle are payable therefor." Under this section to the extent that Mrs. Coleman was entitled under her husband's policy to collect basic reparations benefits covering lost wages and medical expenses paid or payable before the time of trial, upon proper objection the trial court should have refused instructions permitting the jury to award damages duplicating these expenses. Carta v. Dale, Ky., 718 S.W.2d 126 (1986). However, instead of interposing an objection to the trial court's instructions, the defendants elected as an alternative to pursue by post trial motion a credit or setoff against the judgment, and then compounded the confusion by urging that the concept of a setoff for basic reparations benefits should be expanded to include the jury's award to Mrs. Coleman for "Future reasonable medical and related expenses," and "Permanent impairment to her power to earn money." The appellants persuaded the trial court to enter a credit or setoff against the judgment in the sum of $10,000.00, the maximum potential basic reparation benefits coverage provided in the Coleman's policy.
The Court of Appeals corrected this error by eliminating the credit for future losses and limiting the credit to accrued medical expenses and lost wages, a proper application of the payment scenario set up by KRS 304.39-210, Obligor's duty to respond to claims, which provides in pertinent part:
"(1) Basic and added reparation benefits are payable monthly as loss accrues. Loss accrues not when injury occurs, but as work loss, replacement services loss, or medical expense is incurred."
The definitions of "medical expense . . . incurred" and "loss of income from work" in KRS 304.39-020(5) are limited to amounts already "incurred," and under KRS 304.39-130 the amount for work loss is further limited "not to exceed $200" per week.
Tort liability for damages is denied by the MVRA only for items of damages covered by basic reparations benefits. The statutory definitions of these items is explicit, and does not otherwise translate into elements of damages for tort liability. There is no foundation in the statute for tying wage loss under the MVRA to the jury award for "permanent impairment to her power to earn money." This element of tort recovery is neither tied to work loss, nor is it duplication of work loss for which basic reparation benefits accrue.
Likewise, appellee's award for "future reasonable medical and related expenses" *182 does not represent duplication of any item of medical expense for which the right to basic reparations benefits had accrued at the time of trial.
The defendants were not entitled to a setoff or a credit against the judgment for the jury award of tort damages for future medical expenses or impairment of earning power, and the Court of Appeals properly corrected the credit or setoff which had been allowed by the trial court.
The appellants insist that our holding in Couty v. Kentucky Farm Bureau Mutual Ins. Co., Ky., 608 S.W.2d 370 (1981) permits the no-fault insured to recover for basic reparation benefits from the basic reparations' obligor for future benefits as well as accrued benefits, and they reason from this argument that they are entitled to a credit or setoff for future losses as well as past losses. Couty held that recovery for one type of basic reparations benefit, "survivor's replacement services loss," was not limited to expenses which the insured had already incurred, and also included "survivor's replacement services loss" which it is reasonably probable would be incurred in the future. We need not debate the soundness of the Couty opinion in this case, because the decision in Couty is expressly stated to be an exception to the rule, an exception which applies to "survivor's replacement services loss" but not to work loss or medical expenses. Couty reached this result by considering the statutory language in KRS 304.39-210, the "loss accrues" language quoted supra, contrasting it with the different language in the parent act (14 U.L.A., Civ.Pro. & Rem. Laws, § 23(a)), and reasoning that since the precise terms, "survivor's economic loss" and "survivor's replacement services loss," were omitted from KRS 304.39-210, a different rule would apply. Thus we have a rule permitting a basic reparations insured present recovery of future losses from the basic reparations obligor for "survivor's replacement services loss," whereas otherwise our MVRA limits recovery for basic reparations benefits to accrued losses. A close reading of the Couty case establishes that it disproves rather than supports the appellants' contention in this respect.
The appellants' final contention is that the trial court erred in permitting Mrs. Coleman's post verdict amended complaint against State Farm seeking recoupment for any basic reparation benefits which would be deducted from the verdict against Wemyss and Griffin. Because a deduction was first effected, there is no double recovery. Because State Farm was the liability carrier for Wemyss and Griffin as well as the no-fault carrier for Coleman, State Farm was an active participant in this case from the beginning. Therefore, we affirm the Court of Appeals and adopt its decision that, for the reasons stated therein, the trial court correctly applied CR 15.03 to the facts in this case. On remand the credit allowed to the appellants can be no greater than the basic reparations benefits paid or payable to Mrs. Coleman on her amended complaint against State Farm.
The jury verdict establishing the tort liability of Wemyss and Griffin has not been questioned on this appeal, and is affirmed. Likewise, the amount of the award to Mrs. Coleman for damages has not been questioned on this appeal, and is affirmed. The decision of the trial court and the Court of Appeals regarding the seat belt defense is reversed, and the case is remanded to the trial court for a new trial at which time the defendants shall be afforded an opportunity to prove the seat belt defense by competent evidence, and, if substantial evidence is presented to create a jury issue, the trial court shall then submit this issue to the jury under an appropriate instruction advising the jury that Wemyss and Griffin have been found at fault and permitting the jury to decide whether there should be an apportionment based on comparative fault.
STEPHENS, C.J., and GANT, LAMBERT and LEIBSON, JJ., concur.
VANCE, J., concurs by separate opinion.
STEPHENSON, J., concurs in results only, and would reverse for a new trial on all issues.
WINTERSHEIMER, J., concurs in results only.
*183 VANCE, Justice, concurring.
I concur in the result reached by the majority. I believe, however, that the opinion is likely to be construed by the bar as an endorsement of the Uniform Comparative Fault Act when that is not really the intention of the court.
Kentucky has not enacted the Uniform Comparative Fault Act, and this court in Hilen v. Hays, Ky., 673 S.W.2d 713 (1984), was careful to point out that we express no opinion on the application of other sections of the act, leaving each other issue to be decided upon a case-by-case basis.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2064678/
|
258 Pa. Super. 210 (1978)
392 A.2d 758
COMMONWEALTH of Pennsylvania
v.
Roger Worth TAGGART, Appellant.
Superior Court of Pennsylvania.
Submitted March 24, 1977.
Decided October 20, 1978.
*211 William R. Wheatly, Lancaster, for appellant.
Louise G. Herr, Assistant District Attorney, and D. Richard Eckman, District Attorney, Lancaster, for Commonwealth, appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
CERCONE, Judge:
Appellant, Roger Worth Taggart, was convicted by a jury on January 24, 1974 of burglary and theft by unlawful taking or disposition. Appellant was then sentenced to four to eight years in prison. A Post-Conviction Hearing Act petition was filed by appellant, resulting in an award of a new trial.
Harold W. Budding, a member of the Lancaster County Public Defender's Office, was appointed to represent appellant at this second trial. Appellant was retried before a jury on November 20, 1975 and found guilty of burglary. Immediately following the verdict, appellant was called before *212 the court for sentencing. In the colloquy advising appellant of his right to appeal pursuant to Pa.R.Crim.P. 1123, the court warned appellant that by standing for sentence he was waiving the right to file motions in arrest of judgment and for a new trial. Appellant told the court that he was aware of that fact. At all times during the pre-sentence colloquy appellant was represented by trial counsel. The court sentenced appellant to serve three to six years in prison. Appellant then advised the court that he wanted to take an appeal.
Appellant's appeal was perfected by Edward F. Browne, Jr., also a member of the Lancaster County Public Defender's Office. After the filing of that appeal, appellant advised Mr. Browne that he intended to raise the issue of ineffective assistance of trial counsel. Because both trial and appellate counsel were members of the same office, appellate counsel felt that a conflict of interest was involved, so he petitioned this court for leave to withdraw as counsel for appellant. Permission was granted by this court on March 9, 1976. On March 30, 1976 William R. Wheatly was appointed by the lower court to represent appellant in this appeal.
Appellate counsel then filed with this Court a petition to remand for an evidentiary hearing on the ineffective assistance of counsel issue which was denied by per curiam order on December 8, 1976. However, in his appeal brief before this Court appellant again requested that his case be remanded for an evidentiary hearing on the claim of ineffective assistance of counsel. For the reasons set forth below, we now grant appellant's request for an evidentiary hearing.
The Commonwealth argues that appellant waived the right to raise the issue of ineffective assistance of counsel on direct appeal because appellant waived his right to file post-verdict motions. It is the Commonwealth's position that appellant should first have raised this issue in post-verdict motions and that his failure to do so precludes his raising the issue of trial counsel's alleged ineffectiveness in this direct appeal. This argument is unsound. The *213 Supreme Court has recognized and specifically noted that it is unrealistic to expect trial counsel to argue his own ineffectiveness on direct appeal. Commonwealth v. Dancer, 460 Pa. 95, 100, 331 A.2d 435 (1975). However, when an appellant is represented by new counsel on appeal, an allegation of ineffective assistance of trial counsel must be raised at that time, for the failure to do so bars an appellant from raising this issue in a subsequent PCHA proceeding. Commonwealth v. Twiggs, 460 Pa. 105, 107, 331 A.2d 440 (1975). In the instant case, new counsel for appellant properly raised the issue of ineffective assistance of trial counsel on direct appeal. The fact that appellant chose to waive the filing of post-verdict motions does not necessarily mean that appellant also waived the issue of ineffective assistance of trial counsel. Appellant raised this issue at the first opportune time, i.e., when new counsel was appointed for appellant. We therefore conclude that appellant may argue the issue of ineffective assistance of counsel in this appeal. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Carter, 463 Pa. 310, 344 A.2d 846 (1975); Commonwealth v. Wilks, 250 Pa.Super. 182, 378 A.2d 887 (1977); Commonwealth v. Proietto, 241 Pa.Super. 385, 361 A.2d 712 (1976). See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).
Where the record is inadequate to resolve a claim of ineffective assistance of counsel, it is proper for an appellate court to remand for an evidentiary hearing on that issue. Commonwealth v. Moore, 466 Pa. 510, 353 A.2d 808 (1976); Commonwealth v. Strachan, 460 Pa. 407, 333 A.2d 790 (1975); Commonwealth v. Jackson, 457 Pa. 237, 324 A.2d 350 (1974); Commonwealth v. Fricke, 250 Pa.Super. 370, 378 A.2d 982 (1977). As noted above, appellant points to many instances of alleged ineffectiveness of trial counsel, most of which are matters outside the record. In accord with the above-mentioned appellate decisions of this Commonwealth, we now deem it necessary to remand this case for an evidentiary hearing to determine if appellant's allegations can be substantiated.
*214 Accordingly, the within case is remanded for an evidentiary hearing on the issue of ineffective assistance of trial counsel. If the lower court finds evidence sufficient to establish ineffective assistance of trial counsel the lower court should award appellant a new trial. If the lower court finds the evidence is not sufficient to establish ineffective assistance, appellant may then appeal that decision to this Court.
It is so ordered.
WATKINS, former President Judge, and HOFFMAN, J., did not participate in the consideration or decision of this case.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1145768/
|
91 Cal. App. 2d 572 (1949)
CHARLIE WOODS et al., Appellants,
v.
PACIFIC GREYHOUND LINES (a Corporation) et al., Respondents.
Civ. No. 7568.
California Court of Appeals. Third Dist.
May 2, 1949.
Thomas C. Perkins for Appellants.
Gerald L. Desmond for Respondents.
THOMPSON, J.
Plaintiffs brought suit for damages for personal injuries sustained as the result of an automobile collision, while they were riding as passengers in a Greyhound bus on the public highway in Sacramento County. The cause was tried with a jury which returned a verdict for defendants. A motion for new trial was denied. Judgment was rendered against plaintiffs. From that judgment this appeal was perfected.
The transcript of evidence is not before this court. The appellants contend that the court erred in denying the motion for new trial, and that the court erred in excusing one juror at his own request, after the evidence was completed, but before the cause was submitted to the jury for determination. It is urged the excusing of that juror was prejudicial error, notwithstanding the fact that plaintiffs consented in open court to his discharge and to the submission of the cause to the remaining 11 jurors. It is also asserted the trial judge and the attorney for defendants were guilty of prejudicial misconduct in discussing, in the presence of the jury, the admissibility of certain evidence to which plaintiffs had objected, and to which the objection was sustained. The exhibition by one juror to his fellow jurors in the jury room of a printed *574 Standard Oil Company card, which had not been received in evidence, showing the distances within which automobiles may be stopped when traveling at various rates of speed, is urged as reversible error.
[1] We are of the opinion the motion for a new trial was properly denied. In the absence of a transcript of the testimony, we are unable to determine whether the alleged irregularities of procedure were prejudicial. (Const., art. VI, 4 1/2.) We may not presume they were prejudicial.
[2] The excusing of a juror on his own motion, after the jury was sworn to try the cause, but before its submission for determination of the verdict, was not reversible error under the circumstances of this case. The juror was excused and the cause submitted to the remaining 11 jurors by the express stipulation of plaintiffs' attorney in open court. Plaintiffs expressly waived their right to have that juror participate in the consideration and return of the verdict. A party may not deliberately consent to excuse a juror who has been sworn, and to submit the cause to the remaining 11 jurors, speculating on a favorable verdict, and then, after an adverse verdict has been returned, for the first time challenge the lack of 12 jurors.
[3] A trial of a civil action by a jury consisting of less than 12 members is authorized by agreement in open court. (Const., art. I, 7; Code Civ. Proc., 194; Hitchcock v. Caruthers, 82 Cal. 523, 526 [23 P. 48]; 31 Am.Jur., 99, p. 631.) Plaintiffs are barred from objecting to the verdict by only 11 jurors. Ten of them voted for the verdict which was returned.
[4] The appellants assign as prejudicial error the reasons stated by the judge in sustaining plaintiffs' objection to a question propounded to a traffic officer. Defendants' attorney asked the officer this question, "Now, you didn't prefer any charges against the driver of the bus, did you?" In response to the plaintiffs' objection on the grounds that it was "improper and misconduct," defendants' attorney inquired, "Why is it?" The judge replied, "I think it is, .... We are not concerned here with whether or not any charges were brought, any more than we would be with the disposition of charges that were brought. ... The trouble with it is this: the inferences that might be drawn if a charge was made, for instance, would be that the officer believed there had been a violation of the Motor Vehicle Code; and the inference would be if no charges were brought, that the officer believed no violation had been shown. But we are not concerned here *575 at all with the belief of the officer in either direction." The objection to the unanswered question was sustained. Plaintiffs' attorney did not complain of the foregoing statement of the trial judge of his reason for sustaining the objection. He did not ask that it be stricken from the record, or that the jury be instructed to disregard it. Plaintiffs thereby waived their contention for the first time on appeal that it was prejudicial. The statement appears to be perfectly fair, proper and impartial. We are satisfied that it could not have prejudiced the jury. (Estate of Golden, 4 Cal. 2d 300, 309 [48 P.2d 962]; Paolini v. City & County of San Francisco, 72 Cal. App. 2d 579, 588 [164 P.2d 916]; Blaeholder v. Guthrie, 17 Cal. App. 297, 300 [119 P. 524]; 24 Cal.Jur. 20, p. 734.)
[5] It is not improper for a trial judge, in passing upon the competency of proffered evidence to which an objection has been made, to give his reason for the ruling, provided it is not expressed in language or manner which is prejudicial. (Ries v. Reinard, 47 Cal. App. 2d 116, 120 [117 P.2d 386]; McCullough v. Langer, 23 Cal. App. 2d 510, 521 [73 P.2d 649]; 53 Am.Jur. 79, p. 77; 64 C.J. 98, p. 94.) The challenged language in this case is not prejudicial. Furthermore, the plaintiffs waived their objection to the alleged prejudicial nature of the court's statement of his reason for sustaining the objection to the question propounded, by their failure to assign it as prejudicial or to ask the court to instruct the jury to disregard it. (Rogers v. Foppiano, 23 Cal. App. 2d 87, 95 [72 P.2d 239]; Kershaw v. Tilbury, 214 Cal. 679, 690 [8 P.2d 109]; Cope v. Davison, 30 Cal. 2d 193, 203 [180 P.2d 873, 171 A.L.R. 667].)
[6] The appellants contend that the verdict is invalid because one juror "showed" to other jurors in the jury room a card or table prepared by the Standard Oil Company, specifying the distances within which motor vehicles may be stopped when traveling at various speeds. Three affidavits in support of that contention appear in the transcript. But it does not appear they were presented to the trial court on the motion for new trial, or at all. They are merely marked as filed in the trial court. We shall, however, assume they were presented to the trial court on motion for new trial. Two of the affidavits are signed and sworn to by members of the jury, although it does not appear from the record whether either or both of them concurred in the verdict. The briefs seem to concede that one of them concurred in the verdict, and that the other affiant dissented thereto. It is apparently assumed by the *576 briefs that the verdict was rendered by a ten to one vote of the jurors, and that one of the affiants was the only juror who dissented thereto. The transcript fails to show that the jury was polled, or how they stood numerically. The third affidavit is signed and sworn to, on information and belief, by an attorney for plaintiffs. No affiant avers that any juror read the card, or commented on its contents, or gave it any consideration. There is no statement that the card had any effect upon the independent judgment of any juror. Since neither the transcript of evidence nor the instructions to the jury are before this court, we are unable to determine whether the time card had any bearing whatever upon any issue involved in the case. If not, the mere showing of the card to the jurors in the jury room would be immaterial and harmless. In the absence of evidence to the contrary, we must assume there was no issue regarding the efficiency of the brakes of the machines involved in the collision or the ability to stop the machines within the distances prescribed by section 670 of the Vehicle Code. There is absolutely no averment or showing that the card affected the independent judgment of any juror, or that it was prejudicial.
[7] Moreover, the affidavits are incompetent to impeach the verdict which was duly and regularly returned by the jury. The appellants concede that a verdict may not be impeached by the affidavits of jurors who concur in rendering it. But they assert that rule does not apply to a member of the jury who dissents thereto. We cannot agree with that contention. The established rule appears to be otherwise.
The application of the rule that a verdict of a jury may not be impeached by the subsequent affidavits or evidence of members of the jury whether they concurred in the verdict rendered or dissented thereto is stated in Crabtree v. Western Pacific Railroad Co., 33 Cal. App. 2d 35, at page 48 [90 P.2d 835], as follows:
"... It is therefore the uniform rule in this and other jurisdictions to reject affidavits or oral evidence of either concurring or dissenting jurors which tend to contradict, impeach or defeat their verdict, except to show that the verdict was secured by chance as distinguished from the independent judgment of individual jurors. (Saltzman v. Sunset Tel. & Tel. Co., 125 Cal. 501 [58 P. 169]; Toomes v. Nunes, 24 Cal. App. 2d 395 [75 P.2d 94]; Sec. 657, subd. 2, Code Civ. Proc.; 24 Cal.Jur. 877, sec. 126; 97 A.L.R. 1038, note; 6 So.Cal.Law Rev. 246.)" *577
The Saltzman case, cited in the above case, gives the reasons for adhering strictly to that rule in support of the sanctity of verdicts, the secrecy of the deliberations of jurors, and the danger of subsequent collateral attacks prompted by ulterior motives, corruption or deliberate changes of minds. With respect to the application of the rule to dissenting jurors, as well as to those who concur in the verdicts, the Supreme Court said in that case:
"... And such reports [of the conduct of jurors in the jury room] would be more likely to be made by dissenting jurors who had been heated by earnest debate and defeated by the final vote. ... And the stability of judicial determinations would be as much imperiled by liability to attack by dissenting jurors as by the others."
[8] The affidavit of plaintiffs' attorney, based on information which he received by telephone from one of the jurors, that the time table had been "showed" by that juror to his fellow jurors in the jury room is likewise incompetent to impeach the verdict. If a member of the jury may not impeach the verdict by his personal affidavit or oral testimony, certainly he may not circumvent the rule by informing an attorney of the appellants by means of a telephone of his alleged misconduct as a juror and thus render his statement competent by the hearsay affidavit of some other affiant. (Siemsen v. Oakland, S. L. & H. Electric Ry., 134 Cal. 494, 497 [66 P. 672]; Noble v. Key System, Ltd., 10 Cal. App. 2d 132, 143 [51 P.2d 887].) In the Siemsen case, supra, in which a conductor who was not a member of the jury made an affidavit to impeach the verdict, based on an alleged conversation which he had with a member of the jury, and which affidavit was rejected as incompetent, the court said:
"... This affidavit was properly refused admission in evidence. While it is not, in terms, an affidavit by a juror impeaching his own verdict, it is an affidavit of admissions made by a juror to the same effect. If the juror himself would not have been permitted to make affidavit directly to these facts, clearly the affidavit by another, of his declarations and admissions, offered for the same purpose, would be equally inadmissible. What the juror could not do directly could not thus indirectly be effectuated. However the rule may be in other states, it is settled in this beyond controversy that a juror may impeach his own verdict upon no other ground than that designated by the code. [Citing authorities.]" *578
The trial court was in a far better position to determine, on the motion for new trial, whether the plaintiffs were prejudiced by the conduct of jurors, court or counsel, of which complaint is made, than is this court, yet the motion was denied. That is particularly true in this case, since the evidence is not before this court.
For the foregoing reasons the judgment is affirmed.
Adams, P. J., and Peek, J., concurred.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443639/
|
729 S.W.2d 30 (1987)
STATE of Missouri, Plaintiff-Respondent,
v.
Charles A. HORST, Defendant-Appellant.
No. 50801.
Missouri Court of Appeals, Eastern District, Division Five.
April 14, 1987.
Motion for Rehearing and/or Transfer Denied May 12, 1987.
Lee R. Elliott, Troy, for defendant-appellant.
Edward J. Grewach, Pros. Atty., Troy, for plaintiff-respondent.
SIMEONE, Senior Judge.
On March 21, 1985, defendant-appellant, Charles A. Horst, some 70 years of age, was arrested in Troy, Missouri by Officer Will Cheesman for (1) driving while intoxicated, and (2) driving while license revoked in violation of § 302.321, R.S.Mo., 1978.
On March 28, 1985, appellant was formally charged by information with driving while intoxicated (Count I) and driving while license revoked (Count II). He was tried to a jury and found guilty on both counts. He was fined by the court in the amount of $500 on Count I, and sentenced to two days in jail on Count IIdriving while license revoked. Horst appeals only the sentence imposed for "driving while license revoked." We reverse and remand the cause for further proceedings.
The State has filed a motion to dismiss the appeal for failure to follow "Rule 84.04" [sicRule 30.06]. That motion is denied, even though the brief of appellant is not a model of analysis and clarity. The appellant has filed a motion to supplement the legal file and that motion, originally taken with the case, is granted. Rule 30.04(h). The State has not favored this court with any brief or memorandum dealing with the facts and issues which are rather important and complex, so that we are left to ferret out the facts and research and analyze the issues ourselves without the benefit of the State's thoughts, arguments and advocacy.
For reversal, or reversal and remand, appellant alleges several grounds of error, *31 among which are that the court erred in giving the verdict directing instruction, Instruction No. 9, and in refusing to give certain offered instructions raising the issue of the lack of a culpable mental state necessary for the offense of driving while license revoked. He also contends the court erred in refusing to admit certain proffered evidence that appellant reasonably believed that his license had not been revoked or that the enforcement or revocation had been stayed.
The trial court gave Instruction No. 9, patterned on MAI-CR 2d 32.01 (driving while intoxicated) which informed the jury as to Count II that if it believed defendant operated a motor vehicle on a public road and that he did so while his operator's license was revoked, then the jury should find him guilty on Count II. The defendant offered certain instructions based on MAI-CR 2d 2.37.1, 2.37.2 and 2.37.3 which would have informed the jury that the state not only has the burden to show that the defendant was driving while his license was revoked, but also that the state has the burden to show that defendant was aware that his license was revoked or that he reasonably believed that he had a license to drive so that he was not reckless in driving while license revoked. The court refused these offered instructions and gave Instruction No. 9. That instruction did not indicate that a culpable mental state is required for the charged offense. The refusal to give the offered instructions was preserved in the motion for new trial and is one of the points raised on appeal.
We need not address all of the various issues raised by appellant since we believe the court erred in refusing to give any instruction informing the jury that defendant must be aware that his license was revoked or that he was not reckless in believing that he had a license to drive.
Although § 302.321, R.S.Mo. does not specifically mention a culpable mental state, we believe that under § 562.021.2, that a culpable mental state is an essential element of the offense and is required to convict. We held as much in State v. Tippett, 716 S.W.2d 909 (Mo.App.1986). In that case, this court held that there must be knowledge of a revocation of an operator's license in order to sustain a conviction under § 302.321. Since a culpable mental state is an essential element of the offense, it follows that the jury should be instructed in accordance with MAI-CR2d 2.37.2 or 2.37.3. Appellant preserved the refusal to give the offered instructions relating to his theory of defense. We further conclude that since a culpable mental state is a requisite element of the offense, competent evidence introduced or proffered of a reasonable belief that defendant's license had not been revoked, suspended or enforcement thereof stayed is admissible to show such reasonable belief.
At the time of this trial it was not definitively clear in Missouri whether the appeal of driving while license revoked was malum prohibitum or whether a culpable mental state is required. There is no MAI-CR. There was some indication in State v. Johnson, 687 S.W.2d 706 (Mo.App.1985) that a culpable mental state was not required. But the statement in Johnson was made in the context of that decision and was distinguished in Tippett. The less than clear requirements did not provide adequate guidelines. But now we make clear that the offense requires a culpable mental state and competent evidence which negates that state of mind is admissible.
Our conclusion relating to a culpable mental state is supported by authorities in other states. Bryant v. State, 643 S.W.2d 241 (Tex.App.1982); State v. Jennings, 150 Ariz. 90, 722 P.2d 258, 262 (1986).
We have reviewed this entire complex record and under all the circumstances conclude that the cause should be reversed and remanded for further proceedings.
The judgment is reversed and remanded.
SNYDER, C.J., and CARL R. GAERTNER, J., concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443663/
|
729 S.W.2d 954 (1987)
Esther SEPULVEDA, Appellant,
v.
The STATE of Texas, Appellee.
No. 13-86-268-CR.
Court of Appeals of Texas, Corpus Christi.
April 16, 1987.
*956 Gerard C. Miller, Jr., Corpus Christi, for appellant.
Grant Jones, Dist. Atty., Corpus Christi, for appellee.
Before KENNEDY, UTTER and DORSEY, JJ.
OPINION
KENNEDY, Justice.
Appellant was convicted of fraudulently applying for voter registration and was sentenced to imprisonment for three years in the Texas Department of Corrections. She brings nine points of error. We affirm.
Appellant's first and second points of error challenge the constitutionality of the statute under which she was convicted, article 5.13a of the former Texas Election Code, Act of May 27, 1975, Ch. 296, § 42a, 1975 Tex.Gen.Laws 750, 750-52, repealed by Act of May 24, 1985, Ch. 211, § 9(a), 1985 Tex.Gen.Laws 802, 1076 [current version at Tex.Elec.Code Ann. §§ 13.001-13.007 (Vernon 1986)]. Former article 5.13a, subd. 5 provided:
Any person who applies for registration of any person, or who signs an application purporting to be the application for registration of any person, either real or fictitious, other than the person making the application or affixing the signature, or someone for whom he may lawfully act as agent, or someone who is unable to sign and who requests him to sign for such other person, is guilty of a felony of the third degree.
Section three provided:
The husband, wife, father, mother, son, or daughter of a person entitled to register may act as agent for such person in applying for registration, without the necessity of written authorization therefor may sign for the applicant, and may receive the registration certificate. However, none of these persons may act as agent unless he is a qualified elector of the county. No person other than those mentioned in this subdivision may act as agent for a person in applying for registration. Except as permitted in this subdivision, a person who willfully acts as agent for another in applying for registration or in obtaining a registration certificate is guilty of a Class B misdemeanor.
Appellant argues that the statute is unconstitutionally vague for three reasons. First, she contends that the word "applies" is too vague; second, she asserts that the same conduct can result in a misdemeanor under section three or a felony under section five; and third, since the legislature has rewritten the statute, the legislature recognized that it must have been impermissibly vague.
Statutes are presumed valid, and the party challenging a statute's constitutionality has the burden to show otherwise. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978). A statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice that his or her contemplated conduct is forbidden by statute or if it encourages arbitrary and erratic arrests and convictions. Cotton v. State, 686 S.W.2d 140, 141 (Tex.Crim.App. 1985). A statute is not vague or indefinite merely because its words or phrases are not specifically defined. Morgan v. State, 557 S.W.2d 512, 514 (Tex.Crim.App.1977). A person who engages in conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. Clark v. State, 665 S.W.2d 476, 482-83 (Tex.Crim.App.1984).
Applying these rules of construction, we overrule appellant's first point of error. First, appellant clearly "applied" *957 for a voter registration when she turned in the application purporting to be Bernabe Luna's to the Neuces County voter registrar. Where words of a criminal statute are not defined, courts will ordinarily give them their plain meaning. E.g., Campos v. State, 623 S.W.2d 657, 658 (Tex.Crim.App. 1981). The word is certainly not vague, but has an ordinary, common-sense meaning.
Second, sections three and five do not proscribe the same type of conduct, as appellant argues. Section five governs people like appellant who act without any claim of agency status, while section three governs people who attempt to act as an applicant's agent. From our discussion below of appellant's eighth point of error, it is clear that appellant did not, nor did she purport to, act as Bernabe Luna's agent.
Third, the fact that the legislature changed the language of this offense when it recently codified the Election Code obviously does not mean the former election statute was unconstitutionally vague. We overrule appellant's first point of error.
In her second point of error, appellant contends that the caption of the 1975 statute in question was defective for failing to provide notice that the bill contained penal provisions. A recent amendment to the Texas Constitution, Tex. Const. art. III, § 35, provides that such a defect no longer renders the statute void. Baggett v. State, 722 S.W.2d 700 (Tex.Crim.App.1987). We overrule appellant's second point of error.
In her third point of error, appellant contends that she was wrongly convicted under a repealed statute. Article 5.13a of the former Texas Election Code was in effect at the time she committed the act for which she was convicted. Article 5.13a was codified into the current Election Code, effective January 1, 1986. Tex.Elec.Code Ann. § 13.006 (Vernon 1986). Appellant's prosecution was not barred. Gobell v. State, 528 S.W.2d 223, 223-24 (Tex.Crim. App.1975). We overrule appellant's third point of error.
Appellant, in her fourth point of error, asserts that the evidence is insufficient to prove that she was the person who committed the offense. Appellant argues that "[t]he prosecutor ... never requested the court to announce that the record would reflect an identification, therefore the record is left open to argument as to whether the woman identified was in fact the appellant." Although the State has the burden of proving appellant committed the offense charged, Miller v. State, 667 S.W.2d 773, 775 (Tex.Crim.App.1984), the formalized identification procedure suggested by appellant, though desirable, is not necessary. Purkey v. State, 656 S.W.2d 519, 520 (Tex.App.Beaumont 1983, pet. ref'd). Two State witnesses, Alicia Gomez and Rachel Romero, identified appellant for the jury by describing what she was wearing. We find these uncontroverted in-court identifications sufficient to show that the jury was adequately apprised that the witnesses were referring to appellant. See Miller v. State, 667 S.W.2d 773, 774-76 (Tex.Crim.App.1984); Rohlfing v. State, 612 S.W.2d 598, 600-601 (Tex.Crim. App.1981). We overrule appellant's fourth point of error.
Appellant's fifth point of error is that her conviction violated the constitutional prohibition of former jeopardy. She refers to a previous criminal proceeding against her on the same charge, which was apparently dismissed before a verdict had been reached. Appellant relies solely on the appellate record in that cause, which we dismissed without jurisdiction, to support her jeopardy argument in the case at bar. As the State correctly points out, our scope of review is limited to matters in the record of the case at bar. Evans v. State, 622 S.W.2d 866, 868 (Tex.Crim.App.1981). We overrule appellant's fifth point of error.
In appellant's eighth point of error, she contends that the State did not prove all elements of the offense for which she was charged beyond a reasonable doubt, as required by Tex.Penal Code Ann. § 2.01 (Vernon 1974). In essence, appellant challenges the sufficiency of the evidence.
*958 In reviewing the sufficiency of the evidence, an appellate court looks at all the evidence in the light most favorable to the verdict or judgment and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984).
Under article 5.13a, subd. 5 of the former Election Code, current section 13.006, the State was required to prove that appellant applied for Bernabe Luna's voter registration, or signed an application purporting to be Bernabe Luna's, and that appellant lacked agency authority to do so.
Anita Garza, who was the supervisor for the Nueces County Voter Registration Department in 1984, testified for the State. Ms. Garza stated that she was able to trace the application purporting to be Bernabe Luna's, and that appellant had turned it in to the voter registration department of Nueces County. Luna's widow testified that her husband had died several months before the card was filed and that the signature on the application was not his, though it purported to be. We find this evidence sufficient to prove beyond a reasonable doubt that appellant falsified Bernabe Luna's signature and applied for his voter registration by turning in the application card to the proper county authority.
We also find that the State proved that appellant was not acting as Luna's agent when she signed his name on the application card. As appellant argues, a lawful agent under article 5.13, subd. 5 of the former Election Code (current section 13.006) is a parent, spouse, or child of the applicant. The State did not prove that appellant was not related to Bernabe Luna in one of these capacities, but we hold that it did prove that Luna's application card was not signed in an agency capacity, thus negating agency on appellant's part. The application card contains a signature line, below which are the words, "SIGNATURE OF APPLICANT (OR AGENT)." A box next to the line, entitled, "FOR AGENT," explains the people who may act as agents and requires the agent to identify his or her relationship to the applicant. The card was signed with a signature which was not Luna's though it purported to be, and the "FOR AGENT" box was left blank. An agent would not sign his principal's name, but would sign his own name and then indicate his agency authority. Clearly, Luna's application was not signed in an agency capacity. Rather, his signature was falsified. The State met its burden of disproving agency by the introduction of Luna's voter registration application card. We overrule appellant's eighth point of error.
Appellant's sixth point of error is similar. She contends that the trial court improperly admitted extraneous offenses into evidence, over objection. At trial, in addition to the voter registration card of Bernabe Luna, the State offered eleven other voter registration applications which also bore names allegedly forged by appellant. These were offered as part of the "res gestae" of the charged offense.
In general, evidence of criminal conduct which is collateral to the charge on which an accused is being tried is inadmissible. Maynard v. State, 685 S.W.2d 60, 66 (Tex.Crim.App.1985). However, the rule is subject to several well-established exceptions. See, e.g., Albrecht v. State, 486 S.W.2d 97, 100-101 (Tex.Crim.App.1972). The initial inquiry, however, concerning the admissibility of an extraneous offense is controlled by a two-part test. First, the extraneous offense must be relevant to a material issue in the case other than the defendant's character. Second, the evidence must possess probative value which outweighs its inflammatory or prejudicial effect. Clark v. State, No. 508-84 (Tex. Crim.App., Feb. 11, 1987) (not yet reported) (on rehearing); Robinson v. State, 701 S.W.2d 895, 896 (Tex.Crim.App.1985); Williams v. State, 662 S.W.2d 344 (Tex. Crim.App.1983).
Appellant was charged with intentionally and knowingly applying for the *959 voter registration of another person without authority to do so. "[W]here intent or guilty knowledge is an essential element of the offense which the State must prove to obtain a conviction, its materiality goes without saying." Morgan v. State, 692 S.W.2d 877, 880 (Tex.Crim.App.1985); Clark, slip op. at 1. The extraneous offenses also tend to show appellant's actions were part of a common scheme or plan, and so help to establish motive and explain appellant's conduct. This is another exception to the general rule that extrinsic offenses are not admissible. E.g., Albrecht, 486 S.W.2d at 100-101. We hold that the extraneous offenses were relevant to a material issue.
Robinson v. State, 701 S.W.2d 895 (Tex. Crim.App.1985), also outlines the factors to be considered in determining the probative value of the extraneous offense evidence. Id. at 898-99. As applied to the case at bar: (1) All the applications were in a similar style and were turned in by appellant; (2) all the cards were turned in just a few days apart; and (3) although alternative sources of proof that appellant committed the charged offense were available and used by the State, appellant contested the State's case by a vigorous cross-examination of the State's witnesses. Thus, we find that the extraneous offenses were probative.
Extraneous offenses are inherently prejudicial. Robinson, 701 S.W.2d at 899. Applying the Robinson factors for prejudice, we hold that the prejudicial effect of the extraneous offenses did not outweigh their probative value: (1) the State merely offered the other voter applications as probative evidence of appellant's intent or motive, not as criminal offenses by themselves; (2) the trial court properly instructed the jury that it could consider the extraneous offenses only to ascertain appellant's intent or her acting in accordance with a common plan; and (3) the prosecutor's jury argument concerning the extraneous matters was non-inflammatory and followed the court's jury instruction.
Appellant also argues that the State failed to show the other applications were fraudulent or to adequately link her to them. See Landers v. State, 519 S.W.2d 115, 120 (Tex.Crim.App.1974).
The State satisfied its burden in each instance. Anita Garza testified that each of the eleven other voter registration applications, like the one purporting to be Bernabe Luna's, was turned in to the Nueces County Voter Registration Department by appellant. Each bore a stamped filing date of early October, 1984. Ms. Garza also testified that the signature on each application was made in a similar handwriting style; moreover, the record contains two of appellant's handwriting samples, which can be compared with the signatures on all of the application forms. Tex.Code Crim. Proc.Ann. art. 38.27 (Vernon 1966). All are strikingly similar. Many of the purported applicants testified that they did not fill out the applications in issue or authorize anyone else to do so. Finally, like Bernabe Luna's, none of the cards were signed in an agency capacity but were signed as though each applicant was signing his or her own name.
The State adequately showed that appellant committed the extraneous transactions and that their probative value outweighed their prejudicial effect. The other application cards were properly admitted. We overrule appellant's sixth point of error.
Point of error number seven challenges the indictment's allegation that the offense occurred in Nueces County, Texas.
The State had the burden to prove that venue was proper in Nueces County. Black v. State, 645 S.W.2d 789, 790 (Tex. Crim.App.1983). Anita Garza, supervisor for the Nueces County Voter Registration Department at the time in question, testified that appellant turned in all of the suspect application cards, including that purporting to be Bernabe Luna's, to her office in the Nueces County Courthouse in Nueces County, Texas. Venue was thus proved. We overrule appellant's seventh point of error.
*960 Point of error number nine alleges that a fatal variance exists between the indictment's allegations and the proof. The indictment alleges that appellant applied for "Bernabe Luna's voter registration, that "Bernabe Luna" was not the person who applied, and that appellant was not the lawful agent of "Bernable Luna" (emphasis added). This obvious typographical error could have easily been cured by a motion to quash, but appellant raises this argument for the first time on appeal. The Court of Criminal Appeals has held that an obvious typographical error in the name of the victim, especially when it has been correctly spelled elsewhere in the indictment, is not reversible. McNeal v. State, 600 S.W.2d 807, 807-808 (Tex.Crim.App.1980). We overrule appellant's ninth point of error.
The judgment of the trial court is AFFIRMED.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443667/
|
729 S.W.2d 875 (1987)
John R. ZAK, et ux, Appellants,
v.
Jerolde Clark PARKS, et ux, Appellees.
No. C14-85-792-CV.
Court of Appeals of Texas, Houston (14th Dist.).
March 12, 1987.
Rehearing Denied April 9, 1987.
*877 Gary D. Aguren, Houston, for appellants.
Douglas M. Selwyn, James H. Shoemake, Harry Herzog, Houston, for appellees.
Before JUNELL, DRAUGHN and ELLIS, JJ.
ELLIS, Justice.
This is a Deceptive Trade Practice suit involving the sale of a house. John and Yvelle Zak, purchasers of a residence in Spring, Texas, sued Jerolde and Theresa Parks under the Texas Deceptive Trade PracticesConsumer Protection Act, Tex. Bus. & Com.Code Ann. §§ 17.41-17.62 (Vernon 1968). The Zaks alleged that the Parks breached express warranties, made false or misleading statements of fact regarding the need for repairs, represented that work or services had been done when they had not, and misrepresented the standard, quality or grade of the used home. In particular, the Zaks complained that by plastering and repainting the Parks had disguised sheetrock fractures and foundation cracks, that the Parks had removed certain equipment they had agreed to leave, and the Parks had not disclosed that the back yard was subject to flooding. The Parks counterclaimed for attorneys' fees, alleging that the Zaks' suit was groundless and brought in bad faith and for the purposes of harassment.
A jury answered special issues on all aspects of liability in favor of the defendants, Mr. & Mrs. Parks, and further found that the plaintiffs, Mr. & Mrs. Zak, brought the suit in bad faith or for the purposes of harassment. After accepting the verdict of the jury, the trial court announced that the court found the lawsuit to be groundless. A take nothing judgment was entered against the Zaks. The trial court further ordered that the Zaks pay the Parks' attorneys' fees in the amount of $42,500 pursuant to § 17.50(c) of the Texas Business & Commerce Code (the Deceptive Trade Practices Act). Mr. & Mrs. Zak appeal the judgment of the trial court. We affirm.
At the time the alleged deceptive practices occurred, § 17.50(c) made the following provision for defendants' attorneys' fees:
(c) On a finding by the court that an action under this section was groundless and brought in bad faith or for the purposes of harassment, the court may award the defendant reasonable attorneys' fees in relation to the amount of work expended, and court costs.
Appellants assert in their first point of error that the case should be reversed and rendered because the trial court failed to make a finding that the law suit was groundless before the case was submitted to the jury. Section 17.50(c) makes no such requirement and no case law supports appellants' contention. Appellants' first point of error is overruled.
In their second point of error appellants contend that as a matter of law the lawsuit *878 was not groundless. Appellants argue that a ruling by the court that there is sufficient evidence to go to the jury is inconsistent with a later finding by the court that the suit is groundless.
The appellate courts of this state have not adopted the simplistic interpretation of a groundless suit urged by the appellants. The determination that a suit is legally groundless is made by the trial judge on a case by case basis. The status is not the automatic result of other actions by the judge or jury. The court may deny defendants' motion for an instructed verdict, allow plaintiffs' and defendants' special issues to be presented to the jury and subsequently find the suit legally groundless. See Pope v. Darcey, 667 S.W.2d 270 (Tex.App.Hou. [14th] 1984, writ ref'd n.r. e.); LaChance v. McKown, 649 S.W.2d 658 (Tex.App.Texarkana 1983, writ ref'd n.r. e.); Parks v. McDougall, 659 S.W.2d 875 (Tex.App.San Antonio 1983, no writ); Vela v. Ebert's Mobile Homes, Inc., 630 S.W.2d 434 (Tex.App.Corpus Christi 1982, writ ref'd n.r.e.). On the other hand, a suit does not become legally groundless merely because the plaintiffs fail to convince the jury of the truth of their allegations. LaChance, 649 S.W.2d at 661.
In making its finding that the suit is groundless, the trial court will consider undisputed fact issues, law issues or jury findings. O'Shea v. International Business Machines Corp., 578 S.W.2d 844, 848 (Tex.Civ.App.Houston [1st Dist.] 1979, writ ref'd n.r.e.). Undisputed facts support the finding that the lawsuit brought by the Zaks is groundless. Mr. Zak, an engineer and a real estate agent, knew that all houses settle as the soil moves and the effects of this settling are not defects. Mr. Zak received a real estate commission from the Parks on the sale of the home. Mr. Zak was allowed to investigate every part of the house when he inspected the home four times before contracting to buy it. Mr. Zak was aware the sheetrock in the home had been repaired. Most importantly, the undisputed terms of the earnest money contract, as well as the circumstances surrounding its execution, conclusively support a finding that the suit is groundless. Before contracting to buy, the Zaks had a structural expert examine the house thoroughly. He discovered a fracture in the foundation of the master bedroom. After the inspection, an earnest money contract was drafted by Mr. Zak and signed by both Mr. & Mrs. Zak and Mr. & Mrs. Parks. It provided that the Parks would escrow funds in the amount of $2,300 "to correct structural defect of slab fracture." Any funds remaining in the escrow account after payment for repairs were to be returned to the Parks. The Zaks acknowledged that the Parks did place $2,300 in escrow. As originally drafted, the contract also provided, "If the escrow funds are not sufficient to cover all expenses associated with the required repairs, seller shall be liable for all repair related costs in excess of the escrowed funds." It is undisputed that this sentence was deleted from the contract and that all parties to the contract initialled the deletion. From the terms of the earnest money contract, it is clearly evident that the Zaks expressly agreed to a limit of $2,300 on the liability of the Parks for all expenses involved in repairing the slab. A lawsuit brought to recover an additional amount for repair of the slab defect is groundless as a matter of law. Appellants' second point of error is overruled.
In their third point of error appellants contend that there was no evidence, and in their fourth point insufficient evidence, to support the trial court's finding that the plaintiffs' lawsuit was groundless. The determination of whether a suit is groundless is a question of law. Schott v. Leissner, 659 S.W.2d 752, 753 (Tex.App. Corpus Christi 1983, writ ref'd n.r.e. per curiam, 668 S.W.2d 686 (Tex.1984); LaChance v. McKown, 649 S.W.2d 658, 661 (Tex.App.Texarkana 1983, writ ref'd n.r. e.). An appellate court will review legal findings when attacked as erroneous as a matter of law but not when attacked on *879 grounds of sufficiency of the evidence to support them, as if they were findings of fact. Little v. Linder, 651 S.W.2d 895, 898 (Tex.App.Tyler 1983, writ ref'd n.r.e.); First National Bank In Dallas v. Kinabrew, 589 S.W.2d 137, 146 (Tex.Civ.App. Tyler 1979, writ ref'd n.r.e.). Point of error three is overruled for the same reason we have overruled point of error two. Point of error four is overruled because it does not present a matter that is reviewable by this court.
In points of error five, six and seven appellants attack the legal and factual sufficiency of the evidence to support the jury finding that the Zaks brought the lawsuit in bad faith or for the purpose of harassment. We find that there was ample evidence to support the finding. Appellants cite a law review article by Goodfriend and Lynn, Of White Knights and Black Knights: An Analysis of the 1979 Amendments to the Texas Deceptive Trade Practices Act, 33 Sw.L.J. 941, 988 (1979), as support for their contention that in order to prove bad faith or harassment a defendant must prove malice, personal ill will or spite, or reckless disregard for the defendants' rights. We do not agree that every defendant must prove the existence of one or more of these states of mind as a minimum standard to support a finding of bad faith or harassment, but we do find evidence of malice, ill will and spite in the record of this case. Appellants' principal argument is that the sellers represented that the house had no defects, and yet numerous problems, requiring extensive repair, developed after the sale. As proof of these defects and of the validity of the lawsuit appellants offered sixty-five photographs of the home into evidence. The photographs show cracks in the concrete slab of the den; cracked mortar between the bricks of the exterior side of the master bathroom; splintered wood around the lock on the rear door of the house and two puddles of standing water, one on the back patio and another in a rear corner of the lot.
As evidence of the absence of bad faith or harassment, appellants refer the court to their offer to settle the matter before suit. Six weeks after closing, the Zaks sent the Parks a demand letter outlining ten "specific complaints and the actual damages suffered by [the Zaks] because of the said defects." The first item requested more than $17,300 for foundation repair for "damage far beyond that known to Mr. or Mrs. Zak prior to closing." In addition to $15,000 to level the house with fifty piers, the Zaks included in the cost of foundation repair a demand that the Parks pay for treatment to prevent the entrance of termites, pay for recaulking windows, and pay for replacement of shrubs moved to accomplish the repair. Other complaints and expenses included replacement of the damaged rear door, installation of gutters on the house, replacement of items alleged to have been wrongfully removed from the house by the Parks, plumbing repair of a drain that became clogged after inspection, attorneys' fees, and reimbursement for lost wages, mileage and parking. The letter demanded more than $20,000 compensation for alleged damages and expenses. In the alternative the Zaks' demand letter proposed that the contract for sale of the house be rescinded, the $93,000 purchase price be refunded, and the Parks further reimburse the Zaks approximately $7,000 for out-of-pocket expenses related to the purchase of the house and the pursuit of their claim. No allowance or offset was made for the realtor's commission Mr. Zak received for selling the home. Neither the terms nor the tone of this demand letter suggest a good faith effort to negotiate.
The evidence adduced at trial showed each complaint in the letter and subsequent lawsuit to be without merit. With respect to the foundation repair, two elements of the evidence support the finding that the suit was brought in bad faith or for the purpose of harassment: (1) the written agreement in the earnest money contract to limit the liability of the Parks for foundation repair to $2,300, and (2) the testimony of an expert in foundation repair who said the foundation could have been *880 repaired for less than $2,000. At trial experts on foundation repair testified for both parties as to the structural condition of the home and the cost of foundation repair. Appellants' expert testified that he inspected the house three times. On his first inspection, September 20, 1979, he noted that the house was settling unevenly and recommended installation of piers to stabilize it at a cost of $19,960. On subsequent visits, two years and five years later, he noted the house had continued to shift and recommended a greater number of piers at an increased cost. Mr. Bert Barron, who was hired by the Zaks to inspect the home prior to the closing, was called by the Parks. He testified (i) that the foundation damage could have been repaired for $2,000 or less, (ii) that his report to Mr. Zak noted the fractures in brick and mortar on the exterior wall, (iii) that a careful watering program would lessen the probability of further movement of the house, and (iv) that there was no evidence that the sellers were attempting to hide foundation problems. Mr. Zak admitted that he had not used the escrowed funds to repair the foundation nor had he refunded the unused funds to the Parks. The written agreement limiting the Parks' liability for foundation repair, coupled with Mr. Barron's testimony, is sufficient factual evidence for the jury to decide that the lawsuit demanding that the Parks assume additional liability for foundation repair was brought in bad faith or to harass the Parks.
With respect to the alleged flooding, the absence of guttering on the house was as apparent to buyer as to seller. Meteorological reports admitted into evidence show that on September 19, 1979, a few days after the Zaks moved into the home, nearly seven inches of rain fell in the area. Evidence of standing water in the back yard after such a deluge is not conclusive proof of a defect. To demand that the Parks pay to have a drainage system installed in order to prevent puddles after a seven inch rain is unreasonable. Such a demand could well have been interpreted by a jury as harassment or bad faith.
With respect to the damaged rear door of the residence, the undisputed evidence showed that the door had been damaged by thieves or vandals attempting to enter the house the night before the Zaks moved in. Appellants have not directed the court's attention to any theory of law that would hold the sellers liable for acts of vandalism occurring after the house was sold. With respect to several items that the Zaks claimed the Parks wrongfully removed from the house, Mrs. Parks testified that with the exception of two panels of draperies which matched her daughter's bedspread none of the other itemsa Pool Sweep (a particular brand of swimming pool vacuum), a garage door opener, other draperies and rodsever existed. Mrs. Parks said she intended to offer the Zaks cash for the draperies but forgot in the chaotic confusion of moving day when the Zaks arrived half a day early and began moving into the home before the Parks could get their possessions out. The evidence showed that the value of the used draperies was minimal. The jury could justifiably have reasoned that the Zaks were more than adequately compensated by their premature occupancy of the home or could have believed the testimony of Mrs. Parks who said she later offered to return or pay for the draperies.
In summary, the demands of the Zaks stated in their letter manifest ill will, spite and considerably more desire to punish the Parks than to resolve any differences. From a review of the evidence we see no realistic basis for the claims of the Zaks against the Parks and find sufficient evidence in the record to support the jury's finding that the suit was brought in bad faith or for the purposes of harassment. Appellants, therefore, met both prongs of § 17.50(c), recited above. The trial court did not err in awarding the Parks attorneys' fees. Point of error five, six and seven are overruled.
In their eighth, ninth and tenth points of error appellants state that "[t]he trial court erred in entering judgment for *881 [the Parks] because as a matter of law [the Parks] expressly warranted to [the Zaks] that the house had `no known latent structural defects,' [`no known defects' or no defects,'] making the jury's answer to issue no. 7 [10 and 13] clearly erroneous." In their response to these special issues the jury failed to find that the Parks had made any express warranties. Although appellants' statement of these points is somewhat confusing, under the liberal rules of construction, we interpret their points of error as asserting that the evidence conclusively established that the express warranties existed. To determine "matter of law" points, the appellate court must consider only the evidence and inferences that support the judgment and reject all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). Mack v. Moore, 669 S.W.2d 415, 418 (Tex. App.Houston [1st Dist.] 1984, no writ).
The charge to the jury contained the following definition of express warranty:
EXPRESS WARRANTY
In connection with Issues 7, 10 and 13, you are instructed that any affirmation of fact or promise made by a seller to a buyer which relates to the property sold and becomes a part of the basis of the bargain creates an express warranty that the property sold will conform to the description.
It is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that he have a specific intention to make a warranty. But an affirmation merely of the value of the property sold or a statement purporting to be merely the seller's opinion or commendation of the property sold does not create a warranty.
Application of this definition to the evidence supports the conclusion that there were no express warranties.
The Zaks allege that the Parks made both oral and written express warranties that the house had no defects. At trail the Parks denied having made such representations. Whether the representations were made is not at issue in this appeal. At issue is whether either representation, if made, constituted an express warranty that the house had no defects.
A critical element of the definition of an express warranty is the requirement that the fact or promise made by the seller becomes "a part of the basis of the bargain." The representations upon which the Zaks rely were allegedly made before and during their first visit to the home. Clearly the Zaks did not accept the statements as absolute assurance that the house was free of defects. Before contracting to buy, Mr. Zak inspected the home four times; he asked another realtor to inspect the house twice; he hired Advance Inspection Services, Inc., to conduct a structural inspection; and he hired another professional to conduct a mechanical inspection to check pipes, faucets, drains and wiring. As a result of these inspections certain problems, including a major defect, the cracked foundation, were discovered. At the Zaks' request the Parks agreed to take care of minor repair to kitchen shoe molding. The more serious matter, the repair of the foundation, was negotiated. The earnest money contract represents the final compromise of the parties: an escrow fund of $2,300 was established by Mr. Parks. It is beyond dispute that by the time the parties signed the contract to buy, both the Zaks and the Parks knew that the house was not free of defects. Any earlier statement that the house had no defects did not become a part of the basis of the bargain. We find that the Parks did not expressly warrant as a matter of law that the house had no defects. Points of error eight, nine and ten are overruled.
Appellants contend in their eleventh, twelfth, and thirteenth points of error that as a matter of law (1) the Parks represented that the house was of a particular standard or quality, (2) Mrs. Parks made false and misleading statements, and (3) Mrs. Parks represented that all needed repairs had been done when they had not been *882 done. Therefore, appellants argue that the jury's failure to find that the Parks had misrepresented the home was clearly erroneous. As with the points of error dealing with express warranties, we interpret appellants' points eleven, twelve, and thirteen to be assertions that the evidence requires as a matter of law, a conclusion contrary to the verdict rendered. To determine "the matter of law" points we will consider only the evidence that supports the judgment. Garza, 395 S.W.2d at 823.
In support of their contentions, appellants rely upon facts which are disputed. They again raise the alleged oral and written representations, attributed to the Parks, that the house had no defects. Since the house later proved to have a cracked foundation and back yard flooding, the Zaks assert that as a matter of law the house was of a different quality than represented and that Mrs. Parks' statement that all repairs had been done was false and misleading. The Zaks also allege false and misleading statements were made when the Parks promised to leave certain household items that were not left. For the Zaks to prevail on these points there must be overwhelming evidence of their position. On the contrary, there is evidence that the repairs to which Mrs. Parks referred when she said, "All repairs have been done," were specific repairscosmetic sheetrock cracks and a cracked pool deckand these repairs had in fact been accomplished at the time the statement was made. There is evidence that the Parks did not represent, either in writing or in conversation, that the house had no defects. There is evidence that before the purchase money contract was signed all parties were aware that the house was not free of defects; any statement that the house had "no defects" or that "all repairs have been done" had been contradicted before the contract was signed. Therefore, the Zaks could not have been misled by the statements. There is evidence that the Parks made no effort to conceal defects in the home. There is evidence that the hairline cracks in the sheetrock of which the Zaks complain are typical of most homes in the area, cannot be prevented, and are not "defects." There is evidence that standing water in the back yard occurred only after severe rains and the failure of the yard to drain immediately was not a defect. Finally, as for the items alleged to have been wrongfully removed from the house by the Parks, there is evidence that all but one of the items promised in the contract did remain in the home. There is evidence that Mrs. Parks offered to return or pay Mrs. Zak for the other item, the draperies removed from a child's bedroom.
Appellants have not met their burden to show that the evidence established as a matter of law that the Parks had misrepresented the home. Appellees' eleventh, twelfth and thirteenth points of error are overruled.
By their fourteenth and final point of error appellants attack the jury's finding of zero damages. Appellants contend that there was ample evidence of damages in the record and the jury erred in its answer to the special issue as a matter of law. In their argument appellants refer to expert opinion testimony of the diminished value of the home and expert opinion testimony as to the cost of foundation repair.
The special issue on damages asked the jury to find what sum of money would compensate the Zaks for damages, if any, caused by acts, words, conduct, breach of warranty and failure of the Parks. Before reaching the damage issue, the jury had answered all liability issues adversely to the Zaks. The Zaks also failed to obtain a jury finding that the house had defects. It is obvious from its answers to the special issues that the jury did not believe that any cost of repairs resulted from conduct of the Parks. Where the jury has found no liability, the issue of damages becomes immaterial. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334, 335 (1939). We overrule appellants' fourteenth point of error.
The judgment of the trial court is affirmed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2443670/
|
729 S.W.2d 37 (1987)
STATE of Missouri, Respondent-Plaintiff,
v.
Michael D. TURNBOUGH, Appellant-Defendant.
No. 51614.
Missouri Court of Appeals, Eastern District, Division Five.
April 14, 1987.
Motion for Rehearing and/or Transfer Denied May 12, 1987.
*38 Kennard B. Woods, Chesterfield, for appellant-defendant.
William L. Webster, Atty. Gen., Byrona J. Kincanon, Asst. Atty. Gen., Jefferson City, for respondent-plaintiff.
SNYDER, Chief Judge.
Michael B. Turnbough appeals from a judgment obtained in a court-tried case in which he was convicted of selling cocaine (Count I), and of attempting to sell cocaine (Count III), in violation of § 195.020 RSMo. 1986. Appellant was sentenced to five (5) years in the custody of the Missouri Department of Corrections and Human Resources on each conviction, the sentences to run concurrently. The judgment is affirmed.
Appellant relies on four allegations of error, the most important being the charge that the trial court erred in overruling appellant's objections to the receipt in evidence of certain state's exhibits, and to testimony identifying those exhibits as cocaine received from appellant. Appellant asserts that because the chain of custody was not sufficiently established, there was no assurance that the cocaine was obtained from defendant or that it had not been tampered with prior to analysis or trial.
Appellant also posits error in the overruling of his objections to certain trial testimony and in the denial of his motion for a judgment of acquittal.
Appellant was originally charged with three counts of the sale of cocaine. After the trial court granted a motion for a directed verdict on Count II after the state's opening statement, appellant was tried and convicted on Count I (Sale on February 22, 1985), and Count III (Attempted sale on May 15, 1985).
The sale charged in Count I occurred on February 22, 1985, when an undercover narcotics agent, Officer Stephen Dougherty, met with a third party, Ron Meshell, for the purpose of consummating a prearranged purchase of one half ounce of cocaine.
Meshell and Officer Dougherty met appellant at a house in St. Louis County where appellant placed a baggie containing a paper bindle on a dresser top. Dougherty took the baggie, gave money to Meshell who in turn gave the money to appellant, after which Dougherty left the house.
*39 The various persons, times, and places involved in the chain of custody will be given in detail when appellant's allegation of error relating to the chain of custody is considered. For the benefit of the uninitiated, Webster's Third New International Dictionary of the English Language gives the slang definition of "bindle" as "a small package, envelope, or paper containing a narcotic (as morphine, heroine, or cocaine)"; also "a usu. small quantity of a narcotic, a narcotic dose."
Officer Dougherty initialed the baggie and then transferred its custody to Special Agent Walton of the Federal Drug Enforcement Administration (DEA). Agent Walton heat-sealed the evidence in a plastic evidence pouch and mailed it to the DEA laboratory in Chicago for analysis by DEA chemist, Jack K. Raney.
On April 29, 1985, prior to the transaction charged in Count III, Officer Dougherty met with a third party by the name of Bob Jacobs. Officer Dougherty testified over hearsay and relevancy objections that Jacobs arranged for Dougherty to meet with appellant on that date in order to purchase cocaine from appellant.
Officer Dougherty further testified over hearsay and relevancy objections that at the April 29 meeting he had asked appellant if he had "the coke" and appellant replied "yes" and pointed to "two folds" on a coffee table. Dougherty then gave appellant money in exchange for the "folds" or "bindles" of cocaine and departed.
This transaction of April 29, 1985 formed the basis for Count II of the present action. Appellant's motion for a directed verdict on this count was granted after the prosecution's opening statement because the information on Count II pleaded an offense on May 29, rather than April 29, the date mentioned by the prosecutor for Count II in the opening statement. Nonetheless, the trial court allowed this testimony concerning the actions and statements of appellant and Jacobs pertaining to the purported transaction on April 29.
The attempted sale for which appellant was convicted in Count III occurred on May 15, 1985. Officer Dougherty met with appellant in a parking lot in St. Louis County on that date. Appellant inquired as to whether Officer Dougherty had the money. Officer Dougherty responded in the affirmative and began to count the money. At this point appellant reached into the crotch area of his pants, removed a plastic baggie containing a white powder substance and handed it to Officer Dougherty. No money changed hands.
Further conversation ensued between appellant and Officer Dougherty concerning a deal for the sale of additional quantities of cocaine.
Special Agent Walton and others then placed appellant under arrest. Officer Dougherty initialed the baggie containing the white powder substance and transferred its custody to Agent Walton. Agent Walton later sealed this evidence in a plastic evidence pouch and mailed it to the DEA laboratory in Chicago for analysis.
In appellant's first point he contends the trial court erred in overruling his objections to the receipt in evidence of state's exhibits 1 through 5, 8, 9, 12, and 13, and to the testimony identifying the exhibits as cocaine received from appellant. The point is not well taken.
Appellant asserts that purported defects in the chain of custody deprived the court of any assurance that the cocaine was in fact obtained from appellant, or that it had not been tampered with prior to analysis or trial.
Although the state's evidence establishing the chain of custody for the exhibits is not as detailed as appellant believes necessary, it is sufficient to support the court's judgment.
The trial court has the discretion to determine whether a chain of custody which will allow the admission of physical evidence has been sufficiently established. State v. Shelli, 675 S.W.2d 79, 81 (Mo.App. 1984). In order to rule that admission is proper, the court must find that the facts provide "reasonable assurance" that the exhibits sought to be introduced were in fact received from the defendant and are in like condition at the time of introduction as *40 when received. State v. Baines, 394 S.W.2d 312, 316 (Mo.1965); State v. Pernell, 606 S.W.2d 389, 392 (Mo.App.1979). It is not necessary for the state to rule out every possibility of disturbed possession. State v. Shelli, 675 S.W.2d at 82.
Appellant complains that the state's evidence accounting for the whereabouts of the exhibits in question is deficient for the period in which the exhibits were in the custody of the DEA in St. Louis, in the U.S. Mail, at the DEA laboratory in Chicago, and during the time between analysis and trial.
Appellant cites numerous cases in support of the proposition that the state is required to establish the identity, employment and responsibilities of each person who has handled a controlled substance before testimony concerning its analysis may be admitted: State v. McCrary, 478 S.W.2d 349 (Mo.1972); State v. Robinson, 447 S.W.2d 71 (Mo.1969); State v. Baines, 394 S.W.2d 312 (Mo.1965); State v. Pernell, 606 S.W.2d 389 (Mo.App.1979); State v. Collins, 601 S.W.2d 640 (Mo.App.1980); Thompson v. State, 582 S.W.2d 700 (Mo. App.1979); State v. Webster, 539 S.W.2d 15 (Mo.App.1976). It is appellant's contention that because the state has failed to comply with this alleged requirement, the exhibits in question and testimony concerning them were improperly admitted. The decisions which appellant cites, however, do not compel such proof.
The cases cited by appellant clearly articulate the standard which the trial court must apply in determining the sufficiency of a chain of custody for exhibits containing fungible narcotics. The court must be able to find that the evidence provides "reasonable assurance" that the exhibits were the same and in like condition when admitted as when received from defendant. McCrary, 478 S.W.2d at 351; Baines, 394 S.W.2d at 316; Collins, 601 S.W.2d at 641; Pernell, 606 S.W.2d at 392; Thompson, 582 S.W.2d at 702; Webster, 539 S.W.2d at 17.
It is of little consequence that the decisions which appellant cites contain more stringent accounts of the custody of exhibits than does the case under review. The mere fact that a highly detailed chain of custody is deemed sufficient does not compel the conclusion that such detail is required.
This court's sole concern is that the evidence in the case under review provides "reasonable assurance" that the exhibits in question were not altered or substituted prior to analysis or trial. The evidence provides such assurance.
Both the exhibits in Count I (plastic baggie containing a paper bindle filled with cocaine) and in Count III (plastic baggie containing cocaine) were marked for identification by Officer Stephen Dougherty after their receipt by him from defendant. In each case, Dougherty immediately transferred custody of the exhibits to Drug Enforcement Administration Agent Donald Walton.
On the day of each transaction, Agent Walton heat-sealed the exhibits in plastic evidence bags. He then deposited the bags into a limited access storage vault at the DEA office in St. Louis.
In each instance, after two to three days Walton re-heat-sealed the exhibits in permanent evidence bags and dated and signed the labels. Walton then mailed the exhibits via registered mail to the DEA office in Chicago. In both instances Walton received registered mail receipts which were offered as evidence that the exhibits arrived at the DEA office in Chicago.
The exhibits in both counts were retrieved from the main storage vault at the Chicago DEA office by DEA chemist Jack Raney. Raney opened the sealed bags, analyzed the exhibits, and identified the substances as cocaine. At all times during their analysis all of the exhibits were either in Raney's physical possession or in his personal lock box, to which he had sole access.
Raney heat-sealed each exhibit after analysis, initialed and dated the packages, and returned them to the main vault at the DEA office in Chicago. The exhibits pertaining to each count remained sealed until *41 opened the morning of trial by Agent Walton.
Storage of the exhibits in the evidence vault at the St. Louis DEA office, where access was limited to two custodians, did not deprive the trial court of the requisite assurances. State v. McCrary, 478 S.W.2d 349, 350 (locked room accessible to "lab personnel" sufficient) (Mo.1972). Similarly, the fact that the exhibits were mailed and that there is no testimony as to who received them in Chicago or who transported them back to St. Louis for trial is not fatal to their admissibility.
There was testimony by DEA chemist Raney that the bags appeared unopened when received by him for analysis in Chicago, and that he re-sealed them immediately after the testing. Agent Walton testified that the bags remained sealed from the time of testing until opened by him on the morning of the trial.
The continuous protection offered by the heat-sealing of the evidence bags throughout the purported "gaps" in the chain of custody, together with the balance of the chain as reflected in the record, is sufficient to provide the requisite assurance of the exhibits' integrity. The exhibits and testimony concerning them were therefore properly admitted by the trial court and the appellant's first point is denied.
Appellant claims in his second and third points that the trial court erred in overruling his objection to the testimony of Officer Dougherty about statements and actions of Dougherty, Bob Jacobs, and appellant regarding the purported cocaine transaction on April 29, 1985. The charge against appellant arising out of the April 29 incident had been dismissed after the prosecutor's opening statement.
Appellant argues that this testimony was irrelevant, inadmissible hearsay and that it was error for the court to admit it as evidence of appellant's state of mind on May 15, 1985, the date of the attempted sale charged in Count III.
The general rule is that proof of the commission of separate and distinct crimes is not admissible unless it has some legitimate tendency to establish that defendant is guilty of the crime for which he is on trial. State v. Shaw, 636 S.W.2d 667, 671-2 (Mo.banc 1982); State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (Mo.banc 1954).
It is unnecessary, however, to decide whether there exists some legitimate purpose for the questioned testimony. The admission of improper evidence is not grounds for reversal in a court-tried case as it is presumed that the court will not be confused or misled by it. State v. Lowe, 674 S.W.2d 262, 265 (Mo.App.1984); State v. Travis, 625 S.W.2d 630, 631 (Mo.App. 1981).
Assuming, without deciding, that the trial court erred in admitting Officer Dougherty's testimony, the error would be harmless. There is no indication that the trial judge in fact relied on the alleged improper testimony and there is other competent evidence in the record which is sufficient to support the trial court's judgment. Accordingly, appellant's second and third points are denied.
In appellant's final point he charges that the trial court erred in denying defendant's motion for acquittal with respect to Counts I and III. The ruling on appellant's other points and the not inconsiderable uncontradicted evidence mandates a denial of this point.
The judgment is affirmed.
CARL R. GAERTNER, J., and SIMEONE, Senior Judge, concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2444395/
|
869 S.W.2d 698 (1994)
315 Ark. 658
Billy Wayne RHOADES, Appellant,
v.
STATE of Arkansas, Appellee.
No. 92-1217.
Supreme Court of Arkansas.
January 31, 1994.
Rehearing Denied March 14, 1994.
Thomas D. Deen, Dermott, for appellant.
Teena L. White, Asst. Atty. Gen., Little Rock, for appellee.
GLAZE, Justice.
On December 13, 1991, the appellant, Billy Wayne Rhoades, was arrested on a circuit court felony bench warrant for burglary, theft, and forgery. At the time of his arrest, Rhoades was sixteen years of age. He was jailed and later transported that same day to the sheriff's office for questioning where he was read his Miranda rights. Prior to interrogation, Rhoades executed a juvenile rights form which was witnessed by the deputy, Norman Cornish, and an individual acting as a juvenile intake officer, Sandi Daugherty.[1] Additionally, Cornish contacted Rhoades' mother by phone, and the mother indicated she could not come to the jail until she got off work at 4:00 p.m. Nonetheless, the mother gave her oral consent for Rhoades to be questioned. Rhoades then was interrogated and gave inculpatory statements. Rhoades' mother arrived at the jail shortly after 4:00 p.m., and was told that Rhoades had been questioned and he had confessed. On December 16, Rhoades was released on bond.
On January 13, 1992, Rhoades made his first appearance before the Bradley County Circuit Court, at which time counsel was appointed, and Rhoades was scheduled for plea and arraignment on February 28. However, on January 14, an order of transfer from circuit to juvenile court was entered, and on February 3, the prosecutor filed a petition in the juvenile division of chancery court to have Rhoades adjudicated a delinquent based on acts allegedly committed in a different case and which were later dismissed. The petition was amended on February 20, to include the acts committed in this case. At an April 3 hearing, the juvenile court denied Rhoades' motion to suppress his confession, and then it adjudicated Rhoades a delinquent, finding he had committed theft of property in excess of $200 and forgery. The court committed Rhoades to the Division of Youth Services. Rhoades appeals from the court's judgment, and for his sole point for reversal, argues the trial court erred in denying *699 his motion to suppress his inculpatory, custodial statements.
Rhoades' argument is based upon the state's failure to comply with certain provisions of the Arkansas Juvenile Code after Rhoades was taken into custody pursuant to a warrant. For example, Ark.Code Ann. § 9-27-313(b) (Repl.1993) provides in these circumstances, the officer taking the juvenile into custody must immediately take the juvenile before the court out of which the warrant was issued, and the court shall decide whether jurisdiction is in juvenile court or circuit court under § 9-27-318. The state did not comply with these procedural requirements. The Code also requires that, in delinquency and families in need of services cases, a juvenile and his parent, guardian, or custodian shall be advised (1) by the law enforcement official taking the juvenile into custody, (2) by the intake officer at the initial intake interview, and (3) by the court at the juvenile's first appearance before the court that the juvenile has the right to be represented at all stages of the proceedings by counsel. Ark.Code Ann. § 9-27-316 (Repl. 1993). And § 9-27-317 sets out the procedures required when obtaining a juvenile's waiver of the right to counsel which include the written and signed agreement by the juvenile and his parent, guardian, or custodian. See particularly § 9-27-317(b), (c) and (f). Again, the state in this case indisputably failed to comply fully with these right-to-counsel and waiver provisions, and Rhoades urges that the state's failures to meet these Code requirements precluded it from extracting Rhoades' confession and introducing it at trial.
The state responds by claiming that the Juvenile Code provisions relied upon by Rhoades are inapplicable because Rhoades was charged in circuit court with a felony as an adult, not in juvenile court as a delinquent juvenile. Consistent with the state's argument here, we recently held in Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993), that the Juvenile Code and its provisions refer only to proceedings in juvenile court. This court further concluded that, when the prosecutor chooses to prosecute a juvenile in circuit court as an adult, the juvenile becomes subject to the procedures and penalties prescribed for adults. Accordingly, the state suggests here that, since Rhoades' constitutional rights as an adult were met when the officers interviewed and obtained his confession, the trial court was correct in allowing Rhoades' confession into evidence even though the officers' actions failed to comply with Juvenile Code provisions.
The state and Rhoades are both correct at least up to a point. As we stated in Boyd, the Juvenile Code provides that, when a case involves a juvenile sixteen years old or older, and the alleged act would constitute a felony if committed by an adult, the prosecuting attorney has the discretion to file a petition in juvenile court alleging delinquency, or to file charges in circuit court and to prosecute as an adult. 313 Ark. at 172, 853 S.W.2d at 264. However, felony charges in circuit court are required to be brought by indictment or information. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); see also Ark. Const. art. 2, § 8, and Ark. Const. Amend. 21. In the present case, Rhoades was arrested on a circuit court felony bench warrant, but neither the abstract nor transcript shows a copy of an indictment or information setting out the felony offenses with which Rhoades was charged.[2] As we mentioned earlier, the record reflects only that, on February 3, 1992, the state filed a petition in the juvenile division of chancery court to adjudicate Rhoades a juvenile delinquent.
In sum, our review of the record reveals Rhoades had not been charged with a felony in circuit court as an adult when the law officers interrogated him and gained his confession. Thus, under the circumstances presented, the Juvenile Code was indeed applicable at the time Rhoades gave his statement, *700 and his statement was therefore inadmissible at trial because the law enforcement officer's conduct failed to comport with required Juvenile Code procedures when they obtained Rhoades' confession.
For the reasons set out above, we reverse and dismiss.
HOLT, C.J., dissents.
HOLT, Chief Justice, dissenting.
I would like to join the majority opinion because of its desired results; however, I note, in examining the transcript of trial, that the records reflect that Rhoades was charged as a result of an information or indictment with a felony in circuit court, and for this reason we cannot afford to him the protection provided by the Arkansas Juvenile Code with reference to the taking of his statement without the required waivers from his parent, guardian, custodian, or like figure.
The majority, in its opinion, circumvents this issue by stating that Rhoades was arrested on a circuit court felony bench warrant, but neither the abstract nor the transcript shows a copy of an indictment or information setting out the felony offenses for which Rhoades was charged. Granted, the abstract does not reflect these two instruments; however, we may go to the record to affirm. Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993). In doing so, I note that the record contains a bench warrant which clearly reflects on its face that it was issued as a result of an indictment charging Rhoades with the offense of burglary and theft of property and forgery in circuit court.
In further examining the transcript of the proceedings of the trial court, I find that one of the circuit judges of the district filed an instrument identified as "Probable Cause Finding and Authorization for Arrest Warrant", which document contained a typed notation reading "Information No. CR-91-122-2 A and B." The instrument was dated December 12, 1991, and, after it was filed, a bench warrant was issued by the clerk of the court on the same date. That document recited that appellant Rhoades was to appear in circuit court to answer an indictment in that court for the offenses of burglary, theft of property, and forgery.
Although there is ambiguity concerning the notation of an "information" number on the authorization for arrest warrant and the term "indictment" found in the warrant, the fact still remains that the clerk of the court formally issued a bench warrant to arrest Rhoades to answer an "indictment," and we must accept the bench warrantas it appears in the transcriptas properly issued unless the record reflects otherwise.
For these reasons, I can only conclude that Mr. Rhoades was arrested by a bench warrant which was predicated upon an indictment which charges him with a felony in circuit court. To hold otherwise, we would have to assume that the clerk utilized the wrong form in issuing a bench warrant or was mistaken in her action. This we should not do!
This being the case, we should invoke the provisions of the Arkansas Rules of Criminal Procedure as applied to circuit courts rather than interpose the protective shield of the Arkansas Juvenile Code.
I respectfully dissent.
NOTES
[1] The exact status of this individual is not clear.
[2] The bench warrant does reflect in its top margin the typed words, "Information NO. CR" and the numbers "91-122-2 A and B" handwritten in. To confuse matters further, the term "indictment" is mentioned in the warrant. Of course, an information or indictment is unnecessary to issue a warrant, and unlike the dissenting opinion, the court is unwilling to speculate that a charging instrument was actually filed in this matter, especially since an information or indictment fails to appear either in the abstract or the transcript.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2444541/
|
577 S.W.2d 296 (1978)
Jean WALDEN et al., Appellants,
v.
ROYAL GLOBE INSURANCE COMPANY, Appellee.
No. 8127.
Court of Civil Appeals of Texas, Beaumont.
December 28, 1978.
Rehearing Denied January 18, 1979.
*297 Tommy Jacks, Austin, for appellants.
Burnie Burner, Austin, for appellee.
KEITH, Justice.
Our prior opinion in this cause dated November 16, 1978, is withdrawn and this opinion substituted in lieu thereof.
This is a workers' compensation case wherein the widow and the guardian of two minor children recovered maximum death benefits after a trial by jury. The accrued weekly payments were ordered paid immediately with interest, and the remaining weekly payments were ordered paid weekly in accord with the provisions of Tex.Rev. Civ.Stat.Ann. Art. 8306, Sec. 8(b) (Supp. 1978-79). The court sustained the carrier's exception to claimants' allegations seeking a lump sum payment of the weekly death benefits.[1] From the pleadings and the charge we learn that there were contested issues of fact as to deceased's employment status, whether his injury was in the course of his employment, and as to whether the carrier was in fact the workers' compensation insurer for deceased's employer.
The jury answered the contested issues in favor of the claimants and the judgment was entered for claimants for the maximum amounts payable in accordance with the statute. Claimants have perfected a limited appeal contending that the trial court erred in sustaining the special exception and in refusing to pass upon the issue of lump sum payment of the death benefits. We affirm.
Before its amendment in 1973, Art. 8306, Sec. 8, Tex.Rev.Civ.Stat.Ann., read:
"Sec. 8. If death should result from the injury, the association hereinafter created shall pay the legal beneficiaries of the deceased employee a weekly payment equal to sixty per cent (60%) of his average weekly wages, but not more than Forty-nine Dollars ($49) nor less than Twelve Dollars ($12) per week, for a period of three hundred and sixty (360) weeks from the date of the injury."
Except for an early change in the designation of the statutory beneficiaries and periodic increases in the amount of weekly payments, this language has remained unchanged for sixty years.[2]
*298 From the earliest times, our courts had approved the lump-summing of death payments, one of the first cases being Texas Employers' Ins. Ass'n v. Boudreaux, 231 S.W. 756, 758 (Tex.Com.App.1921, holding approved). Under this statute it had been determined authoritatively that where death resulted from a compensable injury, the surviving wife had an unconditional right to the compensation and that such right was vested and survived the beneficiary's death. Burris' Estate v. Associated Employers Insurance Co., 374 S.W.2d 223, 225 (Tex.1963).
In short, before the 1973 amendment, the death benefits could be lump-summed. The amount was fixed, both as to the weekly payment and to the number of weeks. The discount factor was fixed by statute and all a claimant had to prove was his or her entitlement thereto under the provisions of Art. 8306, Sec. 15. See Western Alliance Insurance Company v. Jecker, 371 S.W.2d 904, 911 (Tex.Civ.App.El Paso 1963, no writ), and authorities therein cited.
The 1973 amendment to Sec. 8 of Art. 8306, was not merely cosmetic nor was it a simple housekeeping change. Instead, the legislature took a completely new approach to the question of death benefits. It jettisoned the specific number of weekly payments in favor of a period equal to the lifetime of the widow while she remained unmarried; and, as to the children, it provided for long periods during which such children would be entitled to the weekly payments, even up to age twenty-five in certain instances. While lengthy, we quote the pertinent portions of the amendment in the margin.[3]
Even prior to the 1973 amendment to Art. 8306, Sec. 8, it was generally agreed that workers' compensation benefits ordinarily should be paid weekly. One of the most cogent statements of the rule is to be found in this language taken from Texas Employers Insurance Association v. Motley, 491 S.W.2d 395, 397 (Tex.1973), wherein our Chief Justice restated the rule:
"When the workmen's compensation act was passed, the weekly payments were to be in lieu of the wages which the workman could not earn because of his incapacity. There was, as we understand it, a feeling that it might not be wise to give *299 the laborer, unskilled in money management, a large sum of money in a lump sum. It might be best for him, and his family, if the money were paid to him weekly,as he had been receiving his wages. Provision was made, however, in Section 15 of Article 8306, for payment to the workman in a lump sum if to do otherwise would result in manifest hardship."
But, as one court noted, "While the language of the statute ... might indicate that the employee should be required to make a strict showing in order to be entitled to a lump sum award, a study of the decisions of our courts indicates that they have gone far in upholding verdicts allowing recovery in a lump sum." Federal Underwriters Exchange v. Craighead, 168 S.W.2d 699, 700-701 (Tex.Civ.App.Fort Worth 1943, writ ref'd w. o. m.).
The practice of indiscriminate lump-summing has been criticized by some scholars. See, e. g., 3 Larson, The Law of Workmen's Compensation § 82.71, at 15-573 (1976), from which this quotation is taken:
"In some jurisdictions, the excessive and indiscriminate use of the lump-summing device has reached a point at which it threatens to undermine the real purposes of the compensation system. Since compensation is a segment of a total income insurance system, it ordinarily does its share of the job only if it can be depended on to supply periodic income benefits replacing a portion of lost earnings. If a partially or totally disabled worker gives up these reliable periodic payments in exchange for a large sum of cash immediately in hand, experience has shown that in many cases the lump sum is soon dissipated and the workman is right back where he would have been if workmen's compensation had never existed. One reason for the persistence of this problem is that practically everyone associated with the system has an incentive at least a highly visible short-term incentive to resort to lump-summing. The employer and the carrier are glad to get the case off their books once and for all. The claimant is dazzled by the vision of perhaps the largest sum of money he has ever seen in one piece. The claimant's lawyer finds it much more convenient to get his full fee promptly out of a lump sum than protractedly out of small weekly payments ....
"... Enough experience has been gained by now to prove that a broad statutory requirement such as that the granting of a lump sum must be in the best interest of the worker is no guarantee against abuse of the practice."
It is apparent from a reading of the new Section 8 that the legislature meant to change the practice with reference to lump-summing of death benefits. Section 8(d) of the new statute begins with the emphatic language, "The benefits payable to a widow, widower, or children under this section shall not be paid in a lump sum", followed by two exceptions"except in events of remarriage or in case of bona fide disputes as to the liability of the association for the death."
In the event of the remarriage of the widow or widower, such claimant is entitled to "a lump sum payment equal in amount to the benefits due for a period of two (2) years ...." Art. 8306, Sec. 8(b). And, it is to be noted that there is no reference to hardship or injustice nor to a discount. Attorney General Hill, in an opinion addressed to the Chairman of the Industrial Accident Board, considered the question and concluded that, since none of the four categories to which the statutory discount is applicable includes the kind of lump sum involved upon remarriage of a widow under amended Sec. 8(b), the lump sum payment should be made without a discount. We adopt the reasoning found in the opinion (H. 862, August 12, 1976), it being set out in the margin.[4]
*300 The other exception permitting payment in a lump sum is specifically confined to "settlement of a disputed case" where the board or court makes "an express finding that a bona fide dispute exists as to such liability."
To recapitulate, the express language of the new Act permits lump sum payments only in the event of remarriage and settlement wherein a bona fide dispute exists as to liability. The reason for the first is apparent: upon remarriage, the widow no longer needs the payment in lieu of wages for, presumptively, she has replaced her former wage earner. The second is present so that neither the claimants nor the carrier will be required to go for an "all or nothing" battle to determine liability.
With a bona fide dispute as to liability, the parties are enabled to give and take so as to reach a settlement which, if approved by the board or court, may be to the best interest of all parties to the controversy.
Indeed, while this cause was under submission, our Supreme Court considered the statute in detail. See Twin City Fire Insurance Company v. Cortez, 576 S.W.2d 786 (Tex.1978) (not yet reported except in 22 Tex.Sup.Ct.J. 156, December 20, 1978). We consider our opinion to be consistent with both the majority and the minority opinions in Cortez.
Claimants argue at length that we must interpret the law liberally so as to protect the injured workers and their beneficiaries. The answer to this contention of the claimants is to be found in Second Injury Fund v. Keaton, 162 Tex. 250, 345 S.W.2d 711, 714 (1961), where the Court said:
"[W]e are not permitted to give a liberal construction where the law is expressed in plain and unambiguous language as here. We are not to look to the consequences of our action here in limiting the application of the statute to the exact words of the Act." (emphasis in original)
Recently, in Ex parte Roloff, 510 S.W.2d 913, 915 (Tex.1974), the Court restated the rule:
"If the statute being construed is plain and unambiguous, there is no need to resort to rules of [statutory] construction, and it would be inappropriate to do so."
Accord: Brantley v. Phoenix Ins. Co., 536 S.W.2d 72, 74 (Tex.Civ.App.Houston [1st Dist.] 1976, writ ref'd); Legate v. Bituminous Fire & Marine Insurance Co., 483 S.W.2d 488, 490 (Tex.Civ.App.Beaumont 1972, writ ref'd n. r. e.).
Claimants argue that there are inconsistencies in Art. 8306, pointing to the lump sum provisions in Sec. 8(b) and (d) and Sec. 15. The new section (Sec. 8) is, of course, to some extent inconsistent with Sec. 15; but, this does not mean that we should ignore the new and enforce the old section. Instead, we adopt the rule stated in Black v. American Bankers Insurance Company, 478 S.W.2d 434, 437 (Tex.1972):
"It is a cardinal rule of statutory construction that all sections, words and phrases of an entire act must be considered together; every provision should be construed with every other portion to produce a harmonious whole; and one provision will not be given a meaning out of harmony or inconsistent with other provisions, although it might be susceptible of such construction if standing alone."
Section 8(d) is not a total bar to lump sum payments and there are situations when the board or court may compel lump sum payments. See Attorney General Hill's opinion, supra, to the effect that the lump sum accrues as a matter of law upon remarriage. Thus, when so construed, we reach an harmonious result and each provision stands.
*301 The claimed inconsistency as to discount is also easily explained. No discount is allowed when the widow remarries for the simple reason that the lump sum payment is not an advanced payment; it is simply payment of what is then due, owing, and payable at par, not at a discount.
Another point of some concern to which parties have not supplied an easy answer is: How do you compute the present value of the widow's weekly payment? Certainly, we all recognize actuarial tables with reference to life expectancy and they are universally accepted. However, the propensity or the likelihood of a widow remarrying is not, in our opinion, subject to such actuarial proof. Indeed, in our study we have found but one case on the subject, Osborn v. Osborn, 252 S.W.2d 837, 840 (Mo. App.1952), where the court states:
"Missouri Jurisprudence has not yet advanced to the point where re-marriage statistics have much evidentiary weight in solving this difficult problem."
We say the same thing about Texas and call attention to the reasons assigned by the Missouri court (252 S.W.2d at 840) which we now adopt as applicable to our case.[5]
Under the new statute which we review, we hold that the claimants were not entitled to go to the jury on the question of lump sum, and that the trial court properly sustained exceptions to the pleading.
The only other point brought forward is the claimed error of the trial court in refusing to award the attorney's fees in a lump sum. We decline to consider this complaint because it was not properly preserved in the trial court. This was a limited appeal confined to the sole point of the claimed error in sustaining the special exceptions. There was no other complaint reserved in the notice of the limited appeal. Consequently, it will not be further noticed. See Garcia v. Employers Casualty Company, 519 S.W.2d 685, 687 (Tex.Civ.App. Amarillo 1975, writ ref'd n. r. e.).
Finding no error, the judgment of the trial court is AFFIRMED.
DIES, Chief Justice, dissenting on Motion for Rehearing.
With respect, I dissent. In holding that a trial court has power to include a lump sum in a settlement, but not a judgment, the majority has, I believe, placed a powerful weapon in the hands of insurance companies to force a favorable settlement. The judgment in this case illustrates why by awarding $26.25 per week to the widow, $17.50 per week for each child, and $8.75 to plaintiffs' attorney.
Furthermore, the majority opinion has repealed Tex.Rev.Civ.Stat.Ann. art. 8306, § 15 (Vernon 1967), which reads:
"In cases where death or incapacity in any degree results from an injury, the liability of the association may be redeemed by the payment of a lump-sum by agreement of the parties thereto subject to the approval of the Industrial Accident Board. Where in the judgment of the Board manifest hardship and injury would otherwise result, the Board may compel the association to redeem the liability by payment of the award of the Board in a lump-sum, and a discount shall be allowed for present payment in accordance with Article 8306a of the Revised Civil Statutes of 1925, as amended."
Of course, a district court has the same power as the Industrial Accident Board. Tex.Rev.Civ.Stat.Ann. art. 8307, § 5 (Vernon Supp.1978).
I readily recognize the seemingly inconsistent portions of art. 8306, § 8(d) (Vernon Supp.1978) and art. 8306, § 15, but it is our duty, if possible, to harmonize them. Ex parte Roloff, 510 S.W.2d 913 (Tex.1974); Gerst v. Oak Cliff Savings & Loan Ass'n, 432 S.W.2d 702, 706 (Tex.1968); Peterson v. Calvert, 473 S.W.2d 314, 315 (Tex.Civ.App. Austin 1971, writ ref'd).
*302 Railroad Commission of Texas v. Miller, 434 S.W.2d 670, 672 (Tex.1968), admonishes us to "take statutes as [we] find them," to find
"... its intent in its language, and not elsewhere. They [the courts] are not the law making body. They are not responsible for omissions in legislation. They are responsible for a true and fair interpretation of written law. It must be an interpretation which expresses only the will of the makers of the law, not forced nor strained, but simply such as the words of the law in their plain sense fairly sanction and will clearly sustain."
Quoted from Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66, 70 (1920).
I, therefore, would interpret this act as giving a court authority to order a judgment benefit in a lump-sum upon findings of (a) manifest hardship and injury, and (b) the existence of a bona fide dispute as to liability.
NOTES
[1] The special exception was directed to claimants' pleading, in a conclusory manner, of their desire for a lump sum because "`manifest hardship and injustice would otherwise result to them if the benefits were paid in small weekly payments rather than a lump sum.'"
[2] In the original 1913 Act the benefits were $15-$5. Acts 1913, 33rd Leg., Ch. 179, pp. 429, 431.
When the Compensation Act was reenacted in 1917, the amount of payments were unchanged. Acts 1917, 35th Leg., Ch. 103, pp. 269, 273.
The payments were increased in 1923 to $20-$7 per week. Acts 1923, 38th Leg., Ch. 177, pp. 384, 385.
The payments were increased again in 1947 to $25-$9. Acts 1947, 50th Leg., Ch. 307, pp. 521, 522. Again, in 1957, the maximum weekly payments were increased to $35 but the minimum payment was left unchanged. Acts 1957, 55th Leg., Ch. 397, pp. 1186, 1188. In 1969, the weekly payments were increased to $49-$12, but the Act was not changed otherwise. Acts 1969, 61st Leg., Ch. 18, p. 48.
[3] "Sec. 8. (a) If death results from the injury, the association shall pay the legal beneficiaries of the deceased employee a weekly payment equal to sixty-six and two-thirds per cent (662/3 %) of the employee's average weekly wage, but not less than the minimum weekly benefit nor more than the maximum weekly benefit set forth in Section 29 of this article.
"(b) The weekly benefits payable to the widow or widower of a deceased employee shall be continued until the death or remarriage of the beneficiary. In the event of remarriage a lump sum payment equal in amount to the benefits due for a period of two (2) years shall be paid to the widow or widower. The weekly benefits payable to a child shall be continued until the child reaches eighteen (18) years of age, or beyond such age if actually dependent, or until twenty-five (25) years of age if enrolled as a full-time student in any accredited educational institution. All other legal beneficiaries are entitled to weekly benefits for a period of three hundred and sixty (360) weeks.
"(c) Upon the termination of the eligibility of any child to receive benefits, the portion of compensation paid to such child shall thereafter be paid to any remaining child or children entitled to benefits under the provisions of this Act. If there is no other eligible child then such benefits shall be added to those being paid to the surviving spouse entitled to receive benefits under the provisions of this Act.
"(d) The benefits payable to a widow, widower, or children under this section shall not be paid in a lump sum except in events of remarriage or in case of bona fide disputes as to the liability of the association for the death. Any settlement of a disputed case shall be approved by the board or court only upon an express finding that a bona fide dispute exists as to such liability.
"Upon settlement of all cases where the carrier admits liability for the death but a dispute exists as to the proper beneficiary or beneficiaries, the settlement shall be paid in periodic payments as provided by the law, with a reasonable attorney's fee not to exceed twenty-five per cent (25%) of the settlement. The attorney's fee shall be paid periodically and not in a lump sum."
[4] Opinion H-862, p. 3: "The lump sum payment made to the beneficiary [under Sec. 8(b) upon remarriage] is not the result of the parties' agreement, or of an order of a court or the Industrial Accident Board, but is totally the result of the statutory directive. Neither do we believe that payment in the event of remarriage constitutes an `advanced payment of compensation.' The statute clearly indicates that the lump sum payment is due at the time of the beneficiary's remarriage. As a result, it cannot be characterized as an `advanced payment.' The same reasoning is applicable to the fourth category. The lump sum payment does not represent compensation `paid before becoming due,' because it is in fact due at the time of the remarriage." (emphasis in original)
[5] In dictum, a majority of the Supreme Court has indicated that "remarriage tables" might be used appropriately in calculating the lump sum benefits due the widow or widower, but simply called the matter to the attention of the Legislature. Twin City Fire Insurance Company v. Cortez, supra, 576 S.W.2d at 786 n. 5 (22 Tex.Sup.Ct.J. at 158 n. 5).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2825601/
|
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 202 EAL 2015
:
Respondent :
: Petition for Allowance of Appeal from the
: Order of the Superior Court
v. :
:
:
ANTONIO MOLINA, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 10th day of August, 2015, the Petition for Allowance of Appeal
and Petition for Leave of the Court to Allow New Evidence are DENIED.
|
01-03-2023
|
08-11-2015
|
https://www.courtlistener.com/api/rest/v3/opinions/2446317/
|
791 S.W.2d 475 (1990)
Roy J. BEHEN and Marie U. Behen, Trustees, Respondents,
v.
Edward D. ELLIOTT, a/k/a, Ed Elliott, Appellant.
No. 56118.
Missouri Court of Appeals, Eastern District, Southern Division.
June 19, 1990.
*476 Dale Edward Gerecke, Cape Girardeau, for appellant.
Maurice B. Graham, Daniel Patrick Fall, Fredericktown, for respondents.
CARL R. GAERTNER, Judge.
Defendant, Edward Elliott, appeals from the judgment in a bench trial holding that plaintiffs, Roy and Marie Behen, are vested with an easement by prescription for ingress and egress to the Eli White Road and the B & B Road. The trial court also issued a permanent injunction enjoining defendant from interfering with plaintiffs' use and maintenance of those roadways, except that defendant may lock the roadways' common entrance during Missouri's firearms deer season, so long as plaintiffs are provided with keys. Further, the trial court awarded plaintiffs $400 in damages caused by defendant to the roadways' former entrance. We affirm.
The standard of review for a bench-tried case is well established. We must affirm the trial court's decision unless the judgment is unsupported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We accept the evidence and inferences favorable to the prevailing party and disregard all contrary evidence. Slay Warehousing Co., Inc. v. Leggett, 762 S.W.2d 63, 63-64 (Mo. App.1988). Further, even though not requested by the parties, the trial court voluntarily entered "Amended Findings of Fact and Judgment." Consequently, such findings and conclusions form a proper basis for assigning error and will be so reviewed. Thomas v. Depaoli, 778 S.W.2d 745, 747 (Mo.App.1989).
Plaintiffs are the owners of two adjacent farms located in Madison County, Missouri. Plaintiffs purchased the first parcel, the B & B Farm, in 1961 and the second parcel, the Eli White Farm, in 1968. Defendant, a neighbor, is the owner of several tracts of land, purchased between 1984 and 1985, adjacent to plaintiffs' farms. Across defendant's property traverse the two roadways central to this dispute, known as the "B & B Road" and the "Eli White Road."
After continuing disagreements with defendant, plaintiffs filed a petition in the Circuit Court of Madison County to adjudicate their rights to use the B & B and Eli White Roads. In January of 1989, the trial court entered its amended findings of fact and judgment, holding that plaintiffs are vested with an easement by prescription for ingress and egress to the B & B and Eli White Roads. The trial court declared these easements appurtenant to plaintiffs' property. Defendant, on appeal, challenges this judgment.
In his first point, defendant claims that the trial court erred in failing to apply to his property the "wild lands" exception to prescriptive easements. Defendant maintains that his property is unenclosed, rugged, hilly, and unimproved, and that an easement by prescription cannot be acquired over unfenced and unoccupied lands. If applied, the "wild lands" exception would give rise to the presumption that plaintiffs' use of defendant's roadways was permissive rather than adverse. The trial court, however, held that the "wild lands" exception to prescriptive easements did not apply and we agree.
The "wild lands" exception to prescriptive easements is inapplicable where defendant's land is located in a well settled county and forms no part of an extensive, unimproved, uninhabited area. Carpenter-Union Hills Cemetery Assoc. v. Camp Zoe, Inc., 547 S.W.2d 196, 201-02 (Mo.App. 1977); Moravek v. Ocsody, 456 S.W.2d 619, 624-25 (Mo.App.1970). In reaching its conclusion, the trial court found, and the evidence supports, that the Eli White and B & B Roads are defined travelways in existence for more than forty years. Further, *477 defendant's land is located one-fourth of a mile from a lake development, one-half of a mile from several working farms, and three miles from the City of Fredricktown. Since such land could hardly be characterized as part of the vast reaches of undeveloped, unoccupied territory, the trial court committed no error.
Defendant next challenges the trial court's finding that plaintiffs are vested with a prescriptive easement for the Eli White Road. Defendant claims that the Eli White Road is the only means of ingress and egress to the Eli White Farm, and therefore, the use by plaintiffs and plaintiffs' predecessors in title of the Eli White Road is one of "necessity" rather than prescription. Citing Roberts v. Quisenberry, 362 Mo. 404, 242 S.W.2d 26, 28 (1951) and Miller v. Berry, 270 S.W.2d 666, 671 (Mo. App.1954), defendant argues that an easement of necessity, which would cease when the necessity ceases, and which is permissive by operation of law and not adverse, can never serve as the foundation for a greater prescriptive right. We have no quarrel with this abstract statement of law. Here, however, as in Roberts and Miller, plaintiff's theory was based solely upon a claimed easement by prescription, not by necessity, and the defense asserted was a denial of any right of use, not the lesser right of an easement by necessity. The trial court found each element requisite to the establishment of an easement by prescription and these findings are supported by the evidence. Therefore, the evidence that the Eli White Road is the only means of ingress and egress to the Eli White Farm is not germane to the dispositive issue presented to the trial court. Roberts at 28; Miller at 671. Moreover, a common law easement of necessity is founded upon a showing of prior unity of title of plaintiff's and defendant's land. Tadlock v. Otterbine, 767 S.W.2d 366, 369 (Mo.App. 1989); King v. Jack Cooper Transport Co., 708 S.W.2d 194, 196 (Mo.App.1986). No such evidence appears in this case. The pleadings obviously do not invoke the statutory procedure for the establishment of a "way of strict necessity." § 228.340 RSMo.1986. The issue of easement by necessity is foreign to this case.
In his third point, defendant claims that the trial court's finding of an easement by prescription for the Eli White Road is against the weight of the evidence. Defendant asserts that "there was substantial evidence to show that the Eli White Road was little more than a trail and that it was of impermanent character." We disagree.
Upon review, we defer to the trial judge's determination even though the evidence might support a different conclusion, and we defer to the trial judge's assessment of witness credibility. Magnetic Collectibles v. Action Packets, 779 S.W.2d 33, 34 (Mo.App.1989). Here, the trial court found that the Eli White Road has been used in its present location without any significant deviation as a means of ingress and egress to the Eli White Farm for more than forty years. Several witnesses testified at trial to the roadway's permanency: "It was a good passable road;" "It was an all weather road;" "If you travelled any place else in wet weather, you'd be stuck." One of defendant's witnesses testified to using the Eli White Road as early as 1930 to visit the Eli White Farm. Accordingly, such testimony constitutes substantial, credible evidence to support the trial court's determination that plaintiffs are vested with a prescriptive easement to the Eli White Road.
In his final point, defendant claims that the trial court erred in finding that plaintiffs are vested with a prescriptive easement to the B & B Road. Defendant maintains that plaintiffs' use of the B & B Road was by permission rather than prescription. In support of his claim, defendant relies on a prior conveyance of a written easement. Specifically, on July 13, 1959, defendant's predecessor in title, the Mine La Motte Corporation, conveyed a written easement to plaintiffs' predecessor in title for the use of the B & B Road. Defendant contends that this 1959 conveyance by the Mine La Motte Corporation granting plaintiffs permission precludes a finding that a prescriptive *478 easement vested in plaintiffs to the B & B Road.
The conveyance by the Mine La Motte Corporation of a written easement to plaintiffs cannot destroy a prescriptive right previously acquired by plaintiffs' predecessor in title. Permission, given after an easement is already established by adverse use, has no legal effect. Fenster v. Hyken, 759 S.W.2d 869, 871 (Mo.App. 1989). Here, sufficient evidence supports the trial court's finding that plaintiffs' predecessors acquired a prescriptive right to the B & B Road. Moreover, since plaintiffs proved adverse use of the roadway without evidence of how that use originated, the burden of proof shifted to defendant to show that plaintiffs' use was permissive. Farris v. Vienran, 579 S.W.2d 117, 118 (Mo.App.1979); Day v. Grisham, 571 S.W.2d. 473, 475 (Mo.App 1978). In the present case, defendant has presented no substantial or competent evidence to establish that the use by plaintiffs' predecessors prior to July 13, 1959 was by permission.
Accordingly, the judgment of the trial court is affirmed.
SIMON, P.J., and HAMILTON, J., concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1571252/
|
589 S.W.2d 403 (1979)
Charles Richard KEMNER, Appellant,
v.
The STATE of Texas, Appellee.
No. 55786.
Court of Criminal Appeals of Texas, Panel No. 1.
June 13, 1979.
Rehearing Denied November 28, 1979.
*405 Jack M. McGinnis, San Antonio, Samuel H. Bayless, on appeal only, Darby Riley, on appeal only, San Antonio, for appellant.
Tim Curry, Dist. Atty., Marvin Collins, Rufus J. Adcock, Travis Young and Ronald G. Knight, Asst. Dist. Attys., C. Chris Marshall, Asst. Crim. Dist. Atty. for Tarrant County, Fort Worth, Robert Huttash, State's Atty., Austin, for the State.
Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
OPINION
ROBERTS, Judge.
This is an appeal from a conviction for possession of more than four ounces of marihuana. A jury found the appellant guilty and assessed punishment at ten years' confinement.
Appellant is before us with ten grounds of error. He contends: (1) that the court erroneously admitted testimony that the marihuana seized could be used to produce 28,000 marihuana cigarettes; (2) that the court erroneously admitted testimony concerning the value of the seized marihuana; *406 (3) that the court erroneously allowed the prosecutor to imply that appellant had committed extraneous offenses; (4) that the marihuana was the product of an illegal search and seizure and should have been excluded from evidence; (5) that the court erroneously admitted evidence of a business record without the proper predicate required by Article 3737e, V.A.C.S. having first been laid; (6) that the court erred in denying appellant's motion that the informant's name be disclosed; (7) that the court erroneously denied appellant's motion to examine a police report; (8) that the court's charge on punishment was fundamentally defective; (9) that Article 42.12(B)(3a), Vernon's Ann.C.C.P., providing for jury recommendations of probation, is unconstitutional, and (10) that the court erroneously denied appellant's motion for continuance. We affirm.
Due to the nature of appellant's contentions, we find it more suitable to set out the salient facts pertaining to each ground of error immediately preceding each discussion thereof. Suffice it to say for the present that appellant was apprehended with approximately 31 pounds of marihuana as he was attempting to leave the Dallas-Fort Worth Airport. The arrest was made as the result of an informant's tip and without a warrant.
In his first two grounds of error, appellant complains of testimony offered by the State to the effect that the marihuana seized could be used to produce 28,000 marihuana cigarettes and had the value of approximately $125 per pound.
Jose Alvarez, a chemist for the Drug Enforcement Administration (DEA), testified that during his two years' employment with the DEA he had the occasion to analyze marihuana and knew the quantity of that substance contained in an average marihuana cigarette. Alvarez further testified that 31.5 pounds of marihuana (the amount seized from the appellant) would produce approximately 28,000 cigarettes. Detective William Glenn of the Department of Public Safety testified that during his experience as an undercover narcotics officer he was familiar with the price of marihuana and that a pound of marihuana would sell for approximately $125 in the Dallas area. All of this testimony was admitted over appellant's timely objection.
This Court has held that it is not reversible error for a chemist to testify on the basis of his expert knowledge as to the strength of the narcotic recovered and to translate the amount of the narcotic recovered into terms understandable by the jury. Magee v. State, 504 S.W.2d 849 (Tex.Cr. App.1974); Enriquez v. State, 501 S.W.2d 117 (Tex.Cr.App.1973). We have reached a similar conclusion where testimony was admitted concerning the value of the narcotic recovered. Castro v. State, 432 S.W.2d 948 (Tex.Cr.App.1968). We cannot say that the facts of the present case require a result different from our previous holdings. Accordingly, appellant's first and second grounds of error are overruled.
By his third ground of error, the appellant contends that the court erroneously permitted the prosecutor to imply that he had committed extraneous offenses which had not resulted in final convictions. With respect to this ground of error, the record reflects that appellant's wife was called as a character witness at the punishment phase of the trial and was asked on cross-examination if she knew the whereabouts of appellant on four different occasions prior to the date of the offense in question. She was also asked if she was aware of any "transactions" which occurred on those various occasions. Appellant failed to object to these questions in a timely and specific manner; therefore, nothing is presented for review. Dinn v. State, 570 S.W.2d 910 (Tex.Cr.App.1978); Rodriguez v. State, 417 S.W.2d 165 (Tex.Cr.App.1967).
By his fourth ground of error, the appellant challenges the legality of the warrantless search of his suitcase conducted at or near the time he was arrested at the Dallas-Fort Worth Airport. He contends that the search cannot be justified under the exigent circumstances exception to the Fourth Amendment warrant requirement (and also the requirement of Article I, Section 9 of *407 the Texas Constitution) nor as a search incident to lawful arrest.
John Powell, agent for the DEA in McAllen, testified at the appellant's motion to suppress that on December 19, 1975, at approximately 8 p. m., a reliable informant employed by Texas International Airlines whose identity he did not reveal informed him that moments earlier the appellant had checked in a large blue suitcase on Texas International Airlines flight 994 bound for Dallas. The informant told Powell that after he smelled the odor of marihuana emanating from appellant's suitcase, he opened it and found a large quantity of marihuana. Powell then relayed this information along with appellant's physical description to a fellow narcotics agent in Dallas who in turn contacted Detective Glenn at the Dallas-Fort Worth Airport advising him of the appellant's flight number and scheduled time of arrival.
Glenn testified that the appellant's flight finally arrived approximately two hours later than the scheduled time of arrival. Glenn observed the appellant's suitcase as it was being unloaded from the plane and kept it under surveillance until the appellant picked it up and began to leave the airport. At that time, Glenn placed the appellant under arrest, seized the suitcase, and escorted the appellant to a nearby security office where a search of the suitcase conducted without a warrant revealed approximately 31 pounds of marihuana.
The appellant places primary reliance on United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977) in which the Supreme Court held to be unreasonable the warrantless search of the defendant's footlocker which was seized at the time of his arrest but searched over an hour later at the police station. The Court held that the search could not be justified on the basis of exigent circumstances nor as a valid search incident to arrest because the footlocker was searched at a time and place remote from the place of arrest and after it had been reduced to the exclusive possession of government agents.
Although Chadwick lends support to the appellant's contention that the present search cannot be justified under the "incident to lawful arrest" or "exigent circumstances" exception to the warrant requirement, we conclude nevertheless, on the authority of United States v. Peltier, 422 U.S. 531, 95 S. Ct. 2313, 45 L. Ed. 2d 374 (1975), that Chadwick should not be applied retroactively. Several federal appellate courts have arrived at the same conclusion. See United States v. Berry, 571 F.2d 2 (7th Cir. 1978); United States v. Montgomery, 558 F.2d 311 (5th Cir. 1977). In United States v. Peltier, supra, the Supreme Court held that any judicial enlargement of the exclusionary rule will be given retroactive effect only when "the law enforcement officer had knowledge or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment" at the time it was conducted. Ibid, 422 U.S. at 542, 95 S.Ct. at 2320. With this principle in mind, we are inclined to agree with the 7th Circuit Court of Appeals which held in United States v. Berry, supra, that:
"... [U]ntil Chadwick, there was no reason for law enforcement officials to believe that attache cases were not among those personal effects which, under United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973), could be seized as part of a `full search of the person' incident to a lawful arrest, and which, under United States v. Edwards, 415 U.S. 800, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974), could be searched several hours after the suspect had been taken into custody." Ibid at 571 F.2d 3.
We hold therefore, that at the time in question the warrantless search of appellant's suitcase was justified as a search incident to lawful arrest and that the evidence seized as a result thereof was properly admitted at trial.[1]Chimel v. California, *408 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); Fry v. State, 493 S.W.2d 758, 770 (Tex.Cr.App.1972) (Opinion on State's Second Motion for Rehearing); Lane v. State, 424 S.W.2d 925 (Tex.Cr.App.1967); see and compare Chaires v. State, 480 S.W.2d 196 (Tex.Cr.App.1972). Accordingly, appellant's fourth ground of error is overruled.
Appellant next contends that the court erroneously admitted over his timely objection a DEA "evidence transmittal sheet" without the proper predicate being laid as required by Tex.Rev.Civ.Stat.Ann., Article 3737e. This contention is without merit.
Alvarez testified that the "evidence transmittal sheet" was a record of the DEA; that it was made in the regular course of business; that it was the regular course of business for an employee or representative of the DEA to have personal knowledge of the act, event, or condition recorded and to make a memorandum or record of the event, and that the record was made at or near the time of the recorded event.
This Court has consistently held that the Texas Business Records Act, Article 3737e, supra, is applicable to criminal cases. Simmons v. State, 564 S.W.2d 769 (Tex.Cr.App. 1978). Also, where the proper predicate has been laid, this exception to the hearsay rule is to be liberally construed. Simmons v. State, supra. We conclude that Alvarez, by his testimony set forth above, sufficiently satisfied the requirements of Article 3737e, supra. This ground of error is overruled.
In his sixth ground of error, the appellant contends that the court erred by refusing to instruct the State to disclose the identity of the informant because the informant was present at the time the offense was committed or, in the alternative, the informant was a material witness on the issue of appellant's culpable mental state.
In Carmouche v. State, 540 S.W.2d 701 (Tex.Cr.App.1976), it was stated that:
"The identity of an informant need not be disclosed unless (1) the informant participated in the offense; (2) was present at the time of the offense or arrest; (3) was otherwise shown to be a material witness to the transaction or as to whether appellant knowingly committed the act charged. [Citing cases.]"
The appellant was charged and convicted with possession of more than four ounces of marihuana in Tarrant County. The record reflects that at all relevant times, the informant was in McAllen, Hidalgo County. Therefore, the informant was not present at the time the offense was committed. For the same reason, we cannot say that the informant was a material witness on the issue of appellant's culpable mental state. The arresting officer, and not the informant, was the only one able to testify that the appellant was in possession of a suitcase containing approximately 31 pounds of marihuana in Tarrant County. We conclude that appellant was not entitled to have the identity of the informant disclosed to him. Carmouche v. State, supra; Varela v. State, 561 S.W.2d 186 (Tex.Cr. App.1978). Appellant's contention is overruled.
By his seventh ground of error, the appellant complains that the trial court erred by refusing his request to inspect a police report which Powell used prior to trial in order to refresh his memory. The record reflects that Powell himself did not prepare the report in question and that he did not use this report while he was testifying as a witness.
Under the "use before the jury rule" a defendant is entitled to inspect, upon his timely request, any document, instrument or statement which has been used by the State before the jury in such a way that its contents become an issue. Howard v. State, 505 S.W.2d 306 (Tex.Cr.App.1974). Thus, the defendant was not entitled to the police report under this rule because it was referred to only prior to trial. Nor was the *409 appellant entitled to the police report under the "Gaskin Rule" which provides that a defendant, upon his timely request, is entitled to the inspection and use of a previous report or statement personally made by the witness testifying for the State. Howard v. State, supra. Since the police report in question was not made by Powell himself, the trial court properly denied appellant's request. See Mendoza v. State, 552 S.W.2d 444 (Tex.Cr.App.1977). Appellant's contention is overruled.
Appellant next contends that the court's charge on punishment was fundamentally defective because it failed to supply the jury with the "minimum guidelines" to be followed in deciding whether or not to recommend probation. In the alternative he contends that Article 42.12(B)(3a), supra, is unconstitutional for failure to require such guidelines. We find no merit in either of these contentions.
The court's instructions to the jury on the issue of punishment were in accordance with the provisions of Article 42.12(B)(3a), supra. The jury was instructed that in fixing the punishment they could consider "all the facts shown by the evidence admitted [during] the full trial of this case and the law as submitted to you in this charge." The jury was also instructed that it could not recommend probation unless it assessed punishment at less than ten years and it further found that the appellant had never been convicted of a felony in this or any other State. The court then enumerated the conditions of probation to be followed by the appellant in the event the jury decided to recommend probation.
Fundamental error is presented where the error in the court's instruction to the jury goes to the very basis of the case so that the charge fails to state and apply the law under which the accused is prosecuted. Martinez v. State, 576 S.W.2d 854 (Tex.Cr.App.1979). The court's charge in the present case, in accordance with Article 42.12(B)(3a), supra, by instructing the jury to consider all the facts of the case together with the law submitted to it in the charge as well as the enumerated conditions to be followed by the defendant in the event probation was granted, enabled the jury to intelligently exercise its discretion on the question of whether or not to recommend probation for the appellant. See O'Neal v. State, 421 S.W.2d 391 (Tex.Cr.App.1967) (Opinion on Appellant's Motion for Rehearing). Thus, we hold that the court's charge in the present case adequately protected the appellant's rights and that he was not harmed thereby. Article 36.19, Vernon's Ann.C.C.P.
Nor are we persuaded by the appellant's argument that Article 42.12(B)(3a), supra, is unconstitutional because it does not sufficiently guide the jury in assessing punishment. Although the court must follow a jury's recommendation that probation be granted, Article 42.12(B)(3a), supra, it is the court, and not the jury, who must ultimately refuse a defendant's request for probation. And the court may always grant a defendant probation in its absolute and unreviewable discretion where the punishment does not exceed ten years and "... when it shall appear to the satisfaction of the court that the ends of justice and the best interests of the public as well as the defendant will be subserved thereby ...." Article 42.12(B)(3a), supra; Zubia v. State, 543 S.W.2d 389 (Tex. Cr.App.1976); Balderas v. State, 497 S.W.2d 298 (Tex.Cr.App.1972). Thus, a defendant's chance for probation is not foreclosed by the jury's failure to make a favorable recommendation under Article 42.12(B)(3a), supra. Finally, in light of what we have previously said, we are constrained to disagree with the appellant's contention that the due process requirements that apply when the jury assesses punishment in a capital case should apply with equal force to the jury's deliberations under Article 42.12(B)(3a). See and compare Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). Accordingly, appellant's contentions are overruled.
In his final ground of error, the appellant contends that the court erroneously denied his motion for continuance which was presented on June 1, 1976, two days prior to *410 trial. Appellant urged in his motion that his first opportunity to talk to Powell was on May 25, 1976, and that this conversation created a need for further investigation. The trial commenced on June 3, 1976, approximately eight days subsequent to appellant's conversation with Powell.
Initially, we note that appellant's motion for continuance was not sworn to by the appellant as required by Article 29.08, Vernon's Ann.C.C.P.; therefore, appellant has failed to properly preserve this assignment of error for review. See also Thrush v. State, 515 S.W.2d 122 (Tex.Cr.App.1974). Moreover, whether or not to grant a defendant's motion for continuance is a matter left to the sound discretion of the trial court. Freeman v. State, 556 S.W.2d 287 (Tex.Cr.App.1977). We cannot say that the record in the present case clearly demonstrates an abuse of discretion by the court in denying appellant's first motion for continuance which was presented two days prior to trial and where the appellant admittedly had eight days in which he could have conducted any further investigation necessary. See Freeman v. State, supra. Appellant's final contention is overruled.
The judgment is affirmed.
Before the court en banc.
OPINION ON APPELLANT'S MOTION FOR REHEARING
DOUGLAS, Judge.
Kemner was convicted of possession of marihuana. Leave to file the motion for rehearing was granted to determine if Arkansas v. Sanders, ___ U.S. ___, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979), requires us to hold that United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977), is to be applied retroactively. Arkansas v. Sanders, supra, did not address the issue of the retroactive effect of United States v. Chadwick, supra.
Sanders was arrested in April, 1976. After his conviction in 1976, Chadwick was decided by the Supreme Court in 1977. Based on the holding of Chadwick, the Supreme Court of Arkansas reversed Sanders' conviction. Sanders v. State, 262 Ark. 595, 559 S.W.2d 704 (1977). Writ of certiorari to the Arkansas Supreme Court was granted in 1978. (439 U.S. 891, 99 S. Ct. 247, 58 L. Ed. 2d 236).
The Supreme Court of the United States cited Chadwick, but the question of retroactivity was not briefed, argued or discussed by the Court. The writ of certiorari was granted "to resolve some apparent misunderstanding as to the application" of the Chadwick decision, not to determine whether Chadwick was applicable to that set of facts. We are not bound by the decision of the Arkansas Supreme Court to apply Chadwick retroactively. We decline to do so.
The decision of Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), was applied, without discussion, retroactively in Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963); Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963), and in Stoner v. California, 376 U.S. 483, 84 S. Ct. 889, 11 L. Ed. 2d 856 (1964). At a later date, in Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), however, the Supreme Court of the United States specifically held Mapp not retroactive.
The issue of retroactivity is decided on the function of the new constitutional rule. If the purpose of the new rule is to rectify an impairment of the truth-finding function, thus raising the issue of the accuracy of the guilty verdict, the rule must be applied retroactively. United States v. Peltier, 422 U.S. 531, 95 S. Ct. 2313, 45 L. Ed. 2d 374 (1975). If the ruling, however, is in the context of the exclusionary rule, where admittedly relevant evidence is suppressed to further a constitutional goal that has nothing to do with the fact-finding process, the rule should be considered prospectively. 422 U.S. at 535, 95 S. Ct. 2313.
In Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960), the Supreme Court set forth the purposes of the exclusionary rule as (1) upholding the *411 "imperative of judicial integrity" and (2) deterring future acts of unconstitutional conduct by the police. If the evidence has been seized by the police in good-faith compliance with then existing constitutional standards, neither purpose will be thwarted by prospective application of the rule. United States v. Peltier, supra.
As the panel opinion in the present case noted, the police were complying with the then-prevailing constitutional standard. The purpose of the exclusionary rule would not be served by retroactive application of the Chadwick holding.
In the present case, there was no reason for Detective Glenn to believe that the suitcase was not among the personal effects of Kemner and thus subject to a "full search of the person" incident to a lawful arrest. United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). Nor was this search made unlawful because Detective Glenn learned of Kemner's suspect status almost four hours before the arrest. United States v. Edwards, 415 U.S. 800, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974).
In Michigan v. DeFillippo, ___ U.S. ___, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979), the Supreme Court of the United States upheld a search under an ordinance of Detroit even though the Michigan Supreme Court held the ordinance invalid and the search unconstitutional. The Court held that the officer had a right to rely upon the ordinance until it had been declared unconstitutional. See United States v. Berry, 571 F.2d 2 (7th Cir. 1978); United States v. Reda, 563 F.2d 510 (2nd Cir. 1977); United States v. Montgomery, 558 F.2d 311 (5th Cir. 1977).
The panel opinion properly held that the record shows that the officer complied in good faith with the prevailing constitutional standard prior to United States v. Chadwick, supra.[1]
The appellant's motion for rehearing is overruled.
PHILLIPS and CLINTON, JJ., dissent.
NOTES
[1] We reject the State's contention that the search of appellant's suitcase can also be justified by the exigent circumstances which existed at the time the search was conducted because at that time the appellant was in custody and his suitcase had been reduced to the management and control of the arresting officers. See Maldonado v. State, 528 S.W.2d 234 (Tex. Cr.App.1975); compare Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970).
[1] See Nastu v. State, ___ S.W.2d ___ (No. 58,059, October 3, 1979).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2446778/
|
664 S.W.2d 830 (1984)
BLAESER DEVELOPMENT CORPORATION OF TEXAS, Appellant,
v.
W.C. ALDRIDGE, d/b/a A-Abco Lawn Sprinklers, Appellee.
No. 13-83-193-CV.
Court of Appeals of Texas, Corpus Christi.
January 26, 1984.
Thomas Arnold, Dallas, for appellant.
Howard Shapiro, Plano, for appellee.
Before NYE, C.J., and YOUNG and KENNEDY, JJ.
*831 OPINION
YOUNG, Justice.
This is an instructed verdict case. Appellant brought suit against appellee for damages for breach of a contract to install a lawn sprinkler system, and additionally for damages as a result of violations of TEX. BUS. & COM.CODE ANN. § 17.46 et seq. (Vernon Supp. 1982-1983); the Deceptive Trade Practices Act. Appellee filed a general denial. Trial was to the court. After the appellant had rested his cause, appellee moved for an instructed verdict on the grounds that appellant had failed to offer any evidence of damages. Appellant asked for a continuance, which the trial court denied, but then orally granted a motion for non-suit by appellant. Appellant's motion for non-suit and the court's ruling were never reduced to writing or made part of the record before the Court. Subsequently, the trial court granted appellee's motion for instructed verdict. We reverse.
Appellant originally brought suit alleging that appellee had entered into a contract with appellant to install certain sprinkler heads of a designated type and in a designated pattern for a lawn sprinkler system. The contract price was $3,010.00. Appellee installed the system but did not install the exact number of sprinkler heads specified. Appellant alleged that as a result of appellee's failure to comply with the terms of the contract, he was required to hire another contractor to complete the system. He also alleged he suffered plant and sod losses due to the inadequacies of the system installed by appellee.
The case was tried before the court. Appellant called two witnesses. The first witness, Wayne Blaeser, testified that the contract price of $3,010.00 was based on $35.00 per sprinkler head installed. He further testified that the actual price per sprinkler head was $60.00, due to the omitted equipment. He also testified that appellant sustained plant losses in the areas where the sprinklers were not installed. The second witness, Mr. Reggie Schleisman, appellant's comptroller, testified as to the payments made to appellee on the contract. At the conclusion of Mr. Schleisman's testimony, the appellant rested his case. Appellee then moved for an instructed verdict on the grounds that appellant had failed to offer any evidence of damages. Appellant first sought a recess and then a continuance so that he could offer additional evidence on damages. The trial court, noting that the case had been set by agreement of the parties and that both parties had announced ready, refused to grant either motion.
At the court's suggestion, the appellant asked for a non-suit which the trial court granted. Although the motion and the court's ruling thereon are reflected in the statement of facts, no written order granting the motion for non-suit or dismissing the cause appears in the transcript. Later, the appellee filed a motion for instructed verdict on the sole ground that appellant failed to prove damages. The trial court granted the motion for instructed verdict.
In his third point of error the appellant alleges that the trial court erred in granting the instructed verdict as there was some evidence of damages before the court. The task of an appellate court in such a case is to determine whether there is any evidence of probative force to raise a fact issue on a material question presented. To do this, Court must consider all of the evidence in the light most favorable to the party against whom the instructed verdict was granted, disregarding all contrary evidence and inferences. Collora v. Navarro, 574 S.W.2d 65 (Tex.1978). All evidence supporting the appellant's allegations must be accepted as true, and only if we determine that there was no fact issue left to be decided by the trier of fact, will we allow the instructed verdict to stand. Valdez v. Lyman-Roberts Hospital, Inc., 638 S.W.2d 111 (Tex.App. - Corpus Christi 1982, writ ref'd n.r.e.); Voye v. Ragan, 616 S.W.2d 673 (Tex.Civ.App. - Corpus Christi 1981, no writ).
We find that the testimony of the witness Wayne Blaeser concerning the number of sprinkler heads and the contract price per sprinkler head raises a fact question *832 as to whether or not the appellant suffered any damages. The witness testified that the contract was based on a per head price of $35.00 and that the actual price was $60.00. This raised an issue of fact creating evidence of damages. This point of error is sustained.
In his first and second points of error, the appellant argues that the trial court erred in granting the instructed verdict after having granted the motion for non-suit. Without consideration for the fact that we do not have a written order granting the non-suit or dismissing the cause before us, we find no error by the trial court in this action. Tex.R.Civ.P. 164 provides in part that:
"Upon the trial of any case at any time before plaintiff has rested his case, i.e., has introduced all of his evidence other than rebuttal evidence, the plaintiff may take a non-suit, ...." [Emphasis added.]
The record clearly indicates that appellant had rested his case prior to seeking a non-suit. Rule 164 forbids a non-suit after a plaintiff has introduced all of his evidence other than rebuttal evidence. City of Houston v. Sam P. Wallace & Co., 585 S.W.2d 669 (Tex.1979). Appellant argues that O'Brien v. Stanzel, 603 S.W.2d 826 (Tex. 1980) allows a trial judge to grant a non-suit, at the discretion of the court, where circumstances so dictate. A review of the record on this basis does not show an abuse of discretion by the trial judge. Appellant's first and second points of error are overruled.
It is not necessary to consider appellant's fourth point of error as this is not likely to appear on a retrial.
The judgment of the trial court is REVERSED, and the cause is REMANDED for a new trial.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2447585/
|
597 F.Supp.2d 143 (2009)
Ahcene ZEMIRI, Petitioner,
v.
Barack H. OBAMA, President of the United States, et al., Respondents.
Civil Action No. 04-2046 (CKK).
United States District Court, District of Columbia.
February 19, 2009.
Debra A. Schneider, Dulce J. Foster, James E. Dorsey, John W. Lundquist, Nicole M. Moen, Fredrikson & Byron, P.A., Minneapolis, MN, Neil H. Koslowe, Shearman and Sterling LLP, Washington, DC, for Petitioner.
Judry Laeb Subar, Nicholas J. Patterson, Paul Edward Ahern, Paul Cirino, Scott Michael Marconda, Terry Marcus Henry, Timothy Andrew Johnson, Alexander Kenneth Haas, David Hugh White, Julia A. Berman, Patrick D. Davis, U.S. Department of Justice, Andrew I. Warden, Robert J. Prince, Federal Programs Branch, Timothy Burke Walthall, McCampbell & Watthall, P.C., Washington, DC, for Respondents.
*144 ORDER
COLLEEN KOLLAR-KOTELLY, District Judge.
On February 9, 2009, the Court granted-in-part and denied-in-part Petitioner's Motion for Additional Discovery. See [146] Order at 1-3, 2009 WL 311858 (Feb. 9, 2009). The Court ordered the parties to file a Joint Status Report setting forth the dates by which Respondents anticipate their being able to ascertain the existence of, collect, and produce the documents identified in the Court's Order. On February 13, 2009, the parties timely filed a Joint Status Report in response to the Court's Order, and Respondents also filed a separate Status Report to supplement the information provided in the Joint Status Report. Based on the information submitted by the parties, and taking into account all relevant case law, statutory authority, and the entire record of this case as a whole, this Order sets forth the dates by which Respondents must comply with their discovery obligations set forth in the Court's February 9, 2009 Order.
As a preliminary matter, the Court recognizes that some of the discovery contemplated in its February 9, 2009 Order requires Respondents to perform targeted searches that fall outside of those contemplated by the Amended Case Management Order. For example, Section I.D.1 of the Amended Case Management Order provides that "[t]he government shall disclose to the petitioner all reasonably available evidence in its possession that tends materially to undermine the information presented to support the government's justification for detaining the petitioner." As discussed on the record at the Status Hearing held on February 9, 2009, Petitioners have met their burden of showing that the Government should perform more extensive but targeted searches to produce documents that are likely to be highly relevant to the allegations made against Petitioner in the Factual Return and potentially exculpatory according to Petitioner's theory of defense. For this reason, the Court's February 9, 2009 Order required production of additional documents pursuant to the Amended Case Management Order's provision for additional discovery (i.e. Section I.E.2), and not simply the discovery that Petitioner may obtain as of right pursuant to Sections I.D.1 and I.E.1 of the Amended Case Management Order.
Respondents' Supplemental Status Report explains that Respondents have identified specific locations to search for the documents identified in the Court's February 9, 2009 Order, which include the United States Attorney's Offices for the Western District of Washington and the Southern District of New York and the Federal Bureau of Investigation field offices located in Seattle and New York.[1] Contrary to Respondents' suggestion accompanying this information, the Court finds that searching these locations for specific documents that is likely to be highly relevant and potentially exculpatory does, in fact, reflect a "prudent and incremental" approach to the factfinding process in this case. See Hamdi v. Rumsfeld, 542 U.S. 507, 538-39, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality). Respondents had a full opportunity to argue to the contrary in their Opposition to Petitioner's Motion for Additional Discovery and at the Court's Status Hearing on February 9, 2009, and the Court balanced the parties' arguments, as well as the interests and burdens on both Petitioner and Respondents, when deciding to grant-in-part *145 and deny-in-part Petitioner's Motion for Additional Discovery. Cf. id. (explaining that courts must balance multiple interests during the factfinding process, including "matters of national security that might arise in an individual case and [] the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns").
The parties' Joint Status Report reflects a disagreement concerning how much time is required for Respondents to adequately comply with their additional discovery obligations. Respondents have proposed a two-month deadline for production of some of the discovery, see Joint Status Report at 1-3, and Petitioner has suggested, without any supporting reasons, that one month should be sufficient, id. at 3. The Court accepts as reasonable Respondents' representations concerning the amount of time necessary to search for, collect, and clear for disclosure, the discovery located in the areas identified above. As other Judges in this district have explained, a petitioner who requests additional discovery must necessarily decide whether obtaining such discovery outweighs the often inevitable delays that follow. See, e.g., Al-Adahi v. Obama, No. 05-280, 597 F.Supp.2d 38, 41 n. 3, Mem. Order at 4 n. 3, 2009 WL 361629 *1 n. 3 (February 12, 2009) (explaining that petitioners' counsel must decide, on a case-by-case basis, whether they "believe[] that the necessity for additional searching outweighs the delay which such searching will most certainly entail"). In this case, Petitioner has decided that the information identified in the Court's February 9, 2009 Order is necessary for his defense, and he must therefore accept that Respondents' searches for such information will result in some delayparticularly where, as here, Petitioner has provided no reasons to believe that the length of time proposed by Respondents for their additional searches is unreasonable.[2]
As a final matter, Petitioner filed a[150] Motion to Strike Respondents' Supplemental Status Report on the basis that Respondents improperly sought to re-argue their Opposition to Petitioner's Motion for Additional Discovery. See Pet'r's Mot. at 1-2. Respondents have opposed the Motion to Strike, and clarified that their Supplemental Status Report was filed "to explain the information provided in the Joint Status Report" and "[i]t was not an attempt to reargue the appropriateness of the discovery ordered by the Court on February 9, 2009." Resp'ts' Opp'n at 1. Because the Supplemental Status Report provides information that allows the Court to assess whether the proposed deadlines in the parties' Joint Status Report are reasonable, and because the Court shall not construe the Supplemental Status Report as an improperly denominated Motion for Reconsideration, the Court shall deny Petitioner's Motion to Strike.
Accordingly, it is, this 19th day of February, 2009, hereby
ORDERED that Petitioner's [150] Motion to Strike Respondent's Supplemental Status Report is DENIED; it is further
ORDERED that Respondents shall produce all statements made by Petitioner, Ahmed Ressam, and Mokhtar Haouari, relating to statements attributed to them in the Factual Return, no later than April 15, 2009; it is further
*146 ORDERED that Respondents shall produce the original, untranslated letters from Petitioner to his wife no later than March 13, 2009; it is further
ORDERED that Respondents shall produce all exculpatory information concerning Petitioner or Ahmed Ressam that the Canadian Government has previously provided to the United States Government, no later than April 15, 2009; it is further
ORDERED that Respondents shall produce any cooperation agreements entered into between Ahmed Ressam and the United States Government relating to Ahmed Ressam's criminal prosecution or sentencing, and any related correspondence between Ahmed Ressam or his counsel and the United States Government, no later than March 25, 2009; and it is further
ORDERED that Respondents shall produce the exculpatory information that was provided by the United States Government to Mokhtar Haouari's defense counsel in connection with the criminal prosecution or sentencing of Mokhtar Haouari, no later than April 15, 2009.[3]
SO ORDERED.
NOTES
[1] The Court notes that Petitioner has not suggested that a search of these locations is insufficient to meet Respondents' obligations under the February 9, 2009 Order.
[2] The Court encourages the parties to have a continuing dialogue concerning the additional discovery sought by Petitioner. It may be that once Respondents are able to describe to Petitioners in greater detail the results of one or more of its searches, the scope of the documents sought by Petitioners may be narrowed further.
[3] Neither the Parties' Joint Status Report nor Respondents' Supplemental Status Report reference Respondents' obligation to "disclose all exculpatory information that has not previously been disclosed concerning [Petitioner, Ahmed Ressam, Mokhtar Haouari, and Abdel Ghani Meskini]" or, if no such documents exist, to "so represent to Petitioner's counsel, in writing." See Order at 2 (Feb. 9, 2009). The Court therefore Dassumes that Respondents have already complied with this requirement, except as specifically provided above.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2447596/
|
841 S.W.2d 534 (1992)
Oscar Derek PATTERSON, Appellant,
v.
The STATE of Texas, Appellee.
No. 01-92-00346-CR.
Court of Appeals of Texas, Houston (1st Dist).
November 12, 1992.
Discretionary Review Refused February 10, 1993.
Mike Degeurin, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty, Alan Curry, Denise Oncken, Asst. Dist. Attys, Houston, for appellee.
Before DUGGAN, DUNN and MIRABAL, JJ.
OPINION
DUGGAN, Justice.
Appellant was charged with the felony offense of possession of a controlled substance, cocaine, with intent to deliver. The judge who regularly presided over the court to which the case was assigned set bond at $200,000. Appellant filed an application for writ of habeas corpus, claiming excessive bail. A visiting judge granted the writ and reduced bail to $150,000. In his sole point of error, appellant contends this amount is excessive. We disagree and therefore affirm.
The amount of bail is within the sound discretion of the trial court. Ex parte Penagos, 810 S.W.2d 796, 798 (Tex. App.Houston [1st Dist] 1991, no pet.). Texas Code of Criminal Procedure article 17.15 serves as a guide for the exercise of that discretion. Id. That article provides the following factors to consider in determining the amount of a defendant's bail:
(1) The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
(2) The power to require bail is not to be used as an instrument of oppression.
(3) The nature of the offense and the circumstances of its commission are to be considered.
*535 (4) The ability to make bail is to be regarded, and proof may be taken on this point.
(5) The future safety of a victim of the alleged offense may be considered.
Tex.Code Crim.Proc.Ann. art. 17.15 (Vernon Supp.1992). The burden of proof, when a defendant claims that the amount of bail set is excessive, rests upon the defendant. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim.App.1981).
We first consider the nature of the offense and the circumstances of its commission. See Penagos, 810 S.W.2d at 799. In considering this factor, we necessarily consider the punishment permitted by law for the alleged offense. Ex parte Clark, 537 S.W.2d 40, 42 (Tex.Crim.App.1976); Penagos, 810 S.W.2d at 798-99.
Testimony showed that the amount of cocaine involved is 1,262.6 grams, with a street value of approximately $120,000. The punishment range for the felony offense of possession with intent to deliver cocaine in that amount is confinement for life or for a term of not more than 99 years or less than 15 years, and a fine not to exceed $250,000. Tex.Health & Safety Code Ann. § 481.112(d)(3) (Vernon 1992). In Penagos, we held that a trial court's setting of bail at $100,000 was not excessive for a defendant charged with aggravated possession of cocaine, which carries a lesser punishment range of confinement for life or a term not more than 99 years or less than 10 years, and a fine not to exceed $100,000. 810 S.W.2d at 799.
At the time appellant is alleged to have committed the present offense, he was on bond in two other cases, a misdemeanor possession of a prohibited weapon ($1,000 bond) and a felony burglary ($10,000 bond). His alleged commission of a second misdemeanor offense, an assault, is interrelated with the present charge. Evidence at the habeas hearing showed that the complainant in the misdemeanor assault is appellant's common law wife, that she was eight months pregnant at the time of the assault, and that appellant struck her when she attempted to flush down the toilet two bags of cocaine which she claimed she had taken from him. After the assault, appellant retrieved the cocaine and left for his place of business. His wife then called police and informed them of appellant's actions and where he was going. The police arrived at appellant's business and observed white powder on the front of his shirt. Appellant consented to a field test of the powder, which tested positive for cocaine. Based on his wife's alleged statement to officers, together with appellant's arrest and the field test results, officers obtained a search warrant for appellant's business location and truck. Upon executing the warrant, officers seized the 1,262.6 grams of cocaine. Appellant's bond in the assault case is $1,000.
While the State could have moved the trial court to deny bond in the present case altogether, it did not do so. Tex. Const. art. 1, § 11a (Vernon 1984). We thus presume the State was satisfied that appellant be released on reasonable bail.
We next consider appellant's ability to make bail. This factor alone, however, does not control the amount of bail. Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex.Crim.App. [Panel Op.] 1980); Penagos, 810 S.W.2d at 798. This is true even if the defendant is indigent. Charlesworth, 600 S.W.2d at 317; Penagos, 810 S.W.2d at 798.
The record is clear that appellant does not have financial resources of his own that would enable him to make bail in the amount of $150,000, and that despite the valiant efforts of his father, none of appellant's family members or friends are able to provide money for bail in that amount.
We acknowledge the series of cases cited in appellant's brief as "instructive" that the amount of bail in this case is excessive. While all but one of these cases involve controlled substance offenses, the most recent case is 12 years old. See Ex parte Rodriguez, 595 S.W.2d 549 (Tex.Crim.App. [Panel Op.] 1980) ($100,000 reduced to $50,000); Ex parte Plumb, 595 S.W.2d 544 (Tex.Crim.App. [Panel Op.] 1980) ($150,000 reduced to $50,000); Ex parte Sandoval, 576 S.W.2d 634 (Tex.Crim.App. [Panel Op.] *536 1978) ($500,000 reduced to $50,000); Ex parte Branch, 553 S.W.2d 380 (Tex.Crim. App. 1977) ($500,000 reduced to $20,000); and Ex parte Dueitt, 529 S.W.2d 531 (Tex. Crim.App.1975) ($60,000 reduced to $10,000).
A review of more recent cases from this Court suggests that bail in the amount of $150,000 for a case involving possession with intent to deliver an aggravated amount of a controlled substance, as is involved here, is clearly not excessive per se. See, e.g., Ex parte Bonilla, 742 S.W.2d 743 (Tex.App.Houston [1st Dist.] 1987, no pet.) ($250,000); Ex parte Willman, 695 S.W.2d 752 (Tex.App.Houston [1st Dist.] 1985, no pet.) ($300,000); Ex parte Mudragon, 666 S.W.2d 617 (Tex.App.Houston [1st Dist.] 1984, no pet.) ($250,000); and Ex parte Martinez-Velasco, 666 S.W.2d 613 (Tex.App.Houston [1st Dist.] 1984, no pet.) ($375,000). We acknowledge appellant's argument that these latter cases, involving bail higher than was set here, involved defendants who were foreign nationals with no local ties, or residents of other states, or persons who were extradited to Texas before bail was set.
However, despite appellant's strong local family ties and apparent inability to obtain a $150,000 bond, we hold, considering the entire record, that the trial court did not abuse its discretion in setting bail in that amount. We are persuaded that the trial court could reasonably find that the nature of the offense charged, and the circumstances under which the evidence shows it was committed, outweigh appellant's apparent inability to make bail in its current amount. The record supports a holding that bail was not used here as an instrument of oppression. See Penagos, 810 S.W.2d at 799.
We overrule appellant's point of error and affirm the trial court's order setting appellant's bail at $150,000.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2448002/
|
219 F. Supp. 2d 300 (2002)
CREATIVE SOCIO-MEDICS, CORP., Plaintiff,
v.
The CITY OF RICHMOND, Defendant.
Civil Action No. 00-CV-6690.
United States District Court, E.D. New York.
August 21, 2002.
*301 *302 Martin S. Siegel, Berlack, Israels & Liberman LLP, New York, NY, for plaintiff.
Timothy J. Dennin, New York, NY, for defendant.
MEMORANDUM AND ORDER
TRAGER, District Judge.
Plaintiff, Creative Socio-Medics Corp. ("CSM"), initially commenced an action against defendant, the City of Richmond, Virginia ("Richmond"), alleging breach of contract in the Supreme Court, State of New York, Suffolk County by filing a summons on July 19, 2000. On November 8, 2001, pursuant to 28 U.S.C. § 1331(a)(2) and (c)(1), defendant removed the state court action to this court. On November 20, 2000, Richmond filed and served a motion for judgment against CSM alleging, among other things, breach of contract in Virginia.[1] By stipulation, Richmond stayed the action in Virginia until resolution of the motion now before this court.
Defendant moves to dismiss plaintiff's complaint pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure ("FRCP") for lack of in personam jurisdiction and pursuant to Rule 12(b)(3) of the FRCP on the basis of improper venue or, in the alternative, to transfer to the Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a).
Background
Plaintiff CSM is a corporation organized under the laws of the State of Delaware with its principal place of business in New York. See Compl. ¶ 1. CSM is engaged in the consulting business, providing software packages, training services, and ongoing technical support to those who purchased the software. See id. Defendant Richmond is a municipal corporation of the Commonwealth of Virginia. See id. ¶ 2. Richmond does not own, use or possess any real or tangible property located in New York. See Siegel Aff. Ex. 24. Richmond has escrow accounts with the Bank of New York but they relate to debt service on various bond issues. See id.
In November 1997, Richmond sought a vendor "to submit proposals for providing software packages, implementation and training services, and ongoing technical support for various functional areas" for the City of Richmond's agencies by issuing a Human Services Automation Request for Proposal No. 8C075 (the "RFP") specifying the details and scope of the project. See Dennin Aff. Ex. A. Richmond invited CSM to submit its bid by mailing a copy of the RFP to CSM in New York. See Siegel Aff. Ex. 24. Richmond normally sends out requests for proposal to companies that have asked to be on a bid list or companies in the business for sought products or services that Richmond is aware of. See id. Ex. 29.
On December 17, 1997, CSM submitted a Propsal for a Human Services Information System (the "Proposal") in response to Richmond's RFP. See Dennin Aff. Ex. B. In its response, CSM attached its standard long form license and service agreement. See Siegel Aff. Ex. 1. After CSM submitted the Proposal, Richmond invited James Gargiulo, the vice-president of sales and marketing of CSM, to demonstrate CSM's base-line software. See id. On February 4, 1998, CSM came to a meeting in Richmond to demonstrate the software *303 and answer any questions that Richmond had about the Proposal. See Dennin Aff. Ex. D.
Subsequent to the demonstration, Richmond accepted CSM's Proposal and sent its standard form of services contract to New York. See Siegel Aff. Ex. 2. The negotiations relating to the terms of the contract were not extensive. See id. The principal negotiations related to pricing and the schedules attached to the contract, one of which was the software licensing agreement. See id. All the contract schedules, including the software license agreement, were prepared by CSM in New York and, with the exception of a March 2, 1998 meeting in Virginia, were negotiated by telephone and mail communications between CSM personnel in New York and Richmond personnel in Richmond, Virginia. See Dennin Aff. Ex. D. The purpose of the March 2, 1998 meeting was to discuss pricing and payment terms, and to determine the nature and number of licenses to be acquired by Richmond. See id.
On May 26, 1998, CSM and Richmond entered into a five year services contract and a software license agreement, attached to the contract as Schedule 1 (collectively the "Agreement"). See Dennin Aff. Ex. C; Siegel Affid. Exh. 1. The Agreement was executed by CSM in New York and by Richmond in Richmond, although it is unclear which party was the last to sign the Agreement. See Dennin Aff. Ex. C. Pursuant to the software license agreement, CSM granted Richmond a non-exclusive, non-transferable license to use one copy of the licensed software. See id. Schedule 2(g) of the contract outlines the following charges for products and services provided by CSM pursuant to the Agreement: (1) $472,000 for licensed CSM programs; (2) development payment in the amount of $62,900; (3) $181,980 for installation services; (4) $8,000 for travel and living expenses; (5) $30,729 per quarter for support services provided in connection with CSM programs and $31,225 per year for support services in connection with third party software; and (6) $850-$1,000 per day, CSM's then current daily rate, for additional services. See id. In addition, schedule 2(b) lists charges for two third-party programs totaling $197,700 with an option to purchase additional users for $375 per user. See id.
CSM used third-party vendors on the project. It hired the Olson Group ("Olson"), a company located in Washington State, as a subcontractor in connection with development of the not-for-profit portion of the financial software. See id. Ex. 4. Olson was retained to license its software to provide an interactive interface between the Great Plains financial software and CSM's software. See id. The Great Plains interface was designed to share information between CSM Human Services Information System ("HSIS") products and the Great Plains financial application for the purpose of producing checks based upon the information sent from the CSM HSIS products. See id. Ex. 28. The CSM side of the Great Plains interface was written by CSM employees in its California office and then installed onto a machine in New York over a modem line using communications software. See id. After Olson's software was loaded onto the CSM hardware in New York, the interfaces between the various software products were tested in New York, then finally the software was loaded onto Richmond's computer. See id.
CSM also retained SolTech Group ("Sol-Tech") and Hi-Tech International Inc. ("Hi-Tech"), two companies located in Virginia, as subcontractors. SolTech performed services related to Great Plains and Olson software, including installation, training, and software specification documentation. *304 See Dennin Aff. Ex. D. Hi-Tech was CSM's "implementation arm" for the project, performing training and project management with guidance from New York. See Siegel Aff. Ex. 27.
Between approximately June 1998 and April 2000, CSM provided software products and consulting services such as: implementation, customization, training, and ongoing technical support to Richmond. See Compl. ¶ 6. The CSM software licensed to Richmond was an "off the shelf" product developed by CSM in New York. See Siegel Aff. Ex. 3. The actual installation of the software took little more than one day. See id. However, CSM spent approximately 3,000 hours in New York customizing its software at the request of Richmond. See id. After the customizations were developed, they were tested on CSM computers in New York and then electronically transmitted to Richmond's computer in Virginia. See id. CSM prepared and verified a scope document detailing all the tasks to be performed by CSM, status reports, screen layouts, quality testing, address interface testing, designed the interface, performed data conversion, and project management in New York. See id. CSM also trained Hi-Tech on certain aspects of the project in New York and provided training to Richmond personnel in person in Richmond, via telephone, and by computer-to-computer connection. See id. In addition, CSM set up a Richmond group on its website as an alternative way for Richmond and CSM personnel to communicate directly. See id. Ex. 30.
Furthermore, there were numerous inperson meetings between CSM and Richmond personnel in relation to the project. Richmond claims that there were approximately fifty or more days in which CSM traveled to Richmond to attend meetings before and after the execution of the contract. See Dennin Aff. Ex. H; Memorandum of Law in Support of Defendant's Motion to Dismiss ("Def.'s Mem.") at 13. CSM disputes that number by pointing out that there were twenty-eight distinct visits because many of the visits were multipleday trips or were made by more than one CSM employee. See Siegel Aff. Ex. 3. On September 22, 1998, four of Richmond's personnel came to CSM's office in New York for a meeting to discuss the Agreement and services to be provided. See id.; Ex. 24. In August and November 1998, Jeanine Carroll, Richmond's project manager, visited CSM's offices in New York and discussed the project.[2]See id. Ex. 3.
Subsequent to the execution of the Agreement, at Richmond's request, CSM performed services that allegedly went beyond the scope of the Agreement. See id. ¶ 7. CSM also alleges that Richmond agreed to pay CSM for these additional services as well as the services previously performed by CSM that were within the scope of the Agreement. See id. By letter dated April 12, 2000, Richmond purported to terminate the Agreement pursuant to Article IV, paragraph 4.1 of the Agreement because, as Richmond alleges, CSM failed to meet any of the deadlines specified in the Agreement. See id. ¶ 8. By letter dated May 1, 2000, CSM acknowledged Richmond's termination of the Agreement and attached a summary detailing all outstanding fees allegedly owed by Richmond in the total amount of $1,052,049.68. See id. ¶ 9. Richmond has *305 not paid any part of this amount. See id. ¶ 10.
CSM's software is now located on CSM's NT server computer system in New York and Richmond's Unix server in Virginia. See Dennin Aff. Ex. D, O. CSM made modifications to the HSIS system. See Siegel Aff. Ex. 27. Copies of the Great Plains and Olson software were installed in New York and are also contained in Richmond's NT server. See id.; Dennin Aff. Ex. D. There were "superficial" changes not affecting the data exchange of the interface made to the Great Plains software. See Siegel Aff. Ex. 27. A copy of the Great Plains software modified by SolTech was never loaded onto CSM's computer. See id. CSM had the ability to connect to both Richmond's NT server for the Great Plains software as well as the UNIX server for CSM's product.
Discussion
(1)
Defendant moves under Rule 12(b)(2) to dismiss the complaint against it for lack of personal jurisdiction. To determine personal jurisdiction federal courts look to the law of the state where the court sits. See Agency Rent A Car Sys., Inc. v. Grand Rent A Car Corp., 98 F.3d 25, 29 (2d Cir.1996). New York's long arm statute, N.Y. C.P.L.R. § 302(a) provides, in pertinent part:
As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:
(1) transacts any business within the state . . .
N.Y. C.P.L.R. § 302(a)(1) (McKinney Supp.1999).
In order to obtain jurisdiction under § 302(a)(1), "the following conditions must be met: (1) the defendant must transact business in the state; and (2) the cause of action must be directly related to, and arise from, the business so transacted." Reyes v. Sanchez-Pena, 191 Misc. 2d 600, 742 N.Y.S.2d 513, 524 (N.Y.Sup.Ct. 2002) (citing Storch v. Vigneau, 162 A.D.2d 241, 556 N.Y.S.2d 342 (1st Dep't 1990)). Under New York law, "[t]he `transacting business' prerequisite is satisfied if it is shown that the non-domiciliary `purposefully avail[ed] itself of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws.'" McLenithan v. Bennington Cmty. Health Plan, 223 A.D.2d 777, 778, 635 N.Y.S.2d 812, 813 (3d Dep't 1996) (quoting McKee Elec. Co. v. Rauland-Borg Corp., 20 N.Y.2d 377, 382, 283 N.Y.S.2d 34, 37-38, 229 N.E.2d 604 (1967)). The "arises from" prong is satisfied if there is a strong nexus between the plaintiff's cause of action and the defendant's in-state conduct. See Launer v. Buena Vista Winery, Inc., 916 F. Supp. 204, 208 (E.D.N.Y.1996). "[A] single transaction in New York out of which the cause of action has arisen may satisfy the transaction of business provision." Reyes, 742 N.Y.S.2d at 523 (citing Singer v. Walker, 15 N.Y.2d 443, 456-457, 261 N.Y.S.2d 8, 18, 209 N.E.2d 68 (1965)).
In determining whether an out-of-state defendant "transacts business" in New York, the Second Circuit, interpreting New York state law, has adopted an approach that considers a number of factors, such as (1) whether the defendant has an on-going contractual relationship with a New York corporation; (2) whether the contract was negotiated or executed in New York and whether, after executing a contract with a New York business, the defendant has visited New York for the purpose of meeting with parties to the contract regarding the relationship; (3) what the choice-of-law clause is in any such contract; and (4) whether the contract requires notices and payments to be *306 sent into the forum state or requires supervision by the corporation in the forum state. See Agency Rent A Car Sys., Inc., 98 F.3d at 29. The courts may consider other factors and are to examine the totality of circumstances. See id.
On a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden to make a prima facie showing that the court has jurisdiction over the defendant. See Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.1996). In this case, where the parties have conducted discovery regarding Richmond's contacts with the forum state, but no evidentiary hearing has been held, "[CSM's] prima facie showing, necessary to defeat a jurisdiction testing motion, must include an averment of facts that, if credited by [the ultimate trier of fact], would suffice to establish jurisdiction over [Richmond]." Id. at 567 (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.), cert. denied, 498 U.S. 854, 111 S. Ct. 150, 112 L. Ed. 2d 116 (1990)(quotations omitted)).
Defendant argues that there is no personal jurisdiction over Richmond in this district because (1) the meetings regarding contract negotiations were held in Virginia and Richmond executed the contract in Virginia; (2) the contract contains a Virginia choice of law clause; (3)the contract required that it be performed in Richmond, Virginia; (4)the contract did not require payments to be forwarded to New York; and (5) the City of Richmond was not physically present in New York.
While Richmond does not address the issue of whether it had an on-going contractual relationship with CSM, the review of facts averred by CSM clearly indicates that the contract contemplated and resulted in a continuing relationship between the parties. New York courts employ a prospective analysis in determining whether an ongoing contractual relationship exists between the parties. See Schomann Int'l Corp. v. Northern Wireless, Ltd., 35 F. Supp. 2d 205, 209 (N.D.N.Y.1999) (citing George Reiner & Co. v. Schwartz, 41 N.Y.2d 648, 653, 394 N.Y.S.2d 844, 363 N.E.2d 551 (1977)) (four-year employment contract "contemplated and resulted in a continuing relationship between [the parties]"); China Express, Inc. v. Volpi & Son Machine Corp., 126 A.D.2d 239, 245, 513 N.Y.S.2d 388, 392 (1st Dep't 1987) (noting that the installation and monitoring of restaurant equipment in Arizona "manifestly contemplated an ongoing relationship between the parties"); Roman v. Sunshine Ranchettes, Inc., 98 A.D.2d 744, 744, 469 N.Y.S.2d 449, 450 (2d Dep't 1983).
The Agreement provided that it would commence on June 15, 1998 and terminate on June 14, 2003. See Dennin Aff. Ex. C. Thus, when viewed prospectively, the contract between CSM and Richmond contemplated a continuing relationship. It is clear that licensing, installation, training, and development of the software products would occur over an extended period of time and would require continuing contact between the parties. It is difficult to believe that Richmond, while purchasing an off-the-shelf software for various functional areas of its agencies, did not anticipate that, in order to satisfy the different needs of its agencies, the off-the-shelf product would require extensive customization which would, of necessity, had to be performed in New York. Accordingly, Richmond had an on-going contractual relationship with a New York corporation that should have been foreseen at the time the parties entered into the contract.
Richmond's contention that the meetings regarding contract negotiations were held in Virginia and that it executed the contract in Virginia is undisputed.[3] CSM concedes *307 that, with the exception of March 2, 1998 meeting in Virginia, the Agreement was negotiated by telephone and mail communications between CSM personnel in New York and Richmond personnel in Virginia. See Dennin Aff. Ex. D.
The law in the Second Circuit is clear that "one need not be physically present in order to be subject to the jurisdiction of our courts under CPLR 302 for, particularly in this day of instant long-range communications, one can engage in extensive purposeful activity here without ever actually setting foot in the State." Launer, 916 F.Supp. at 210 (E.D.N.Y.1996) (quoting Parke-Bernet Galleries, Inc. v. Franklyn, 26 N.Y.2d 13, 17, 308 N.Y.S.2d 337, 256 N.E.2d 506 (1970)); see also Agency Rent A Car Sys., Inc., 98 F.3d at 31 ("[W]e question whether, in an age of e-mail and teleconferencing, the absence of actual personal visits to the forum is any longer of critical consequence."); Liberatore v. Calvino, 293 A.D.2d 217, 742 N.Y.S.2d 291, 293 (1st Dep't 2002) (telephone calls and written communications may provide a sufficient basis for personal jurisdiction under the long-arm statute where they have been used by the defendant to actively participate in business transactions in New York.)
It is undisputed that CSM and Richmond negotiated the contract by telephone and e-mail communications. It is also undisputed that CSM executed the contract in New York, while Richmond executed the contract in Virginia. There is no suggestion in this record that the parties conducted their business this way for reasons other than convenience. "Indeed, given the benefits of modern technology and time and expense associated with interstate travel, physical presence of the parties in the same room may no longer be required in order to execute a contract." Schomann Int'l Corp. v. Northern Wireless, Ltd., 35 F.Supp.2d at 210.
It is also undisputed, as Richmond points out, that the Agreement provides that it is governed by the laws, rules and regulations of the Commonwealth of Virginia. See Dennin Aff. Ex. C. However, Richmond's reliance on the choice of law provision is misplaced. "Choice of law questions are significantly different from questions of jurisdiction." Alan Lupton Assocs., Inc. v. Northeast Plastics, Inc., 105 A.D.2d 3, 8, 482 N.Y.S.2d 647, 651 (4th Dep't 1984). Choice of law provisions, as opposed to forum selection clauses, "have minimal jurisdictional implications." Id. Indeed, considering Richmond's status as a Virginia municipality, the presence of a choice of law clause in the contract, while there is an absence of a forum selection clause in this case is telling. Thus, CSM may acquire personal jurisdiction over Richmond even though the law of the state of Virginia may have to be applied.
Whether the contract required that it be performed in Richmond, Virginia is an issue on which there is the most disagreement between the parties. Richmond argues that the services, such as initial software installation, project management, and training, rendered by CSM and its subcontractors were performed on-site in *308 Virginia. CSM replies by pointing out that, with the exception of software installation, which took little more than one day, and some training, it spent thousands of hours in New York developing and customizing the software, preparing and verifying the scope document, developing additional software, screen layouts, quality assurance testing, and address interface testing.
"Although as a general rule the activity of a plaintiff within the forum pursuant to the contract does not confer jurisdiction," Geller Media Management, Inc., v. Beaudreault, 910 F. Supp. 135, 138 (S.D.N.Y. 1996), the RFP and the Agreement make it clear that Richmond's purpose in entering into the contract was to not only find a vendor that would provide implementation, training services, and licensing of software products, but also ongoing technical support. While it is true that CSM performed installation and conducted training in Richmond, it is also true that CSM was to provide support services to Richmond for six years. See Dennin Aff. Ex. C. A comparison of costs for products and services listed in schedule 2(g) to the contract suggests that this contract was not about installation and training. While the schedule provided for $181,980 as a payment for installation services, CSM charged Richmond $472,700 for licensed programs and were to bill Richmond $30,729 per quarter for support services in connection with CSM programs and $31,225 per year for support services in connection with third-party software over a six-year period. The price for installation and training services constituted only eleven percent of the contract price. Also, CSM did, in fact, spend approximately 3,000 hours in New York customizing its software per Richmond's request.[4]See Siegel Aff. Ex. 3. Thus, plaintiff correctly points out that installation and training services were incidental to the licensing, development and support services provided in New York by CSM for the benefit of Richmond. See Corporate Campaign, Inc. v. Local 7837, United Paperworkers Int'l Union, 265 A.D.2d 274, 275, 697 N.Y.S.2d 37, 39 (1st Dep't 1999) (where "defendant requested performance of plaintiff's New York activities for defendant's benefit, and were intimately involved in the implementation of plaintiff's campaign, plaintiff's work on defendant's behalf may be attributed to defendant for jurisdictional purposes.")
Defendant's argument that the contract did not require payments to be forwarded to New York is also incorrect. Article III of the services contract clearly states that "the City agrees to pay the Vendor." See Dennin Aff. Ex. C. The "Vendor" is in turn defined by the contract as "Creative Socio-Medics Corporation, 146 Nassau Avenue, Islip, N.Y. 11751." Id. In fact, CSM did submit invoices to Richmond and Richmond forwarded payments to CSM in New York. See Siegel Aff. Exs. 18, 19.
Finally, even though Richmond's contention that it did not and does not maintain physical presence in New York is true, as previously discussed, physical presence is not the sole basis for establishing personal jurisdiction. This case does not involve a "temporary, random, or tenuous relationship" with New York. Agency Rent A Car Sys., Inc., 98 F.3d at 30. After soliciting a bid from a New York corporation, maintaining contacts with New York via telephone and mail before and after execution of the contract, entering into ongoing contractual relationship with a New York corporation, employing that corporation to provide on-going services in New York for *309 its benefit in Richmond, and forwarding payments from Richmond to New York, defendant cannot now claim that it did not "purposefully avail itself of the privilege of conducting activities within [New York], thus invoking the benefits and protection of the laws."
(2)
Defendant also argues that this case should be dismissed on the basis of improper venue pursuant to Rule 12(b)(3) of the FRCP because a substantial part of the events giving rise to the claim occurred in the Eastern District of Virginia, not in this district.
Since CSM's complaint alleges diversity jurisdiction under 28 U.S.C. § 1332, the venue statute applicable to this case is 28 U.S.C. § 1391(a), which provides, in pertinent part:
A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in . . . (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. . . .
28 U.S.C. § 1391(a) (West 1998).
In this case, the omissions giving rise to this action occurred in both New York and Virginia because the dispute concerns whether the parties performed under the Agreement. Richmond allegedly failed to make payments from Virginia, which is an omission that took place in Virginia. CSM in turn allegedly failed to meet any of its deadlines, which is an omission that took place in New York because, as previously established, most of the services to be performed by CSM were to be performed in New York. Accordingly, venue in this district is proper.
(3)
In the alternative, defendant argues that this case should be transferred to the Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a). "Whether an action should be transferred under section 1404(a) is generally left to the sound discretion of the district court." Photoactive Prods, Inc. v. AL-OR Int'l Ltd., 99 F. Supp. 2d 281, 291 (E.D.N.Y.2000) (citing Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir.1993)). In making that determination, the district court is to consider first whether the action sought to be transferred is one that might have been brought in the district court in which the moving party seeks to have the case litigated and, second, whether "the convenience of the parties and witnesses" and "the interest of justice" favor transfer. Launer, 916 F.Supp. at 212-213.
Factors in the second portion of the inquiry include: (1) the convenience of the parties; (2) the convenience of the witnesses; (3) the relative means of the parties; (4) the locus of operative facts and relative ease of access to sources of proof; (5) the attendance of witnesses; (6) the weight accorded the plaintiff's choice of forum; (7) calendar congestion; (8) the desirability of having the case tried by a forum familiar with the substantive law to be applied; and (9) practical difficulty, if any. See id. Finally, the court should also consider how best to serve the needs of justice based upon an assessment of the totality of material circumstances. See id.
A party seeking a transfer under § 1404(a) bears the burden to make a "clear" showing that a transfer is appropriate. See Photoactive Prods, Inc., 99 F.Supp.2d at 293. Moreover, "the plaintiff's initial choice of forum is entitled to great weight," and "[w]here the balance of conveniences is in equipoise, plaintiff's choice of forum should not be disturbed." Id.
Defendant maintains that this action should be transferred to Virginia because, first, the convenience of witnesses and parties *310 favors trying this case in Virginia. Defendant supports its argument by pointing out that a minimum of twenty material witnesses are located in Virginia and only ten people who were involved in the contract negotiations, software delivery and on-site implementation are located in New York. See Def.'s Mem. at 20. CSM counters Richmond's argument by listing twenty-two potential witnesses who are located in New York. See Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss ("Pl.'s Mem.") at 21. Moreover, Steve Olson from Washington State stated in his declaration that he will voluntarily appear at the trial in New York. See Siegel Aff. Ex. 4. Clearly, the convenience of the witnesses or parties in this case does not weigh heavily in favor of Richmond to override plaintiff's choice of forum.
Second, defendant argues that this action should be transferred because numerous documents relevant to the litigation are maintained in Virginia[5] and the software in issue is located in Richmond, Virginia. See Def.'s Mem. at 22-23. Particularly, Richmond claims that the modified version of the Great Plains/Olsen software that is located in Richmond was never loaded on CSM's computer in New York, and the computer containing the software that is located in Richmond exists in an environment different from the computer in New York. Id. at 23.
CSM correctly points out that the documents relevant to this dispute are not necessarily limited to those produced during discovery related to jurisdiction. CSM claims that there are many additional documents located in New York that will be produced during substantive discovery. See Pl.'s Mem. at 22. Moreover, the record supports plaintiff's contention that CSM has replicas of the software located in Richmond because its task was to continuously modify, test, and update the software at Richmond's request. Although it is true that a copy of the Great Plains software modified by SolTech was never loaded onto CSM's computer, Nancy Brill, a senior manager of CSM, testified at her deposition that those changes were "superficial" and did not affect the data exchange of the interface. See Siegel Aff. Ex. 27. Thus, Richmond has failed to show that the access to relevant documents and sources of proof will be a great inconvenience if the case is tried in New York.
Furthermore, as previously discussed and contrary to Richmond's assertion, the operative facts in this case occurred both in New York and Virginia. Finally, the fact that Richmond is a large municipal corporation with an annual budget of almost $846 million and CSM is a corporation with revenues less than $25 million, see Siegel Aff. Ex. 3, while not dispositive, undermines Richmond's contention that it will be more inconvenienced to litigate this case in New York than CSM in Richmond. While it is clearly more convenient for Richmond to litigate this case in Virginia, it has failed to carry its burden to demonstrate that CSM's chosen venue is clearly outweighed by the inconvenience to Richmond. Accordingly, defendant's motion to transfer venue should be denied.
Conclusion
For the foregoing reasons, defendant's motions to dismiss plaintiff's complaint pursuant to Rule 12(b)(2) for lack of personal jurisdiction, pursuant to Rule 12(b)(3) on the basis of improper venue, and, in the alternative, to transfer to the *311 Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a) are denied.
NOTES
[1] It is unclear in which court in Virginia this action was filed.
[2] The parties dispute the nature of Carroll's visit to New York. According to Richmond, the purpose of Carroll's trips to New York was to visit her family and those trips were not authorized or requested by Richmond. See Dennin Aff. Ex. F. However, Carroll admitted that she considered visits to CSM offices helpful and beneficial to her duties at Richmond. See id.
[3] However, there is a discrepancy as to the number of meetings regarding contract negotiations held in Virginia. Richmond does not provide the exact number but contends that "there were approximately 50 days in which CSM traveled to Richmond to attend meetings both before and after the execution of the contract." Def.'s Mem. at 13. CSM claims that there was only the March 2, 1998 meeting relating to contract negotiations that took place in Virginia and that the rest of the trips related to services performed under the contract. See Dennin Aff. Ex. D. Richmond's personnel came to New York once to discuss the Agreement and services to be provided. See Siegel Aff. Ex. 3, 24. In addition, Carroll visited CSM's offices on two occasions while she was in New York on personal matters. See id. Ex. 3.
[4] Since CSM's daily rate for additional services varied depending upon the resources required, and the record does not disclose the number, it is unclear how much Richmond incurred in additional services charges.
[5] Richmond maintains that, as a result of discovery limited to jurisdictional issues only, it has provided in excess of 10,000 pages of documents, whereas CSM produced only 1,768 documents. See Def.'s Mem. at 23.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2448502/
|
939 S.W.2d 180 (1996)
Janice FAVOR, Appellant,
v.
HOCHHEIM PRAIRIE FARM MUTUAL INSURANCE ASSOCIATION; et al. Appellees.
No. 04-95-00388-CV.
Court of Appeals of Texas, San Antonio.
April 3, 1996.
Rehearing Overruled May 5, 1996.
*181 Jerry R. Tucker, Sr., Clint M. Glenny, II, Glenny & Brylak, San Antonio, for Appellant.
Richard M. Butler, Robinson C. Ramsey, William T. Sullivan, Soules & Wallace, San Antonio, for Appellees.
Before LÓPEZ, STONE, and GREEN, JJ.
OPINION
GREEN, Justice.
Janice Favor appeals from a summary judgment granted in favor of Hochheim Prairie Farm Mutual Insurance Association, Hochheim Prairie Casualty Insurance Company, Hochheim Prairie Insurance Company, John E. Trott, Jr., Melvin E. Hairell, Joe Tipton, Teddy R. Lowe, and Gervase F. Moczygemba, all officers or directors of the foregoing corporate defendants (for convenience all defendants will be referred to as "Hochheim"). Favor claims the trial court erred by (1) striking her fifth amended original petition; (2) granting summary judgment based on a finding of no standing under article 21.21, section 16(a) of the Insurance Code; (3) granting summary judgment based on lack of standing under the Deceptive Trade PracticesConsumer Protection Act ("DTPA"); (4) finding her causes of action barred by a two-year statute of limitations; and (5) granting summary judgment when genuine issues of material fact remain. We affirm.
Favor was an agent for Hochheim, marketing various insurance products pursuant to one or more written agency agreements with the Hochheim companies. After giving the contractually mandated notice, Hochheim terminated the agency relationship citing high loss rates on policies sold by Favor. Favor sued all the corporate entities she formerly represented, and certain officers and directors, for actions under the Insurance Code and the DTPA.
Hochheim moved for summary judgment; its motion was set to be heard February 13, 1995. Favor amended her pleadings, filing her fifth amended original petition on February 6, 1995. The trial court granted Hochheim's motion to strike Favor's fifth amended petition, and Hochheim's motion for summary judgment.
Favor's first point of error complains the trial court erred by striking her fifth amended petition and rendering summary judgment based on the allegations in the previous pleading. Favor argues that because her fifth amended petition was filed within seven days of trial as permitted by the Rules of Civil Procedure, and Hochheim's motion for summary judgment did not address all the causes of action alleged in the fifth amended pleading, the court's grant of summary judgment was erroneous.
Recently, the supreme court clarified the rule 63 time period for filing amended pleadings.[1]Sosa v. Central Power & Light, 909 S.W.2d 893 (Tex.1995). Sosa states, without equivocation, that an amendment is timely, and leave of court is not required, even though the amended pleading is filed exactly one week before the summary judgment hearing. Sosa v. Central Power & Light, 909 S.W.2d at 895. However, Hochheim contended at oral argument that simply meeting the seven-day requirement of rule 63 did not preclude the trial court from striking an amended pleading petition if it constitutes a surprise. We agree.
In an instance such as the one at hand, where the amendment is prejudicial on its face, the burden is on the offering party to show that the court abused its discretion *182 by failing to permit the amendment. See Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex.1990) (recognizing that amendment asserting new cause of action or defense is prejudicial on its face); Hardin v. Hardin, 597 S.W.2d 347, 349 (Tex.1980) (placing burden on complaining party to show abuse of discretion when trial court refuses amendment which introduces "new substantive matter"). The facts of the instant case show the trial court retroactively refused to permit the amendment by striking the pleading after it had been filed, thereby placing the burden on Favor to demonstrate that the trial court abused its discretion in doing so.
In reviewing an objection based on the seven-day rule, the trial court may consider all matters pertinent to its jurisdiction in resolving the issue. Hardin v. Hardin, 597 S.W.2d at 349. Consequently, whether surprise was the explicit basis of Hochheim's objection is of no great moment. Id. Even though the motion to strike the amended pleading is not part of the appellate record and the order striking the pleading does not specify a reason, this Court is obligated to presume the trial court properly exercised its discretion in striking the pleading. Id. at 349-50. No abuse of discretion having been shown, Favor's first point of error is overruled.
Point of error number two complains the trial court erred by finding that Favor was not a "person" for purposes of the Insurance Code, and granting summary judgment on that basis. Favor sued Hochheim under article 21.21, section 16(a) of the Insurance Code alleging, among other things, a variety of misrepresentations, unfair methods of competition, and unfair acts or practices in the business of insurance. Hochheim claims Favor does not meet the statutory definition of "person" under the Insurance Code.
Favor relies on the definition of "person" in section two of the Insurance Code to demonstrate that she, as an agent, qualifies as a "person." However, Chaffin, which Favor cites as authority, seems to negate her own argument. Chaffin v. Transamerica Ins. Co., 731 S.W.2d 728 (Tex.App.-Houston [14th Dist.] 1987, writ ref'd n.r.e.). Chaffin noted that the use of the term "person" conflicts between sections two and sixteen of article 21.21, concluding that "person" as used in section sixteen means insured or beneficiary of the policy. Id. at 731.
Similarly, the court in Shelton Insurance, considering the rights of an insurance agent as related to an insurer, concluded that "no authority exists to extend the meaning of `person' beyond one who was either an insured or an intended beneficiary of the policy." Shelton Ins. Agency v. St. Paul Mercury Ins. Co., 848 S.W.2d 739, 744 (Tex.App.-Corpus Christi 1993, writ denied); CNA Ins. Co. v. Scheffey, 828 S.W.2d 785, 791 (Tex. App.-Texarkana 1992, writ denied). We conclude that Favor does not have standing to sue under section 21.21, therefore, summary judgment as to that cause of action was proper. Favor's second point of error is overruled.
Favor's third point of error complains the trial court erred by granting summary judgment based on a finding that Favor was not a "consumer" under the DTPA. In its motion for summary judgment, Hochheim contended that Favor is not a "consumer" as it is employed in the Business and Commerce Code. TEX.BUS. & COM.CODE ANN. § 17.45. (Vernon 1987). Favor claims consumer status alleging that she sought or acquired goods or services (i.e. the provision of insurance) from Hochheim for her clients.
Under the DTPA, a "consumer" is one who "seeks or acquires by purchase or lease, any goods or services." TEX.BUS. & COM.CODE ANN. § 17.45(4) (Vernon 1987). And, the goods or services sought or acquired must be the basis for the suit. Shelton Ins. Agency v. St. Paul Mercury Ins. Co., 848 S.W.2d at 744. A claim of consumer status virtually identical to Favor's was rejected by the court in Shelton because the Shelton Agency did not seek or acquire the policy's benefits by purchase. As in Shelton, Favor was not covered by any of the Hochheim policies that she sold her clients, nor did she pay for them. Id. Accordingly, we hold that Favor has not met the requirements necessary to establish consumer status by virtue of her agency relationship with Hochheim.
*183 Additionally, Favor obliquely suggests that her ownership of a Hochheim insurance policy confers consumer status on her allowing her to maintain this suit. However, ownership of the policy is not related to the suit in any wayFavor is suing for alleged damages relating to her agency relationship with Hochheim. The happenstance of her ownership of a policy cannot qualify her as a consumer under the DTPA for purposes of this case. Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 351 (Tex. 1987). Favor's point of error number three is overruled.
Because the foregoing negates at least one element in each of the plaintiff's causes of action, summary judgment for Hochheim was proper and it is unnecessary to reach Favor's remaining points of error.
The judgment of the trial court is affirmed.
NOTES
[1] Rule 63 states that:
[p]arties may amend their pleadings ... provided, that any pleadings ... offered for filing within seven days of the date of trial or thereafter ... shall be filed only after leave of the judge is obtained
....
TEX.R.CIV.P. 63.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1809013/
|
321 B.R. 607 (2005)
In re Paul E. VRUSHO, Debtor.
Banknorth, N.A. (f/k/a Family Bank, F.S.B.), Plaintiff,
v.
Paul E. Vrusho, Defendant.
Bankruptcy No. 03-12567-MWV. Adversary No. 03-1436-MWV.
United States Bankruptcy Court, D. New Hampshire.
February 23, 2005.
*609 David A. Garfunkel, Esq., Jeanne P. Herrick, Esq., Gallagher, Callahan & Gartrell, P.A., for Plaintiff.
William S. Gannon, Esq., William S. Gannon, PLLC, for Defendant.
MEMORANDUM OPINION
MARK W. VAUGHN, Chief Judge.
The Court has before it the motion for summary judgment filed by Banknorth (the "Plaintiff) and the cross motion for summary judgment filed by Paul E. Vrusho (the "Defendant"). The Plaintiffs complaint seeks to except a judgment debt from discharge. Objections were filed to both motions for summary judgment. The Defendant also filed a motion to strike portions of the affidavit of Harry Reitze, to which Plaintiff objected. The Court held a hearing on those three matters on December 22, 2004, and took them under advisement. Previously, on September 21, 2004, the Court held a hearing on the Plaintiffs renewed request for reasonable expenses incurred in obtaining discovery and the Defendant's objection thereto. The Court also took this matter under advisement and ordered the Plaintiff to submit a statement of fees and expenses. For the reasons set out below, 1) the Plaintiffs motion for summary judgment is granted; 2) the Defendant's cross motion for summary judgment is denied; 3) the Defendant's motion to strike is moot; and 4) the Plaintiff's expenses, including attorneys' fees, are allowed to the extent of $2,500.
This Court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. §§ 1334 and 157(a) and the "Standing Order of Referral of Title 11 Proceedings to the United States Bankruptcy Court for the District of New Hampshire," dated January 18, 1994 (DiClerico, C.J.).
BACKGROUND
The Defendant held two accounts with Family Bank, the Plaintiffs predecessorin-interest (hereinafter "Banknorth" or "Plaintiff), one personal account in the name of Paul E. Vrusho and one business account in the name of Vrusho Farms. The Defendant also held two business accounts with Granite Bank, one in the name of Johnson's Restaurant and the other in the name of Grand Prix Farms. On November 2, 1998, the Defendant wrote two checks payable to Grand Prix Farms from the Vrusho Farms account, the first in the amount of $49,150 and the second in the amount of $48,100. On the next day, the Defendant wrote two checks, payable to Johnson's Restaurant from the Paul E. Vrusho account, one for $43,950 and the other for $42,400. All four of those cheeks were deposited with Granite Bank. The Defendant also held an account with the Bank of Nova Scotia in the name of Vrusho Farms from which he wrote two checks on November 4, 1998. The first check in the amount of $97,350 was made payable to Vrusho Farms and the second check in the amount of $86,475 was made payable to Paul E. Vrusho. These checks were deposited into the Vrusho Farms account and the Paul E. Vrusho account at Banknorth. Relying on the Defendant's deposit of these two checks, the Plaintiff paid out on the November 2 and November 3 checks. However, on November 6, 1998, the Bank of Nova Scotia informed *610 the Plaintiff that the checks would not clear due to lack of funds.
Thereafter, the Plaintiff brought a lawsuit against the Defendant in Merrimack County Superior Court to recover from the losses it suffered as a result of the bounced checks. A judgment against the Defendant was rendered on June 20, 2000. On July 24, 2003, the Defendant filed a Chapter 7 bankruptcy petition with this Court. In his schedules, the Defendant listed the Plaintiff as holding a claim in the amount of $80,000, acknowledging the judgment entered against him.
On October 27, 2003, the Plaintiff filed a Complaint to Determine Dischargeability of a Debt seeking to except from discharge the judgment debt on the grounds that the debt was obtained by false pretenses, false representations and/or actual fraud. The Defendant filed his response objecting to the requested relief. A pretrial conference was held and the discovery deadline was set for June 2, 2004, and subsequently extended to July 2, 2004. On June 16, 2004, the Plaintiff filed a motion to compel discovery and to extend discovery deadlines stating that the Defendant refused to answer interrogatories and respond to the Plaintiffs request for documents, invoking the Fifth Amendment right against selfincrimination. The Defendant did not object to the motion. The Court held a hearing on July 13, 2004, and ordered the Defendant to file his answers to the interrogatories on or before August 13, 2004.
On August 13, 2004, the Defendant provided the Plaintiff with his answers and objections to the Plaintiffs first set of interrogatories. In his answer, invoking his Fifth Amendment privilege again, the Defendant generally objected to providing discovery. On September 2, 2004, the Plaintiff moved for reasonable expenses, including attorneys' fees incurred in preparing and arguing its motion to compel, and the Defendant opposed. Pursuant to the Court's order dated September 21, 2004, the Plaintiff submitted a statement of fees and expenses on October 1, 2004.
DISCUSSION
Under Rule 56(c) of the Federal Rules of Civil Procedure, made applicable to this proceeding by Federal Rule of Bankruptcy Procedure 7056, summary judgment should be granted only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." "Genuine," in the context of Rule 56(c), "means that the evidence is such that a reasonable jury could resolve the point in favor of the nonmoving party." Rodriguez-Pinto v. Tirado-Delgado, 982 F.2d 34, 38 (1st Cir. 1993) (quoting United States v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir.1992)). "Material," in the context of Rule 56(c), means that the fact has "the potential to affect the outcome of the suit under applicable law." Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.1993). Courts faced with a motion for summary judgment should read the record "in the light most flattering to the nonmovant and indulge all reasonable inferences in that party's favor." Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994).
The Court will first consider the Defendant's motion for summary judgment and the Plaintiff's objection thereto. The Defendant alleges that the Plaintiff is attempting to relitigate issues already the subject of the state court judgment and thus, the Plaintiff is barred by the doctrine of res judicata from seeking to except the judgment debt from discharge. The Plaintiff objects, arguing that it had little incentive *611 to pursue fraud claims in state court proceedings when it could obtain judgment based on contract claims. The Court rejects the Defendant's argument and agrees with the Plaintiff. As this Court pointed out in previous opinions, relying on Brown v. Felsen, 442 U.S. 127, 132, 99 S.Ct. 2205, 2210, 60 L.Ed.2d 767 (1979), res judicata will not be invoked in a complaint for an exception to discharge since such an action is being raised for the first time in bankruptcy court. See In re Smith, 189 B.R. 240 (Bankr.D.N.H.1995); In re Traxey, 250 B.R. 468 (Bankr.D.N.H.2000). Without bankruptcy, there is no such claim and thus the claim was not and could not have been brought prior to the bankruptcy. Accordingly, the Defendant's motion for summary judgment is denied.
Next, the Court will discuss the Plaintiffs motion for summary judgment, in which the Plaintiff argues that there is no genuine issue of material fact that the debt was obtained by actual fraud. In support of its argument, the Plaintiff alleges that the Defendant engaged in a deliberate plan to deceive the Plaintiff by passing checks between two accounts in two different banks with the knowledge that the Plaintiff would pay out on the Nova Scotia checks. The Plaintiff also alleges that there are several pieces of circumstantial evidence indicating that the Defendant had knowledge that the account at Nova Scotia did not have sufficient funds when he wrote the checks. In his objection to the Plaintiff's motion, the Defendant asserts that the Plaintiff's complaint invokes only § 523(a)(2)(B) as the basis of its claim and that the Plaintiff alleged no facts to support such a claim based on that statute.
The Plaintiff's complaint[1] is brought pursuant to § 523(a)(2)(B). Interestingly, the complaint is titled "Complaint under § 523(c) of the Bankruptcy Code to Determine Dischargeability of a Debt." (Ct. Doc. 1). During the hearing, the Plaintiff concedes that it made a typographical error in citing the wrong section number in the introduction paragraph of its complaint; it meant to allege claims under § 523(a)(2)(A).[2]
It is clear that other than in the introductory statement of the complaint, the Plaintiff's complaint pleads the Defendant's fraud based on § 523(a)(2)(A). Paragraph four of the original complaint and paragraph six of the amended complaint state that the Plaintiff seeks relief based on § 523(a) citing the language of § 523(a)(2)(A). Although the Plaintiff inadvertently cited the wrong section number, that error is not fatal. "Instead of asking whether the complaint points to the appropriate statute, a court should ask whether relief is possible under any set of facts that could be established consistent with the allegations." Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). The only possible interpretation of the documents is that the Plaintiff seeks relief pursuant to § 523(a)(2)(A), therefore, the Court takes judicial notice in that regard.
*612 Turning to the merit of Plaintiff's argument, the Court finds that the Plaintiff failed to establish that the requirements for a § 523(a)(2)(A) claim have been satisfied. In order to establish that a debt is nondischargeable because it was obtained by "false pretense, a false representation, or actual fraud," a creditor must show that 1) the debtor made a knowingly false representation or one made in reckless disregard of the truth, 2) the debtor intended to deceive, 3) the debtor intended to induce the creditor to rely upon the false statement, 4) the creditor actually relied upon the misrepresentation, 5) the creditor's reliance was justifiable, and 6) the reliance upon the false statement caused damage. Palmacci v. Umpierrez, 121 F.3d 781, 786 (1st Cir.1997). Reading the record in the light most favorable to the Defendant, the record is not sufficient to prove that the Defendant had the requisite scienter, i.e. intent to deceive the Plaintiff, when he wrote the Nova Scotia checks and deposited them with the Plaintiff. Since the Plaintiff failed to meet at least one element, the Court need not discuss the other elements.
As a separate ground for its motion for summary judgment, the Plaintiff argues that the Defendant should be barred from seeking discharge of his debt owed to the Plaintiff because he failed to answer interrogatories and failed to produce documents necessary for trial of its complaint. Citing In re Bartlett, 162 B.R. 73 (Bankr.D.N.H.1993), the Plaintiff argues that the Defendant is required to produce documents, notwithstanding any incidental incriminating effect of such production. The Defendant counters that the Plaintiff had a full and complete opportunity to conduct discovery in the state court litigation and that the Plaintiff had already completed discovery in that case.
When a party to civil actions refuses to provide discovery invoking its Fifth Amendment privilege against selfincrimination, a negative inference may be drawn at the summary judgment stage as well as at trial. In re Bartlett, 154 B.R. 827, 830 (Bankr.D.N.H.1993) (Bartlett I) (citations omitted). In the case of Bartlett, a creditor sought a determination of nondischargeability of its claim, which arose out of a so-called "floor plan" financing arrangement between the creditor and the debtor's car dealership. The creditor alleged that the debtor caused the dealership to retain sale proceeds that should have been paid over to the creditor and used funds intended for the purchase of new cars for other purposes. The creditor argued this amounted to outright fraud, conversion and embezzlement, and willful and malicious injury. In response, the debtor invoked the Fifth Amendment and refused to comply with the creditor's discovery request. Thereafter, the creditor moved for summary judgment requesting the court to draw an adverse or negative inference from the debtor's invocation of his Fifth Amendment privilege against self-incrimination.
The Bartlett I court recognized that the drawing of adverse inferences from a person's exercise of his Fifth Amendment privilege is an established principle in civil law. Id. However, the court denied the creditor's motion noting that the debtor had provided sufficient evidencenotwithstanding his invocation of his Fifth Amendment privilegeto withstand a summary judgment attack. The court found that the debtor did this primarily by relying on the documents provided by the creditor to show that there are several issues concerning the creditor's conduct and whether or not the creditor condoned the debtor's actions. Id. at 829. After the motion for summary judgment was denied, the creditor brought a motion for default judgment *613 when the debtor persisted in refusing to comply with the discovery requests. The court granted the motion. See In re Bartlett, 162 B.R. 73 (Bankr.D.N.H.1993) (Bartlett II).
The Bartlett I case is distinguished from the proceeding at bar, because in the instant case, the Defendant has failed to provide evidence in any way to respond to the Plaintiff's motion for summary judgment. The Defendant provided the transcript of the deposition taken during the state court proceeding in support of his argument that he did not have any intent to defraud the Plaintiff. However, as explained above, the state court proceeding had nothing to do with the issue of nondischargeability. Thus, the Court finds that the deposition transcript is not admissible evidence for this proceeding. Taking an adverse inference from the Defendant's exercise of his Fifth Amendment privilege, the Court deems all matters to which the Defendant claims the privilege as admitted for purpose of summary disposition
Moreover, the Bartlett II court made it clear that a debtor cannot enjoy the benefits of the bankruptcy process while avoiding its burdens. "[A] voluntary chapter 7 debtor is required to produce documents necessary to the trial of an objection to the discharge of a particular debt under section 523 of the Bankruptcy Code, notwithstanding any incidental incriminating effect of such production, if said debtor wishes to pursue and obtain the discharge of the debt in question by virtue of his bankruptcy filing." Bartlett II at 79. By invoking his Fifth Amendment privilege in refusing to provide information to the Plaintiff, the Defendant chose protection from prosecution over protection from his creditors. See In re Piperi, 137 B.R. 644, 647 (Bankr.S.D.Tex. 1991) ("[T]he debtor cannot use the bankruptcy court to broaden the benefits afforded to an accused by the Fifth Amendment."). Therefore, the debt is excepted from discharge, and the Plaintiff's motion for summary judgment is granted.
The Defendant also filed a motion to strike portions of the affidavit of Harry Reitze, which was submitted in support of the Plaintiff's motion for summary judgment. Since the statement of Harry Reitze is not relevant to the Court's ruling on the Plaintiff's motion for summary judgment, that motion becomes moot.
Finally, the Court finds that sanctions for the Defendant's delay in responding to Plaintiff's discovery request are warranted pursuant to Rule 37 of the Federal Rules of Civil Procedure, made applicable to this proceeding by Federal Rule of Bankruptcy Procedure 7037. Rule 37 of the Federal Rules of Civil Procedure states in relevant part:
If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.
Fed.R.Civ.P. 37. Absent a finding that the opposing party's position was "substantially justified," an award of attorneys' fees and expenses is mandatory to a party who prevails on a motion to compel. Metrocorps, Inc. v. Eastern Massachusetts Jr. Drum & Bugle Corps Ass'n., 912 F.2d 1, 2 (1st Cir.1990). The Plaintiff served interrogatories *614 on the Debtor on April 20, 2004, but the Debtor has not provided his answers to the interrogatories in almost four months without any justifiable reasons. The Defendant's delay unnecessarily increased the cost of litigation in this case. The Court finds that the Defendant's delay was not substantially justified nor do other circumstances make an award of expenses unjust. The Plaintiff requests reimbursement of its expenses of $4,984 incurred in making the motion to compel. The Court orders the Debtor to pay the Plaintiff's attorneys' fees in the amount of $2,500, which the Court finds are reasonable based on the Court's review of the itemization of services rendered.
CONCLUSION
This opinion constitutes the Court's findings and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. The Court will issue a separate final judgement consistent with this opinion.
NOTES
[1] The Plaintiff amended its complaint on November 17, 2003, to add certain factual allegations.
[2] § 523(a)(2)(A) provides that "[a] discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt ... for money... to the extent obtained by false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider's financial condition." See 11 U.S.C. § 523(a)(2)(A).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1988237/
|
921 F.Supp. 1453 (1996)
Barbara J. KOSTER, et al.
v.
FREDERICK COUNTY BOARD OF EDUCATION.
Civil No. L-95-1107.
United States District Court, D. Maryland.
April 15, 1996.
Daniel T. Doherty, Jr., Frederick, Maryland, and James J. Doyle, III, Baltimore, Maryland, for plaintiffs.
*1454 Barbara L. Ayres, Baltimore, Maryland, for defendant.
MEMORANDUM
LEGG, District Judge.
Plaintiffs bring this suit pursuant to 20 U.S.C. § 1400 et seq., the Individuals with Disabilities Education Act ("IDEA"), alleging that the Frederick County Board of Education failed to provide a free appropriate education for plaintiff Philip A. Koster. Defendant has moved to dismiss on the grounds that plaintiffs failed to exhaust their administrative remedies under the IDEA. For the reasons stated below, the Court will GRANT defendant's motion to dismiss by separate Order.
STATEMENT OF FACTS
In 1983, plaintiff Philip A. Koster entered pre-school in the Frederick County public school system. Plaintiffs have alleged that approximately two years later, when Philip was in the second grade, it became apparent that he had learning problems, including the inability to complete classwork and homework assignments on time. These problems continued and in the fifth grade the school recommended that an Assessment, Review, and Dismissal team ("ARD")[1] meet to discuss Philip's difficulties.
In October 1988, the ARD referred Philip for a psychological assessment. Around the same time, Philip began counseling with a private psychologist, Dr. Greg Powell.[2] In January 1989, the ARD team concluded that Philip suffered from a learning disability and suggested that he be given access to a tape recorder and computer. In March 1989, the ARD team created an Individual Education Program ("IEP") providing for special education services for Philip; these included his use of a resource room for one-half hour per week.
Philip continued to have difficulties in school over the next two years. In June 1989, October 1989, May 1990, and April 1991, Barbara Koster met with the ARD team to discuss Philip's performance. At the suggestion of the ARD, the use of the resource room was increased. At each meeting, Barbara Koster acknowledged that she agreed with the goals and recommendations of the ARD.
Plaintiffs allege that in 1991, Barbara Koster met with William Van Hall, the principal of the middle school which Philip was attending. Barbara Koster complained about Philip's lack of progress despite years of ARD meetings and the use of the resource room. Van Hall allegedly told Barbara Koster that "the school system did not have a program available to help Philip."[3]
In September 1991, the Kosters decided to remove Philip from the Frederick County public school system and place him in Randolph Macon Academy. Currently, Philip is in the twelfth grade at Randolph Macon and expects to graduate this year. Plaintiffs, in the instant suit, seek to recover the cost of educating Philip at Randolph Macon.
DISCUSSION
A. Standard of Review
Because the parties have filed affidavits and exhibits, the Court will treat defendant's motion as a motion for summary judgment. Fed.R.Civ.P. 56. The Court shall grant summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." 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). "The summary judgment inquiry thus scrutinizes the [non-moving party's] case to determine whether the *1455 [non-moving party] has proffered sufficient proof, in the form of admissible evidence, that could carry the burden of proof of his claim at trial." Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir.1993); accord Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888-89, 110 S.Ct. 3177, 3188-89, 111 L.Ed.2d 695 (1990). In determining whether there exists a genuine issue of material fact, the Court views the facts, and all reasonable inferences to be drawn from them, in the light most favorable to the non-moving party. Overstreet v. Kentucky Cent. Life Ins. Co., 950 F.2d 931, 937-38 (4th Cir.1991).
B. Exhaustion of Administrative Remedies
Congress created a detailed administrative scheme for aggrieved parents to pursue in order to exhaust their remedies under IDEA before filing a federal claim. See Dellmuth v. Muth, 491 U.S. 223, 225, 109 S.Ct. 2397, 2398-99, 105 L.Ed.2d 181 (1989); Honig v. Doe, 484 U.S. 305, 308, 108 S.Ct. 592, 596, 98 L.Ed.2d 686 (1988). A parent, alleging a violation of the IDEA, must first request an "impartial due process hearing" that may be conducted by either the local school district or the State. 20 U.S.C. § 1415(b)(2). If the initial review is performed by the school district and the parent is dissatisfied with its decision, the parent may appeal the decision to the State level. 20 U.S.C. § 1415(c).[4]
Plaintiffs admit that they did not pursue the administrative remedies provided under the IDEA. Instead, the Kosters argue that they fall under the following exceptions to the exhaustion requirement: 1) the administrative process would have been futile; 2) the school board failed to give them proper notification of their administrative rights; and 3) exhaustion would have worked severe harm upon the Philip.[5]See Alfred, 906 F.Supp. at 1097; Buffolino v. Board of Educ. of Sachem, 729 F.Supp. 240, 245 (E.D.N.Y.1990). The burden of proving an exception to the exhaustion requirement rests on the party asserting the exception. Alfred, 906 F.Supp. at 1097.
First, because defendant allegedly provided an inadequate education to Philip for six years and because Barbara Koster was allegedly told by Van Hall that "the school system did not have a program available to help Philip," plaintiffs argue that it would have been futile to appeal Philip's IEP administratively to the Supervisor of Special Education or the State. The futility exception applies when the IDEA violation at issue is unresolvable through the appeals process. See J.G. v. Board of Educ. of Rochester Cty., 830 F.2d 444 (2d Cir.1987); St. Louis Dev. Disabilities Treatment Ctr. Parents Ass'n v. Mallory, 591 F.Supp. 1416 (W.D.Mo.), aff'd, 767 F.2d 518 (8th Cir.1985). The evidence submitted by the Kosters is insufficient to establish that an appeal of Philip's IEP would have been futile.
The appeals process allows parents to challenge the validity of a local school's decision. Should the school's decisions be found invalid, it is the responsibility of the reviewing agency to create a program that will meet the needs of the individual student and comply with the IDEA.
While plaintiffs have alleged that Philip's IEP was inadequate prior to 1991, and that Van Hall made the aforementioned statement, plaintiffs have not alleged any facts demonstrating that an appeal would have been futile. The Kosters could not have reasonably assumed that Van Hall's opinion *1456 reflected anything more than the opinion of the school for which Van Hall was principal. Plaintiffs were on notice that such local school decisions were appealable to an impartial hearing examiner and the State. See infra. Had the examiner agreed that no appropriate program existed in Philip's school, it would have been the State's obligation to create an appropriate program.[6]
The Kosters removed Philip from the Frederick County public school system before exhausting any of their administrative remedies. Thus, neither the local school district nor the State had the opportunity to review plaintiff's grievances or to render an expert fact finding. Plaintiffs' attempt to circumvent the administrative procedures of the IDEA and come directly to the federal courts is exactly the situation Congress sought to avoid by creating the appeals procedure of the IDEA. The Court finds that plaintiffs have not shown that the administrative process would have been futile.
The second exception argued by plaintiffs is that exhaustion was not required because the school failed to provide them with an adequate explanation of their right of appeal under the IDEA. Plaintiffs acknowledge that they received a booklet entitled "Meeting the Special Needs of Students" (the "Booklet"). Def's M. to Dismiss, ex. B. The Kosters contend, however, that the Booklet was legally inadequate in advising them of their rights.
The Booklet provides a detailed list of the student's and parents' due process rights including step by step instructions on how parents can avail themselves of the hearing appeals procedure. The pamphlet (i) explains when a hearing is available, (ii) advises whom the parents need contact to arrange a hearing, and (iii) notifies parents that they have a right to counsel. Moreover, the Booklet references the sections of the IDEA from which these rights are derived and states that the full text of the IDEA is available upon request. The Court finds that the Booklet was legally sufficient to advise the Kosters of their rights under the IDEA. See Buffolino, 729 F.Supp. at 246 (holding that a guidebook can provide sufficient notice to parents of their due process rights).
Finally, plaintiffs argue that exhaustion would have worked severe hardship on Philip and thus, they are excepted from the requirement. Specifically, plaintiffs contend that they were frustrated with defendant's ineffective IEP programs[7] and that in light of Van Hall's statement regarding the lack of an available program, they believed that Philip would have suffered severe hardship had he continued in the Frederick County public school system.
Plaintiffs bear the burden of proving that the exhaustion of administrative remedies would have caused severe hardship on Philip. While the Kosters have stated that they were dissatisfied with Philip's IEP, they have provided no evidence that Philip would have been subject to severe harm had they engaged in the appeals process.
Federal regulations mandate that a hearing must be held and a decision reached within forty-five days after the public agency *1457 receives a request for a hearing. 34 C.F.R. § 300.512. Once the initial hearing has been held by the local school district, plaintiff may appeal the decision to the State, which must hold a hearing and render a decision within thirty days from the receipt of the notice of appeal. Id.
Had the Kosters appealed Philip's IEP and the State or the local school district had fashioned a satisfactory remedy, plaintiff would not have removed Philip from the public school or filed the instant suit. Had the appeals proceedings been unsatisfactory to the Kosters, their removal of Philip from the Frederick County school system would have been delayed by seventy-five days at most. At that point, the Kosters could have brought suit in federal court having fully exhausted their administrative remedies.
There is no evidence that an additional seventy-five days in the Frederick County school system would have resulted in any irreparable harm to Philip. Thus, the Court finds that plaintiff have not proved that Philip would have been severely harmed had the Kosters taken the time to exhaust their remedies.
This Court finds that plaintiffs inexcusably failed to exhaust the administrative remedies available to them. Plaintiffs failed to show that: 1) the administrative procedure would have been futile; 2) the Frederick County school system failed to provide notice to the plaintiffs of their rights; or 3) Philip would have been severely harmed had the Kosters pursued their administrative remedies.
CONCLUSION
For the aforementioned reasons, defendant's motion to dismiss will be GRANTED by separate Order.
NOTES
[1] An ARD team reviews a student's assessments, determines the need for special education services, and develops Individual Education Programs. During ARD meetings the parents of the child are invited to meet with school representatives to discuss the student's problems.
[2] At a subsequent date unclear to the Court, Dr. Powell diagnosed Philip as having an Attention Deficit Hyperactivity Disorder ("ADD") and Dysthymic Disorder.
[3] Although Van Hall avers that he did not make said statement to Barbara Koster, for the purposes of this motion to dismiss, the Court accepts plaintiffs' allegation as true.
[4] Courts have observed this exhaustion requirement serves several useful functions including:
(1) permitting the exercise of agency discretion and expertise on issues requiring these characteristics; (2) allowing full development of technical issues and a factual record prior to court review; (3) preventing deliberate disregard and circumvention of agency procedures established by Congress; and (4) avoiding unnecessary judicial decision by giving the agency the first opportunity to correct any error. Doe v. Alfred, 906 F.Supp. 1092, 1097 (D.Md. 1995) (citations omitted).
[5] Courts have construed these exceptions narrowly, excusing a plaintiff's failure to exhaust only when "the facts of a given case will further the general purposes of exhaustion and the congressional intent behind the administrative scheme." Learning Disabilities Assoc. of Maryland, Inc. v. Board of Educ. of Baltimore Co., 837 F.Supp. 717, 723 (1993) (quoting Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1302-03 (9th Cir.1992)); See also, Doe v. Alfred, 906 F.Supp. 1092, 1097 (citing Learning with approval).
[6] A typical situation in which the appeal of an IDEA violation has been found futile occurs when the violation is systemic and/or a matter of State policy. See J.G., 830 F.2d 444; Mallory, 591 F.Supp. 1416. The Kosters argue that the inability to create an appropriate program for Philip was a systemic problem.
In support of this proposition, Greg Powell, Philip's psychologist, avers that at the time Philip was "enrolled in the Frederick County Public School System, the school system did not have a formal program to deal with Philip Koster's ADD-related learning problems." Pls' M. in Opp. to Def's M. to Dismiss, ex. B. Assuming, arguendo, that Powell's statement is true, plaintiffs have provided no evidence that the State would have been unable or refused to create such a program. The Court also notes defendant's contention that it did have a program in place tailored to meet Philip's needs and that programs for students with ADD did exist at the time. Def's Reply to Pls' Opp. to M. to Dismiss at 7-8; Def's Supp. M. in Support of M. to Dismiss 9-10, ex. G.
[7] Although plaintiffs contend that Philip's IEP was ineffective for the years prior to his removal from public school, the Court notes that on April 16, 1991, and May 25, 1990, Barbara Koster consented to the development and implementation of Philip's IEP programs and signed forms stating that "[she] approve[s] the goals and objectives in this IEP for [her] child and agree[s] to their implementation." Def's M. to Dismiss, ex. C.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2450868/
|
569 S.W.2d 11 (1978)
Ralph L. SYDNEY and Verona Sydney, Appellants,
v.
The COCA-COLA COMPANY, Respondent.
No. KCD 29012.
Missouri Court of Appeals, Kansas City District.
June 12, 1978.
Motion for Rehearing and/or Transfer Denied July 20, 1978.
*12 Dennis G. Muller, Muller & Muller, Kansas City, for appellants.
Jack F. Olson, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, for respondent.
Before SOMERVILLE, P. J., and PRITCHARD and DIXON JJ.
PER CURIAM.
Plaintiffs brought an action seeking actual and punitive damages against defendant for removal of a Coca-Cola sign from the roof of certain premises occupied by plaintiffs in a suburban shopping center complex owned by a third party. Defendant was fully absolved by a jury and plaintiffs have appealed.
Plaintiffs rely on seven instances of purported trial error as grounds for relief on appeal. In addition to responding to each of the seven grounds individually, defendant submits that the verdict and judgment below in its favor should be affirmed because plaintiffs failed to make a submissible case. Two well established principles immediately come into play by reason of defendant's stance on the want of evidence. One, the seven purported instances of trial error relied on by plaintiffs are immaterial and of no decisional moment on appeal if plaintiffs failed to make a submissible case. Osborn v. McBride, 400 S.W.2d 185, 188 (Mo.1966); Hoock v. S. S. Kresge Co., 230 S.W.2d 758, 761 (Mo. banc 1950); and Cottonwood Fibre Co. v. Thompson, 359 Mo. 1062, 225 S.W.2d 702, 708 (1950). Two, plaintiffs will not be heard to advance and this court will not entertain a theory of recovery on appeal different from that relied upon at the trial level. Morris v. Kansas City, 391 S.W.2d 198, 200 (Mo.1965); and Corning Truck & Radiator Serv. v. J. W. M. Inc., 542 S.W.2d 520, 527 (Mo.App. 1976).
Before the effect of the above principles can be fully reckoned with, plaintiffs' theory of recovery at the trial court level must first be ascertained. On appeal plaintiffs take the position that two theories of recovery were embodied in their petition and advanced throughout the trial, namely, trespass to realty and trover for conversion of the sign. It is appropriate at this juncture to be reminded that the theory of a case is framed by the pleadings either as drawn or as amended by the evidence. State ex rel. Conaway v. Consolidated School District No. 4 of Iron County, 417 S.W.2d 657, 659 (Mo. banc 1967); White v. Scarritt, 341 Mo. 1004, 111 S.W.2d 18, 21 (1937); Miller v. Ranson and Company, 407 S.W.2d 48, 53 (Mo.App.1966); Rule 55.33(b).
*13 This case went to trial on plaintiffs' third amended petition, all of which suggests that plaintiffs labored under considerable difficulty in coming to grips with a definite legal theory upon which to rest their purported right of recovery. Plaintiffs' third amended petition in its own right is far from and exemplar of clarity, and is, unfortunately, laced with considerable vagueness and uncertainty. After taking a hard look at it the only conclusion to be drawn is that it pleaded nothing more than an action of trover for conversion of a Coca-Cola sign in which plaintiffs claimed some vague property interest. The only mention pleadingwise of an entry upon real property, at best, was the whisper of a hint that conversion of the Coca-Cola sign was effected or perpetrated by going onto the roof of the premises occupied by plaintiffs. Pleadingwise, plaintiffs attached no significance to or claim of damages for defendant's entry upon the realty to remove the sign. Plaintiffs' emphasis, pleadingwise, was upon the taking of the sign and their claim for damages (actual and punitive) was restricted to its taking and removal as reflected by the fact that the only actual damages claimed were for the intrinsic value of the sign and the loss of business occasioned by the unavailability of the sign to beckon customers to their place of business. From a pragmatic point of view, the following excerpt from the opening statement to the jury made by plaintiffs' counsel constitutes a telling and definitive revelation that plaintiffs' theory of recovery was an action of trover for conversion of the sign: "Based upon these facts and other evidence, we will expect to prove to you, or show you, that the taking of the sign was malicious and based upon this we will ask you to bring in a penalty for the Coca-Cola Company . . .". (Emphasis added.) Suffice it to say, the evidence adduced at the trial did not broaden or amend the pleadings and the case was submitted to the jury on a theory of conversion of the Coca-Cola sign.
Having concluded that plaintiffs' theory of recovery below was limited to an action of trover for conversion of the Coca-Cola sign, all to the exclusion of any present claim or argument that trespass to realty was conjunctively pleaded and advanced as a viable theory of recovery, attention now focuses on whether plaintiffs made a submissible case under their pleaded theory. In determining whether plaintiffs made a submissible case, the evidence must be viewed in the light most favorable to them and defendant's evidence, except as it aided plaintiffs, must be disregarded. Citizens Bank of Festus v. Missouri Natural Gas Co., 314 S.W.2d 709, 710 (Mo.1958); and Fenneren v. Smith, 316 S.W.2d 602, 606 (Mo.1958).
The Coca-Cola sign in question was bought, paid for, owned and maintained by defendant. At plaintiffs' request and defendant's expense it was erected on the roof area over certain premises housing a "malt shop" occupied and operated by plaintiffs in a suburban shopping center complex which was owned by a third party. Plaintiffs understood that the Coca-Cola sign would cease to be available to advertise and beckon customers to the "malt shop" if and when they terminated the use of Coca-Cola products. Plaintiffs terminated their use of Coca-Cola products and defendant removed its Coca-Cola sign from the roof of that portion of the premises in the suburban shopping center complex occupied by plaintiffs in the operation of their "malt shop".
Kessler v. Reed, 481 S.W.2d 559, 562 (Mo.App.1972), holds that in order to maintain an action of trover the plaintiff must have "title to, or a right of property in, and a right to the immediate possession of the property concerned at the time of the alleged conversion". See also: Twellman v. Lindell Trust Co., 534 S.W.2d 83, 97 (Mo. App.1976); National Surety Corporation v. Hochman, 313 S.W.2d 776, 780 (Mo.App. 1958); and Jackson v. Rothschild, 99 S.W.2d 859, 861 (Mo.App.1936). In the instant case plaintiffs had neither the requisite property interest in the Coca-Cola sign nor a right to its immediate possession at the time of its removal by defendant, both of which were necessary to make a submissible case under *14 their singularly pleaded and advanced theory of conversion. Plaintiffs argue that they had some type of "special interest" in the Coca-Cola sign at the time of its removal. They have not denominated the vague and nebulous "special interest" claimed by them in the Coca-Cola sign to be a legal interest, as contradistinguished from a mere equitable interest. Nor have plaintiffs claimed or pointed to the existence of any evidence which would elevate the vague and nebulous "special interest" claimed by them in the Coca-Cola sign from merely an equitable interest to a legal interest, if in fact they had even an equitable interest. Authority exists for the proposition that there must be a conversion of a legal as opposed to a mere equitable interest in property in order to maintain an action of trover for its conversion. Sustenance for this proposition is found in Osborn v. Chandeysson Electric Co., 248 S.W.2d 657, 663 (Mo.1952): "To maintain trover, it has been considered that plaintiff must have title to, or a right of property in and a right to the immediate possession of, the stock at the time of conversion, and `there must be an invasion of a legal, as contradistinguished from an equitable right.' 11 Fletcher, Private Corporations, p. 149, § 5114, nn. 97, 98; Rosencranz v. Swofford Bros. Dry Goods Co., 175 Mo. 518, 529, 75 S.W. 445, 448, 97 Am. St. Rep. 609."
When the principles enunciated above are viewed anent the evidence in the case at bar in the light most favorable to plaintiffs, this court is constrained to hold that plaintiffs failed to make a submissible case under their pleaded theory of trover for defendant's alleged conversion of the Coca-Cola sign in question. Ergo, the seven specific instances of trial error relied upon by plaintiffs on appeal are dissipated of any decisional relevance or vitality and the jury verdict and judgment entered below in favor of defendant and against plaintiffs must stand.
Judgment affirmed.
All concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2450865/
|
569 S.W.2d 496 (1978)
James R. BRYCE, Appellant,
v.
CORPUS CHRISTI AREA CONVENTION AND TOURIST BUREAU, Texas non-profit Corporation, and Bob Conwell, Appellees.
No. 1322.
Court of Civil Appeals of Texas, Corpus Christi.
May 24, 1978.
Rehearing Denied June 26, 1978.
Second Rehearing Denied August 29, 1978.
*497 Michael W. Williams, Corpus Christi, for appellant.
William R. Anderson, Jr., Sorrell, Anderson & Sorrell, Anthony Pletcher, Maddin, White & Brin, Inc., Corpus Christi, for appellees.
OPINION
BISSETT, Justice.
This is an appeal from an order which dismissed plaintiff's cause of action. James R. Bryce, a resident taxpayer of the City of Corpus Christi, Texas, sued Corpus Christi Area Convention and Tourist Bureau, hereinafter called the "Tourist Bureau", and Bob Conwell, its executive vice president, to recover money on behalf of the City of Corpus Christi, which the City donated to the Tourist Bureau pursuant to "a contract or contracts between the City and the Tourist Bureau". Both defendants filed general denials, and the Tourist Bureau filed a motion styled "MOTION TO QUASH PLAINTIFF'S CAUSE OF ACTION IN ITS ENTIRETY". The trial court granted the motion and dismissed the suit. James R. Bryce, plaintiff, has appealed.
In summary, plaintiff alleged: 1) he is a property taxpayer of the City of Corpus Christi pursuant to "Article IX, Section 18, of the City Charter of Corpus Christi, Texas"; 2) tax monies were furnished to the Tourist Bureau by the City of Corpus Christi; 3) some of the monies so furnished were used by the Tourist Bureau for the publication and distribution of two magazines, "The Sparkler" and "The Texas Tropical Coast"; 4) "the ownership of the magazines aforesaid is represented by the defendants *498 to be privately in the defendant Bob Conwell"; 5) Conwell was allowed by the Tourist Bureau to retain for himself all of the profits resulting from the sale of the magazines; and 6) the monies paid by the Tourist Bureau to Conwell constituted a dividend "in direct contravention of Article 1396-2.24, V.A.T.S.". In addition to general relief, plaintiff prayed for: 1) an accounting for all services and income paid from tax monies of the City used by the Tourist Bureau and Conwell for the publication of the magazines; 2) an accounting of all profits generated by advertising in the magazines; and 3) a return of all tax monies to the general fund of the City of all profits derived from the publication and distribution of the magazines.
The Tourist Bureau, in the aforesaid motion, alleged: 1) Article IX, Section 18, of the City Charter does not authorize a suit to be brought by a private citizen "against a contractor with the City of Corpus Christi whereby the only claim by such plaintiff is that such contracting party has made an illegal distribution"; and 2) Bryce "is not such a party who may bring as a private citizen an action against this Defendant under Article 1396-2.24". For those reasons, and those alone, the Tourist Bureau prayed that:
"[P]laintiff's Original Petition in its entirety be quashed for reason that same is brought by a party who has not the capacity or the authority to institute such suit ... and that on hearing that Plaintiff's petition be abated in its entirety."
The motion, which was sworn to and duly verified, was set down for hearing. Evidence was introduced at the hearing. Bryce, who was called as a witness by the Tourist Bureau, testified that he lived in Corpus Christi, owned property situated within the City, and paid taxes to the City. He also stated that he was not a member of the Tourist Bureau. He further testified that he did not have any complaint about the contracts which existed between the City and the Tourist Bureau, and that he filed this suit to recover money which was illegally spent by the Bureau.
Article IX, Section 18, of the City Charter was not introduced in evidence at the hearing. No evidence was offered at the hearing relating to whether the monies sued for were or were not dividends which were distributed to the members, directors or officers of the Tourist Bureau in contravention of Article 1396-2.24.
The aforesaid hearing was held on September 13, 1977. The trial judge granted the motion and dismissed the suit per written order, which was signed on October 13, 1977. The order of dismissal is couched in general terms, without indicating the basis for the ruling.
The City of Corpus Christi is not a party to this suit. There is no showing that the City authorized Bryce to file this suit. The allegation "James Bryce brings this action as a property taxpayer" of the City of Corpus Christi, and the allegation that Bryce sues to recover tax monies of the City illegally spent for the general fund of the City do not make the City a party to the action brought by Bryce. This suit is a controversy solely between Bryce, the Tourist Bureau and Conwell.
We know of no rule which permits the dismissal of a lawsuit in its entirety in response to a motion "to quash plaintiff's cause of action". However, the name by which a motion is designated does not determine its character, and we attach no controlling effect to the styling of the Tourist Bureau's motion in this case. We look to the substance of the motion.
The Tourist Bureau, during oral argument, argued that the motion, in effect, is a plea in abatement and that the trial court properly sustained the plea and dismissed the suit. Whether the motion is, in essence, a plea in abatement is determined by the substance of the motion, and the effect which will be accomplished if it is granted. Smith v. City of Dallas, 404 S.W.2d 839 (Tex.Civ.App.Dallas 1966, no writ); Armstrong v. Snapp, 186 S.W.2d 380 (Tex.Civ.App.Fort Worth 1945, no writ).
*499 Generally speaking, the sustaining of a plea in abatement defeats the pending action but does not bar a revival of the action or a future action on the same cause. So, matters which merely postpone the enforcement of a right alleged in the petition are necessarily in abatement. The matter is decided, not by the form in which it is raised, but by its substance. 1 Am.Jur.2d, Abatement, Survival and Revival, § 2; 1 Tex.Jur.2d, Abatement and Revival, § 4.
A plea in abatement should not only show the grounds upon which the suit is improperly brought, but should also show how it should have been brought, and should always state facts, not conclusions of law. State v. Goodnight, 70 Tex. 682, 11 S.W. 119 (1888). When such a plea is sustained, the suit should not be dismissed until the plaintiff has been given a reasonable opportunity to amend, if it is possible to do so, and thereby remove the obstacle which defeated the suit initially filed. Even if the case is dismissed, it is revived upon the removal of such obstacle which prevented its further prosecution in the first instance. Life Ass'n of America v. Goode, 71 Tex. 90, 8 S.W. 639 (1888); Humphrey v. National Fire Ins. Co., 231 S.W. 750 (Tex.Com.App.1921, opinion adopted). The sufficiency of the plea must be tested by its own allegations, and cannot be assisted by allegations in any other plea. Breen v. Texas and Pacific Railway Company, 44 Tex. 302 (1875); 1 Tex.Jur.2d, Abatement and Revival, § 71.
The result of sustaining a plea in abatement was pointed out in Texas Highway Department v. Jarrell, 418 S.W.2d 486, 488 (Tex.Sup.1967), by Chief Justice Calvert, who, speaking for the Court, said:
"... [a] plea in abatement, if sustained, would require an abatement of the claim or cause of action until some obstacle to its further prosecution was removed ..."
It was observed by Justice Garwood in Kelly v. Bluff Creek Oil Company, 158 Tex. 180, 309 S.W.2d 208, 214-215 (1958):
"... [T]he practice of misnaming a plea in bar in order to procure a preliminary trial as if the plea were one in abatement is confusing and not to be encouraged."
In the case at bar, the motion cannot be considered as a plea in abatement because the action has been improperly brought in some respect that does not go to the merits of the cause of action. There are no allegations of fact set out therein. The assertions that Article IX, Section 18, of the City Charter does not authorize the bringing of the suit by Bryce, and that he is not authorized to bring such a suit under the referenced statute are conclusions, not allegations of fact. The further assertion that the petition should be "quashed" because Bryce did not have the "capacity" or "authority" to institute the suit is also a conclusion. The motion, when tested solely by the allegations contained therein, is insufficient as a plea in abatement.
The motion cannot be treated as a motion for summary judgment, nor can it be considered as a plea in bar. In either of those instances, the only judgment which could be rendered in the event the motion or plea was sustained would be a take nothing judgment. Here, the judgment was of dismissal.
Under the circumstances, for the reasons stated and under the foregoing authorities, it was reversible error to render a judgment of dismissal with respect to the suit filed by Bryce against the two defendants, the Tourist Bureau and Conwell. Moreover, a reversal of the judgment insofar as it dismissed the suit against the Tourist Bureau would also require a reversal of the judgment insofar as it dismissed the suit against Conwell. Bryce has alleged that the City's tax monies were donated by the City to the Tourist Bureau, who illegally paid such monies to Conwell; that the latter illegally received them; and that the two illegally spent the same. In that state of the pleadings, the action asserted is so interrelated and interwoven with respect to the acts of the Tourist Bureau and Conwell that it is impossible to sever the action and proceed independently as to each, so that all *500 issues should be resolved in one suit against both defendants. We believe that the judgment as to its entirety should be reversed and the cause as to both defendants be remanded in the interest of justice. Rule 434, T.R.C.P.
Since the judgment of the trial court will be reversed and the cause remanded, we observe that the law is well settled that a taxpayer of a city does not have standing to bring suit to recover public funds of the city already illegally expended by the city. Scott v. Graham, 156 Tex. 97, 292 S.W.2d 324 (1956); Hoffman v. Davis, 128 Tex. 503, 100 S.W.2d 94 (Tex. Comm'n App.1937, opinion adopted); First National Bank of Bellaire v. Prudential Insurance Co. of America, 551 S.W.2d 112 (Tex.Civ.App.Houston [14th Dist.] 1977, writ ref'd, n.r.e.); Glass v. City of Austin, 533 S.W.2d 411 (Tex.Civ.App.Austin 1976, no writ). The right to institute such suit belongs exclusively to the municipality. Scott v. Graham, supra; Glass v. City of Austin, supra. We further observe that it has been held proper to grant a motion for summary judgment in favor of the defendants where a taxpayer of a city files suit to recover public monies allegedly illegally spent solely on the ground that the plaintiff did not have standing to sue. See First National Bank of Bellaire v. Prudential Insurance Co. of America, supra.
The judgment of the trial court is REVERSED and the cause is REMANDED.
OPINION ON MOTION FOR REHEARING
The Corpus Christi Area Convention and Tourist Bureau (Tourist Bureau) has filed a vigorous motion for rehearing in this case. The main thrust of the motion is that its "MOTION TO QUASH PLAINTIFF'S CAUSE OF ACTION IN ITS ENTIRETY", since no exceptions were levelled at the conclusions alleged therein, was sufficient to serve as a plea in abatement; and, further, the evidence presented was sufficient to sustain the plea.
Plaintiff Bryce alleged in his original petition:
"James R. Bryce brings this action as a property taxpayer pursuant to Article IX, Section 18, of the City Charter of Corpus Christi, Texas, to recover all monies illegally and without authorization paid by the defendant Corpus Christi Area Convention and Tourist Bureau to its officer, defendant Bob Conwell, from tax monies furnished to said Corpus Christi Area Convention and Tourist Bureau by the City of Corpus Christi pursuant to a contract or contracts between the City and the said Tourist Bureau ..."
The Tourist Bureau, in its said motion, alleged:
"Article 9, Section 18 does not authorize a suit to be brought by a private citizen against a contractor whereby the only claim by such Plaintiff is that such contracting party has made an illegal distribution..."
Despite the Tourist Bureau's contentions that no special exceptions were filed with respect to its motion, Bryce did challenge all allegations therein in a pleading denominated "PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO QUASH ACTION IN ITS ENTIRETY", wherein the asserted provision of Article IX, Section 18 of the Corpus Christi City Charter is quoted, as follows:
"[I]n case any ... illegal, unauthorized or fraudulent bills, claims or demand, or any such salary or compensation shall have been paid (a) citizen may maintain an action in the name of said city against the officer making such payment and the party receiving the same, or either, or both, to recover the amount so paid ..."
The allegations contained in the motion and in the response thereto do not constitute evidence. They do, however, put the authority of Bryce to bring the suit under the authority of the Charter in issue.
The City of Corpus Christi is not a party to the suit, and Bryce is not attempting to recover money that was illegally expended by the City itself. He brings the action in behalf of the City to recover monies which *501 he alleges were illegally expended by the Tourist Bureau. Our observations in the original opinion apply solely to cases where the City itself has illegally expended public funds. Here, a recovery is sought, not against the City, but against the Tourist Bureau and Conwell on two grounds: 1) an alleged violation by the defendant Tourist Bureau of Tex.Rev.Civ.Stat.Ann. art. 1396-2.24; and 2) pursuant to the provisions of Article IX, Section 18, of City of Corpus Christi Charter. Assuming, arguendo, that Bryce is not such a party who may bring this suit under the aforesaid statute, the burden was on the Tourist Bureau, in order to sustain its motion, to prove that the suit brought by Bryce was not authorized by Article IX, Section 18 of the Charter. This, it did not do. As noted in the original opinion, the relevant portion of the Charter was not introduced in evidence at the hearing on the motion. The record does not show that the Charter of the City of Corpus Christi, including Article IX, Section 18 thereof, has been recorded or certified in the manner required by Tex.Rev.Civ.Stat. Ann. arts. 1165 and 1174, respectively. Consequently, neither the trial court (nor this Court) could take judicial notice of Article IX, Section 18 of the Charter. See Kirkman v. City of Amarillo, 508 S.W.2d 933 (Tex.Civ.App.Amarillo 1974, writ ref'd n.r.e.); Hayden v. City of Houston, 305 S.W.2d 798 (Tex.Civ.App.Fort Worth 1957, writ ref'd n.r.e.). Under the record here presented, since the relevant provision of the Charter was not introduced in evidence and as the trial court was not authorized to take judicial notice of Article IX, Section 18 of the Charter, no basis existed for an abatement of the action.
The motion for rehearing is OVERRULED.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2634497/
|
100 P.3d 225 (2004)
2004 UT App 324
STATE of Utah, Plaintiff and Appellee,
v.
Rameen Rey AMIRKHIZI, Defendant and Appellant.
No. 20030639-CA.
Court of Appeals of Utah.
September 23, 2004.
*226 Loni F. DeLand and Michael R. Sikora, Salt Lake City, for Appellant.
Mark L. Shurtleff, Attorney General, and J. Frederic Voros Jr., Assistant Attorney General, Salt Lake City, for Appellee.
Before BENCH, Associate P.J., DAVIS, and GREENWOOD, JJ.
OPINION
GREENWOOD, Judge:
¶ 1 Defendant Rameen Rey Amirkhizi appeals a conviction of two counts of possession of a controlled substance, a third degree felony. See Utah Code Ann. § 58-37-8(2)(a)(i) (2002). Defendant argues that the trial court erred when it concluded that the emergency medical technician (EMT) who searched his backpack was not engaged in state action, and that the contraband found in Defendant's backpack would have been inevitably discovered by police officers and was therefore admissible. We reverse.
BACKGROUND
¶ 2 Dexter Mohler was an EMT employed by the Evanston Fire Department in Uintah County, Wyoming. On September 17, 2002, Mohler responded to a one-car accident on Interstate 80 in eastern Utah, not far from the Wyoming border. Mohler arrived at the scene of the accident and found a station wagon that had apparently struck a roadside embankment. Mohler observed Defendant standing outside the vehicle with what appeared to be minor injuries. Although Defendant was initially reluctant to go to an emergency room to have his injuries checked, Mohler eventually convinced him it was in his best interest to go.
*227 ¶ 3 After Defendant was strapped to a gurney and placed in the back of an ambulance, he asked Mohler to retrieve his car keys. Because Defendant was immobilized, Mohler asked Defendant if he wanted him to place the keys in Defendant's backpack. Defendant said yes, and Mohler unzipped one of the backpack's side pockets and placed the keys inside. While doing this, Mohler noticed a prescription pill bottle for the drug hydrocodone. Mohler examined the bottle and saw that the name on the bottle was not Defendant's. Mohler also observed that although there was a capsule at the bottom of the bottle, the bottle did not rattle when he turned it over. Without asking Defendant's permission, Mohler opened the bottle and saw a small bag containing white powder. According to Mohler, he opened the bottle because he was concerned that Defendant had taken some medication that he had not told Mohler about.
¶ 4 Based on Mohler's training and experience,[1] he believed the powder he had found was a controlled substance. Concerned that there might be more drugs or even weapons in the backpack, Mohler proceeded to search the rest of the backpack. Upon opening another of the backpack's pockets, Mohler discovered two syringes. Mohler informed the nurse in the back of the ambulance about the syringes "as well as some other things to kind of give him a heads up to be a little more cautious with [Defendant]."
¶ 5 Mohler also told two Wyoming police officers who were at the scene what he had found in Defendant's backpack. One of these officers then informed Utah Highway Patrol Trooper Brian Davis about Mohler's discovery. The officer also told Trooper Davis that Defendant "had a known drug history."[2]
¶ 6 Based on this information, Trooper Davis asked Defendant if he could search Defendant's backpack. When Defendant refused to consent to the search, Trooper Davis searched the backpack anyway. At the time of the search, Defendant's backpack was lying on the hood of a patrol car parked behind the ambulance. According to Trooper Davis, no warrant to conduct the search was necessary because of the "unusual circumstances of the case," the information the Wyoming police officer had provided him, and Defendant's refusal to consent to the search.
¶ 7 When Trooper Davis opened the prescription pill bottle inside the backpack, he found three plastic bags: the first containing a white powdery substance, the second containing what he suspected to be methamphetamine, and the third containing what he suspected to be marijuana. Trooper Davis also found three pill capsules, each containing a white powdery substance. A field test conducted by Trooper Davis revealed that the white powdery substance was cocaine. Trooper Davis then searched Defendant's car and found marijuana residue in the car.[3]
¶ 8 Defendant was later charged with the following: two counts of possession of a controlled substance, a third degree felony, see Utah Code Ann. § 58-37c-8(2)(a)(i) (2002); possession of a controlled substance with intent to distribute, see Utah Code Ann. § 58-37-8(1)(a)(ii) (2002); and possession of drug paraphernalia, a class B misdemeanor. See Utah Code Ann. § 58-37a-5 (2002). Defendant filed a motion to suppress on the basis that the searches conducted by Mohler and Trooper Davis were unlawful. The trial court denied Defendant's motion and Defendant entered a conditional guilty plea to the two counts of possession of a controlled substance, reserving his right to appeal the denial of his motion to suppress. The remaining *228 two counts were dismissed as part of the plea bargain. Defendant timely filed his notice of appeal.
ISSUE AND STANDARD OF REVIEW
¶ 9 Defendant argues that the trial court erred in denying his motion to suppress. While Defendant does not dispute the trial court's factual findings, he challenges the court's legal conclusions that (1) Mohler was not engaged in state action when he searched Defendant's backpack; and (2) the contraband found in Defendant's backpack would have been inevitably discovered by police officers. The State argues that the trial court could also have determined the search was lawful as a search incident to arrest. This court reviews the conclusions of law underlying a trial court's denial of a motion to suppress under a correctness standard, according no deference to the trial court's legal conclusions. See State v. Anderson, 910 P.2d 1229, 1232 (Utah 1996).
ANALYSIS
I. Whether Mohler Was Engaged in State Action at the Time He Searched Defendant's Backpack
¶ 10 Defendant first argues that the trial court erred when it concluded that when Mohler searched Defendant's backpack, he "acted out of personal safety and for proper medical reasons," and therefore, was not engaged in state action for Fourth Amendment purposes. According to Defendant, Mohler's conduct constituted state action because he was a county employee who had received training in drug recognition from the Wyoming police and had been encouraged by police officers to inform them any time he found drugs while carrying out his duties as an EMT. In response, the State argues that Mohler was not engaged in state action because his examination of Defendant's backpack was motivated by reasons unrelated to law enforcement.
¶ 11 The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. However, "the [F]ourth [A]mendment cannot be triggered simply because a person is acting on behalf of the government." United States v. Attson, 900 F.2d 1427, 1429 (9th Cir.1990). In order for the conduct of a non-law enforcement governmental party to be subject to the Fourth Amendment, "`the governmental party engaging in that conduct must have acted with the intent to assist the government in its investigatory or administrative purposes and not for an independent purpose.'" State v. Ellingsworth, 966 P.2d 1220, 1223 (Utah Ct. App.1998) (emphasis added) (quoting Attson, 900 F.2d at 1433).
¶ 12 In this case, although Mohler ultimately assisted law enforcement, the trial court determined that when Mohler examined the contents of Defendant's backpack he was not acting "`with the intent to assist the government in its investigatory or administrative purposes.'" Id. (emphasis added) (citation omitted). Mohler testified that he opened the prescription bottle in Defendant's backpack because he was concerned that Defendant had taken medication that he had not told Mohler about. Mohler further testified that he searched the remainder of Defendant's backpack because he had just discovered what he believed to be a controlled substance and was worried that there might be more drugs, or even weapons, in the backpack. Given his role as an EMT, Mohler's concerns about his personal safety and Defendant's medical treatment were reasonable. More importantly, such concerns clearly served a purpose independent of law enforcement.
¶ 13 In support of his argument that Mohler engaged in state action, Defendant argues that the Wyoming police provided Mohler with drug recognition training and encouraged him to inform them any time he came across drugs during the course of his duties. Defendant also maintains that Mohler's statement to the nurse at the scene of the accident that Defendant's backpack contained syringes demonstrates that Mohler was more concerned about law enforcement than medical treatment.
¶ 14 Under Utah law, "[t]he burden of establishing governmental involvement in a *229 private search rests upon the party objecting to the evidence." State v. Watts, 750 P.2d 1219, 1221 (Utah 1988) (footnote omitted). As such, it appears that the facts cited by Defendant are insufficient to establish that Mohler's search of his backpack constituted state action. Mohler testified that his drug recognition training was for safety rather than law enforcement reasons, and he specifically denied that once he found the pill bottle in Defendant's backpack, his role changed from "ambulance driver to cop, investigator." Moreover, Mohler's statement to the nurse about the syringes in Defendant's backpack is too vague to be construed as evidence that Mohler was acting on behalf of law enforcement rather than conveying relevant medical information. Therefore, we conclude that the trial court did not err in determining that Mohler was not engaged in state action when he searched Defendant's backpack. Accordingly, Defendant's Fourth Amendment right to be free from unreasonable government searches was not implicated when Mohler examined the contents of his backpack.
II. Whether Trooper Davis's Examination of the Contents of Defendant's Backpack Violated the Fourth Amendment
¶ 15 The trial court concluded that although Trooper Davis's warrantless search of Defendant's backpack was not supported by an exception to the warrant requirement, it did not violate Defendant's rights under the Fourth Amendment because Trooper Davis had probable cause to arrest Defendant, and therefore, the contraband in the backpack would have been inevitably discovered by lawful means, either during a search incident to arrest or during a routine inventory search. Defendant argues that even if Trooper Davis had probable cause to arrest him, the State failed to establish that his arrest was inevitable. The State responds by arguing that although the trial court correctly relied on the inevitable discovery doctrine, this court could uphold the trial court's ruling on the alternative ground that Trooper Davis's warrantless search of Defendant's backpack was a valid search incident to arrest.[4]
A. Whether Trooper Davis's Examination of Defendant's Backpack Was a Valid Search Incident to Arrest
¶ 16 "Warrantless searches are per se unreasonable unless undertaken pursuant to a recognized exception to the warrant requirement." State v. Brown, 853 P.2d 851, 855 (Utah 1992). One such exception is "[a] contemporaneous ... search of the area within an arrestee's immediate control ... for the purpose of recovering weapons the arrestee might reach, or to prevent concealment or destruction of evidence of the crime." State v. Harrison, 805 P.2d 769, 784 (Utah Ct.App.1991) (citing Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)). Accordingly, "[a]n arresting officer may, without a warrant, lawfully search the area surrounding the person he or she is arresting if: (1) the arrest is lawful, (2) the search is of the area within the arrestee's immediate control, and (3) the search is conducted contemporaneously to the arrest[.]" State v. Gallegos, 967 P.2d 973, 978 (Utah Ct.App.1998) (second alteration in original) (quotations and citations omitted). In this case, we conclude that the search of Defendant's backpack was not a valid search incident to arrest because the search did not take place in an area within Defendant's immediate control, and was not conducted contemporaneously to his arrest.
¶ 17 In determining whether an area searched is within an arrestee's immediate control, Utah courts have focused on the following factors:
(1) "whether or not the arrestee was placed in some form of restraints"; (2) "the position of the officer vis-a-vis the defendant in relation to the place searched"; (3) "the ease or difficulty of gaining access" to the searched area or *230 item; and (4) "the number of officers present in relation to the number of arrestees or other persons."
State v. Wells, 928 P.2d 386, 391 (Utah Ct. App.1996) (footnote omitted) (quoting Wayne R. LaFave, Search and Seizure § 6.3(c), at 306-07 (3d ed. 1996)). In Wells, after the defendant had been handcuffed and arrested, police officers searched his jacket which was lying on his bed based on a statement by his girlfriend that the jacket's liner contained cocaine. See id. at 387-88. In rejecting the State's argument that the warrantless search was justified as being incident to arrest, the court concluded that "the search had none of the typical characteristics of looking for weapons or contraband within the control of an arrestee." Id. at 391. The court further noted that "[t]he search was clearly conducted because appellant's girlfriend indicated where the cocaine could be found and not because the officers were checking the immediate area incident to [the] defendant's arrest." Id. (footnote omitted).
¶ 18 Applying the four factor Wells analysis to this case, the State has failed to meet its burden of demonstrating that Defendant's backpack was within his immediate control at the time it was searched. Defendant was immobilized on a gurney in the back of an ambulance when Trooper Davis searched his backpack. The backpack was several feet from Defendant and, more significantly, was outside the ambulance when the search occurred. Given that Defendant was in the ambulance strapped to a gurney, it would have been impossible for him to retrieve the backpack or any of its contents. Finally, at least three police officers were present when the backpack was searched, and there is no evidence that there was anyone in the vicinity who could have tampered with or concealed the backpack's contents. Like Wells, it appears that "[t]he search was clearly conducted because [the Wyoming police officer] indicated where the [contraband] could be found and not because the officer[] w[as] checking the immediate area incident to [D]efendant's arrest." Id. (footnote omitted). Therefore, we conclude that the search of Defendant's backpack did not occur in an "area within [his] immediate control." Gallegos, 967 P.2d at 978.
¶ 19 Furthermore, the State has failed to meet its burden of proving that the search of Defendant's backpack was "conducted contemporaneously to the arrest[.]" Id. (alteration in original). While a search may precede a formal arrest, the search and the arrest must be "substantially contemporaneous" and probable cause to effect the arrest must exist "independent of the evidence seized in the search." State v. Banks, 720 P.2d 1380, 1384 (Utah 1986); see also Smith v. Ohio, 494 U.S. 541, 543, 110 S.Ct. 1288, 108 L.Ed.2d 464 (1990) (noting that "`[i]t is axiomatic that an incident search may not precede an arrest and serve as part of its justification'" (alteration in original) (citation omitted)). Here, it is not apparent from the record how soon after Trooper Davis's search of the backpack Defendant's arrest occurred. However, even if Defendant was arrested immediately after the search, it is clear that probable cause to effect the arrest did not exist "independent of the evidence seized in the search." Banks, 720 P.2d at 1384. Therefore, the search of Defendant's backpack did not take place contemporaneous to his arrest. Accordingly, the search cannot be upheld as a valid search incident to arrest.[5]
B. Whether the Contraband in Defendant's Backpack Would Have Been Inevitably Discovered by Lawful Means
¶ 20 The trial court concluded that no violation of Defendant's Fourth Amendment rights occurred because there was probable cause to arrest Defendant, and therefore, the contraband in his backpack would have been inevitably discovered by *231 lawful means, either during a search incident to arrest or during a routine inventory search. Defendant argues that the trial court's reliance on the inevitable discovery doctrine is misplaced because there was no probable cause to arrest him, and even if there was, no evidence was presented during the suppression hearing that Trooper Davis would have arrested Defendant based solely on the information provided by Mohler.
¶ 21 The inevitable discovery doctrine provides for the admission of evidence otherwise inadmissible under the exclusionary rule, "`[i]f the prosecution can establish by a preponderance of the evidence that the [evidence] ultimately or inevitably would have been discovered by lawful means.'" State v. Topanotes, 2003 UT 30, ¶ 14, 76 P.3d 1159 (citation omitted). As noted earlier, it is questionable whether Trooper Davis would have had probable cause to effectuate an arrest based solely on the information provided by Mohler. However, even assuming that probable cause to arrest existed, we are unpersuaded that an arrest would automatically have occurred or that the contraband would have been inevitably discovered by lawful means.
¶ 22 "For courts confidently to predict what would have occurred, but did not actually occur, there must be persuasive evidence of events or circumstances apart from those resulting in illegal police activity that would have inevitably led to discovery." Id. at ¶ 16. No evidence was offered during the suppression hearing that at any time prior to the search of the backpack, Trooper Davis would have arrested Defendant based solely on the information provided by Mohler. Indeed, it is clear from Trooper Davis's actions that he wanted corroboration that the backpack contained drugs before he arrested Defendant. Whether Trooper Davis would actually have arrested Defendant without that corroboration is too speculative to justify application of the inevitable discovery doctrine. Otherwise, there would be nothing "`to prevent the inevitable discovery exception from swallowing the exclusionary rule.'" Id. at ¶ 19 (citation omitted). Therefore, we hold that the contraband discovered in Defendant's backpack is not admissible under the inevitable discovery doctrine.
CONCLUSION
¶ 23 Mohler's examination of Defendant's backpack was not conducted with the purpose of assisting law enforcement. Rather it was conducted to obtain relevant medical information and out of a concern for Mohler's personal safety. Therefore, Mohler was not engaged in state action for Fourth Amendment purposes when he examined the contents of Defendant's backpack.
¶ 24 However, the evidence seized from Defendant's backpack is inadmissible because it was not obtained pursuant to a recognized exception to the warrant requirement. The search of the backpack was not a valid search incident to arrest because the search did not take place in an area within Defendant's immediate control, and was not conducted contemporaneously to his arrest. Moreover, admission of the seized evidence cannot be justified by the inevitable discovery doctrine because Defendant's arrest without the prior search is only speculative. Therefore, the denial of Defendant's motion to suppress is reversed. We remand the case to the trial court for proceedings consistent with this opinion.
¶ 25 WE CONCUR: RUSSELL W. BENCH, Associate Presiding Judge and JAMES Z. DAVIS, Judge.
NOTES
[1] Mohler has received training in the detection of controlled substances from both the fire department and the ambulance service. The purpose of this training was to make EMTs aware of potential problems, such as clandestine drug labs, that could affect EMTs' safety on the job. Mohler's most recent training in this area was in December of 1999, when the sheriff's office and the Wyoming Department of Criminal Investigation conducted a drug awareness and recognition course.
[2] There is no evidence in the record that Defendant actually had a known drug history.
[3] Trooper Davis testified that the search of Defendant's car was "incident to arrest," which suggests that Defendant may have been placed under arrest after the trooper discovered the controlled substances in Defendant's backpack. However, it is unclear from the record exactly when Defendant was placed under arrest.
[4] Defendant maintains that the this court should not consider the State's argument that Trooper Davis's examination of Defendant's backpack was a search incident to arrest because this argument was not presented to the trial court. However, "`[i]t is well settled that we may affirm a judgment of a lower court if it is sustainable on any legal ground or theory apparent on the record.'" State v. Comer, 2002 UT App 219, ¶ 21 n. 8, 51 P.3d 55 (citation omitted).
[5] Because we conclude that the search was not incident to arrest on the basis that it did not take place in an area within Defendant's immediate control and was not conducted contemporaneously to his arrest, it is unnecessary for us to consider whether Defendant's arrest was supported by probable cause. However, we note that although there may have been probable cause to support a search of Defendant's backpack based on the information provided by Mohler, it is highly questionable whether this information alone would have provided probable cause to support an arrest.
|
01-03-2023
|
11-01-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/836178/
|
29 P.3d 1121 (2001)
332 Or. 389
STATE of Oregon, Respondent on Review,
v.
William Thomas BRANSTETTER, Petitioner on Review.
Pioneer Humane Society, Respondent on Review, and
State of Oregon, Respondent on Review,
v.
William Thomas Branstetter, Petitioner on Review.
(CC CR97-0077; CA A100029; SC S47567)
Supreme Court of Oregon.
Argued and Submitted May 9, 2001.
Decided August 16, 2001.
Jay Edwards, Salem, argued the cause and filed the petition for petitioner on review.
Katherine H. Waldo, Assistant Attorney General, Salem, argued the cause for respondent on review State of Oregon. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
No appearance for respondent on review Pioneer Humane Society.,
*1122 Before CARSON, Chief Justice, and GILLETTE, DURHAM, LEESON, and RIGGS, Justices.[**]
GILLETTE, J.
Defendant seeks review of a Court of Appeals' decision dismissing, for lack of jurisdiction, his appeal from a trial court order that forfeited certain animals that he owned to an animal care agency. Although the trial court's forfeiture order was issued during, and had the same case number as, defendant's prosecution on charges of first-degree animal neglect, ORS 167.330, the forfeiture order was based on a different statute, ORS 167.347. That statute provides for forfeiture of animals that have been impounded pending final disposition of a criminal animal-neglect charge, and does not make the forfeiture contingent on the defendant being found guilty in the criminal case. The Court of Appeals concluded that the forfeiture proceeding and order were part of the criminal action against defendant and, therefore, could not be appealed, because that criminal action had ended in acquittal. State v. Branstetter, 166 Or.App. 286, 289-90, 1 P.3d 451 (2000).[1] We hold that the forfeiture order arose out of a "special statutory proceeding" and, thus, was appealable under ORS 19.205(4), a statute that authorizes appeals from such proceedings. We therefore remand the case to the Court of Appeals for *1123 consideration of the remaining assignments of error.
In January 1997, the Umatilla County Sheriff's Department received a complaint that defendant's animals11 horses and one donkeywere being neglected. A deputy investigated the complaint, found evidence of neglect, and applied for a warrant to impound the animals, as provided in ORS 167.345(2).[2] A search warrant issued and the animals were impounded and placed into the care of the Pioneer Humane Society ("the humane society").[3]
Defendant was arrested and charged with 12 counts of first-degree animal neglect. ORS 167.330. His first trial on those charges ended in a mistrial. Before defendant was tried again, the humane society filed a petition in the criminal action, as authorized by ORS 167.347(1),[4] seeking forfeiture of defendant's animals. The state moved to become a co-petitioner in the forfeiture matter; that motion was granted over defendant's objection.
After a hearing respecting the forfeiture petition, ORS 167.347(2),[5] the court found that the petitioners had established probable cause to believe that the animals had been neglected in violation of ORS 167.330, and it ordered the animals forfeited unless defendant posted a $2,700 bond (which the court found to be the amount expended by the humane society in caring for the animals from the date of impoundment until the date of the order).[6] When defendant failed to post the bond, the trial court entered an order of forfeiture. Thereafter, defendant was tried for the second time on the criminal animal-neglect charges. He was acquitted on all counts. The acquittals had no effect on the forfeiture order.
After his acquittal, defendant filed a timely notice of appeal from the forfeiture order, attempting to challenge it on various constitutional grounds. However, the state argued in its respondent's brief in the Court of Appeals that the forfeiture order was unappealable and, specifically, that the jurisdictional statute on which defendant relied, ORS 138.053(1), was inapplicable, because it does not provide for an appeal from an acquittal.
A majority of a panel of the Court of Appeals agreed with the state and dismissed the appeal. In doing so, the Court of Appeals also rejected an alternative theory of appellate jurisdiction, viz., that the forfeiture order was appealable under ORS 19.205(4), because it arose out of a "special statutory *1124 proceeding."[7] After considering the case law surrounding ORS 19.205(4), the court concluded that, to qualify as a special statutory proceeding under that statute, a proceeding must be separate from any other proceeding. Branstetter, 166 Or.App. at 290, 1 P.3d 451. The court concluded that a forfeiture proceeding under ORS 167.347 could not fulfill the separateness requirement because, by the express wording of ORS 167.347, the petition that initiates a forfeiture proceeding must be filed "in the criminal action." Id. at 295, 1 P.3d 451.[8] We allowed defendant's petition for review.
Defendant contends that the Court of Appeals erred in determining that it was without jurisdiction to consider his appeal. Defendant acknowledges that the right to appeal is purely statutory, State v. K. P., 324 Or. 1, 4, 921 P.2d 380 (1996), but argues that the order at issue is appealable under one or both of the statutes that the Court of Appeals considered and dismissed as inapplicable.
Because the case was brought in the criminal proceeding, we first consider defendant's arguments with respect to ORS 138.053(1), which is a part of the criminal procedure code. That statutes provides:
"This section establishes the judgments and orders that are subject to the appeal provisions and to the limitations on review under ORS 138.040 and 138.050. A judgment or order of a court, if the order is imposed after judgment, is subject to ORS 138.040 [which provides for appeal by a defendant] * * * if this disposition includes any of the following:
"(a) Imposes a sentence on conviction.
"(b) Suspends imposition or execution of any part of a sentence.
"(c) Extends a period of probation.
"(d) Imposes or modifies a condition of probation or of sentence suspension.
"(e) Imposes or executes a sentence upon revocation of probation or sentence suspension."[9]
The issue need not detain us long. As noted, the Court of Appeals concluded that ORS 138.053(1) does not authorize an appeal from an acquittal. It reasoned:
"ORS 138.053(1) provides that a judgment or order in a criminal case is appealable only if it imposes a sentence on conviction, suspends imposition or execution of any part of a sentence, or makes a decision relating to probation. None of those events occurred here or could have occurred here. There can be no sentence, probation or other sanction after an acquittal."
Branstetter, 166 Or.App. at 289-90, 1 P.3d 451 (emphasis in original). We agree.
We turn to defendant's alternative theorythat the forfeiture order arose out of a "special statutory proceeding" and therefore is appealable under ORS 19.205(4). As noted, the Court of Appeals rejected that theory on the basis of case law that the Court of Appeals read to require that a special statutory proceeding cannot be a part of but, instead, must be separate from, any other proceeding. The Court of Appeals concluded that a forfeiture proceeding could not fulfill the separateness requirement, because the filing direction in ORS 167.347 *1125 expressly makes the proceeding part of another action.
In arguing the contrary view, defendant adopts the position articulated by the Court of Appeals' dissentthat it is erroneous to conclude that, simply because ORS 167.347 permits a petition for forfeiture be filed in such action, the forfeiture proceeding provided in that statute is part of that action. Defendant (and the Court of Appeals' dissent) suggest that the fact that the forfeiture proceeding is essentially civil in nature, the fact that neither the outcome of the forfeiture proceeding nor the outcome of the criminal action has any effect on the other proceeding, the fact that there are differing standards of proof required for forfeiture as opposed to conviction in the criminal action, and the fact that the parties are different in the forfeiture proceeding and the civil action, all point to a conclusion that the forfeiture proceeding is separate from the criminal action and is a special statutory proceeding for purposes of the appellate review statutes.
The parties agree that, for purposes of ORS 19.205(4), a "special statutory proceeding" must be "separate" from any other proceeding. In fact, this court's case law establishes that "separateness" in some sense is a necessary attribute of a special statutory proceeding. See, e.g., State v. Threet, 294 Or. 1, 5, 653 P.2d 960 (1982) (illustrating requirement). The parties part company, however, over how separateness is to be assessed. The state appears to argue that formal separateness, i.e., separate case names and numbers, is required. Consistent with that formalistic approach, the state suggests that the express authorization in ORS 167.347 that a forfeiture petition may be filed "in the criminal action" establishes the legislature's intent to create integrated, rather than separate, proceedings for all purposes. Defendant advocates for a more functional approach to the problemone that looks at identity of issues and parties and at whether and how the proceeding at issue affects and is affected by the related proceeding.
We begin by noting that the state's approach is undermined significantly by the fact that, although ORS 167.347 permits a forfeiture proceeding to be filed before the outcome of the criminal case, it does not require such a filing. Furthermore, a separate statute, ORS 167.350, authorizes forfeiture "in addition to * * * any other sentence," when a defendant is found guilty of the underlying criminal act. We now turn to the cases that discuss and apply the requirement that special statutory proceedings be separate from every other proceeding. We begin with Threet, the case in which this court first articulated the separateness requirement.
The question in Threet was whether a circuit court order compelling witnesses to appear and testify before a grand jury was appealable under ORS 19.205(4)[10] as the product of a "special statutory proceeding." Based on the historical use of that term in the cases and statutes, this court held that "separateness" is a necessary attribute of a special statutory proceeding and suggested that a reason for that requirement is that it avoids disruption of other judicial proceedings. Threet, 294 Or. at 5, 653 P.2d 960. Applying the principles that it derived from earlier cases, the Threet court concluded that proceedings to compel grand jury testimony under ORS 136.617-.619 were not special statutory proceedings. The court specifically noted that such proceedings "only come into play when a witness refuses to testify or produce evidence on the ground of self-incrimination `[i]n any criminal proceeding before a court of record or in any proceeding before a grand jury.'" Id. at 7, 653 P.2d 960. The Threet court also noted that allowing appeals from such orders would disrupt and, at times, even abort grand jury proceedings. Id.
The majority below read Threet as dispositive with respect to the question whether ORS 19.205(4) applies to the forfeiture proceeding in the present case. We disagree. Although Threet repeatedly states that a special statutory proceeding must be "separate" *1126 and "distinct" from any other proceeding, it nowhere holds that the fact that a particular proceeding shares a case number with another proceeding necessarily removes that proceeding from the scope of ORS 19.205(4). In fact, the Threet opinion discusses separateness primarily in functional terms, i.e., in terms of whether a proceeding "depends" on another for its existence and whether an appeal from one proceeding will disrupt the other proceeding.[11]
Neither is the actual holding in Threet inconsistent with defendant's position in the present case. In Threet, the proceeding to decide the motion to compel testimony arose out of, and purported to resolve, a potentially problematic event in the criminal or grand jury proceeding, i.e., a witness's refusal to testify. There was a strong dependent relationship between the subject matter of the two proceedings and a strong logical reason for viewing them as inseparable for purposes of appeal.
By contrast, there is no necessary connection between the content of a forfeiture proceeding under ORS 167.347 and the criminal action in which, by statute, the forfeiture petition may be filed. Although a forfeiture proceeding under ORS 167.347 formally depends on a criminal action for its existence in that it can go forward only if a criminal action of a specified sort is pending, that kind of forfeiture proceeding does not arise out of the criminal action, resolve any controversy in the criminal action, or otherwise affect or depend on the substance of the criminal action. Threet does not control this case.
The same is true of the other major case that deals with the separateness requirement announced in Threet, Garganese v. Dept. of Justice, 318 Or. 181, 864 P.2d 364 (1993). Garganese involved the Oregon Unlawful Trade Practices Act, ORS 646.605 et seq. The court there considered whether a proceeding under ORS 646.618(2) to challenge an investigative demand issued by the Department of Justice (department) was a "special statutory proceeding" within the meaning of ORS 19.205(4). The department argued that the proceeding was not sufficiently "separate and distinct" to qualify as a special statutory proceeding, because it was only a constituent part of a trade practices enforcement action under a related statute, ORS 646.632.
In analyzing the problem, the court noted that the department may serve investigative demands on persons other than those whom they suspect of violating the Unlawful Trade Practice Act and that challenges by such persons under ORS 646.618(2) necessarily would be separate and distinct from an enforcement proceeding against a suspect under ORS 646.632. The court then stated:
"Although the recipient of an investigative demand in many cases will be the target of the investigation, because proceedings under ORS 646.618(2) and 646.632 do not necessarily involve the same parties, that is not always the case under the statutory scheme. Because the existence of a proceeding under one of those statutes is not dependent on the existence of a proceeding under the other, we conclude that the two proceedings are separate and distinct."
Id. at 187, 864 P.2d 364. The court acknowledged that allowing rulings on investigative demands to be appealed might delay an enforcement action under ORS 646.632 when the prosecutor is using the demand to determine whether there is probable cause to proceed, but concluded that that fact does not preclude jurisdiction under ORS 19.205(4), because the appeal would not disrupt a judicial proceeding that actually was in progress. Id. at 187-88, 864 P.2d 364.
Garganese does not aid the state here. There was no question that the investigative and enforcement proceedings at issue in Garganese could be distinct. Instead, the issue was whether the investigative demand proceedings could be deemed to be "separate and distinct," when they generally had a strong functional connection to a larger enforcement action under ORS 646.632. However, the Garganese court concluded that the proceedings there were "separate and distinct," because there was no necessary substantive *1127 connection between them (they might, in fact, involve different parties). The court had no occasion to consider whether the result necessarily would be different when two proceedings were substantively unconnected, but nevertheless were linked by, for example, a common case number.
In fact, we have been able to identify only one case from this court that appears to deal with circumstances analogous to those presented in this case. In State v. K. P., a petitioner who had served a probationary sentence after a conviction on a charge of second-degree theft sought an order from the court that had entered her conviction setting aside the conviction and sealing the records that related to it, as authorized by ORS 137.225. The trial court granted the requested relief, but expressly excluded police investigation reports from the list of records to be sealed. The petitioner appealed, arguing that the court was required to seal the police investigative reports along with the other records. K. P., 324 Or. at 3-4, 921 P.2d 380.
When the case reached this court, the court first considered a threshold procedural issue, viz., whether the order setting aside the conviction and sealing the records was appealable. After considering and rejecting other possible statutory bases for appeal, the K. P. court concluded that the order was appealable under ORS 19.205(4). Id. at 6, 921 P.2d 380.
Although the K. P. opinion offered no explanation of its jurisdictional conclusion, that conclusion nonetheless is relevant to the present controversy, because of certain parallel factual circumstances. The petitioner in K. P. had filed her motion to set aside and seal records of her conviction under the same case name and numbers as the criminal action, and her motion was treated both by the trial court and this court as an extension of that criminal action. Despite those facts, this court had no difficulty in concluding that the process for sealing the records was a "special statutory proceeding" and, presumably, that it was separate and distinct from the criminal action for purposes of ORS 19.205(4). K. P. thus indicates that the fact that a proceeding formally is part of another proceeding in the sense that it shares a common case number does not prevent such a proceeding from being "separate from any other proceeding" for purposes of ORS 19.205(4).
In the opinion below, the majority suggested that K. P. is distinguishable from the present case, because the K. P. court had concluded that the record-sealing proceeding in that case was a new proceeding and not part of the criminal proceeding. Branstetter, 166 Or.App. at 293, 1 P.3d 451. In the view of the Court of Appeals' majority, it would be impossible for a court to draw a similar conclusion with respect to the forfeiture proceeding at issue in this case, because the legislature expressly made the forfeiture proceeding part of a criminal action by requiring that the petition for forfeiture be filed in the criminal action.
The state as much as concedes that there is no evidence of a specific legislative intent to preclude appeals from forfeiture orders issued under ORS 167.347 by persons who are acquitted in the related criminal action. It even acknowledges that such an intent is unlikely, given that the legislature clearly has provided a right to appeal a forfeiture order to persons who are convicted in the criminal action.[12] We agree that when, as here, a person convicted of animal abuse nonetheless could appeal a resulting forfeiture, the suggestion that the legislature intentionally would withhold that same privilege from someone who was acquitted of the charges simply is not plausible. The state contends, nonetheless, that the legislature did intend to make the forfeiture proceeding part and parcel of the criminal action and that, as a necessary consequence of that choice, the forfeiture proceeding cannot be a special statutory proceeding for purposes of ORS 19.205(4).
*1128 At bottom, the state's argument rests entirely on the fact that ORS 167.347 provides that an animal care agency's petition to forfeit an animal that has been impounded pending a criminal action may be filed "in the criminal action." The state arguesas it mustthat that phrase, by itself, establishes a legislative intent that the forfeiture proceeding be treated as part of the criminal action for all purposes.
The phrase does not stand by itself, however. The statutory context clearly demonstrates that the forfeiture proceedings and the criminal action are not of a piece. We note specifically that ORS 167.347(3) sets out a burden of proof (probable cause) that would be incongruous (if not unconstitutional) as the legal standard for finding against a defendant in a criminal action. The participation as parties by entities other than the state, such as county animal shelters and other animal care agencies, is equally incompatible with the criminal proceedings. We think that it is clear from the wording of ORS 167.347 and its statutory context that the legislature did not consciously intend that a forfeiture proceeding under ORS 167.347 be deemed to be "part" of the criminal action. We conclude, as the court did in K. P., that, despite a shared case name and number, the proceeding at issue is sufficiently separate and distinct from the criminal action to which it relates to qualify as a special statutory proceeding for purposes of ORS 19.205(4).
The opinion in the Court of Appeals raises one additional issue that we address. In a footnote, the Court of Appeals majority suggested that allowing forfeiture orders to be appealed as special statutory proceedings was undesirable, because it could deprive trial courts of jurisdiction to try the criminal cases in which the forfeiture proceeding occurs:
"If defendant were entitled under ORS 19.205(4) to appeal from the order that forfeited his interest in the animals, he would file his notice of appeal in his criminal case, as he did here, because that is the only case in which it could be filed. If he had done that before his second trial on the animal neglect charges, the filing of the notice would have deprived the trial court of jurisdiction to conduct that trial. See, e.g., ORS 19.270(1); ORS 138.083; Macy v. Blatchford, 154 Or.App. 313, 324, 961 P.2d 873, rev. allowed 328 Or. 194, 977 P.2d 1172 (1998)."
Branstetter, 166 Or.App. at 295 n. 5, 1 P.3d 451.
We disagree with that assessment. ORS 19.270(1), the first statute cited by the Court of Appeals, provides that "[t]he Supreme Court or the Court of Appeals has jurisdiction of the cause when the notice of appeal has been served and filed." (Emphasis added.) The "cause" is not always the entire case. See State ex rel. Gattman v. Abraham, 302 Or. 301, 311, 729 P.2d 560 (1986) ("cause" was chosen by legislature because "it has a broad meaning and may include a case or proceeding or any part thereof depending upon the circumstances"). As the court there stated:
"ORS 19.033(1) [now ORS 19.270(1) ] means that the appellate court has jurisdiction of the issue or matter on appeal, be it a case, action at law, suit in equity, cause of action, cause of suit, proceeding, or claim for relief. The purpose of the statute is to give the appellate court jurisdiction of the issue or subject matter of the appeal to the exclusion of the lower court except as provided in the statute. It was not the intention to oust the trial court of jurisdiction of those parts of the litigation which are not directly involved in the appeal."
Id. at 310-11, 729 P.2d 560 (citations and footnotes omitted).
Consonant with Gattman, we hold that, in an appeal from a final disposition in the particular kind of forfeiture proceeding that occurs pursuant to ORS 167.347, the "cause" being appealed is the special statutory proceeding. The criminal prosecution is not implicated in that appeal, and the appeal does not deprive the trial court of jurisdiction to proceed to trial on the criminal matter.[13]*1129 The decision of the Court of Appeals is reversed and the case is remanded to the Court of Appeals for consideration of the remaining assignments of error.
NOTES
[**] Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case; De Muniz, J., did not participate in the consideration or decision of this case.
[1] See 138.053(1) (providing for appeal from certain specified dispositions in criminal cases; acquittal not included).
[2] ORS 167.345(2) provides, in part:
"If there is probable cause to believe that any animal is being subjected to treatment in violation of ORS 167.315 to 167.340, a peace officer, after obtaining a search warrant in the manner authorized by law, may enter the premises where the animal is being held, provide food and water and impound such animal."
[3] ORS 167.345(3) provides:
"A court may order an animal impounded under subsection (2) of this section to be held at any animal care facility in the state. A facility receiving the animal shall provide adequate food and water and may provide veterinary care."
[4] ORS 167.347(1) provides:
"If any animal is impounded pursuant to ORS 167.345(2) and is being held by a county animal shelter or other animal care agency pending outcome of criminal action charging a violation of ORS 167.310 to 167.340, prior to final disposition of the criminal charge, the county or other animal care agency may file a petition in the criminal action requesting that the court issue an order forfeiting the animal to the county or other animal care agency prior to final disposition of the criminal charge. The petitioner shall serve a true copy of the petition upon the defendant and the district attorney."
[5] ORS 167.347(2) provides:
"Upon receipt of a petition pursuant to subsection (1) of this section, the court shall set a hearing on the petition. The hearing shall be conducted within 14 days of the filing of the petition, or as soon as practicable."
[6] That standard, and the bond requirement, are set out in ORS 167.347(3)(a), which provides:
"At a hearing conducted pursuant to subsection (2) of this section, the petitioner shall have the burden of establishing probable cause to believe that the animal was subjected to abuse, neglect or abandonment in violation of ORS 167.310 to 167.340. If the court finds that probable cause exists, the court shall order immediate forfeiture of the animal to the petitioner, unless the defendant, within 72 hours of the hearing, posts a security deposit or bond with the court clerk in an amount determined by the court to be sufficient to repay all reasonable costs incurred, and anticipated to be incurred, by the petitioner in caring for the animal from the date of initial impoundment to the date of trial."
[7] ORS 19.205(4) provides:
"An appeal may be taken from the circuit court in any special statutory proceeding under the same conditions, in the same manner and with like effect as from a judgment, decree or order entered in an action or suit, unless such appeal is expressly prohibited by the law authorizing such special statutory proceeding."
[8] Judge Edmonds dissented. He would have held that the forfeiture proceeding provided at ORS 167.347 is a separate statutory proceeding and that the forfeiture order in this case is appealable under ORS 19.205(4). Branstetter, 166 Or.App. at 297-306, 1 P.3d 451 (Edmonds, J., dissenting).
[9] ORS 138.040 provides, in part:
"[T]he defendant may appeal to the Court of Appeals from a judgment or order described under ORS 138.053 * * *. The following apply upon such appeal or cross-appeal:
"(1) The appellate court may review:
"(a) Any decision of the court in an intermediate order or proceeding.
"(b) Any disposition described under ORS 138.053 as to whether it:
"(A) Exceeds the maximum allowable by law; or
"(B) Is unconstitutionally cruel and unusual."
[10] The statute at the time of the Threet decision and several of the other decisions discussed in this opinion was numbered ORS 19.010(4), but was in all material respects the same as its present version. We refer to the present version of the statute throughout this opinion.
[11] In that regard, see the Threet opinion's discussion of earlier "special statutory proceeding" cases. 294 Or. at 5-6, 653 P.2d 960.
[12] When a defendant is convicted, forfeiture may be made a part of the sentence. ORS 167.350. As such, it could be appealed under ORS 138.040. The state acknowledges that, given that fact, one would expect a parallel right of appeal for defendants who are acquitted. The state suggests, however, that the legislature's failure to so provide was a drafting oversight, but one that this court has no authority to correct.
[13] We recognize that, despite its conclusion that it lacked jurisdiction to decide the merits of defendant's appeal, the Court of Appeals' majority "respond[ed] briefly" to defendant's arguments on the merits. Branstetter, 166 Or.App. at 296, 1 P.3d 451. But those observations were dicta; whether the Court of Appeals will adopt them or take some other view is a matter for that court to decide.
|
01-03-2023
|
03-01-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2453265/
|
355 F. Supp. 2d 942 (2005)
Laurie BEMBENEK, Plaintiff,
v.
Robert DONOHOO, Monty Lutz, and Diane Hanson, Defendants.
No. 04C0002.
United States District Court, E.D. Wisconsin.
January 28, 2005.
*946 Mary Woehrer, Milwaukee, WI, for Plaintiff.
Phillip Ferris, Corey Finkelmeyer, Madison, WI, for Defendants.
DECISION AND ORDER
ADELMAN, District Judge.
Plaintiff Laurie Bembenek brings this action for damages under 42 U.S.C. § 1983 alleging that Milwaukee County Deputy District Attorney Robert D. Donohoo, state crime lab firearms identification examiner Monty Lutz and micro-serology analyst Diane Hanson, in their individual capacities, violated her right to due process in connection with a homicide case in which she was the defendant.[1] Defendants move to dismiss arguing that plaintiffs claims are barred because: (1) her 1992 conviction of second-degree murder has not been invalidated; (2) defendants are absolutely immune from suit; and (3) the statute of limitations expired before plaintiff filed suit. Alternatively, defendants ask that plaintiffs action be stayed pending resolution of state court proceedings involving plaintiff.
I. PLAINTIFF'S ALLEGATIONS
Plaintiffs allegations are in some respects frustratingly unclear. However, taking her claims in the light most favorable to her, she appears to allege something along the following lines: in the early 1980s, the Milwaukee County District Attorney's office charged her with the first-degree murder of Christine Schultz. In March 1982, a jury found her guilty of the charge, and the court sentenced her to life in prison. Prior to trial, defendant Lutz supervised ballistics tests which indicated that the murder bullet was consistent with bullets test fired from the on-duty gun of the victim's ex-husband, police officer Elfred Schultz, a gun that at trial *947 was not connected to plaintiff. Lutz also supervised the preparation of notes memorializing these exculpatory test results. However, neither Lutz nor anyone else made the ballistics evidence or the notes available to plaintiffs counsel. Moreover, at trial, Lutz made no mention of his exculpatory findings but, rather, testified to a ballistics match between the murder bullets and bullets from Elfred Schultz's off-duty gun, a gun that at trial was connected to plaintiff. In the mid-1980's Lutz destroyed the exculpatory ballistics evidence and did not notify plaintiff that he had done so.
At some point, defendant Donohoo became aware that Lutz had destroyed such evidence. Nevertheless, he misrepresented to plaintiff that the state possessed ballistics evidence that incriminated her.
Prior to trial, Hanson performed tests on specimens received from the victim's body. These specimens indicated that the victim had engaged in sexual intercourse shortly before her death. As a result, Hanson listed the murder as a homicide/sexual assault. However, in reporting her findings, Hanson did not disclose the evidence of the victim's recent sexual intercourse or that she had listed the case as a homicide/sexual assault. Hanson's failure to report the evidence relating to recent sexual conduct caused Dr. Elaine Samuels, the county medical examiner, to incriminate plaintiff in her testimony at plaintiffs preliminary hearing. Had Samuels known of Hanson's findings, she would have testified that the murderer was a male.
Sometime subsequent to her trial, plaintiff employed a private investigator, Ira Robins, to investigate the case. Robins's investigative efforts led five forensic pathologists to conclude that the gun introduced as the murder weapon at plaintiffs trial, Elfred Schultz's off-duty gun, was not the murder weapon. In 1991, based on the petition of Robins and the county medical examiner, a Milwaukee County Circuit Court judge commenced a John Doe proceeding to ascertain whether law enforcement officials or others committed crimes in connection with their handling of the investigation into Schultz's death. In 1992, the John Doe special prosecutor concluded that law enforcement officials made mistakes in handling the evidence used to convict plaintiff but did not commit a crime.
Subsequent to the John Doe proceeding, plaintiffs then-attorney, Sheldon Zenner, entered into negotiations with Donohoo concerning plaintiffs case. As a condition of negotiating with Zenner, Donohoo insisted that Robins not be involved in the case and, as a result, Zenner fired Robins. In addition, although he knew that the state possessed no ballistics evidence connecting plaintiff to the crime, Donohoo continued to misrepresent to plaintiff that the state retained the ballistics evidence used to convict her, and that it placed the murder weapon, the off-duty gun of Elfred Schultz, in her hands.
In December 1992, pursuant to Zenner's negotiations with Donohoo, the Milwaukee County Circuit Court vacated plaintiffs first-degree murder conviction, and plaintiff pleaded no-contest to the second-degree murder of Schultz and was immediately released from prison. Plaintiff pleaded no-contest to the charge because defendants Lutz and Hanson failed to disclose exculpatory evidence and because Donohoo misrepresented that the state possessed incriminating ballistics evidence.
In 2002, pursuant to newly enacted Wis. Stat. § 974.07, plaintiff filed a motion in Milwaukee County Circuit Court seeking release of evidence for the purpose of DNA testing and exoneration of the Schultz murder. In January 2003, during a hearing on the motion, plaintiff learned that Lutz had destroyed the test-fired bullets *948 creating the alleged ballistic match with the gun used to convict her and that as a result, Donohoo's representations to her that the state possessed ballistics evidence were false. Plaintiff also discovered that Hanson had found exculpatory evidence but not made it available. In May 2003, the state crime lab conducted a new ballistics examination and found no match between the bullets fired from the off-duty gun used to convict plaintiff and the bullet retrieved from the body of the victim.
As a result of defendants' failures to disclose, wrongful acts and misrepresentations, plaintiff suffered damages by being denied access to exculpatory evidence and wrongfully convicted of the Schultz murder.
II. MOTION TO DISMISS STANDARD
Defendants make a motion which they characterize as a motion to dismiss under Rule 12(b)(6). However, before filing the motion defendants filed an answer to plaintiffs complaint. Rule 12(b)(6) motions filed after an answer are construed as motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). See Warzon v. Drew, 60 F.3d 1234, 1237 (7th Cir. 1995). However, like a Rule 12(b)(6) motion, a court may grant a motion under Rule 12(c) only if the plaintiff can prove no set of facts that would entitle her to relief. N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend 163 F.3d 449, 453 (7th Cir.1998) (citing Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir.1997)). The essence of the motion is not that the plaintiff has pleaded insufficient facts; it is that, even assuming all of her facts are accurate, she has no legal claim. Payton v. Rush-Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623, 627 (7th Cir.1999). In considering the motion, the court must assume that all facts alleged in the complaint are true, and construe those facts and all reasonable inferences flowing from them in the light most favorable to the plaintiff. Bethlehem Steel Corp. v. Bush, 918 F.2d 1323, 1326 (7th Cir.1990). Attachments to the complaint become a part of the complaint, and the court may consider those documents in ruling on the motion. Witzke v. Femal, 376 F.3d 744, 749 (7th Cir.2004). Further, in resolving a motion challenging the sufficiency of a complaint, I am entitled to take judicial notice of matters in the public record. Palay v. United States, 349 F.3d 418, 425 n. 5 (7th Cir.2003).
III. DISCUSSION OF MOTION TO DISMISS
In order to prove a violation of § 1983, plaintiff must show that defendants deprived her of a federal constitutional right while acting under the color of state law. Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir.1996). In their motion, defendants do not argue that plaintiffs allegations, if true, do not constitute a violation of due process and do not dispute that they were acting under color of state law. However, as stated, they contend that plaintiffs claims are barred on other grounds. I now turn to their contentions.
A. Favorable Termination Requirement
Defendants argue that plaintiffs claims are barred by Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), because her 1992 second-degree murder conviction has not been invalidated. In Heck, a five member majority of the Supreme Court held that a § 1983 suit that would impugn a state conviction or sentence is not cognizable until the conviction or sentence has been invalidated.[2] The Court held:
*949 in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.
Id. at 486-87, 114 S. Ct. 2364 (footnote omitted).
In footnote 10 of Heck, the majority opined that this "favorable termination" requirement applied even to § 1983 plaintiffs to whom other federal avenues for challenging their convictions, such as a petition for habeas corpus, were unavailable: "We think the principle barring collateral attacksa longstanding and deeply rooted feature of both the common law and our own jurisprudenceis not rendered inapplicable by the fortuity that a convicted criminal is no longer incarcerated." 512 U.S. at 490 n. 10, 114 S. Ct. 2364. I will refer to this principle as "Heck-10," to distinguish it from the general favorable termination requirement that Heck established. Bruce Ellis Fein, Heck v. Humphrey after Spencer v. Kemna, 28 New Eng. J. on Crim. & Civ. Confinement 1, 3-4 (2002). Justice Souter, concurring in the judgment and joined by three Justices (Blackmun, Stevens and O'Connor), argued that favorable termination should be required only of persons who are not barred from bringing petitions for habeas corpus (hereinafter the "Souter principle"). His reasons were twofold: habeas and § 1983 collide only where both are available, and the effect of Heck-10 would be to needlessly deny a federal right of action to persons who had valid claims. Id. at 4.
In Spencer v. Kemna, 523 U.S. 1, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998), the Court, in an 8-1 vote, denied relief in a habeas case in which the petitioner challenged the revocation of his parole but did not do so until after he had served his sentence and been released. With respect to an argument of the petitioner relating to Heck-10, Justice Souter again concurred, this time joined by Justices O'Connor, Ginsburg and Breyer, stating "Heck did not hold that a released prisoner in [petitioner's] circumstances is out of court on a § 1983 claim, and for reasons explained in my Heck concurrence, it would be unsound to read either Heck or the habeas statute as requiring any such result." Id. at 19. Justice Ginsburg, who had joined the Heck majority, concurred separately stating that since the Heck decision she had changed her mind and now agreed with Justice Souter. Justice Stevens, dissenting, also endorsed the Souter principle. Thus, although five Justices had earlier subscribed to Heck-10, in Spencer five Justices renounced it.
Thus, the question arises as to what rule a court should apply when faced with a § 1983 damages action that implicates the validity of the plaintiffs prior conviction but where the plaintiff may not bring a federal habeas petition because she has completed her sentence. The present case raises such question because plaintiff cannot challenge her conviction via habeas corpus because she is not in custody. See 28 U.S.C. § 2254(a). For the reasons explained below, I conclude that I should follow the Souter principle rather than that of Heck-10. First, both Heck-10 and the Souter principle are dicta, Fein, supra, at 13-25, i.e., statements "in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holdingthat, being peripheral, *950 may not have received the full and careful consideration of the court that uttered it." Sarnoff v. Am. Home Prods. Corp., 798 F.2d 1075, 1084 (7th Cir.1986). I am bound by the considered dicta of the Supreme Court, see, e.g., McCoy v. Mass. Inst, of Tech., 950 F.2d 13, 19 (1st Cir. 1991), and to the extent that Supreme Court cases contain conflicting dicta, a later dictum supercedes an earlier one just as a later statute supercedes an earlier one. See, e.g., United States v. Yuginovich, 256 U.S. 450, 463, 41 S. Ct. 551, 65 L. Ed. 1043 (1921); Fein, supra, at 7-8.
Second, the Seventh Circuit has indicated that it is likely that it will apply the Souter principle rather than Heck-10. In DeWalt v. Carter, 224 F.3d 607 (2000), the court indicated that it adopted the reasoning of the Second Circuit's decision in Jenkins v. Haubert, 179 F.3d 19 (2d Cir.1999), which was based largely on the fact that in Spencer five Supreme Court justices endorsed the Souter principle. The Court stated:
Furthermore, we, like the Second Circuit in Jenkins, are hesitant to apply the Heck rule in such a way as would contravene the pronouncement of five sitting Justices. The concurring and dissenting opinions in Spencer reveal that five Justices now hold the view that a § 1983 action must be available to challenge constitutional wrongs where federal habeas is not available.... Individuals without recourse to the habeas statute because they are not in custody (people merely fined or whose sentences have been fully served, for example) fit within § 1983's broad reach.
DeWalt, 224 F.3d at 616-17 (citations and quotation marks omitted); see also Hoard v. Reddy, 175 F.3d 531, 533 (7th Cir.1999) (stating that there is probably an exception to the rule of Heck for cases in which no route other than a damages action under § 1983 is open to the person to challenge her conviction); Carrv. O'Leary, 167 F.3d 1124, 1127 (7th Cir.1999) (stating that it would be unreasonable to relieve the defendants of their waiver of Heck in light of the Spencer dictum that casts doubt on the applicability of Heck to cases where habeas is not an available remedy).
For the foregoing reasons, I cannot conclude that Heck-10 bars plaintiffs § 1983 action. Therefore, defendants' motion for judgment on the pleadings on this ground will be denied.
B. Absolute Immunity
1. General Principles
Defendants also argue that they are entitled to judgment based on absolute immunity.[3] The text of § 1983 does not provide that any persons are immune from suit. However, the Supreme Court has attributed to the Congress that passed § 1983 knowledge of then-existing common law immunities and has interpreted the lack of explicit abrogation of such immunities as manifesting an intent to preserve them. Milstein v. Cooley, 257 F.3d 1004, 1007 (9th Cir.2001). The Supreme Court recognizes two types of immunity to § 1983 actions, absolute and qualified. Absolute immunity is a complete defense to liability. However, "absolute immunity from civil liability for damages is of a `rare and exceptional character,'" Auriemma v. Montgomery, 860 F.2d 273, 275 (7th Cir. 1988) (quoting Cleavinger v. Saxner, 474 U.S. 193, 202, 106 S. Ct. 496, 88 L. Ed. 2d 507 (1985)), and there is a presumption against granting government officials absolute immunity. Houston v. Partee, 978 F.2d 362, 367 (7th Cir.1992). Public officials seeking absolute immunity bear the burden of showing that overriding considerations of public policy require that they *951 be exempt from personal liability for alleged unlawful conduct. Auriemma, 860 F.2d at 275 (citing Forrester v. White, 484 U.S. 219, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988); Butz v. Economou, 438 U.S. 478, 506, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978)). To determine whether public policy requires that the action of a public official be absolutely immune from suit, the Supreme Court has adopted an approach that focuses on "the nature of the function performed, not the identity of the actor who performed it." Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993) (quoting Forrester, 484 U.S. at 229, 108 S. Ct. 538). With these general principles in mind, I turn to the issues raised by defendants' claims of absolute immunity.
2. Donohoo
The purposes of immunizing a prosecutor from suit are the same as those that underlie the immunity of judges and grand jurors acting within the scope of their duties. Milstein, 257 F.3d 1004 (citing Burns v. Reed, 500 U.S. 478, 485, 111 S. Ct. 1934, 114 L. Ed. 2d 547 (1991); Imbler v. Pachtman, 424 U.S. 409, 422-23, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976)). Among such purposes are to allow prosecutors to focus their energies on prosecuting rather than defending lawsuits, Burns, 500 U.S. at 485, 111 S. Ct. 1934, to enable prosecutors to exercise independent judgment in deciding which suits to bring and in conducting them in court, id., to ensure that triers of fact are not denied relevant evidence because of a prosecutor's fear of suit, Imbler, 424 U.S. at 426, 96 S. Ct. 984, and to enable judges to make rulings in favor of defendants knowing that such ruling will not subject prosecutors to liability, id. at 427, 96 S. Ct. 984. Milstein, 257 F.3d at 1007.
However, the Supreme Court has held that such purposes are served by conferring absolute, as opposed to qualified, immunity on prosecutors only when they are engaged in prosecutorial or advocative functions and not when they are performing administrative or investigative functions. See Kalina v. Fletcher, 522 U.S. 118, 126-27, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997); Buckley, 509 U.S. at 269-73, 113 S. Ct. 2606; Burns, 500 U.S. at 494, 111 S. Ct. 1934. The Supreme Court has not established a precise test for distinguishing between advocative and nonadvocative functions but rather has identified a number of factors that are relevant to the determination. One factor is whether the conduct giving rise to the suit occurred in court. If so, it is presumptively advocative. However, if the conduct in question occurred out of court, it is presumptively non-advocative. Erwin Chemerinsky, Prosecutorial Immunity, 15 Touro L.Rev. 1643, 1653-54 (1999) (citing Imbler, Burns, Buckley and Kalina). A second relevant factor is whether the conduct involved is usually performed by a prosecutor. If so, it is presumptively advocative. Id. (citing Kalina). A third factor is the degree of choice the prosecutor had concerning whether or not to engage in the conduct. The less the conduct is a matter of prosecutorial choice, the more likely it is that the conduct is advocative. Id. (citing Burns and Buckley ).
With the foregoing factors in mind, I turn to whether Donohoo is entitled to absolute immunity with respect to the claims against him. Plaintiff alleges that Donohoo committed several misdeeds, the first being that he conditioned negotiations with Zenner concerning a disposition of her case on Zenner's excluding Robins from the case. Plaintiff contends that Donohoo's demand caused Zenner to fire Robins and thereby deprive her of his valuable investigative services. Applying the factors discussed above, I conclude that when Donohoo demanded that Zenner *952 exclude Robins from the case, he was performing an advocative function. Although Donohoo made the demand out of court, he made it while he was engaged in negotiations with Zenner concerning the resolution of plaintiffs case. Engaging in settlement negotiations is a function that is virtually always performed by a prosecutor. Further, because it is often in the interests of justice to resolve cases through negotiation, it is necessary for prosecutors to engage in this practice. Thus, when prosecutors talk to defense lawyers about resolving cases, they are engaged in an advocative function and thus entitled to absolute immunity. See Pinaud v. County of Suffolk, 52 F.3d 1139, 1149 (2d Cir.1995) (stating that absolute immunity extends to claims of prosecutorial misconduct arising from plea-bargaining); see also Mendenhall v. Goldsmith, 59 F.3d 685, 691 (7th Cir.1995) (stating that absolute immunity covers a prosecutor's acts committed in the course of negotiating a settlement of a case). Therefore, Donohoo is absolutely immune from plaintiffs claim that he wrongfully conditioned plea negotiations on Robins's exclusion from the case.
Although plaintiffs second claim against Donohoo is not stated with precision, it may be discerned by reading the paragraphs of her complaint together. She alleges that "in the mid 1980's" state ballistics expert Lutz wrongfully destroyed exculpatory evidence, specifically "testfired bullets of the alleged ballistics match with the gun used to convict." (Compl.¶ 16.) She further states that, knowing such evidence had been destroyed, Donohoo, nevertheless, wrongfully "continued to misrepresent to Ms. Bembenek" that the evidence was available and that it placed the murder weapon in her hand. (Id.) Plaintiff apparently contends that the evidence to which Donohoo referred was, in fact, exculpatory because Lutz's tests and notes and/or the five pathologists that Robins discussed it with concluded that it was. It is not clear from plaintiffs complaint exactly when or in what context Donohoo misrepresented that the state possessed incriminating evidence. She states only that he did so in the "preinvestigative and post-conviction phase of Ms. Bembenek's murder case." (Id. 1125.)
As discussed, if Donohoo made the alleged false statements in the course of negotiating a resolution of plaintiffs case, he would have been performing an advocative function and would be absolutely immune from liability. However, plaintiff alleges that Lutz destroyed the exculpatory evidence in the mid-1980s, and negotiations did not commence until 1992 after completion of the John Doe investigation. She also alleges that Donohoo made the misrepresentations during different phases of her case and that he continued to make them. Drawing all inferences from the complaint in the light most favorable to plaintiff, it may be inferred that her claim is that Donohoo misrepresented the nature of the state's evidence prior to engaging in plea bargaining. If, in fact, Donohoo did make such misrepresentations outside the plea bargaining context, he may have done so while performing a non-advocative function. See, e.g., Houston, 978 F.2d at 368 (stating that when prosecutors discovered and suppressed exculpatory evidence in the post-conviction context, they were acting as investigators not advocates and were not entitled to absolute immunity). Because I cannot presently determine whether, when Donohoo allegedly misrepresented the state's evidence against plaintiff, he was engaged in an advocative function, I cannot conclude at this point that he is entitled to absolute immunity. Therefore, Donohoo's motion for judgment as to plaintiffs withholding of exculpatory evidence and misrepresentation claims on the ground of absolute immunity will be denied.
*953 3. Lutz and Hanson
Defendants Lutz and Hanson claim that they are entitled to absolute immunity because they were witnesses at plaintiffs trial. Witnesses enjoy absolute immunity from civil liability on account of their testimony. See Briscoe v. LaHue, 460 U.S. 325, 345-46, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983). That immunity also covers preparing to testify. Buckley v. Fitzsimmons, 919 F.2d 1230, 1245 (7th Cir.1990), rev'd in part on other grounds (after an intermediate remand), 509 U.S. 259, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993). Witnesses are entitled to such immunity because subjecting them to § 1983 liability for their trial testimony "might undermine ... their contribution to the judicial process." Juriss v. McGowan, 957 F.2d 345, 349 (7th Cir.1992) (quoting Briscoe, 460 U.S. at 343, 103 S. Ct. 1108). Concern about being held liable for their testimony could discourage witnesses from coming forward to testify or cause them to distort their testimony. Briscoe, 460 U.S. at 333, 103 S. Ct. 1108.
However, where a plaintiff seeks damages from a former witness based on grounds other than the witness's trial testimony or preparation for testimony, the defendant is not entitled to absolute immunity. Ineco v. City of Chicago, 286 F.3d 994, 1000 (7th Cir.2002). For example, independent of his testimony, an expert "could violate a suspect's rights by `cooking' a laboratory report in a way that misleads the testimonial experts." Buckley, 919 F.2d at 1245. Thus, experts "cannot hide behind [the immunity of] the officials whom they have defrauded." Id. (quoting Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir.1988)). Further, where an official actively withholds exculpatory information from a defendant and/or prosecutors, he places his conduct "outside of the safety of trial-based immunity." Ineco, 286 F.3d at 1000.
Thus, to the extent that plaintiffs claims against Lutz or Hanson are based on their trial testimony or preparation therefor, the claims are barred by absolute immunity. However, drawing all inferences in the light most favorable to plaintiff, she alleges that Lutz wrongfully withheld exculpatory information and notes from her both before and after trial and wrongfully destroyed exculpatory evidence after the trial. Such conduct was not testimonial, and therefore, as to these claims, Lutz is not entitled to absolute immunity. With respect to Hanson, plaintiff alleges that she falsified a micro-serology report by not including in it exculpatory evidence and that as a result, she misled the medical examiner, Elaine Samuels, and caused Samuels to present misleading incriminating testimony about plaintiff at the preliminary hearing. Plaintiff also alleges that Hanson wrongfully failed to disclose exculpatory evidence to her and possibly to the prosecutor. Based on Buckley and Ineco, I cannot conclude, at least at this stage of the proceeding, that such conduct is covered by absolute immunity.
For the reasons stated, I cannot grant judgment to Lutz and Hanson on plaintiffs non-testimonial claims against them based on absolute immunity.
C. Statute of Limitations
Defendants contend that plaintiffs claims are barred by the statute of limitations. However, the statute of limitations is an affirmative defense, and a complaint states a claim whether or not a defense is potentially available. United States v. N. Trust Co., 372 F.3d 886, 888 (7th Cir.2004). For this reason, complaints need not contain any information about defenses and may not be dismissed based on such an omission. Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir.2004). Thus, it is rarely appropriate *954 to dismiss a complaint based on a defendant's: assertion that the statute of limitations has run. Reiser v. Residential Funding Corp., 380 F.3d 1027, 1030 (7th Cir.2004).
Although it is possible for a plaintiff to plead herself out of court, I cannot conclude on the basis of the pleadings in the present case that the statute of limitations has run. Federal law governs the question of when a § 1983 action accrues, and under federal law such action accrues when a plaintiff becomes aware of an injury and of its probable cause. United States v. Kubrick, 444 U.S. Ill, 122, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979). The reason that an action does not accrue until a plaintiff becomes or reasonably should become aware of its cause is because "the facts about causation may be in control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain." Id. In the present case, plaintiff alleges that although she was injured in 1992 when she pleaded guilty to second-degree murder, she did not discover its cause until 2003. Based on plaintiffs allegations, I cannot conclude that the limitation period commenced prior to 2003. If that is the case, then plaintiffs claim are not barred by the statute of limitations. Section 1983 has no statute of limitations and, accordingly, damage actions are governed by analogous state statutes of limitations. Gonzalez v. Entress, 133 F.3d 551, 554 (7th Cir.1998). Under Wisconsin law, the statute of limitations for a § 1983 claim is six years. See Gray v. Lacke, 885 F.2d 399, 407-09 (7th Cir.1989). Assuming that plaintiffs claim accrued in 2003, plaintiff commenced her action within six years.
Although I need not address the issue, I note that even assuming that the statute of limitations poses a problem for plaintiff, it is possible that the statute was tolled. State law governs the question of when a statute of limitations is tolled, id., and Wisconsin recognizes the doctrine of equitable tolling, sometimes known as fraudulent concealment. See Bell v. City of Milwaukee, 746 F.2d 1205, 1228-31 (7th Cir.1984). In the present case, plaintiffs allegation that defendants prevented her from accessing exculpatory information might conceivably be sufficient to trigger such doctrine.
For the foregoing reasons, I cannot conclude at this point that plaintiffs action is barred by the statute of limitations.
IV. DISCUSSION OF MOTION FOR STAY
Alternatively, based on various abstention doctrines, defendants ask me to stay further proceedings in the present case pending the outcome of the § 974.07 motion brought by plaintiff in state court.
A. Plaintiffs State Court Motion
As previously indicated, in 2002 plaintiff brought a motion in Milwaukee County Circuit Court pursuant to newly enacted under § 947.07. Section 947.07 permits persons who have been convicted of a crime to seek DNA testing of evidence in the government's possession and authorizes courts to order such testing if the applicant satisfies various conditions, including showing that a favorable test result would likely change the outcome of the case. If a court orders such testing and the test results support the movant's claim of innocence, the statute authorizes courts to grant appropriate relief. See Keith A. Findley, "New Laws Reflect the Power & Potential of DNA," Wisconsin Lawyer, May 2002) at 20; see also Keith A. Findley, "Re-imagining Justice," The Wisconsin Defender, Winter 2004 at 11. In her somewhat unwieldy state court motion,[4] plaintiff alleged that based on evidence *955 that she had tested, it was reasonably probable that Christine Schultz was the victim of a sexual assault/homicide, and she asked the court to order DNA testing of certain evidence in the state's possession. The state opposed plaintiffs motion, arguing that the evidence on which she reliedthe existence of male DNA on a 1981 vaginal swab of the victimwas the result of contamination by a male who handled the sample sometime in the last twenty years.
The circuit court held a hearing and found that:
[T]he male DNA found on the vaginal swab does not convince this court that there is a reasonable probability the petitioner would not have been convicted for the Christine Schultz homicide if this evidence had been available before her trial. Since the DNA evidence presented by the petitioner has not convinced this court that Christine Schultz was the victim of a sexual assault homicide, the related ballistics testing is now unnecessary. Additionally, since any opinion of a forensic expert would be based on DNA evidence, there is no need for this court to hear such testimony.
(Ex. 1006, Circuit Ct. Decision at 5.) Plaintiff appealed the circuit court's decision, and the appeal is pending.
B. Abstention
The Supreme Court has identified certain circumstances in which federal courts must abstain and refuse to decide cases that are properly within their jurisdiction. In the present case, defendants argue that three different abstention doctrines are applicable. I discuss each of defendants' arguments in turn.
1. Colorado River Abstention
Under the Colorado River doctrine, a district court may stay a suit in exceptional circumstances where a concurrent state proceeding is pending, and the stay would promote "wise judicial administration." Clark v. Lacy, 376 F.3d 682, 685 (7th Cir.2004) (quoting Colo. River Water Cons. Dist. v. United States, 424 U.S. 800, 818, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976)). In addressing a request for Colorado River abstention, I start with the premise that I should exercise jurisdiction and then determine whether exceptional circumstances exist to justify surrendering jurisdiction. Moses H. Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 25, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983). This is so because federal courts have a "virtually unflagging obligation" to exercise the jurisdiction granted to them by federal statutes. AAR Int'l, Inc. v. Nimelia's Enters. S.A, 250 F.3d 510, 517 (7th Cir.2001) (quoting Colo. River Water Cons.Dist., 424 U.S. at 817, 96 S. Ct. 1236). Thus, abstention is the exception not the rule. Clark, 376 F.3d at 685.
In applying the Colorado River doctrine, a court conducts a two-part analysis. First, it determines "whether the concurrent state and federal actions are actually parallel." Id. (quoting LaDuke v. Burlington N. Railroad Co., 879 F.2d 1556, 1558 (7th Cir.1989)). If the actions are parallel, the court must then consider a number of non-exclusive factors that might demonstrate the existence of "exceptional circumstances." Id. Such factors include:
(1) whether the state has assumed jurisdiction over property; (2) the inconvenience of the federal forum; (3) the desirability *956 of avoiding piecemeal litigation; (4) the order in which jurisdiction was obtained by the concurrent forums; (5) the source of governing law, state or federal; (6) the adequacy of state-court action to protect the federal plaintiffs rights; (7) the relative progress of state and federal proceedings; (8) the presence or absence of concurrent jurisdiction; (9) the availability of removal; and (10) the vexatious or contrived nature of the federal claim.
Id.
Suits are parallel if "substantially the same parties are litigating substantially the same issues simultaneously in two fora." AAR Int'l, Inc., 250 F.3d at 518 (quoting Schneider National Carriers, Inc. v. Carr, 903 F.2d 1154, 1156 (7th Cir. 1990)). Suits need not be identical to be parallel, id. (citing Caminiti & Iatarola, Ltd. v. Behnke Warehousing, Inc., 962 F.2d 698, 700 (7th Cir.1990)), and the mere presence of additional parties or issues in one of the cases will not necessarily preclude a finding that they are parallel. Id. The question is not whether the suits are formally symmetrical, but whether there is a "substantial likelihood" that the non-federal litigation "will dispose of all claims presented in the federal case." Id. (quoting Day v. Union Mines, Inc., 862 F.2d 652, 656 (7th Cir.1988)) (in turn quoting Lumen Constr., Inc. v. Brant Constr. Co., Inc., 780 F.2d 691, 695 (7th Cir.1985)). If the court has any substantial doubt that the parallel litigation will be an adequate vehicle for the complete and prompt resolution of issues between the parties in the federal court action, it should not abstain under Colorado River. Id. at 517-20.
In the present case, the state and federal proceedings are not parallel. In state court, plaintiff is appealing an unsuccessful post-conviction motion for DNA testing, while in her federal § 1983 action she seeks damages from three individuals who allegedly violated her constitutional rights by denying her access to exculpatory evidence. The two proceedings do not involve substantially the same parties litigating substantially the same issues. The defendants in the present case are not parties to the state court motion, and the state, which is a party to plaintiffs state court motion, is not a party in the present case. More importantly, resolution of plaintiffs state court motion will not dispose of her federal claims. Whether or not a state court orders DNA testing will not determine whether the federal defendants violated plaintiffs constitutional rights. Thus, I will decline to stay plaintiffs federal action based on the Colorado River doctrine.
2. Younger Abstention
In Younger v. Harris, 401 U.S. 37, 53, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), the Supreme Court held that absent extraordinary circumstances, federal courts should abstain from enjoining ongoing state criminal proceedings. In Younger, a state criminal defendant filed a federal complaint alleging that the statute underlying his state prosecution violated the Constitution and asking that its enforcement be enjoined. In doing so, he attempted to escape the state system and reframe the issues on his own terms in federal court, converting what would ordinarily be a defense to criminal prosecution into an affirmative claim for relief. The Supreme Court held that under these circumstances the federal court should abstain from hearing the case based on principles of equity, comity and federalism. Id. at 43-44, 91 S. Ct. 746. The Younger decision was very much grounded in the basic equity doctrine that courts should not enjoin ongoing criminal prosecutions when the moving party has an adequate remedy at law and will not suffer irreparable harm, and in the manifest importance of the states' role in *957 the enforcement of criminal laws. Id.; Special Souvenirs, Inc. v. Town of Wayne, 56 F. Supp. 2d 1062, 1071 (E.D.Wis.1999).
Over time, a test has emerged for determining whether a federal court is required to abstain under Younger: (1) the state proceedings must be judicial in nature and must be ongoing; (2) the proceedings must implicate important state interests; (3) the proceedings must afford an adequate opportunity to raise constitutional challenges; and (4) no extraordinary circumstances exist that would make abstention inappropriate. Green v. Benden, 281 F.3d 661, 666 (7th Cir.2002) (citing Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982)). However, before applying the above test, a court must determine whether the federal relief sought would in fact interfere in some manner in the state court litigation. Green v. City of Tucson, 255 F.3d 1086, 1094 (9th Cir.2001); see also Rogers v. Desiderio, 58 F.3d 299, 301 (7th Cir.1995) (stating that Younger abstention is "designed to prevent interference with proceedings presenting important issues of state policy or power"). If the federal action is unlikely to interfere with the state proceeding, abstention serves no useful purpose. Thus, Younger will apply most often in circumstances in which the state court proceeding is an enforcement action against the federal court plaintiff, and the federal action seeks to enjoin, declare invalid or otherwise involve the federal courts in terminating or truncating the state proceeding. Green, 255 F.3d at 1098.
In the present case, defendants fail to satisfy several of the requirements for Younger abstention. First, plaintiffs federal action will not interfere with the proceeding in state court. Plaintiffs § 1983 action will not interfere with whether a state court grants or denies plaintiffs request for DNA testing or with whether it grants or denies relief in the event that it orders testing and the testing exonerates plaintiff. Second, neither plaintiffs application for DNA testing nor her appeal of the denial of such request raises an important issue of state policy or power. See Rogers, 58 F.3d at 301 (stating that Younger abstention is designed to prevent interference with state proceedings presenting important issues of state policy or power). Third, the state proceeding does not afford plaintiff an adequate opportunity to raise the constitutional claims that she asserts in her § 1983 action. Section 947.07, on which plaintiffs state court motion is based, authorizes parties to obtain DNA testing upon the satisfaction of certain conditions, but does not permit them to raise federal constitutional claims or obtain damages for the violation of federal constitutional rights. Thus, I will decline to abstain under Younger.
3. Pullman Abstention
Pullman abstention takes its name from Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). Pullman abstention is required when a state law is uncertain, and a state court's clarification of it might make a federal court's constitutional ruling unnecessary. Under such circumstances, the federal court should send the state law question to the state court for determination before resolving the federal constitutional question. See Erwin Chemerinsky, Federal Jurisdiction 763 (4th ed.2003). The main purpose of Pullman abstention is to avoid, if possible, a federal court's having to declare a state statute unconstitutional before giving the state courts a chance to interpret it narrowly. Mazanec v. N. Judson-San Pierre Sch, Corp., 763 F.2d 845, 847 (7th Cir. 1985) (citing Zwickler v. Koota, 389 U.S. 241, 251 n. 14, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967); Haw. *958 Hous. Auth. v. Midkiff, 467 U.S. 229, 104 S. Ct. 2321, 81 L. Ed. 2d 186 (1984)). Thus, for a federal court to abstain under Pullman, the Seventh Circuit requires that two elements be present: (1) some risk that a state statute will be found unconstitutional unless narrowed, and (2) some reasonable chance that the statute can be narrowed through interpretation. Id. at 847.
In the present case, defendants fail to satisfy either of the prerequisites for Pullman abstention. Neither party suggests that there is any likelihood that § 947.07 or any other state statute related to plaintiffs federal claims is likely to be found unconstitutional unless narrowed. Further, neither party has suggested that § 947.07 can be narrowed. In sum, there is no basis in the present case for Pullman abstention, and, accordingly, I will decline to abstain on this ground.
V. CONCLUSION
For the reasons stated,
IT IS ORDERED that defendants' motion to dismiss is DENIED.
IT IS FURTHER ORDERED that defendants' alternative motion for a stay is also DENIED.
FINALLY, IT IS ORDERED that a telephone conference to schedule further proceedings will be held on February 9, 2005 at 10:30 a.m. The court will initiate the call.
NOTES
[1] Regarding plaintiff's homicide conviction, see State v. Bembenek, 111 Wis. 2d 617, 331 N.W.2d 616, (Ct.App.1983); see also State v. Bembenek, 140 Wis. 2d 248, 409 N.W.2d 432 (1987).
[2] Both parties assume that plaintiff could not recover damages without impugning her state court conviction.
[3] Defendants do not make a qualified immunity argument.
[4] Plaintiffs state court submissions and related documents are attached to defendants' motion as Exhibits 1004, 1005 and 1006. These documents are public records, and thus I may take judicial notice of them pursuant to Fed. R.Civ.P. 201(b) without converting defendants' motion into one for summary judgment. See Menominee Indian Tribe of Wis. v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2453297/
|
257 P.3d 464 (2011)
2011 UT App 167
STATE of Utah, in the interest of G.O.-A. and O.A., persons under eighteen years of age.
R.O., Appellant,
v.
State of Utah, Appellee.
No. 20110214-CA.
Court of Appeals of Utah.
May 19, 2011.
*465 Brian L. Hart, Salt Lake City, for Appellant.
Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee.
Martha Pierce, Salt Lake City, Guardian Ad Litem.
Before Judges DAVIS, ORME, and ROTH.
DECISION
PER CURIAM:
¶ 1 R.O. (Mother) appeals the termination of her parental rights. The juvenile court found several grounds to support termination of parental rights, including neglect, unfitness, failure to remedy the circumstances leading to removal, and failure of parental adjustment, pursuant to Utah Code section 78A-6-507(1). See Utah Code Ann. § 78A-6-507(1) (2008).
¶ 2 Mother challenges the sufficiency of the evidence to support the grounds for termination. However, she does not undertake any specific analysis of the separate grounds for termination found by the juvenile court. The juvenile court "may terminate all parental rights with respect to a parent if the court finds any one of" the *466 grounds enumerated in Utah Code section 78A-6-507. See id. We will overturn the juvenile court's decision "only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence." In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. "When a foundation for the court's decision exists in the evidence, an appellate court may not engage in a reweighing of the evidence." Id. We need only determine that the evidence was sufficient to support one of the grounds for termination. See In re D.B., 2002 UT App 314, ¶ 13 n. 4, 57 P.3d 1102. Accordingly, we affirm the juvenile court's decision because the evidence clearly supports the ground that Mother failed to remedy the circumstances that caused the children to be in an out-of-home placement and there is a substantial likelihood that she will not be capable of exercising proper and effective parental care in the near future, see Utah Code Ann. § 78A-6-507(1)(d).
¶ 3 Mother's substance abuse evaluation recommended in-patient treatment. Although she had at least six opportunities to enter treatmentfour at Odyssey House and two at House of Hopeshe failed to enter or complete treatment. Mother entered a treatment program at the Women's Retreat Center late in the case. However, she was there only two days before being arrested on outstanding warrants and did not return after pretrial release in her criminal cases. Mother's mental health evaluation diagnosed her with Post-Traumatic Stress Disorder (PTSD) as a result of her history of domestic violence. However, she failed to complete the recommended therapy and stopped attending in October 2010. During the case, Mother missed thirty-two urinalysis (UA) tests, had five tests deemed positive because she could not produce urine, had four UAs authorized on "non-color" days for which she did not appear, and on one occasion paid for a UA herself, but was unable to produce. Mother was facing two felony charges at the time of the termination trial. Mother had done little more than complete her assessments, attend eleven therapy sessions, and attend supervised visits. She had been recently released from jail, was unemployed, and was seeking assistance to pay rent. Her failure to complete any treatment for issues related to substance abuse and PTSD, her unsubstantiated claims of sobriety, and her apparent failure to comprehend the therapeutic needs of the children all support the juvenile court's decision that Mother had failed to remedy the circumstances that led to the removal of the children and that she will not be capable of exercising proper and effective parental care in the near future.
¶ 4 Mother also challenges the sufficiency of the evidence to support the best interests determination. Although Mother claims that she participated in the children's therapy, there is no reference to any portion of the record demonstrating this participation. At most, the children's therapist testified to telephone contact with Mother. G.O.-A.'s mental health evaluation resulted in a diagnosis of severe PTSD, sexual abuse, and symptoms related to inconsistent caregiving, such as hoarding food, inability to receive comfort, and worry about any changes in her daily schedule. Due to the severity of the PTSD and the child's young age, G.O.-A.'s therapist recommended a high degree of predictability, including a predictable routine during Mother's visits and stability in placement and caregivers. O.A.'s mental health evaluation did not include a diagnosis of PTSD, although she exhibited some of the criteria for that disorder. Both children exhibited behaviors raising concerns about their "attachment patterns," including being indiscriminately friendly with strangers and seeking to have strangers meet their needs or give them food. Mother participated in supervised visits with the children. However, the children's therapist outlined a predictable routine for visits, which Mother did not always follow. Mother did not complete her own therapy in order to allow her to participate in family therapy. Upon coming into foster care, G.O.-A. exhibited severe PTSD as a result of her exposure to domestic violence and criminal activity. She had nightmares and engaged in destructive behavior. The foster family addressed the children's medical and therapeutic needs and provided a safe and secure home. The children were bonded to the foster family and had made significant progress in the home. *467 The best interests findings are adequately supported.
¶ 5 Finally, Mother argues that the Division of Child and Family Services (DCFS) failed to provide her with reasonable services. The claim is without merit. DCFS provided or paid for reunification services for Mother, which included efforts to identify kinship placements; offers of assistance to enter domestic violence shelters; offers of assistance to access services through Volunteers of America; random drug screens through Advanced Drug Screening; referral and contacts for mental health and domestic violence assessments and for treatment at Cornerstone Counseling; referral for substance abuse evaluation at Salt Lake County; offers and assistance provided for Mother to enter in-patient drug treatment at Odyssey House or House of Hope; transportation assistance; offers to help Mother attend interim drug groups through Salt Lake County while awaiting therapy; child and family meetings; and supervised visits. The juvenile court found that DCFS had made reasonable efforts toward reunification. The evidence demonstrated extensive services offered to Mother and frequent contact with her DCFS caseworker. The caseworker obtained an early substance abuse assessment for Mother and consistently encouraged Mother to enter treatment. The caseworker advocated with treatment providers to give Mother additional opportunities to enter treatment after she failed to complete the scheduled intake appointments. Mother had multiple opportunities for drug treatment but would not follow through. Under these circumstances, the juvenile court's determination that DCFS made reasonable efforts and offered reasonable services to Mother is amply supported by the evidence.
¶ 6 Accordingly, we affirm.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2634484/
|
2004 WY 142
DONNA LAPP, Appellant
v.
THE STATE OF WYOMING, Appellee.
Nos. 03-136, 03-137
Supreme Court of Wyoming. OCTOBER TERM, A.D. 2004.
November 17, 2004
Representing Appellant: Ken Koski, State Public Defender, and Donna D. Domonkos, Appellate Counsel. Argument by Ms. Domonkos.
Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director PAP; Robert W. Ingram, Student Director PAP; Jacob E. Eppler, Eric Phillips, Sarah A. Rodrigues, Student Interns PAP; and Brittny Lewton, Student Intern. Argument by Ms. Lewton.
HILL, C.J., and GOLDEN, KITE, and VOIGT, JJ., and STEBNER, D.J. RETIRED.
KITE, Justice.
[¶1] Donna Lapp was found guilty by a jury of one count of forgery in violation of Wyo. Stat. Ann. § 6-3-602(a)(ii) (LexisNexis 2003) and two counts of check fraud in violation of Wyo. Stat. Ann. § 6-3-702(b)(iii) (LexisNexis 2003). She appeals the convictions, claiming plain error occurred in the manner in which the district court instructed the jury concerning intent to defraud. She also claims insufficient evidence was presented to support the convictions. We affirm the forgery conviction and reverse the check fraud convictions.
ISSUES
[¶2] Ms. Lapp presents the following issues:
I. Whether plain error occurred when the jury was not instructed on the meaning of the critical element intent to defraud or specific intent.
II. Whether it was plain error for the jury to be instructed on the presumption of intent to defraud when the state failed to present the prima facie evidence necessary for the presumption.
III. Whether there was sufficient evidence to support a finding of the intent to defraud element for the fraud by check convictions.
IV. Whether there was sufficient evidence to prove beyond a reasonable [doubt] that Ms. Lapp signed Mr. Evans' signature with an intent to defraud.
[¶3] The State rephrases the issues as follows:
I. Did the district court commit plain error when it failed to instruct the jury as to the definition of the term "intent to defraud?"
II. Did the state present sufficient evidence from which the jury could find that appellant failed to pay the two insufficient funds checks within five days of notice of their dishonor, thereby supporting the jury instruction that such failure may be evidence of an intent to defraud?
III. Did the state present sufficient evidence to support the jury's finding that appellant was guilty of fraud by check?
IV. Did the state present sufficient evidence to support the jury's finding that appellant authenticated the unauthorized signature of Gary Evans with intent to defraud?
FACTS
[¶4] In February of 2002, Ms. Lapp asked a co-worker to notarize an automobile title bearing the name Gary Evans on the front and what Ms. Lapp represented to be Mr. Evans' signature on the back. A few months later, Mr. Evans attempted to obtain a bank loan and was asked to provide the automobile title as collateral. He searched his home and could not find the title. Although Ms. Lapp helped Mr. Evans look for the title and spoke to the bank loan officer, she did not reveal that she previously removed the title from his home, represented the signature on the back as being his and had it notarized. Mr. Evans testified the signature on the title was not his and he did not give Ms. Lapp permission to sign his name on the title. No evidence was presented concerning what happened to the title after it was notarized.
[¶5] In March of 2002, Ms. Lapp wrote a check for $1,800 to her former husband, Curtis Lapp. After he deposited the check in his bank account, Mr. Lapp received notice that there were insufficient funds to cover the amount. In June of the same year, Ms. Lapp again wrote a check to Mr. Lapp, this time in the amount of $4,800. As with the prior check, Mr. Lapp was notified after he deposited the check and withdrew a slightly smaller amount from his account that there were insufficient funds to cover Ms. Lapp's check. A bank representative contacted Mr. Lapp and informed him he was responsible for bringing his account current. Mr. Lapp obtained another check from Ms. Lapp. This time, however, Mr. Lapp's bank contacted the bank the check was written on to verify that funds were available to cover the check. The bank was informed the funds were not available. Ultimately, Ms. Lapp repaid Mr. Lapp all of the money she owed him as a result of the insufficient funds checks.
[¶6] The State filed charges against Ms. Lapp, alleging she committed one count of forgery in violation of § 6-3-602(a)(ii) and two counts of issuing checks in amounts exceeding $500 without sufficient funds in violation of § 6-3-702(b)(iii). The charges were joined for purposes of trial, which was held April 3 and 4, 2003. The jury found Ms. Lapp guilty of all three counts and she was sentenced to three concurrent terms of five to ten (5-10) years in the Wyoming Women's Center.
STANDARD OF REVIEW
¶7] Because Ms. Lapp did not offer an instruction on intent to defraud or object to the instructions given, we review her first two claims for plain error. Under the plain error standard, she must show a clear and unequivocal rule of law was violated, the violation clearly appeared in the record, and the violation resulted in denial of a substantial right to her material prejudice. Simmons v. State, 2003 WY 84, ¶25, 72 P.3d 803, ¶25 (Wyo. 2003). Our standard for reviewing alleged error in jury instructions is:
We afford significant deference to the trial court in instructing the jury:
"The trial judge is afforded latitude to tailor the instructions to the facts of the case, and reversible error will not be found as long as the instructions when viewed as a whole and in the context of the entire trial fairly and adequately cover the issues."
Wilson v. State, 14 P.3d 912, 915 (Wyo. 2000) (citations omitted).
[¶8] In reviewing Ms. Lapp's sufficiency of the evidence claims, we must determine whether a rational jury could find the State proved the essential elements of the crime beyond a reasonable doubt. Vlahos v. State, 2003 WY 103, ¶36, 75 P.3d 628, ¶36 (Wyo. 2003). We do not consider conflicting evidence presented by Ms. Lapp. Id. We afford to the State every favorable inference that may be reasonably and fairly drawn from the evidence it presented. Id. It was the jury's responsibility to resolve conflicts in the evidence and we will not substitute our judgment for that of the jury. Id. Our only duty is to determine whether a quorum of reasonable and rational individuals could have come to the same result. Id.
DISCUSSION
1. Plain Error in Failing to Instruct on Intent to Defraud
[¶9] Ms. Lapp asserts that to support the convictions the State had to prove beyond a reasonable doubt that she committed the charged offenses with the specific intent to defraud. She contends plain error occurred because the jury was not instructed on this crucial element. The State responds that the district court properly instructed the jury that intent to defraud was an element of both crimes charged. The State contends the phrase "intent to defraud" does not have a technical legal meaning so different from its ordinary meaning as to require a separate jury instruction defining the phrase. We agree with the State.
[¶10] Jury instructions should inform the jurors concerning the applicable law so that they can apply that law to their findings with respect to the material facts. Wheaton v. State, 2003 WY 56, ¶20, 68 P.3d 1167, ¶20 (Wyo. 2003). A failure to give an instruction on an essential element of a criminal offense is fundamental error, as is a confusing or misleading instruction. Id. The test of whether a jury has been properly instructed on the necessary elements of a crime is whether the instructions leave no doubt as to the circumstances under which the crime can be found to have been committed. Id.
A court need not give an instruction defining a term unless it has a technical legal meaning so different from its ordinary meaning that the jury, without further explanation, would misunderstand its import in relation to the factual circumstances. Prejudicial error must be demonstrated by appellant and prejudice will not be presumed unless the instruction confused or misled the jury with respect to the proper principles of law. Failure to instruct properly on an element of a crime does not constitute plain error where that element is not contested at trial or where evidence of the defendant's guilt is overwhelming.
Wilson, 14 P.3d at 916.
[¶11] In Wilson, the defendant claimed error in the trial court's refusal to give an instruction defining "serious bodily injury" as used in the aggravated assault and battery statute. We found no error, concluding the decision to give or refuse an instruction on the definition of a term used in describing an element of an offense was within the latitude afforded to the district court to tailor the instructions to the circumstances of the case. Id.
[¶12] We similarly held in Cardenas v. State, 811 P.2d 989, 996 (Wyo. 1991) that the term "threat" did not have a technical meaning so different from its ordinary meaning as to require an instruction defining it, and the instructions provided by the court adequately informed the jury of the elements of aggravated assault and battery. We reached the same conclusion in Rowe v. State, 974 P.2d 937, 940 (Wyo. 1999) with respect to the word "intentionally" as used in the felony child abuse statute. We said, "Any attempt to instruct with respect to such a self-explanatory term would have a reasonable tendency to confuse the jury." Id.
[¶13] In the present case, the jury was instructed as follows concerning the elements of the charges filed against Ms. Lapp:
INSTRUCTION NO. 5
The elements of the crime of Forgery, as charged in this case, are:
1. On or about the 7th day of February, 2002
2. In Hot Springs County, Wyoming
3. The Defendant, Donna Lapp
4. With intent to defraud
5. Authenticated, any writing so that it purported to be the act of another who did not authorize that act.
If you find from your consideration of all the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.
INSTRUCTION NO. 6
The elements of the crime of Fraud by Check, as charged in this case, are:
1. On or about the 5th day of March, 2002,
2. In Hot Springs County, Wyoming,
3. The Defendant, Donna Lapp,
4. Knowingly issued,
5. A check in the amount of $500.00 or more ($1800.00),
6. Which check was not paid because the drawer of the check had insufficient funds or credit with the drawee.
If you find from your consideration of all the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.
Instruction No. 7 relating to the check Ms. Lapp wrote for $4,800 set forth the same elements as those contained in Instruction No. 6. Instruction No. 8 defined "knowingly issues" as "issuing a check to obtain property or to pay a debt with intent to defraud or deceive any other person." The court also gave the following instruction:
INSTRUCTION NO. 9
Any of the following [may be] evidence that the person at the time he issued the check or other order for the payment of money intended that it should not be paid:
(i) . . .
(ii) Proof that at the time of issuance he did not have sufficient funds with the drawee and that he failed to pay the check or other order within five (5) days after receiving notice of nonpayment or dishonor, personally given or sent to the address shown on the check or other order; or
(iii) Proof that when presentment was made in a reasonable time the issuer did not have sufficient funds with the drawee and he failed to pay the check or other order within five (5) days after receiving notice of nonpayment or dishonor, personally given or sent to the address shown on the check or other order.
[¶14] These instructions, when viewed as a whole and in the context of the entire trial, fairly and adequately instructed the jury. Instructions No. 5, 6 and 7 informed the jurors of the elements of each of the offenses charged so they could apply the law to the evidence presented. The instructions left no doubt as to the evidence necessary for the jury to find Ms. Lapp committed the crimes of forgery and check fraud. Instruction No. 5 informed the jurors that in order to find Ms. Lapp guilty of forgery, they had to find beyond a reasonable doubt that without Mr. Evans' authority Ms. Lapp presented the signature on the automobile title as being his with the intent to defraud. Instructions No. 6 and 7 further informed the jurors that in order to find Ms. Lapp guilty of check fraud, they had to find beyond a reasonable doubt that she knowingly issued the checks in the respective amounts with insufficient funds in her bank account to cover them. Concerning specifically the check fraud charges, Instructions No. 8 and 9 defined the term "knowingly issues" and informed the jury concerning the types of proof available to show that checks were issued with the intent that they not be paid.
[¶15] Ms. Lapp cites Henderson v. State, 976 P.2d 203 (Wyo. 1999) and Justice Rose's dissent in Broom v. State, 695 P.2d 640 (Wyo. 1985) in support of her argument that the jury should have been instructed on the meaning of "intent to defraud." Although jury instructions defining the term were given in those cases, this Court did not hold in either case that such an instruction was required.
[¶16] In the context of the instructions as a whole, we conclude the term "intent to defraud" does not have a technical meaning so different from its ordinary meaning as to require an instruction defining it. Particularly in the context of the evidence presented here, the words "intent" and "defraud" are self-explanatory. Even if they were not, the instructions given, considered together, adequately informed the jurors what they needed to find to support a guilty verdict. We conclude no violation of a clear and unequivocal rule of law was committed, and there was no plain error.
2. Sufficiency of the Evidence
a. Check Fraud
[¶17] Ms. Lapp next claims there was insufficient evidence to support the two convictions for check fraud because no evidence was presented that she wrote the checks with the intent to defraud. Specifically, she asserts the State presented no evidence as to the status of her checking account at the time the checks were issued or that she failed to pay the checks within five days after receiving notice of nonpayment.
[¶18] Addressing the first check fraud conviction, the State responds that the evidence showed Ms. Lapp wrote Mr. Lapp a check for $1,800, he deposited it in his bank account, Ms. Lapp's bank returned the check to Mr. Lapp's bank because there were not sufficient funds in Ms. Lapp's account to cover it and $1,800 was charged against Mr. Lapp's account. With respect to the second conviction, the State asserts the evidence showed Ms. Lapp gave Mr. Lapp a check for $4,800, which he deposited, the check was returned for insufficient funds and $4,800 was charged against Mr. Lapp's account. The State also asserts the evidence showed that neither check was paid within five days after Ms. Lapp received notice and demand for payment. The State contends this evidence was sufficient to support the two convictions. We hold that the State presented insufficient evidence to meet its burden of showing Ms. Lapp failed to pay the checks within five days after receiving notice and demand for payment.
[¶19] The State's evidence showed the checks were dated March 5, 2002, and June 24, 2002. The State's evidence further showed that the sheriff's office served Ms. Lapp with notices of demand for payment of the checks on July 25, 2002. Although the sheriff testified that to his knowledge payment was never made on the checks, Mr. Lapp testified that Ms. Lapp paid him all the money she owed him. Mr. Lapp testified that she did not pay him all at one time and made the first payment on the $1,800 check sometime in 2002. However, he could not remember when in 2002 she made the first payment nor could he remember when she paid the remainder of the $1,800. The State did not question Mr. Lapp concerning when Ms. Lapp paid him the $4,800. Because the State could not or did not establish when Ms. Lapp paid the amount of the checks, it failed to carry its burden of proving that she failed to pay within five days after service of notice and demand for payment. Affording to the State every favorable inference that may be reasonably and fairly drawn from this evidence, we conclude the evidence was insufficient to meet the State's burden of proof. A reasonable inference simply cannot be made from Mr. Lapp's vague testimony that Ms. Lapp failed to pay the check amounts within five days after receiving the July 25, 2002, notice and demand for payment.
b. Forgery
[¶20] In her final argument, Ms. Lapp asserts insufficient evidence was presented to support the forgery conviction. Specifically, she claims the State did not prove beyond a reasonable doubt that she signed Mr. Evans' signature on the title with the intent to defraud or that she did so knowing she did not have the authority to sign it. She points to evidence that she signed Mr. Evans' signature to many documents, which evidence she asserts created "a reasonable inference" that she believed she had authority to sign this document. Claiming she had an ownership interest in the titled vehicle, Ms. Lapp also cites Rickman v. State, 205 S.W. 711, 712 (Ark. 1918) in which a forgery conviction was overturned because the defendant had an ownership interest in the property at issue. Ms. Lapp asserts she had an ownership interest in the titled vehicle because she paid $200 toward its purchase.
[¶21] The State responds that sufficient evidence was presented from which a jury could conclude beyond a reasonable doubt that Ms. Lapp forged Mr. Evans' signature on the title without authority to do so and with intent to defraud. On this issue, we agree with the State. Ms. Howe testified that Ms. Lapp brought the title to her and asked her to notarize it for Mr. Evans. Mr. Evans testified he did not authorize Ms. Lapp to sign his name and that he went looking for the title and was unable to find it when the bank requested it before processing his loan request. He testified that although Ms. Lapp helped him search for the title, she did not tell him she had previously taken it and had it notarized. The bank loan officer testified that she also spoke to Ms. Lapp and Ms. Lapp told her they could not find the title and might have to apply for a new one. Ms. Lapp did not mention to her that she previously had the title notarized.
[¶22] Looking only at the State's evidence and giving to it all favorable inferences, we conclude a rational jury could find the State proved the essential elements of forgery beyond a reasonable doubt. Id. We will not substitute our judgment for that of the jury with respect to the resolution of conflicting evidence. Id. A quorum of reasonable and rational individuals could have concluded beyond a reasonable doubt that Ms. Lapp was guilty of forgery. Id. In reaching this result, we find the following excerpt from Henderson, 976 P.2d at 208, significant:
It is true that there is no evidence of express statements or admissions by [the defendant] that he intended to defraud [the bank]. The jury can find the requisite intent through reasonable inferences from circumstantial evidence. The rule, as we have expressed it, is that the state of mind of a defendant can be inferred from his acts, his conduct, his words, and other circumstances in the case. If the requisite intent to defraud could not be inferred from circumstantial evidence, it often would be impossible to establish that intent, because those intent on defrauding others are not likely to tell the victims what their intentions are at the time of the criminal act.
[¶23] We affirm the forgery conviction and reverse the check fraud convictions based upon insufficient evidence.
|
01-03-2023
|
11-01-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2453460/
|
509 F.Supp.2d 1303 (2007)
ZURICH AMERICAN INSURANCE COMPANY, a foreign corporation, Plaintiff,
v.
FRANKEL ENTERPRISES, INC., a foreign corporation, Nicholas C. Pedano, an individual and Mary B. Pedano, an individual, Defendants.
No. 04-80727-CIV.
United States District Court, S.D. Florida.
August 28, 2007.
*1304 Sina Bahadoran, Hinshaw & Culbertson, Miami, for Zurich American Insurance Company, Counter Defendant.
Brandon Jon Richard Douglas, Brandon J. Douglas, Fort Lauderdale, for Frankel Enterprises, Nicholas C. Pedano, Mary B. Pedano, Defendants.
*1305 Duncan J. Farmer, Burger Trailor & Farmer, West Palm Beach, for Frankel Enterprises, Mary B. Pedano, Nicholas C. Pedano, Defendants.
James Thomas Ferrara, Sachs Sax & Klein, Boca Raton, for Frankel Enterprises, Mary B. Pedano, Nicholas C. Pedano, Defendants.
Ronald Lee Kammer, Hinshaw & Culbertson LLP, Miami, for Zurich American Insurance Company, Counter Defendant.
Kerry Ann Raleigh, Sachs Sax & Klein, Boca Raton, for Frankel Enterprises, Mary B. Pedano, Nicholas C. Pedano, Defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
ALAN S. GOLD, District Judge.
THIS CAUSE is before the Court upon Plaintiff Zurich American Insurance Company's ("Zurich") Motion for Summary Judgment [DE 77]. The parties have filed responses, replies, sur-replies, and sur-sur replies. Having reviewed the parties' arguments and the relevant case law, I conclude that oral argument is not necessary, and that summary judgment should be entered for Zurich.
I. Factual Background
A. Undisputed Facts
In the underlying action, Nicholas C. Pedano and Mary B. Pedano ("the Pedanos") purchased a house from Frankel Enterprises, Inc. ("Frankel") in 1992, and soon experienced water infiltration and roof leaks. Frankel attempted to make repairs, but did not correct the defects, causing continued leaks. Plaintiffs Statement of Undisputed Facts, DE 77 ¶ 1. In or about 2000, the Admiral's Cove Homeowners Association pressured cleaned the house's roof, and water leaked into the house because of Frankel's allegedly faulty workmanship and inadequate repairs. Id. at 2. The Pedanos filed suit against Frankel, and brought claims for loss of consortium and personal and property damages resulting from water infiltration and mold caused by Frankel's alleged negligence. Defendant's Statement of Contested and Omitted Facts, DE 80, p. 2.[1]
Zurich had issued a Commercial General Liability Policy with a $1 Million each occurrence policy limit, for the period from June 30, 2000 through June 30, 2001, that lists Frankel as an additional insured. Plaintiffs Statement of Undisputed Facts, DE 77, p. 3. In pertinent part, the policy includes these conditions:
SECTION IV .. COMMERCIAL GENERAL LIABILITY CONDITIONS
2. Duties in The Event of Occurrence, Claim or Suit.
c. You and any other involved insured must. . . .
3. cooperate with us in the investigation or settlement of the claim or defense against the ..suit..; and
d. No insured will, except at that insured..s own cost, voluntarily make a payment, assume an obligation, or in incur any expense, other than for first aid, without our consent.
3. Legal Action Against Us
No person or organization has a right under this Coverage Part:
a. To join us as a party or otherwise bring us into a ..suit..; asking for damages from an insured; or
*1306 b. To sue us on this Coverage Part unless all of its terms have been fully complied with.
A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured obtained after an actual trial; but we will not be liable for damages that are not payable under the terms of this Coverage Part or that are in excess of the applicable limit of insurance. An agreed settlement means a settlement and release of liability signed by us, the insured and the claimant or the claimant's legal representative.
Id. at 4 (emphasis added).
Frankel notified Zurich of a claim by the Pedanos in June 2002. Id. at 5. After the Pedanos filed suit, in a letter to Frankel dated January 10, 2003, in pertinent part, Zurich stated:
Based upon our review, it is Zurich's determination that it will participate in the defense of Frankel in connection with the referenced litigation pursuant to the following reservation of rights. . . .
Zurich further stated:
Zurich reserves its rights to amend and/or supplement this letter and its coverage determination as set forth herein and as set forth in its prior correspondence at any time.
Zurich further stated:
Zurich has retained the law firm of Conroy, Simberg, Ganon, Krevans & Abel, P.A. The attorney to whom this matter has been assigned is Michael Kraft who may be contacted at (954) 961-1400.
Id. at 6.
In a letter to Frankel dated January 27, 2003, Zurich highlighted various policy provisions and made several statements concerning defense and coverage of the Pedano's claims against Frankel:
To the extent that the damages alleged and being sought by Pedano are not damages on account of "property damage" and/or "bodily injury" caused by an "occurrence" and to the extent that the damages may not have occurred during Zurich's policy periods then Zurich reserves all of its rights and defenses to disclaim coverage in connection with the referenced matter based on the application of the above policy terms.
* * * * * *
A review of the complaint shows that Nicholas C. Pedano alleges to have been diagnosed with aspergilliosis which is caused by exposure to molds found at the home owned by Frankel and sold to Pedano. Further Pedano alleges without specificity certain property damages that may have resulted from mold/mildew/fungus due to the water intrusion at the Pedano home. It is Zurich's determination that it has no obligation to indemnify Frankel in connection with any damages for either "property damage" and/or "bodily injury" and remediation costs arising from mold/mildew/fungus or by any other "pollutant" based on the application of the above referenced exclusion f. or "pollution" exclusion.
* * * * * *
To the extent that any of the damages alleged and being sought by Pedano are damages to "your work" and/or "your product" and arising from "your work" then it is Zurich's determination that such damages may be precluded from coverage based on the application of exclusions j., k., I., m. and n. Therefore, Zurich reserves all of its rights and defenses to disclaim coverage in connection with the referenced matter based on the application of exclusions j., k., l., m. and n. or the "your work" and "your product" exclusions.
* * * * * *
*1307 While Zurich will participate in the defense of Frankel it will continue to in its investigation of the referenced claim matter. Any action taken by Zurich in connection with its investigation of the referenced claim will not cause Zurich to either waive or be estopped from asserting any defense it may now have or have or hereafter have, known or unknown, in connection with the referenced litigation.
* * * * * *
Zurich reserves its rights to amend and/or supplement this letter and its coverage determination as set forth herein and as set forth in its prior correspondence at any time. While Zurich will participate in the defense of Frankel it will continue in its investigation of the referenced claim matter. Any action taken by Zurich in connection with its investigation of the referenced claim will not cause Zurich to either waive or be estopped from asserting any defense it may now have or hereafter have, known or unknown, in connection with the referenced litigation.
Should it be determined that Zurich has no obligation to defend Frankel in connection with the referenced matter, Zurich reserves its right to withdraw from the defense as well as seek back recoupment of any all payments made to or on behalf of Frankel either for defense or indemnification.
In connection with the above, Zurich has retained the law firm of Conroy, Simberg, Ganon, Krevans & Abel, P.A. The attorney to whom this matter has been assigned is Michael Kraft who may be contacted, at (954) 961-1400.
Defendant's Statement, DE 80, Exhibit C.
Thus, as admitted, Zurich agreed to defend Frankel against the allegations in the lawsuit filed by the Pedanos in Case No. CA 02-15322AI. Admission, DE 78, ¶ I. The following additional facts were admitted: (1) the attorney appointed by Zurich to represent and defend Frankel was Michael Kraft, Esquire of the law firm of Conroy, Simberg, Ganon, Krevans & Abel, P.A.; (2) after receiving the letter of January 27, 2003 from Zurich, Frankel did not reject the defense by Michael Kraft, Esq.; (3) Michael Kraft Esq. continued to defend Frankel through April 21, 2004; (4) Michael Kraft, Esq. continued to defend Frankel on April 22, 2004, during the court-ordered mediation; (5) prior to the April 22, 2004 mediation, Zurich never indicated to Frankel that it was unwilling to participate in the mediation; (6) Frankel did not obtain Zurich's authorization to enter into the Memorandum of Settlement reached during the April 22, 2004 mediation; (7) during the April 22, 2004 mediation, Frankel did not reject the defense by Michael Kraft, Esquire, and (8) following the April 22, 2004 mediation, Frankel did not reject the defense by Michael Kraft, Esquire. Following this letter, Frankel was represented by Michael Kraft. Plaintiffs Statement of Facts, DE 77, 8, 10, 11.
Attending the mediation were Tom Frankel, an executive officer of Frankel, Frankel's in-house counsel, Sherry Hyman, and Michael Kraft, along with the Pedanos and their attorney. A representative of Zurich, Mr. Anthony Flores, also attended the mediation by telephone. He did not appear by speaker phone. Defendant's Statement, DE 80, p. 11; DE 80, Deposition of Anthony Flores, page 17. Prior to the mediation, the parties had been negotiating that Frankel would buy back the home from the Pedanos, and provide some additional funds as part of the settlement. However, those negotiations were abandoned during mediation.[2]*1308 Defendant's Statement, DE 80, Deposition of Michael Kraft, p. 13-14. Ultimately, the mediation ended.with Frankel and Pedano entering into a settlement for $1.8 Million without the express consent of Zurich. Id. at 12. The Policy had a One Million Dollar ($1,000,000.00) limit for each occurrence.[3]
B. Partially Disputed Facts
Certain facts surrounding the mediation are disputed, as follows:
During deposition, Michael Kraft stated that he had the authority to offer $50,000 to settle the Pedanos' claims, and that he informed all parties of this offer. (DE 80, pp. 94-96). However, Sherry Hyman, Frankel's in-house counsel, testified by affidavit that Kraft stated during mediation that Zurich had not authorized him to offer any money whatsoever to settle the claims. DE 80, p. 11, Affidavit of Sherry Hyman, ¶ 18. Specifically, she stated that Mr. Kraft explained that Zurich "refused to offer one cent toward settlement." DE 80, ¶ 18. Similarly, Stephen Cohen, co-counsel for the Pedanos, testified by affidavit that Kraft never offered to settle the claim for any amount, and instead, maintained that Zurich was denying coverage of the claims. DE 80, p. 74, Affidavit of Stephen Cohen, ¶ 6. I do not find this conflict to be material given the admission that Zurich never authorized the actual consent judgment.
Sherry. Hyman testified by affidavit that after Kraft explained that Zurich would offer no money to settle, either the Pedanos' attorney or Kraft suggested that Frankel could enter into a consent judgment with the Pedanos which could then be assigned to Pedanos. DE 80, p. 11, Affidavit of Sherry Hyman, ¶ 18. Although Hyman is uncertain which attorney made that suggestion, she states that Kraft was present during the negotiations between the Pedanos and Frankel. Id. Hyman said that Mr. Kraft "consented" to Frankel's negotiation and agreement to same. Id. She stated: "Mr. Frankel and I specifically asked Mr. Kraft if Frankel could enter into such as settlement and consent judgment, to which he affirmed that Frankel could do so." Id. She stated: "After initial settlement terms were discussed, Mr. Kraft continued to speak with the Zurich representative via telephone . . ." and "[A]fter his telephone conversation, Mr. Kraft did not advise us to not enter into the settlement and consent judgment." Id. at ¶ 19. She further states that Kraft assisted in the drafting of the settlement and consent judgment which took the form of a Memorandum of Understanding that was signed by Frankel and Pedanos. Id. at 21. Hyman states that had Kraft advised Frankel not to enter into the settlement agreement, Frankel would not have done so. Id. at 24.
The Hyman affidavit, however, does not state that Mr. Kraft, in response to a question by Ms. Hyman or anyone else, directly stated that the Zurich representative had approved the settlement. Nor does the Hyman affidavit state that Mr. Kraft told anyone that the Zurich representative authorized him to negotiate the settlement on the Frankel's behalf. To *1309 the same effect, Mr. Stephen M. Cohen, co-counsel for the Pedanos, stated in his affidavit that ". . . [Kraft] did [not] inform the parties present that Zurich was offering any money settlement at all . . . [and] Mr. Kraft maintained that Zurich was maintaining its denial of insurance coverage to its insured, Frankel Enterprises, Inc., and provided a copy of Zurich's letter denying coverage to Affiant." DE 80, ¶ 6, page 74. Mr. Cohen further stated in his affidavit that "[W]hile leaving the building where the mediation was conducted, Mr. Kraft stopped his car and rolled down his window to advise me that Zurich was `pissed' at him for allowing the settlement." Id. at ¶ 7.
The uncontradicted evidence of record is that the Zurich representative did not approve the settlement terms and specifically said that to Kraft. Zurich's representative, Anthony Flores, testified by deposition that Mr. Kraft told him that Plaintiffs and Defendants were "about to strike a deal," but, at that point, he did not understand what the deal was or that the "deal was his [Kraft's] idea." DE 80, Deposition of Anthony Flores, page 20. At the end of the mediation, Kraft told him over the telephone that there would be a consent judgment signed. Id. Mr. Flores told Kraft that he objected to it. Id. at 21. He did not recall if he instructed Kraft to tell anyone else about his objection. Id. "I just remember telling him that Zurich did not support that type of settlement." id. (emphasis added).
C. Procedural Posture
Following the settlement between Frankel and the Pedanos, Zurich informed Frankel that it was not bound by the settlement due to the fact that Frankel had entered into the settlement without authorization by Zurich. On August 5, 2004, Zurich filed a declaratory action, requesting that the court find that Zurich was not bound by the settlement agreement.
The case was originally before Judge Paine and was transferred to me on June 12, 2007. Zurich's motion for summary judgment was fully briefed prior to the transfer, and the motion is now ripe for resolution.
II. Legal Standard for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure authorizes summary judgment when the pleadings and supporting materials show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The court's focus in reviewing a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 252, 106 S.Ct. 2505; Bishop v. Birmingham Police Dep't, 361 F.3d 607, 609 (11th Cir.2004).
The moving party bears the initial burden under Rule 56(c) of demonstrating the absence of a genuine issue of material fact. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). Once the moving party satisfies this burden, the burden shifts to the party opposing the motion to go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Celotex v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). A factual dispute is genuine only if the evidence is such that a reasonable fact finder could return a verdict for the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir.2001).
*1310 In assessing whether the movant has met its burden, the court should view the evidence in the light most favorable to the party opposing the motion and should resolve all reasonable doubts about the facts in favor of the non-moving party. Denney, 247 F.3d at 1181. In determining whether to grant summary judgment, the court must remember that "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
III. Analysis
Although the `Defendants raise a number of legal arguments supported by nonmaterial facts, two direct legal principles apply here which warrant summary judgment for Zurich on the undisputed material facts: an insurer is not bound by an authorized settlement unless: (1) the insurer refuses to defend, First Am. Title Ins. Co. v. Nat'l Union Fire Ins. Co., 695 So.2d 475, 477 (Fla. 3d DCA 1997) ("Thus, while an insured is free to enter into a reasonable settlement when its insurer has wrongfully refused to provide it with a defense to a suit, we find that the insured is not similarly free to independently engage in such settlements where, as here, the insurer had not declined a defense to suit"); or (2) the insurer defends under reservation of rights and the insured rejects that defense. United Nat. Ins. Co. v. Jacobs, 754 F.Supp. 865, 870 (M.D.Fla. 1990) ("By neither rejecting the defense nor acquiring UNIC's consent, Jacobs breached the terms of the policy when he settled the lawsuit with the Perrys").
As further stated by the Florida Third District Court of Appeals in American Reliance Insurance Company v. Perez,
We conclude that the summary judgment was improvidently entered in favor of the Browns, and that American Reliance is entitled to judgment in its favor. As stated in First American Title Insurance Co. v. National Union Fire Insurance Co., 695 So.2d 475 (Fla. 3d DCA 1997):
[W]hile an insured is free to enter into a reasonable settlement when its insurer has wrongfully refused to provide it with a defense to a suit, we find that the insured is not similarly free to independently engage in such settlements where, as here, the insurer had not declined a defense to suit. Consequently, we agree with the trial court that the insured's failure to comply with the relevant policy provisions relieved the insurer of its obligations under the policy and precluded this action against the carrier as a matter of law.
Id. at 477. In First American Title, the insurance policy directed the insured not to "`admit liability for or settle a claim . . . without the written consent of the [insurer].'" Id. at 476.
The Perezes and the Browns argue that the American Reliance policy does not contain language prohibiting settlement without the insurer's consent. It is true that the present policy is worded differently, but we think the substance is the same. The homeowners policy provided:
3. Duties After Loss. In case of an accident or occurrence, the insured will perform the following duties that apply. You will help us by seeing that these duties are performed:
c. at our request, help us:
(1) to make settlement;. . . .
(3) with the conduct of suits and attend hearings and trials;
(4) to secure and give evidence and obtain the attendance of witnesses;
. . .
*1311 e. the insured will not except at the insured's own cost, voluntarily make payment, assume obligation or incur expense other than for first aid to others at the time of the bodily injury.
(Emphasis added). It has been held that this language requires the insured to obtain the insurer's consent before settling. See United Nat'l Ins. Co. v. Jacobs, 754 F.Supp. 865, 870 (M.D.Fla.1990).
The order under review is reversed and the cause remanded with directions to enter judgment in favor of American Reliance.
Am. Reliance, 712 So.2d 1211, 1212-13 (Fla. 3d DCA 1998) (emphasis added).
Here, the undisputed material facts establish that Zurich at all times defended under a reservation of rights, for over fifteen months, between January 27, 2003 and when Frankel entered the consent judgment; that Frankel never rejected that defense, and that Frankel entered into a consent judgment for $1.8 million without obtaining Zurich's signed consent in writing as required by the clear policy terms ("Per the policy, `An agreed settlement means a settlement and release of liability signed by us. . . .'") By doing so, Frankel breached the policy's cooperation and "no action" provisions, and Zurich is entitled to summary judgment, even if, as Defendants claim, Zurich offered not "one cent" at mediation.
Zurich correctly notes that under Florida law, in fulfilling its duty to defend, "the insurer employs counsel for the insured, performs the pretrial investigation, and controls the insured's defense after a suit is filed on a claim. The insurer also makes decisions as to when and when not to offer or accept settlement of the claim." Doe on Behalf of Doe v. Allstate Ins. Co., 653 So.2d 371, 373 (Fla.1995). The insurer's "right to control the defense is `a valuable one in that it reserves to the insurer the right to protect itself against unwarranted liability claims and is essential in protecting its financial interest in the outcome of litigation.'" Travelers Indem. Co. of Ill. v. Royal Oak Enter., Inc., 344 F.Supp.2d 1358, 1374 (M.D.Fla.2004). The insured "has the reciprocal obligation to allow the insurer to control the defense and to cooperate with the insurer." Doe, 653 So.2d at 373.
As a corollary to the insurer's important duty to defend, an insured is permitted to enter into a consent judgment, commonly known as a "Coblentz" agreement, and bind its insurer but, only if the insurer refuses to defend. Cosmopolitan Mut. Ins. Co. v. Eden Roc Hotel, 258 So.2d 310, 312 (Fla. 3d DCA 1972) ("It is a wellsettled principle that where an insurer is obliged to defend its insured and pay damages in its behalf, and the carrier, is duly notified of the suit against its insured and full opportunity is afforded to defend the action, yet it refuses to do so, then the judgment will be conclusive against the insurer") (citing Coblentz v. Am. Sur. Co. of N.Y., 416 F.2d 1059 (5th Cir.1969)). The reasoning is that "where the insurer refuses to defend, the insured can take whatever steps are necessary to protect itself from a claim." Employers Reinsurance Corp. v. Amphion Holdings Inc., 733 So.2d 588, 590 (Fla. 3d DCA 1999).
Zurich also correctly states that under Florida law, an insurer can defend its insured under reservation of rights to later deny coverage. "[A]n insurer does not breach its duty to defend by offering to defend only under a reservation of rights." Travelers Indem., 344 F.Supp.2d at 1370; First Am., 695 So.2d at 477. If an insured defends under reservation of rights, Florida law provides that the insured may reject the defense, retain its own counsel, and control the defense, including entering into a settlement agreement with the *1312 claimant. Travelers Indem., 344 F.Supp.2d at 1370. However, unless the insured rejects the defense, it cannot wrest control of the defense and bind the insurer to the settlement.
Finally, Zurich correctly notes that an insurer cannot be bound by an unauthorized settlement when it has not refused to defend, even if it denies coverage. Philadelphia Indem, . Ins. Co. v. Kohne, 294 F.Supp.2d 1319 (M.D.Fla.2003), reversed on other grounds, 181 Fed.Appx. 888 (11th Cir.2006). Kohne is particularly instructive here. In Kohne, the insurer denied coverage. The claimant filed suit against the insured, and without notifying her insurer, the insured entered into a $4 million consent judgment. The district court held, in part, that the insurer's denial of coverage did not excuse the insured's breach of the cooperation clause, because the insurer did not refuse to defend: "Because Philadelphia only denied coverage, but did not refuse to defend, Amuchienwa's breach of the duty of cooperation remains unexcused." Id. Zurich correctly argues here that even if the January 27, 2003 letter constituted a denial, Frankel nonetheless breached the policy's cooperation and "no action" provisions when it entered into an unauthorized settlement while simultaneously being defended.
Frankel does not dispute the accuracy of the legal statements made by Zurich. Frankel's contention is that under the facts of this case, Zurich did not actually defend Frankel's case.
First, Frankel argues that the January 27, 2003 letter constitutes a denial of coverage, which would render Zurich's continued defense of Frankel a sham. According to Frankel, if Zurich denied coverage on January 27, 2003, it had no motivation to participate in the mediation in any meaningful fashion, and the alleged defense during mediation was a sham defense. I disagree with Frankel's argument. The January 27, 2003 did not constitute a denial of coverage. While the letter did deny coverage as to certain claims, the letter did not deny coverage as to all of the Pedanos' claims against Frankel. The letter denied coverage only as to claims resulting from mold or other pollutants in the Pedanos' home:
A review of the complaint shows that Nicholas C. Pedano alleges to have been diagnosed with aspergilliosis which is caused by exposure to molds found at the home owned by Frankel and sold to Pedano. Further Pedano alleges without specificity certain property damages that may have resulted from mold/mildew/fungus due to the water intrusion at the Pedano home. It is Zurich's determination that it has no obligation to indemnify Frankel in connection with any damages for either "property damage" and/or "bodily injury" and remediation costs arising from mold/mildew/fungus or by any other "pollutant" based on the application of the above referenced exclusion f. or "pollution" exclusion.
However, as to the remaining claims, Zurich did not deny coverage, but only reserved its right to deny coverage if it found the claims were not covered. Such a partial denial of coverage does not constitute a denial of coverage which would render Zurich's participation in the mediation a sham.
Frankel also points to the events at mediation in which Zurich, through Kraft, allegedly stated that Zurich was denying coverage on Frankel's claim, and would offer nothing toward a settlement. Frankel emphasizes that Kraft assisted in drafting the settlement documents between Frankel and the Pedanos, and at no time informed Frankel that the settlement would not bind Zurich.
Assuming the truth of these facts, they do not change Frankel's clear admission *1313 that Frankel did' not obtain Zurich's authorization to enter into the Memorandum of Settlement reached during the April 22, 2004 mediation. DE 78, ¶ 9. By the clear terms of the policy, "No insured will, except at the insured's own cost, voluntarily make a payment, assume an obligation, or incur any expense, other for first aid, without our consent."
Despite this admission, Frankel now argues that he was advised by Attorney Michael Kraft to go forward with the settlement, and that Zurich thus "tacitly" authorized the settlement. However, under Florida law, Mr. Kraft is an independent contractor and Zurich is not vicariously liable for actions taken by Kraft, over which Zurich had no control. See Aetna Cas. & Sr. Co. v. Protective Nat. Ins. Co. of Omaha, 631 So.2d 305, 306-307 (Fla. 3d DCA 1993) (holding, in the context of an attorney malpractice suit, "an insurance company is not vicariously liable for the [acts] of the attorney it selects to defend the insured. . . . `While [the insurer] selected [the attorney] to defend [the insureds] and controlled the ultimate decision to settle or defend under the policy, there is nothing in the record to indicate [the insurer] had any control over the details of the litigation as it was being conducted by the [the attorney].)'"
Here, Frankel cannot avoid the effect of his own admission by relying on the Hyman affidavit to argue that Frankel entered into the settlement agreement with Zurich's knowledge and tacit approval. See Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir.2005) ("When the nonmovant has testified to events, we do not (as urged by Plaintiffs counsel) pick and choose bits from other witnesses' essentially incompatible accounts (in effect, declining to credit some of the nonmovant's own testimony) and then string together those portions of the record that we deem most helpful to the nonmovant . . . Our duty to read the record in the nonmovant's favor stops short of not crediting the nonmovant's testimony in whole or in part."); McCormick v. City of Ft. Lauderdale, 333 F.3d 1234, 1240 n. 7 (11th Cir.2003) (holding that the court may disregard an affidavit submitted solely for the purpose of opposing a motion for summary judgment when that affidavit is directly contradicted by deposition testimony and the nonmovant does not explain the discrepancies). The same rule likewise applies to admissions. Hughes v. Vanderbilt Univ., 215 F.3d 543, 549 (6th Cir.2000) ("Plaintiffs are bound by admissions in their pleadings, and a party cannot create a factual issue by subsequently filing a conflicting affidavit".) Moreover, the "tacit admission" theory is directly contrary to (1) the other statements in the Hyman and Cohen affidavits that Kraft stated that Zurich would not offer one dime of settlement and was maintaining the denial of insurance coverage to its insured; and to (2) Anthony Flores' uncontradicted deposition testimony that Kraft was not authorized to settle on Zurich's behalf. Given all inferences in favor of the Defendants, the best that the evidence establishes by inference is that Kraft acted independently and without the authorization of Zurich.
Frankel raises other legal arguments that are likewise unavailing. First, it `argues that "[o]nce any insurer wrongfully denies coverage, it waives any requirement (or is estopped from asserting any requirement) of prior notice and consent before the insured settles a claim with a thirdparty." Opp. at 16. In support, Frankel relies on a single case from the Florida Fourth District Court of Appeals, Kovarnik v. Royal Globe Ins. Co., 363 So.2d 166 (Fla. 4th DCA 1978), which is plainly distinguishable, at best. The insurance policy at issue in Kovarnik, unlike this policy, did not contain a "consent clause" and the court was unwilling to inject a consent obligation as a matter of law. Id. at 169. *1314 Here, the Zurich policy contains cooperation and "no action" provisions. Also, Kovarnik involved a first party claim for coverage; that is, there was no duty to defend. In this case, Zurich defended Frankel for fifteen months. I conclude that Kovarnik is limited to its facts and has no application in this case.
While Defendants recognize that an insurer has a right to provide a defense under a reservation of right to determine whether coverage exists, they argue, relying on Section 627.426 of the Florida Statutes, that "to avail itself of this right, the insurer must provide notice to the insured of its reservation of rights, obtain a nonwaiver agreement from the `insured, or retain independent counsel, which is mutually agreeable to the parties." Opp. at 7. The Defendants then argue that Zurich's failure to comply enabled Frankel to enter into the settlement consent judgment.
Even assuming Defendants' facts to be true, I conclude, as a matter of law, that Section 627.426 does not apply here because Frankel's policy was not issued for delivery or delivered in Florida but rather in New York.[4] DE 1, DE 10, ¶¶ 16. Section 627.401(2) excepts policies not issued or delivered in Florida. That section serves as a "gateway" and expressly states that none of the sections in Part II ("Insurance Contracts") apply to insurance policies "not issued for delivery in this state nor delivered in this state. . . ." See Sheehan v. Lumbermens Mut. Cas. Co., 504 So.2d 776, 778 (Fla. 4th DCA 1987) ("Section 627.726[5] says that all contracts of casualty insurance covering subjects residing, located or to be performed in Florida shall be subject to the applicable provisions of Part II. One of the provisions of Part II is section 627.401(2), which limits the applicability of that section to policies issued for delivery or delivered in the state. Because appellants make no contention that the policy in question was issued for delivery in the state or delivered in the state or even that Lumbermens had reason to know that Ms. Feldman was going to school in Florida, Brooks v. Sturiano, 497 So.2d 976 (Fla. 4th DCA 1986) controls."). Thus, based on the plain language of the statute, since the subject insurance policy was not issued for delivery or delivered in Florida, Part II of Chapter 626, which includes Section 627.426, does not apply.
Moreover, even if Zurich's policy was delivered or issued for delivery in Florida, Defendants' argument is still flawed. The obligations imposed under Section 627.426 apply strictly to a denial of coverage based on a "coverage defense." Because Zurich raised the potential for lack of coverage, as opposed to a coverage defense, in its reser vation of rights letter, Zurich was not obligated to comply with Section 627.426 in that letter. AIU Ins. Co. v. Block Marina Inv., Inc., 544 So.2d 998, 1000 (Fla.1989) ("We do not construe the term to include a' disclaimer of liability based on a complete lack of coverage for the loss sustained."); Solar Time Ltd. v. XL Specialty Ins. Co., 2004 WL 1683149, *5 (S.D.Fla. June 15, 2004) ("The law in Florida is now wellsettled with respect to the difference between a `coverage defense' and a denial of coverage. A `coverage defense' is a defense to otherwise-existing coverage. A denial or disclaimer of coverage based on a complete lack of coverage in the first instance is not a `coverage defense.'").
*1315 In this case, Zurich argues that Frankel breached the cooperation and "no action" provisions of the policy, and these arguments are "coverage defenses" under Section 627.426. See id. Those defenses, however, arose in April 2004, over a year after Zurich sent its reservation of rights letter. Defendants incorrectly rely on those April 2004 breaches (the coverage defense) to argue that Zurich had an obligation to comply with Section 627.426 in the January 2003 reservation of rights letter. Accordingly, I conclude that their argument lacks legal merit for this reason as well.
Third, the Defendants, in essence, argue that the "duty to defend" includes a duty to settle, so that the failure to settle [constituting a "sham defense"] is a breach of the duty to defend, entitling Frankel to enter into the unauthorized consent judgment. In the context of a "non-bad faith claim," however, Florida law does not support such a novel concept. The Defendants cases (as cited in their briefs) simply do not apply here because they involved secondary "bad faith" claims[6] against the insurers after judgment for unjust denial of coverage and/or a refusal to defend. Such a rule, as proposed by the Defendants, would lead to incongruous results such that every time an insurer defends under a reservation of rights and does not offer to settle during mediation (or, any time after suit is filed), the insured, without rejecting the defense, could unilaterally settle with the plaintiff beyond the policy limits and bind the insurer. To adopt such a rule would negate the opportunity for the insured to prevail at trial or settle within the policy limits, with no personal exposure to the insured. Rather, in exchange for the benefit of a defense given to the insured, the insurer has a right to make "decisions as to when and when not to offer or accept settlement of the claim." Doe, 653 So.2d at 373.
Moreover, the Defendant's proposed rule improperly confuses the two distinct obligations that Zurich had under its insurance contact: (1) the duty to defend and (2) the duty to indemnify. Zurich satisfied the first by defending Frankel. The second obligation-to indemnify Frankel in the event a judgment was entered for damages covered under the policy never materialized because there was no judgment.
In Florida, courts have uniformly held that the duty to defend is fundamentally distinct from the duty to indemnify. See Allstate Ins. Co. v. RJT Enters, Inc., 692 So.2d 142, 144-45 (Fla.1997) ("The duty to indemnify is a concept distinct from a duty to defend. The duty to defend is broader than the duty to pay. . . . It encompasses responsibilities beyond the coverage limits. Indeed, the cost of providing a defense may exceed the amount paid to indemnify."); Wendy's of N.E. Fla., Inc. v. Vandergriff, *1316 dergriff, 865 So.2d 520, 522 (Fla. 1st DCA 2003) ("As a general rule, a liability insurer has a duty to defend its insured against claims; this duty is distinct from, and broader than, its duty to indemnify its insured."); St. Paul Fire and Marine Ins. Co. v. Tingley Sys., Inc., 722 So.2d 849 (Fla. 2d DCA 1998) ("An insured's duty to defend its insured is distinct from, and broader than, its duty to indemnify its insured."). Thus, for all these reasons, I conclude that Defendant's argument that Zurich breached a "duty to settle" is patently without merit.
IV. Conclusion
In light of the foregoing, I find that summary judgment should be entered for Zurich.
Accordingly, it is ORDERED and ADJUDGED that Plaintiffs Motion for Summary Judgment [DE 77] is GRANTED.
Oral argument previously set for Friday, August 31, 2007 is hereby cancelled.
DONE AND ORDERED.
NOTES
[1] Zurich does not contest these facts; it merely did not include them in its statement of undisputed facts.
[2] It is unclear which party-the Pedanos, Frankel, or Zurich-abandoned the buy-back.
[3] According to Zurich, Frankel paid a mere $50,000, got a convent hot to execute, and assigned its rights against Zurich for $1.8 million. Zurich's Reply Brief, DE 81, page 9. See also Hyman Affidavit, ¶ 22. Zurich states that Frankel consented to the $1.8 million consent judgment for claims like "loss of consortium," and damages include "pain and suffering," "mental anguish," and "loss of capacity for enjoyment of life." By not authorizing and consenting to the settlement, Zurich had no say as to the amount or the claimed damage elements. The Defendants now seek to impose the entire judgment amount on Zurich.
[4] In Paragraph 16 of DE 10, Defendants admit that Zurich issued a policy to HWI Global Properties, Inc. Of New York, New York a commercial general liability insurance policy, No. GLO XXXXXXX-XX
[5] Section 627.726 of the Florida Statutes was renumbered as Section 627.4135.
[6] In a "typical" bad faith claim, the insurer had an opportunity to settle within the policy limits, did not settle, and a judgment is entered against the insured in excess of policy limits. In that scenario, the insurer is potentially liable for the entire judgment because it breached its duty to settle a case it was defending and judgment was entered in excess of policy limits. This is a patently distinct situation from when the insured enters into an unauthorized settlement prior to judgment, which the insurer is still defending, and there is the possibility that the insured will prevail or the action will settle within the policy limits, with no personal exposure to the insured. Here, by entering into the unauthorized consent judgment, Frankel prevented Zurich from defending the case to conclusion or settling within the policy limits. Under the terms of the policy, Frankel's unilateral action relieved Zurich of any obligation to pay the consent judgment. See Kohne, 294 F.Supp.2d at 1325 ("The Court finds Philadelphia's resulting inability to defend its interests and the entry of a $4,000,000.00 consent judgment against its alleged insured to be substantially prejudiced.").
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2453470/
|
509 F.Supp.2d 633 (2007)
Olaf HARRIS, as Next Friend of O'Belle Harris, Plaintiff,
v.
TRANSAMERICA LIFE INSURANCE COMPANY, Defendant.
Civil Action No. W-06-CA-196.
United States District Court, W.D. Texas, Waco Division.
March 19, 2007.
*634 Jeffrey J. Wolf of Wolf & Law, PC, Counsel for Transamerica Life Insurance Company.
Christopher A. Thompson and Crystal L. Worthen of Jackson Walker, L.L.P., counsel for Plaintiff.
MEMORANDUM OPINION AND ORDER
WALTER S. SMITH, JR., Chief Judge.
Before the Court are Plaintiffs Motion for Partial Summary Judgment, Defendant's Cross-Motion for Summary Judgment, and responses and replies to both motions. Having reviewed the motions, responses, replies, and the applicable legal authority, the Court finds that Plaintiffs Motion should be denied and that Defendant's Cross-Motion for Summary Judgment should be granted in part and denied in part.
I. PROCEDURAL HISTORY
On June 14, 2006, Olaf Harris, as next friend of O'Belle Polete[1] ("Plaintiff') filed suit against Transamerica Life Insurance Company ("Defendant") in the 220th District Court of Bosque County, Texas. In her petition, Plaintiff asserts four causes of action: (1) breach, of an insurance contract, (2) violations of the Texas Deceptive Trade Practices Act (DTPA), (3) common law fraud, and (4) violations of chapter 451 of the Texas Insurance Code. Plaintiffs Original Petition at 4-6. All four causes of action relate to the Defendant's refusal to pay convalescent care benefits to Plaintiff pursuant to a Convalescent Care Policy issued by Defendant. Id. at 2-3.
On July 14, 2006, Defendant timely removed the case to this Court. Notice of Removal at 1, 4. Defendant then filed its Original Answer on July 18, 2006. Defendant Transamerica Life Insurance Company's Original Answer at 1, 6. On December 22, 2006, Plaintiff filed her Motion for Partial Summary Judgment ("Plaintiffs Motion"). Defendant thereafter moved on December 27, 2006 for an extension of time to respond to Plaintiffs Motion. Defendant's Unopposed Motion for Extension of Time to File Response to Plaintiffs Motion for Partial Summary Judgment at 1, 3. The Court granted the *635 Defendant's motion on December 28, 2006, making Defendant's response due no later than January 19, 2007 at 11:59 p.m. Order Granting Defendant's Unopposed Motion for Extension of Time (n.p.). On January 19, 2007. Defendant filed its Cross-Motion for Summary Judgment and Response to Plaintiffs Motion for Partial Summary Judgment ("Defendant's Motion"), with accompanying Appendix in Support of Its Cross-Motion for Summary Judgment and Response to Plaintiffs Motion for Partial Summary Judgment ("Defendant's Appendix"). Plaintiff filed her Response to Defendant's, Cross-Motion for Summary Judgment and Reply to Defendant's Response to Plaintiffs Motion for Partial Summary Judgment ("Plaintiffs Response and Reply") on January 30, 2007. On February 7, 2007, Defendant filed its Reply to Plaintiffs Response to Its Cross-Motion for Summary Judgment ("Defendant's Reply").
II. UNDISPUTED FACTS
Harry Polete ("Polete") purchased an insurance policy ("Policy") from Defendant[2] in April 1989. Plaintiffs Motion at 3 ¶ 4, app. at 22, 49; Defendant's Motion at 3 ¶ 1; Defendant's Appendix at 19. Polete is the named insured and his spouse, Plaintiff, is a covered dependent. Plaintiffs Motion app. at 22; Defendant's Appendix at 19. The Policy provides, inter alia, that Defendant will pay $1500 per month to Plaintiff as a "Convalescent Care Benefit" while Plaintiff is confined in a "Convalescent Care Facility." Plaintiffs Motion at 3 ¶ 4, app. at 22, 27-28; Defendant's Motion at 3-4 ¶ 2; Defendant's Appendix at 19, 25. The Policy further provides that the Convalescent Care Benefit will continue as long as Plaintiff is confined until a certain maximum benefit period has elapsed. Plaintiffs Motion at 3 ¶ 4, app. at 22, 27-28; Defendant's Motion at 3-4 ¶ 2; Defendant's Appendix at 19, 25. On September 16, 2001, Plaintiff began receiving convalescent care at a nursing home that qualified as a Convalescent Care Facility under the Policy. Plaintiffs Motion app. at 50. Plaintiff submitted claims to Defendant, and Defendant paid benefits due under the Policy to Plaintiff until December 23, 2005, when the Defendant discontinued the payment of benefits. Id. Defendant did not discontinue benefit payments because of non-payment of premiums by Plaintiff; indeed, all premiums due under the policy were paid from April 1989 until December 2005. Id. Instead, Defendant claims that it was only obligated to pay benefits to Plaintiff for a total of four years. Id. app. at 51; Defendant's Motion at 1. Plaintiff, to the contrary, claims that Defendant was obligated to pay benefits to Plaintiff for a total of eight years. Plaintiffs Motion at 2. At the time that Defendant halted benefit payments, it had paid a total of 48 months (four years) of benefits to Plaintiff.[3] Plaintiffs Motion app. at 50.
III. STANDARDS OF REVIEW
A. Summary Judgment
A movant seeking summary judgment must inform the court of the basis of his *636 motion and point out those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[I]f the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986). The substantive law governing the suit identifies the essential elements of the claims at issue and therefore indicates which facts are material; i.e., only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, 477 U.S. 242, 256-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The movant need not negate the opposing party's claims nor produce evidence showing the absence of a genuine issue of fact, but may rely on the absence of evidence to support essential elements of the opposing party's claims. Celotex, 477 U.S. at 323-25, 106 S.Ct. 2548. However, "`[o]n summary judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)). If it is evident that the party seeking summary judgment against one who bears the burden of proof has no access to evidence of disproof, and ample time has been allowed for discovery, he should be permitted to rely upon the complete absence of proof of an essential element. Fontenot, 780 F.2d at 1195. "If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994).
If the movant meets his burden, the burden then shifts to the non-movant to set forth specific facts and competent summary judgment evidence to raise a genuine issue of material fact on each essential element of any claim on which he bears the burden of proof at trial. Fed.R.Civ.P. 56(c). The non-moving party may not rest on mere allegations or denials in its pleadings, but must produce affirmative evidence and specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e): Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505. The non-movant may point to evidentiary documents already in the record that set out specific facts showing the existence of a genuine issue. Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir.1990). Furthermore, the non-movant does not likewise have to present its own evidence, but may point out genuine issues of fact extant in the summary judgment evidence produced by the movant, if any. Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 198-200 (5th Cir.1988).
B. Principles of Contract/Insurance Policy Interpretation
In a suit based on diversity of citizenship jurisdiction, Texas law governs the interpretation of contracts. See Am. Nat'l Gen. Ins. Co. v. Ryan, 274 F.3d 319, 323 (5th Cir.2001); Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998). Texas courts apply the same rules of interpretation and construction to insurance *637 contracts as they do to other contracts. Ryan, 274 F.3d at 323 (citing Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994)); Lynch Props., 140 F.3d at 625 (citing Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995)). The Court's primary concern in interpreting an insurance policy is to "effectuat[e] the true intent of the parties as expressed in the insurance policy." Lynch Props., 140 F.3d at 625-26 (citing Forbau, 876 S.W.2d at 133). Those constructions that "give effect to each term" and do not "render[] any term a nullity" are favored. Id. at 626 (citing Ideal Mut. Ins. Co. v. Last Days Evangelical Ass'n, 783 F.2d 1234, 1238 (5th Cir.1986)). The Court, though, should not isolate any phrase, sentence, or section of a contract and consider it separate and apart from the other provisions of the contract. Id. at 626 (citing Forbau, 876 S.W.2d at 132-33); see also Nat'l Union Fire Ins., 907 S.W.2d at 520 (stating that the court is to look "at the contract as a whole in light of the circumstances present when the contract was entered"). "[T]erms used in the policy are given their plain, ordinary meaning unless the policy itself shows that the parties intended the terms to have a different, technical meaning." Ryan, 274 F.3d at 323 (citing Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936, 938 (Tex.1984)).
The Court may not look at the parties' interpretation or admit extraneous evidence to determine the true meaning of the contract unless and until the contract is first determined to be ambiguous. Nat'l Union Fire Ins., 907 S.W.2d at 520. An insurance contract is not ambiguous "[i]f the provisions of the insurance contract can be given a `definite or certain legal meaning.'" Lynch Props., 140 F.3d at 626 (citing Nat'l Union Fire Ins., 907 S.W.2d at 520). The contract is likewise not ambiguous merely, because the parties disagree about the meaning or interpretation of a term. Id. (citing D.E.W., Inc. v. Local 93, Laborers' Int'l Union of N. Am., 957 F.2d 196, 199 (5th Cir.1992)). An ambiguity does arise if the language of the insurance contract is subject to two or more reasonable interpretations. Nat'l Union Fire Ins., 907 S.W.2d at 520. Any ambiguous provisions that arise are interpreted in favor of the insured. Lynch Props., 140 F.3d at 626 (citing Toops v. Gulf Coast Marine Inc., 72 F.3d 483, 486 (5th Cir. 1996)).
IV. DISCUSSION
A. Summary of the Summary Judgment Motions
Plaintiff moved for partial summary judgment on the liability element of her breach of contract claim only. Plaintiffs Motion at 1. Plaintiff argues that there are no genuine issues of material fact and that she is entitled to judgment as a matter of law because the terms of the Policy "unambiguously obligate Transamerica to pay eight years of benefits under the policy to Plaintiff." Id. at 2. In the alternative, Plaintiff argues that the terms of the policy are ambiguous, and the terms must be interpreted in favor of her as a matter of law. Id.
Defendant responded to Plaintiffs motion and also moved for summary judgment. Defendant's Motion at 1. In its response, Defendant argues that (1) Plaintiffs interpretation of the Policy is unreasonable and is merely an attempt to create an ambiguity where none exists, and (2) Plaintiffs interpretation of the Policy renders key language superfluous and meaningless and fails to read the Policy as a whole. Id. at 7-8. In support of its motion for summary judgment, Defendant presents and requests the court adopt an interpretation of the contract that it believes *638 is reasonable and gives effect to all of the Policy's terms. Id. at 9.
B. The Insurance Policy
1. The Terms as Written
The Convalescent Care Policy provides, inter alia, that Defendant will pay Plaintiff "the Convalescent Care Benefit for each month, during a Period of Confinement, that [the Plaintiff] requires Convalescent Care Facility Confinement."[4] Policy at 10. The Convalescent Care Benefit, as found in the Certificate Schedule ("Schedule"), is $1500 per month. Id. at 4. Both "Period of Confinement" and "Convalescent Care Facility Confinement" are defined in the Policy, but only the definition of Period of Confinement is relevant here.[5] Period of Confinement is defined as follows:
The maximum amount of time shown in the Certificate Schedule during which benefits are payable for Convalescent Care Facility Confinements due to Sickness or Injury.
A confinement which follows a previous Period of Confinement will be a continuation of the first confinement, unless the confinements are separated by 6 months or more during which the [Plaintiff] was not confined in any convalescent care facility.
Id. at 9 (emphasis added). Thus, a Period of Confinement as defined in the policy is only that period of time for which benefits are payable, regardless of how long the Plaintiff is actually confined in a Convalescent Care Facility.
The Schedule provides for two different "amount[s] of time." See id. at 4. First, the schedule lists a "Maximum Benefit Period." Id. Maximum Benefit Period is defined as "the maximum period of time in any Period of Confinement for which benefits can be paid." Id. at 8. The Schedule states that this period of time is four (4) years. Id. at 4. The Schedule also lists a "Lifetime Maximum Benefit Period." Id. at 4. The Lifetime Maximum Benefit Period is defined as "the maximum period of time for which benefits are payable for Convalescent Care Facility confinements, regardless of whether they are incurred during more than one Period of Confinement." Id. at 8. The Policy further provides that "[a]ll benefits payable are subject to the Lifetime Maximum Benefit Period shown in the Certificate Schedule." Id. at 9. The Schedule provides a method to determine the length of the Lifetime Maximum Benefit Period. In the first year after the policy is issued, the Lifetime Maximum Benefit Period equals the Maximum Benefit Period. Id. at 4. For each year thereafter, 10% of the Maximum Benefit Period is added to the previous Lifetime Maximum Benefit Period until the Lifetime Maximum Benefit Period equals twice the Maximum Benefit Period. Id. Since Plaintiff or her spouse paid the policy premiums for more than 12 years, Plaintiff's Motion app. at 50, the Lifetime Maximum Benefit Period is eight years.
*639 2. Interpretation and Construction of the Terms
Any construction of the Policy must begin with the terms of the Policy itself. Under the terms of the Policy, Defendant is generally obligated to pay Plaintiff the Convalescent Care Benefit ("Benefit") during a Period of Confinement. Policy at 10. Period of Confinement has a two-sentence definition. The first sentence defines Period of Confinement as "[t]he maximum amount of time shown in the Certificate Schedule during which benefits are payable for Convalescent Care Facility Confinements due to Sickness or Injury." Id. at 9. As noted above, the Schedule provides for two different "amount[s] of time," the Maximum Benefit Period and the Lifetime Maximum Benefit Period. Id. at 4. The Maximum Benefit Period is explicitly set out as four years in the Schedule, but the Lifetime Maximum Benefit Period is a calculated number. If the Court were only to consider the first sentence of the definition of Period of Confinement and the two time periods set out in the Schedule, two reasonable interpretations exist. The first reasonable interpretation is that the parties intended a Period of Confinement to be four years or less because the four-year time period is the only amount of time expressly "shown" in the Schedule and is thus the "maximum" amount of time. The second reasonable interpretation is that the parties intended either the Lifetime Maximum Benefit Period or Maximum Benefit Period to control the length of a Period of Confinement. Under this interpretation, whichever benefit period was longer would be the maximum length of a Period of Confinement. Having concluded that two reasonable interpretations exist, the Court would then be obligated to declare the Policy ambiguous and interpret it in favor of the insured. See Nat'l Union Fire Ins., 907 S.W.2d at 520; Lynch Props., 140 F.3d at 626 (citing Toops v. Gulf Coast Marine Inc., 72 F.3d 483, 486 (5th Cir.1996)). But the Court must consider the Policy as a whole, not in isolated sections, and must avoid interpretations that render policy language a nullity, if possible.
After considering the Policy as a whole, attempting to give effect to each term in the Policy, the Court finds that only one reasonable interpretation of the length of a Period of Confinement (and thus the length of Defendant's obligation to pay the Benefit to Plaintiff) exists: The length of a Period of Confinement is determined by the Maximum Benefit Period, which under this Policy is four years. This construction of the Policy is the only reasonable construction for several reasons. First, the definition of Maximum Benefit Period removes any ambiguity as to whether the Maximum Benefit Period or the Lifetime Maximum Benefit Period controls the length of a Period of Confinement. Maximum Benefit Period is defined as "the maximum period of time in any Period of Confinement for which benefits can be paid." Policy at 8. The Policy explicitly sets out this "period of time" in the Schedule: four years. Id. at 4. Therefore, reading the two provisions together, four years is the maximum period of time in any Period of Confinement for which benefits can be paid to Plaintiff. Returning to the first sentence of the definition of Period of Confinement, the "maximum amount of time" in that sentence clearly, though inartfully, refers to the Maximum Benefit Period, not the Lifetime Maximum Benefit Period.
Second, the definition of Lifetime Maximum Benefit Period further demonstrates why the definition of Period of Confinement does not refer to the Lifetime Maximum Benefit Period. Lifetime Maximum Benefit Period is defined as "the maximum period of time for which benefits are payable *640 for Convalescent Care Facility confinements, regardless of whether they are incurred during more than one Period of Confinement." Id. at 8. Two things are immediately apparent from this definition: (1) Period of Confinement and confinement do not have the same meaning, and (2) multiple Periods of Confinement may be covered by the Policy. As noted above, a Period of Confinement is meant to delineate the period of time for which Benefits are payable. A confinement, though, is meant to describe the period of time during which the Plaintiff is "an overnight bed patient." See id. at 6. It follows from this that Plaintiff may be an overnight bed patient for a longer or shorter period of time than the maximum period of time for which Benefits are payable (i.e., the Period of Confinement). Since a confinement may be shorter than a Period of Confinement, the Policy, in the second sentence of the definition of Period of Confinement, provides that multiple confinements may make up a single Period of Confinement: "A confinement which follows a previous Period of Confinement will be a continuation of the first confinement, unless the confinements are separated by 6 months or more during which the [Plaintiff] was not confined in any convalescent care facility." Id. at 9. Thus, a confinement following a previous confinement will be considered a part of the same Period of Confinement unless the confinements are separated by six months or more. And, as mentioned above, the definition of Lifetime Maximum Benefit Period suggests that multiple Periods of Confinement may be covered. If multiple Periods of Confinement may be covered under the Lifetime Maximum Benefit Period, how could the maximum length of a single Period of Confinement be determined by the Lifetime Maximum Benefit Period? Recognizing that the maximum length of a Period of Confinement is the length of the Maximum Benefit Period avoids this awkward result that that drafter of the Policy clearly did not intend.
Third, a construction that equates the maximum length of a Period of Confinement to the length of the Lifetime Maximum Benefit Period not only renders the definition of Maximum Benefit Period meaningless, but it also disregards the scheme of coverage the drafter of the Policy intended. The coverage provided to Plaintiff by the Policy was clearly not intended to be of a single duration. The Policy provides for Benefits to be paid during a Period of Confinement, and under the construction of the Policy the court adopts by this Order, a Period of Confinement does not exceed the Maximum Benefit Period. The second sentence of the definition of Period of Confinement provides for multiple Periods of Confinement; thus, by extension, the Policy provides for payments during multiple Periods of Confinement. The Policy, though, limits the Defendant's ultimate obligation to Plaintiff for successive Periods of Confinement by providing that "[a]ll benefits payable are subject to the Lifetime Maximum Benefit Period." The overall effect of this scheme is to provide coverage during multiple Periods of Confinement not to exceed the length of the Lifetime Maximum Benefit Period. If the Court were to adopt a construction of the Policy where the length of a Period of Confinement could be the length of the Lifetime Maximum Benefit Period, Plaintiff could exhaust her benefits during a single Period of Confinement.
Therefore, as there is only one reasonable interpretation, the Court finds the terms of the Policy unambiguous. The parties unambiguously intended that the Defendant only be obligated to pay Plaintiff the Convalescent Care Benefit during a Period of Confinement. A Period of Confinement cannot exceed the Maximum *641 Benefit Period, which is four years under this Policy. Confinements that are not separated by a six month or greater period of time are to be considered a single Period of Confinement. Regardless of the number or length of Periods of Confinement, the Defendant is not obligated to pay Plaintiff the Benefit for longer than the Lifetime Maximum Benefit Period.
C. The Summary Judgment Motions
1. Plaintiffs Motion
Plaintiff moved for partial summary judgment on its breach of contract claim on the issue of the liability of Defendant only. Plaintiffs Motion at 1. To prevail on a breach of contract claim under Texas law, Plaintiff must prove "(1) the existence of a valid contract; (2) that the plaintiff performed or tendered performance; (3) that the defendant breached the contract; and (4) that the plaintiff was damaged as a result of the breach." Pegram v. Honeywell, 361 F.3d 272, 288 (5th Cir.2004) (citing Runge v. Raytheon E-Systems, Inc., 57 S.W.3d 562, 565 (Tex. App. Waco 2001, no pet.)). Since Plaintiff moved for summary judgment only on the issue of liability, Plaintiff needs to show that there is no genuine issue as to any material fact as to the first three elements of her breach of contract claim and that she is therefore entitled to judgment as a matter of law on all three elements. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Plaintiff has failed to demonstrate that she is entitled to judgment as a matter of law since she has failed to prove that the defendant breached the terms of the Policy. The Court concluded above that the Policy only obligates Defendant to pay the Benefit to Plaintiff for a maximum of four years (48 months) during a single Period of Confinement. Plaintiffs current confinement is a single Period of Confinement that began on September 16, 2001, and Defendant paid 48 months of Benefits to Plaintiff during this Period of Confinement. Defendant has fulfilled its obligations under the Policy and is therefore not in breach. Plaintiffs motion for partial summary judgment is therefore DENIED.
2. Defendant's Motion
The Defendant moved for summary judgment on "Plaintiffs claims." Defendant's Motion at 10. It did not expressly identify which of Plaintiffs four claims it is moving for summary judgment on. See id. at 10. As almost of all of Defendant's Motion is devoted to negating Plaintiffs breach of insurance contract claim, Defendant's motion for summary judgment will be treated as a motion for partial summary judgment on Plaintiffs breach of contract claim only.[6] Accordingly; Plaintiffs remaining *642 claims of fraud, DTPA violations and Texas Insurance Code violations will neither be addressed nor affected by this Order.
The Defendant is moving for summary judgment on a claim on which it does not have the burden of proof at trial. Thus, to be entitled to judgment as a matter of law, Defendant need only show that there is no genuine issue as to any material fact concerning any essential element of Plaintiffs breach of contract claim. Defendant has shown that it is entitled to judgment as a matter of law on this claim because there is no genuine issue of material fact as to whether Defendant breached the contract. As noted above, the Policy only obligates Defendant to pay the Benefit to Plaintiff for a maximum of four years (48 months) during a single Period of Confinement. Plaintiff's current confinement is a single Period of Confinement that began on September 16, 2001, and Defendant paid 48 months of Benefits to Plaintiff during this Period of Confinement. Defendant has fulfilled its obligations under the Policy and is therefore not in breach. Defendant's motion for summary judgment on Plaintiff's breach of contract claim is therefore GRANTED. To the extent that Defendant's motion could be construed to encompass Plaintiff's fraud, DTPA and Insurance Code claims, the motion is DENIED as to those claims.
V. CONCLUSION
IT IS ORDERED that the Plaintiff's Motion for Partial Summary Judgment on her breach of insurance contract claim is DENIED.
IT IS FURTHER ORDERED that Defendant's Cross-Motion for Summary Judgment is GRANTED as to Plaintiff's breach of insurance contract claim and is DENIED as to Plaintiff's remaining claims.
NOTES
[1] The original state court petition was styled "Olaf Harris, as Next Friend of O'Belle Harris v. Transamerica Life Insurance Company." Plaintiff's Original Petition at 1 (emphasis added). After removal of the suit to federal court, the parties stipulated that Olaf Harris was bringing the action as next friend of O'Belle Polete. Stipulation at 1. The parties further stipulated that "any judgments or orders entered in this action shall be binding against or in favor of Olaf Harris, as next friend of O'Belle Polete" and that "all [future] pleadings, motions, and other documents filed with the Court . . . will reflect the correct name of the plaintiff as Olaf Harris, as Next friend of O'Belle Polete." Id. at 1-2.
[2] The policy was actually purchased from NN Investors Life Insurance Company ("NN Investors"). Plaintiff's Motion app. at 19. Since the policy was issued, NN Investors has changed its company name twice. First, it became PFL Life Insurance Company ("PFL"). Defendant's Appendix at 38-39. Later, PFL changed its name to Transamerica Life Insurance Company, the name Defendant uses. Defendant's Motion at 3 ¶ 1.
[3] Plaintiff was not confined to the nursing home for the entire period of time between September 16, 2001 and December 23, 2007. See Plaintiff's Motion at 3 n. 2. It is uncontested, though, that Plaintiff never left the nursing home for a period of six months or more after September 16, 2001.
[4] All pinpoint citations to the Policy will be made to the page numbers found on the Policy itself. Since the copy of the Policy found in Defendant's Appendix at 16-31 retains the original pagination, it will be utilized instead of the copy of the Policy found in Plaintiff's Motion, app. at 19-34.
[5] Convalescent Care Facility Confinement is defined as "an Insured Person's admission to a Convalescent Care Facility as an overnight bed patient." Policy at 6. A "Convalescent Care Facility" includes a "Skilled Nursing Facility," an "Intermediate Care Facility," and a "Custodial Care Facility," but does not include certain other facilities such as hospitals and rest homes. Id.
[6] Alternatively, if the Court were to view Defendant's Motion as requesting summary judgment on all of Plaintiff's claims, the Court would find that Defendant has failed to meet its burden of demonstrating that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law as to the fraud, Insurance Code and DTPA claims. See Fed.R.Civ.P. 56(c). The summary judgment record before the Court demonstrates a genuine issue of material fact as to whether Ronald Benson, the insurance agent that sold the Policy to Mr. Polete, represented to Mr. Polete that the Policy would provide coverage for a maximum period of eight years for a single Period of Confinement. The affidavit of Mr. Polete provides that Mr. Benson made such a representation, Plaintiff's Motion app. at 16, while the affidavit of Mr. Benson provides that he did not make such a representation, Defendant's Appendix at 41-42. These opposing affidavits show that there is a genuine issue of material fact as to whether Mr. Benson made the relevant representation to Mr. Polete, and therefore Defendant is not entitled to judgment as a matter of law on Plaintiff's fraud, DTPA and Insurance Code claims.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2453488/
|
509 F.Supp.2d 771 (2007)
David Lee TOMLINSON, Jr., Petitioner,
v.
Jerry BURT, Respondent.
No. C 06-152-MWB.
United States District Court, N.D. Iowa, Cedar Rapids Division.
September 20, 2007.
*772 Philip B. Mears, Mears Law Office, Iowa City, IA, for Petitioner.
Thomas William Andrews, Iowa Department of Justice, Des Moines, IA, for Respondent.
MEMORANDUM OPINION AND ORDER REGARDING REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS
MARK W. BENNETT, District Judge.
This Petition For Writ Of Habeas Corpus pursuant to 28 U.S.C. § 2254 comes before the court pursuant to the August 23, 2007, Report and Recommendation (docket no. 23) by Chief Magistrate *773 Judge Paul A. Zoss, in which Judge Zoss recommended that the court grant respondent Jerry Burt's January 17, 2007, Motion To Dismiss (docket no. 8). More specifically, Judge Zoss declined to grant Burt's Motion To Dismiss on procedural grounds, owing to the failure of petitioner David Lee Tomlinson, Jr., who was represented by court-appointed counsel in these proceedings, to respond to that motion. Instead, Judge Zoss concluded that Tomlinson's "due process" and "ineffective assistance" claims were procedurally defaulted and that his "actual innocence" claim, which Judge Zoss concluded was a "procedural" or "gateway" claim of "actual innocence" to overcome procedural default on Tomlinson's other claims, failed as a matter of law, because Tomlinson had not come forward with any "new evidence" of his innocence. Tomlinson filed an Objection To Report and Recommendation (Petitioner's Objection) (docket no. 27) on September 7, 2007. In his Objection, Tomlinson did not dispute that his "due process" and "ineffective assistance" claims are procedurally defaulted, but he did dispute Judge Zoss's conclusion that his "actual innocence" claim should be dismissed at this stage of the proceedings before he has the opportunity to explore and present that claim as an exception to procedural default of other claims.[1]
The standard of review to be applied by the district court to a report and recommendation of a magistrate judge is established by statute:
A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge].
28 U.S.C. § 636(b)(1). The Eighth Circuit Court of Appeals has repeatedly held that it is reversible error for the district court to fail to conduct a de novo review of a magistrate judge's report where such review is required. See, e.g., Hosna v. Groose, 80 F.3d 298, 306 (8th Cir.) (citing 28 U.S.C. § 636(b)(1)), cert. denied, 519 U.S. 860, 117 S.Ct. 164, 136 L.Ed.2d 107 (1996); Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir.1996) (citing Belk v. Purkett, 15 F.3d 803, 815 (8th Cir.1994)); Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995) (also citing Belk). However, the plain language of the statute governing review provides only for de novo review of "those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). Therefore, portions of the proposed findings or recommendations to which no objections are filed are reviewed only for "plain error." See Griffin v. Mitchell, 31 F.3d 690, 692 (8th Cir.1994) (reviewing factual findings for "plain error" where no objections to the magistrate judge's report were filed).
As mentioned briefly, above, Tomlinson expressly does not object to the legal conclusion that his claims are not exhausted and are subject to procedural default. See, e.g., Petitioner's Objection, ¶ 4. Therefore, the court will review the portion of the Report and Recommendation finding procedural default only for "plain error." The court finds no "plain error" in any of the findings or conclusions in the portions of Chief Magistrate Judge Zoss's Report *774 and Recommendation finding that Tomlinson's claims are procedurally defaulted and will accept those parts of the Report and Recommendation. See Griffin, 31 F.3d at 692 (the court reviews factual findings for "plain error" where no objections to the magistrate judge's report were filed).
Tomlinson also does not object to Judge Zoss's recognition of an "actual innocence" claim as a way to overcome procedural default of constitutional claims, but he does object to Judge Zoss's consideration of his "actual innocence" claim "on the merits" on a Motion To Dismiss.[2] He objects, further, to Judge Zoss's conclusion that he had not made a sufficient showing on such a claim. Instead, Tomlinson argues that, once Judge Zoss concluded that his "actual innocence" claim was "procedural," he should have denied the Motion To Dismiss to allow Tomlinson to brief fully the question of his "actual innocence" as a way of overcoming procedural default of his constitutional claims. He argues that the underlying problem with his conviction is that his trial attorneys had decided that he had committed the charged offenses, the murders of his father and sister and his flight from justice, so that they pursued a mental condition defense contrary to his wishes. He also objects to Judge Zoss's adoption of the findings of the Iowa Court of Appeals on his direct appeal, because he disputes the Iowa court's findings. Finally, Tomlinson contends that he should be allowed to investigate several evidentiary issues that he believes will demonstrate his "actual innocence." These objections' must be addressed by de novo review of the Report and Recommendation. See Hosna, 80 F.3d at 306. Upon such de novo review, the court finds that Judge Zoss's conclusions regarding the "actual innocence" claim must be modified in part, but otherwise accepted.
First, it is true that "`[a] state prisoner who fails to satisfy state procedural requirements forfeits his right to present his federal claim through a federal habeas corpus petition, unless he can meet strict cause and prejudice or actual innocence standards.'" See, e.g., Collier v. Norris, 485. F.3d 415, 425 (8th Cir.2007) (quoting Clemons v. Luebbers, 381 F.3d 744, 750 (8th Cir.2004)). However, "actual innocence" is a claim that may be either "substantive" or "procedural," that is, either a free-standing claim requiring habeas corpus relief in and of itself or merely a claim that acts as a "gateway" to consideration of other procedurally defaulted constitutional claims. See, e.g., Cox v. Burger, 398 F.3d 1025, 1031 (8th Cir.2005). The question here, the court finds upon de novo review, is which kind of "actual innocence" claim Tomlinson was trying to assert.
As the Eighth Circuit Court of Appeals has explained,
Herrera [v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993),] claims are of a substantive nature (actual innocence), while Schlup [v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995),] claims are of a procedural nature (obstacles such as procedural default also overcome by actual innocence). Cornell v. Nix, 119 F.3d 1329, 1334 (8th Cir.1997). A positive determination under either standard is rare and limited. Herrera, 506 U.S. at 404, 113 S.Ct. 853, 122 L.Ed.2d 203; Schlup, 513 U.S. at 315, 115 S.Ct. 851, 130 L.Ed.2d *775 808. The burden of proof under Herrera is higher than under Schlup, since exceptions are permitted only for `truly persuasive demonstrations of actual innocence.' Herrera, 506 U.S. at 426-27, 113 S.Ct. 853, 122 L.Ed.2d 203. Under Schlup, Cox must show `it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.' Schlup, 513 U.S. at 327, 115 S.Ct. 851, 130 L.Ed.2d 808.
Cox, 398 F.3d at 1031. More specifically,
Schlup explained that a petitioner's request for relief because of actual innocence can be based on different grounds and that the level of proof required to establish "actual innocence" depends upon the type of ground the petitioner bases his or her petition for relief. Of particular relevance to this case, Schlup described the difference between Schlup's procedural claim of actual innocence and the substantive claim of actual innocence raised in Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). In Herrera, the petitioner asserted that because he was actually innocent of the crime for which he had been convicted, his execution would constitute cruel and unusual punishment in violation of the Eighth Amendment and violate the Fourteenth Amendment's Due Process Clause. See id. at 398, 113 S.Ct. at 859. Herrera assumed, without deciding, that "in a capital case a truly persuasive demonstration of `actual innocence' made after trial would render the execution of a defendant unconstitutional." Id. at 417, 113 S.Ct. at 869. Herrera, however, did not establish the exact level of proof that would hypothetically be required for a substantive claim based on actual innocence because Herrera did not come close to meeting this standard. The Court, however, stated that the standard would be "extraordinarily high." Id.; accord id. at 426, 113 S.Ct. at 874 (O'Connor, J., concurring).
In contrast, Schlup's constitutional claims were not based on his innocence, but instead on his argument that the ineffectiveness of his counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and the prosecutor's withholding of evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), denied him constitutional [1334] protections. See Schlup, 513 U.S. at 314, 115 S.Ct. at 860-61. Schlup, however, faced procedural obstacles to these claims. In cases where the petitioner has filed a successive or abusive writ, or where he or she has committed a procedural default, if the petitioner cannot establish cause and prejudice, he or she can obtain review of his or her constitutional claims only by showing that he or she falls within a narrow class of cases implicating a fundamental miscarriage of justice. Proving "actual innocence" is a way to demonstrate that one's case falls within that narrow class. See id. at 314-15, 115 S.Ct. at 860-61. This type of "actual innocence" is not a substantive claim in itself, but is a "gateway" through which a petitioner must pass to obtain review of defaulted substantive claims. In Schlup, the petitioner's claim of innocence was not a basis for his relief; instead his actual relief would be based on the validity of his Strickland and Brady claims. Schlup's innocence claim thus was "`not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.'" Id. at 315, 115 S.Ct. at 861 (quoting Herrera, 506 U.S. at 404, 113 S.Ct. at 862).
Because Schlup's claim of actual innocence was accompanied with an assertion of constitutional error at trial, the court held that Schlup's procedural default *776 could be excused only if he could show that "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup, 513 U.S. at 327, 115 S.Ct. at 867. The Court explained that Schlup's claim of innocence need not meet as high a standard as that imposed on Herrera's substantive claim of innocence.
Schlup's evidence of innocence need carry less of a burden [than a Herrera claimant]. . . .
. . . If there were no question about the fairness of the criminal trial, a Herrera-type claim would have to fail unless the federal habeas court is itself convinced that those new facts unquestionably establish Schlup's innocence. On the other hand, if the habeas court were merely convinced that those new facts raised sufficient doubt about Schlup's guilt to undermine confidence in the result of the trial without assurance that that trial was untainted by constitutional error, Schlup's threshold showing of innocence would justify a review of the merits of the constitutional claims.
Id. at 316-17, 115 S.Ct. at 861-62.
While the Supreme Court did not clearly articulate the quantum of proof necessary for a claim based solely on actual innocence when it drew the distinction we quote above, it is evident that such claims require that the court be "convinced that those new facts unquestionably establish [the defendant's] innocence." Id. Cornell, however, argues that we should apply to his claim [that a recantation shows that he is actually innocent of the crime] the Schlup- gateway standard, which only requires that the new facts raise sufficient doubt about his guilt to undermine confidence in the result of the trial. This argument, however, provides no relief to Cornell, because regardless of whether he can satisfy the Schlup-gateway standard, his substantive claim [that a recantation shows that he is actually innocent of the crime] must still meet the Herrera standard, which requires him to show new evidence that "unquestionably establishes" his innocence.
Cornell v. Nix, 119 F.3d 1329, 1333-34 (8th Cir.1997) (footnote omitted).
Here, in his pro se petition, Tomlinson asserted three grounds for § 2254 relief: "actual innocence," "dew [sic] process," and "ineffective assistance of counsel." Petition (docket no. 3), 5-6. His description of the supporting facts for his "actual innocence" claim, as Judge Zoss accurately characterized it, was a "review[] and attempt[] to refute several pieces of evidence introduced at the trial." Report and Recommendation at 12. However, the court finds the final paragraph of that description, quoted below, particularly telling as to the nature of Tomlinson's claim, as Tomlinson himself understood it:
The defendant is asking the court to look at the factual evidence only and put all prejudices and opinions aside. When the number of things that infer innocen[ce] are more than the number of things that may infer guilt, and there is a re[a]sonable explanation for everything that may infer guilt[,][t]he court must see reasonable doubt.
Petition at unnumbered page 8. Also, in a pro se response to the respondent's Motion To Dismiss, which Judge Zoss ordered stricken, because Tomlinson was by then represented by counsel, Tomlinson had asserted his innocence "pro se every step." See Defendant's Pro Se Resistance (docket no. 21), 9; see also Report and Recommendation at 12 (quoting Tomlinson's pro se resistance).
The court reads these statements of Tomlinson's "actual innocence" claim to be attempts to assert that, because he was actually innocent of the crimes for which *777 he had been convicted, his incarceration for life would constitute cruel and unusual punishment in violation of the Eighth Amendment and violate the Fourteenth Amendment's Due Process Clause, i.e., to be a Herrera-style "substantive" claim of "actual innocence." See Cornell, 119 F.3d at 1333 (describing a "substantive" claim of "actual innocence"). The court finds, in part, that a pro se litigant of no more sophistication than Tomlinson is highly unlikely to have understood the necessity to establish a basis for any procedural default on his other constitutional claims, and the pleadings evidence no such understanding, because "actual innocence" is asserted as Tomlinson's first ground for relief, not as any exception to procedural default of other claims. Indeed, the pro se petition plainly shows that Tomlinson believes that he is entitled to habeas relief, simply because he is actually innocent. Consequently, the Report and Recommendation will be modified to the extent that the court finds that Tomlinson attempted to plead a "substantive" claim of "actual innocence," as well as or in the alternative to a "procedural" claim of "actual innocence" to overcome procedural default of other constitutional claims.
Such a conclusion, however, does not warrant denial of the respondent's Motion To Dismiss. Whatever kind of "actual innocence" claim Tomlinson intended in his pro se pleadings, it is clear that he has not even pleaded facts that would meet the "high" or "extraordinarily high" standards for a "substantive" claim of "actual innocence." See id. at 1333-34. Even taking the facts pleaded as true and taking all reasonable inferences from such facts as pleaded, Tomlinson's allegations concerning what the evidence shows or implies are not enough for any court to be "convinced that those new facts unquestionably establish [the defendant's] innocence." Id. at 1334 (quoting Schlup, 513 U.S. at 316, 115 S.Ct. 851); see also Handeen v. Lemaire, 112 F.3d 1339, 1347 (8th Cir.1997) ("[A] court should grant [a] Rule 12(b)(6) motion and dismiss the action `only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'") (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)); accord Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (on a motion to dismiss, the court must take the allegations as true, and "[a] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his [or her] claim which would entitle him [or her] to relief."). To put it another way, on the face of his pro se petition, Tomlinson has not made any "`truly persuasive demonstrations of actual innocence.'" Cox, 398 F.3d at 1031 (quoting Herrera, 506 U.S. at 426-27, 113 S.Ct. 853). Indeed, the court does not find that any "new facts" at all have been pleaded, and any inferences from the facts to which Tomlinson points, which were already in the record, are not so one-sided that those inferences "unquestionably establish [the defendant's] innocence." Id. Thus, even construed as a "substantive" claim of "actual innocence," Tomlinson's first claim for habeas corpus relief pursuant to § 2254 fails to state a claim upon which relief can be granted.
The court will also overrule Tomlinson's objections to Judge Zoss's disposition of his "actual innocence" claim, construed by both Judge Zoss and Tomlinson's counsel as a "procedural" claim asserted to open a "gateway" for consideration of other procedurally defaulted constitutional claims. The court does not find, as Tomlinson contends, that Judge Zoss improperly considered the merits of such a claim; rather, the court finds that Judge Zoss found such a claim, as pleaded, *778 patently insufficient to meet the applicable standard. Again, a "procedural" claim of "actual innocence" requires the petitioner to "show that `it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence,'" Cornell, 119 F.3d at 1334 (quoting Schlup, 513 U.S. at 327, 115 S.Ct. 851, for this standard); accord Cox, 398 F.3d at 1031 (also quoting Schlup), that is, that "the new facts raise sufficient doubt about his guilt to undermine confidence in the result of the trial." Id. As Judge Zoss correctly pointed out, "`[w]ithout any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim.'" Report and Recommendation at 13 (quoting Schlup, 513 U.S. at 316, 115 S.Ct. 851). As Judge Zoss also correctly pointed out, Tomlinson has not alleged any new evidence at all in support of his "actual innocence" claim, only his "spin" on the inferences to be drawn from evidence presented at trial. Id. at 14. His bald assertion in his Objection that investigation of these pre-existing evidentiary issues might lead to the required "new evidence" simply misses the point. Upon de novo review, and in the alternative to the court's conclusions above concerning a "substantive" claim of "actual innocence," the court will accept Judge Zoss's recommendation to dismiss Tomlinson's "actual innocence" claim, construed as a "procedural" claim.
Finally, Tomlinson objects to Judge Zoss's adoption of the findings of fact of the Iowa Court of Appeals on Tomlinson's direct appeal. See Report and Recommendation at 2-5 (citing State v. Tomlinson, 2001 WL 58436 (Iowa Ct.App.2001)). As Judge Zoss correctly pointed out, however, pursuant to 28 U.S.C. 2254(e)(1), in a habeas proceeding, "a determination of a factual issue made by a State court shall be presumed to be correct," absent rebuttal by the petitioner, by clear and convincing evidence. Here, Tomlinson has simply pleaded no basis to rebut the findings by the Iowa Court of Appeals, let alone a clear and convincing basis to do so. Tomlinson's disagreements with the factual findings of the Iowa Court of Appeals fall far short of what is necessary to rebut them.
THEREFORE, the court overrules petitioner Tomlinson's September 7, 2003, Objection To Report and Recommendation (Petitioner's Objection) (docket no. 27); the court modifies the Report and Recommendation (docket no. 23) by Chief Magistrate Judge Paul A. Zoss to find that Tomlinson asserted a "substantive" claim of "actual innocence," at least in the alternative to a "procedural" claim of "actual innocence," but finds such a "substantive" claim, as pleaded, fails to state a claim upon which relief can be granted; the court accepts the remainder of Judge Zoss's Report and Recommendation; and, consequently, grants the respondent's January 17, 2007, Motion To Dismiss (docket no. 8). This matter is dismissed in its entirety.
IT IS SO ORDERED.
NOTES
[1] By order (docket no. 25) dated August 27, 2007, Judge Zoss quite rightly denied Tomlinson's belated August 24, 2007, Motion To Accept Resistance To Motion To Dismiss As Timely (docket no. 24), on the ground that Tomlinson's counsel had been granted repeated extensions of time to resist the respondent's Motion To Dismiss, but had not done so. Tomlinson then filed the Objection now before the court.
[2] Tomlinson also suggests that Burt did not argue in his Motion To Dismiss that Tomlinson could not establish "actual innocence" for whatever purpose, but only contended that Tomlinson's "actual innocence" claim was not a constitutional claim that could stand alone, citing Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Tomlinson stops short of arguing that his "actual innocence" claim should have been considered both a "substantive" claim and a "procedural" claim, however.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2453493/
|
258 P.3d 221 (2011)
In re the MARRIAGE OF Hyatt M. GIBBS, Petitioner/Appellee/Cross-Appellant, and
Lethia A. Gibbs, Respondent/Appellant/Cross-Appellee.
Hyatt M. Gibbs, Appellee/Cross-Appellant,
v.
Lethia A. Gibbs; Vanetta Gibbs, by and through her guardian ad litem, Leigh H. Bernstein, Appellants/Cross-Appellees.
Nos. 2 CA-CV 2010-0120, 2 CA-CV 2010-0172.
Court of Appeals of Arizona, Division 2, Department B.
June 9, 2011.
*223 Law Office of Sandra Tedlock By Sandra Tedlock, Tucson, Attorneys for Petitioner/Appellee/Cross-Appellant.
DeConcini McDonald Yetwin & Lacy, P.C. By Alyce L. Pennington and Sesaly O. Stamps, Tucson, Attorneys for Respondent/Appellant/Cross-Appellee Lethia Gibbs.
Fleming & Curti, P.L.C. By Leigh H. Bernstein, Tucson, Attorneys for Appellant/Cross-Appellee Vanetta Gibbs.
OPINION
KELLY, Judge.
¶ 1 Appellant Lethia Gibbs appeals the trial court's denial of her petition to reinstate child support for her disabled adult daughter, Vanetta Gibbs.[1] Appellee Hyatt Gibbs, Vanetta's father, cross-appeals alleging the court erred in rejecting his arguments that the claim was barred by waiver, laches, and estoppel; in finding that Vanetta "is severely mentally disabled under Arizona law"; in failing to order Lethia to pay half of Vanetta's guardian ad litem fees; and in requiring that he pay half of Lethia's attorney fees. Because we conclude the court erred in ruling Lethia's claim was precluded as res judicata, and in determining Vanetta was not a party, we reverse in part and remand for further proceedings.
Background
¶ 2 We review the facts in the light most favorable to sustaining the trial court's rulings. Bennett v. Baxter Group, Inc., 223 *224 Ariz. 414, ¶ 2, 224 P.3d 230, 233 (App.2010). Hyatt and Lethia Gibbs were married in 1960. When their marriage was dissolved in 1988, they had one minor child, Vanetta, who was seventeen years old. Because Vanetta had been diagnosed with "learning disabilities" and was behind in school, the dissolution decree provided that Hyatt would continue to pay child support until Vanetta "reach[ed] the age of twenty-two . . . marrie[d], die[d], or bec[ame] totally self-supporting, whichever occur[red] first."
¶ 3 Shortly before Vanetta turned twenty-two, Lethia asked Hyatt to sign an agreement to pay child support for Vanetta after her twenty-second birthday. Hyatt refused, but wrote in a letter to Lethia: "Of course, she needs my continued support, both financial and moral, and she will receive both. But why make this a court action which I will deeply resent and which could easily make her believe she cannot and need not work?" In 1993, after Vanetta turned twenty-two, Hyatt filed a request to modify the 1988 order of assignment to stop child support payments. Hyatt and Lethia reached an agreement ("1993 stipulation") that "[Hyatt's] obligation to pay child support ended" when Vanetta reached twenty-two years of age. After the court entered an order terminating Hyatt's child support obligation pursuant to the 1993 stipulation ("stipulated order"), Hyatt continued to make payments directly to Vanetta for several months but then stopped.
¶ 4 In 2005, Lethia filed a motion to reinstate child support for Vanetta and the trial court appointed a guardian ad litem to represent her. By stipulation of the parties, Vanetta underwent independent medical and psychological examinations. Due to continuances and settlement attempts, the motion for child support remained unresolved in January 2010, when Hyatt filed a motion to join Vanetta as an indispensable party. The court granted Hyatt's motion and in April 2010, following a bench trial, it held that "Vanetta [was] severely mentally or physically disabled" and pursuant to A.R.S. § 25-320 "met the statutory requirements for child support." The court, however, denied Lethia's motion to reinstate child support, determining the stipulated order precluded her claim as res judicata. The court further found "Vanetta is not a party in either proceeding" and did not address her claim for child support. Thereafter, Lethia filed a notice of appeal on behalf of Vanetta and herself and Hyatt filed a cross-appeal.[2]
Discussion
I. Claim Preclusion
a. Preclusive effect of the stipulated order on the child support claim
¶ 5 Lethia and Vanetta argue the trial court erred as a matter of law in ruling that the stipulated order barred their present claim for child support. Although the court rejected Hyatt's argument that Lethia had waived any claim for child support based on the 1993 stipulation, noting that such a waiver is unenforceable if the child's interests are affected adversely, see Mendoza v. Mendoza, 177 Ariz. 603, 605, 870 P.2d 421, 423 (1994), it agreed with Hyatt that Lethia's claim was precluded by res judicata, also known as claim preclusion. The court found that "if [Lethia] believed Vanetta was disabled in 1992-93, she should have litigated that issue at that time," and that her claim for child support therefore was precluded.
¶ 6 "The doctrine of res judicata will preclude a claim when a former judgment on the merits was rendered by a court of competent jurisdiction and the matter now in issue between the same parties or their privities was, or might have been, determined in the former action." Hall v. Lalli, 194 Ariz. 54, ¶ 7, 977 P.2d 776, 779 (1999). We review a trial court's findings of fact for abuse of discretion and reverse only when clearly erroneous. Engel v. Landman, 221 Ariz. 504, ¶ 21, 212 P.3d 842, 848 (App.2009). But "we `draw our own legal conclusions from [the] facts found or implied in the judgment.'" See id., quoting McNutt v. McNutt, 203 Ariz. 28, ¶ 6, 49 P.3d 300, 302 (App.2002); *225 see also Wilmot v. Wilmot, 203 Ariz. 565, ¶ 10, 58 P.3d 507, 510-11 (2002) (trial court's interpretation and conclusions of law reviewed de novo). Even when the technical requirements for preclusion based on a former adjudication are met, the court should not apply preclusion principles "`where there is some overriding consideration of fairness to a litigant,'" as determined by the particular case's circumstances. See Hullett v. Cousin, 204 Ariz. 292, ¶ 28, 63 P.3d 1029, 1035 (2003), quoting Ferris v. Hawkins, 135 Ariz. 329, 331, 660 P.2d 1256, 1258 (App. 1983).
¶ 7 We first consider whether Lethia's claim for reinstatement of child support for Vanetta meets the requirements for claim preclusion. It is undisputed that a stipulated order was entered in 1993 ending Hyatt's obligation to pay child support for Vanetta. That order is preclusive only as to issues that were or could have been presented at that time. Pettit v. Pettit, 218 Ariz. 529, ¶ 4, 189 P.3d 1102, 1104 (App.2008). It was entered after the parties stipulated Hyatt had no continuing obligation to pay child support, presumably because the dissolution decree did not require his support after Vanetta had reached the age of twenty-two. But the stipulated order did not address the issues of whether Vanetta suffered from disabilities, whether such disabilities were severe, or whether she had the ability to support herself. If Hyatt is correct that Lethia could have raised these issues in 1993, Lethia's claim for child support based on Vanetta's disabilities could be subject to preclusion.[3] But assuming arguendo the severity of Vanetta's disabilities could have been determined in 1993, we must consider whether the doctrine of claim preclusion should be applied in the child support context under the circumstances present here.
¶ 8 Claim preclusion is a judicially created doctrine. El Paso Natural Gas Co. v. State, 123 Ariz. 219, 223, 599 P.2d 175, 179 (1979). That doctrine, however, is not "rigidly applied . . . `when [it] . . . would contravene an overriding public policy or result in manifest injustice.'" Smith v. CIGNA HealthPlan of Ariz., 203 Ariz. 173, ¶ 21, 52 P.3d 205, 211 (App.2002), quoting Tipler v. E.I. duPont deNemours & Co., 443 F.2d 125, 128 (6th Cir.1971). Moreover, Arizona's child support statutes provide that support may be modified even after the entry of a final order upon a showing of substantial and continuing changed circumstances. A.R.S. § 25-327(A); Little v. Little, 193 Ariz. 518, ¶ 6, 975 P.2d 108, 110-11 (1999). When evaluating whether such a modification is appropriate, "the primary, paramount and controlling consideration is the welfare of the child[]." Evans v. Evans, 17 Ariz.App. 323, 325, 497 P.2d 830, 832 (1972).
¶ 9 Section 25-320 also gives the trial court jurisdiction to order, in its discretion, support of a disabled child to continue past the age of majority. 1973 Ariz. Sess. Laws, ch. 139, § 2. The statute provides that "[e]ven if a child is over the age of majority when a petition is filed or at the time of the final decree, the court may order support to continue past the age of majority[,]" if certain conditions are met. And we have concluded the plain language of § 25-320 permits the court to order support for a disabled adult child even if there is no such order in place before the child reaches the age of majority. Gersten v. Gersten, 223 Ariz. 99, ¶ 26 & n. 12, 219 P.3d 309, 317-18 & n. 12 (App.2009).
¶ 10 To interpret a statute we first look to the language therein and give the words used their plain meaning, unless context demands otherwise. City of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, ¶ 71, 105 P.3d 1163, 1178 (2005). We interpret statutes with the goal of "`fulfill[ing] the intent of the legislature.'" Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 *226 (1996), quoting State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993).
¶ 11 In Mendoza, we determined § 25-320 "allow[ed] the court to order support for a disabled child to continue past the age of majority, even if the court acquired jurisdiction after the child was no longer a minor." 177 Ariz. at 605, 870 P.2d at 423. We concluded this provision reflected an "intent to broaden the scope of the court's jurisdiction to order support of an adult, disabled child where the court deems it appropriate." Id. And we determined that even if a dissolution decree was silent as to continued support after the child reached the age of majority, its silence did not deprive the trial court of jurisdiction over the matter, and the child might be entitled to continuing support based on disability. Id.
¶ 12 Our legislature has established a statutory scheme that permits modification of a child support judgment upon a showing of substantial and continuing changed circumstances and explicitly has provided the trial courts with continuing jurisdiction to order support for an adult, disabled child, even if the claim is not brought until after the child has passed the age of majority. §§ 25-320(E), 25-327(A); see also Gersten, 223 Ariz. 99, ¶¶ 22-26, 219 P.3d at 316-18; Mendoza, 177 Ariz. at 605, 870 P.2d at 423. As Lethia's counsel stated during oral argument before this court:
The child support statute contemplates the issue of child support [a]s a continuing one for as long as the child is eligible. . . . The issue of child support is not a single discrete claim subject to final . . . adjudication,. . . it is more fairly regarded as a series of claims subject to the court's ongoing jurisdiction . . . and always hinged on the best interests of the child.
To the extent there is a conflict between policies behind claim preclusion and those expressed through the statutes addressing child support modification, the legislature's word controls. See Taylor v. Graham County Chamber of Commerce, 201 Ariz. 184, ¶ 27, 33 P.3d 518, 525 (App.2001) ("when . . . the legislature has clearly spoken on a matter within its domain, its word constitutes public policy on that subject and controls"). Thus, although the doctrine of res judicata enforces important principles of judicial economy and finality, its application, under the specific circumstances here, would undermine the public policy expressed in our applicable child support modification statutes by preventing consideration of changed circumstances. We therefore conclude the trial court erred in precluding Lethia's claim on this basis.
b. Applicability of claim preclusion to Vanetta
¶ 13 In its ruling concluding claim preclusion applied to the motion to reinstate child support, the trial court stated that the parties to the current proceeding were the same as those who signed the 1993 stipulation. The court explained that "[a]lthough Mother's request for child support is for Vanetta's benefit, Vanetta is not a party in either proceeding." Both Vanetta and Lethia argue this ruling is clearly erroneous because Vanetta was joined as a party at Hyatt's request. We agree, and Hyatt apparently concedes, Vanetta was a party. As such, the court's determination was clearly erroneous and it therefore erred in failing to consider Vanetta's own claim for support before denying the motion.
¶ 14 On appeal, Lethia argues that Vanetta could not have been in privity with her regarding the 1993 stipulated order and therefore cannot be bound by that order. But because Lethia did not raise this claim in the trial court, we do not consider it. Airfreight Express Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, ¶ 17, 158 P.3d 232, 238 (App.2007) (we will not consider on appeal issues trial court did not consider or have opportunity to address).[4] Moreover, because we have determined *227 the trial court erred in applying the doctrine of claim preclusion to Lethia's action, we need not address whether Vanetta and Lethia were in privity. And because we conclude the court erred both in finding Lethia's claim for child support precluded and in finding Vanetta was not a party in her own right, we remand the case to the trial court to decide the matter on its merits as to both Lethia and Vanetta.
II. Cross-issues
¶ 15 In his combined answering brief and opening brief on cross-appeal, Hyatt contends that even if Lethia's and Vanetta's claims were not barred by res judicata, they otherwise were precluded by the doctrines of waiver, laches, and equitable estoppel, and that the trial court erred in determining these doctrines did not apply. He also challenges the court's finding that Vanetta was severely disabled under § 25-320(E), its award of attorney fees to Lethia, and its failure to require Lethia to pay half of the guardian ad litem fees for Vanetta. Lethia and Vanetta filed a motion in this court asking that we strike portions of Hyatt's reply brief on cross-appeal in which he argued the trial court erred in ruling waiver, laches and estoppel did not apply and in finding Vanetta was severely disabled. They argued that Hyatt's reply brief on cross-appeal contained arguments "relevant only to the issues raised in the direct appeal, not the cross-appeal." We agreed and granted the motion to strike. We therefore consider only as cross-issues the applicability of the doctrines of waiver, laches, and estoppel, and whether the trial court erred in finding Vanetta disabled under Arizona law. See CNL Hotels & Resorts, Inc. v. Maricopa County, 226 Ariz. 155, ¶ 37 & n. 6, 244 P.3d 592, 600 & n. 6 (App.2010).
a. Waiver, laches, and equitable estoppel
¶ 16 Although we will affirm the trial court if its ruling was correct for any reason, we are not persuaded that the court erred in rejecting Hyatt's arguments that the doctrines of waiver, laches, and equitable estoppel should preclude the motion for child support. See Ariz. R. Civ.App. P. 13(b)(3) (appellate court may affirm judgment based on any grounds when issues properly presented to trial court); Picaso v. Tucson Unified Sch. Dist., 217 Ariz. 178, ¶ 9, 171 P.3d 1219, 1222 (2007) ("An appellate court must determine whether the judgment, not the reasoning, of the superior court was correct."). We accept the court's factual findings unless clearly erroneous. Engel, 221 Ariz. 504, ¶ 21, 212 P.3d at 848. Although "we `draw our own legal conclusions from [the] facts found or implied in the judgment,'" based on the record before us we cannot say the court erred in its determination on any of these issues. See id.
¶ 17 Hyatt argues the doctrine of waiver should apply to Lethia because Vanetta's interests were not adversely affected by the stipulated order. See Mendoza, 177 Ariz. at 605, 870 P.2d at 423. We agree, however, with the trial court's conclusion that Vanetta's Social Security benefits were not sufficient to support the conclusion that "Vanetta's interests [were] not adversely affected." On the issues of laches and equitable estoppel, the court found that Hyatt had "offered no evidence, expert or otherwise," to support his claims of prejudice and injury. We see no error with the court's findings. Delay alone cannot establish a defense of laches, and failure to act does not make out a claim for estoppel. See Decker v. Hendricks, 97 Ariz. 36, 40, 396 P.2d 609, 611 (1964) (estoppel); In re Paternity of Gloria, 194 Ariz. 201, ¶ 13, 979 P.2d 529, 531-32 (App.1998) (laches). We therefore find no error in the court's rejection of Hyatt's alternate grounds for preclusion.
b. Section 25-320(E) disability
¶ 18 Hyatt also argues the trial court's finding that "Vanetta is severely mentally disabled under Arizona law" was "not supported by the evidence" and that "many facts show that Vanetta is not severely mentally disabled." Section 25-320(E) provides:
Even if a child is over the age of majority when a petition is filed or at the time of *228 the final decree, the court may order support to continue past the age of majority if all of the following are true:
1. The court has considered the factors prescribed in subsection D of this section.
2. The child is severely mentally or physically disabled as demonstrated by the fact that the child is unable to live independently and be self-supporting.
3. The child's disability began before the child reached the age of majority.
We defer to a trial court's findings of fact unless they are clearly erroneous. John C. Lincoln Hosp. & Health Corp. v. Maricopa County, 208 Ariz. 532, ¶ 10, 96 P.3d 530, 535 (App.2004). The presence of contrary facts does not render a trial court's factual determinations clearly erroneous. Id.
¶ 19 The evidence presented below established that Vanetta was severely impaired and therefore eligible for Social Security disability benefits as a disabled dependent of Hyatt, which requires in part that her disability existed prior to her eighteenth birthday. Two experts testified Vanetta had multiple physical and mental impairments. These impairments included learning disabilities, auditory processing problems, emotional difficulties, depression and possibly bipolar disorder and/or a personality disorder. One expert diagnosed her with Asperger's Syndrome and testified that "she . . . would have at a young age qualified for [this] diagnosis." Both experts agreed Vanetta was unable to live independently without monitoring and support. Because substantial evidence underlies the court's finding that Vanetta was severely mentally disabled and that her disability had existed before the age of majority, there was no error.
III. Cross-appeal
a. Lethia's attorney fees
¶ 20 In his cross-appeal, Hyatt contends the trial court erred in ordering him to pay half of Lethia's attorney fees. We review the court's award of attorney fees for an abuse of discretion. Orfaly v. Tucson Symphony Soc'y, 209 Ariz. 260, ¶ 18, 99 P.3d 1030, 1035 (App.2004). We will not reverse such an award "`if there is any reasonable basis for it.'" Id., quoting Hale v. Amphitheater Sch. Dist. No. 10, 192 Ariz. 111, 117, 961 P.2d 1059, 1065 (App.1998). Relying on In re Marriage of Williams, 219 Ariz. 546, 200 P.3d 1043 (App.2008), Hyatt contends the court abused its discretion by failing "to consider the financial resources of both parties." He maintains the court erred in awarding attorney fees to Lethia "based solely on the parties' disparity in incomes."
¶ 21 The trial court received evidence regarding "financial resources of both parties," including financial affidavits and testimony. Although the court did not detail the parties' financial resources in the context of its fee award, we presume it fully considered the relevant evidence.[5]See Fuentes v. Fuentes, 209 Ariz. 51, ¶ 18, 97 P.3d 876, 880-81 (App.2004) (evidence admitted in trial court "presumed to have been fully considered"). Further, "an award of fees can be appropriate simply because an income disparity exists, and it is not necessary to also inquire into whether the fee applicant is actually able to pay his or her own fees." Magee v. Magee, 206 Ariz. 589, ¶ 12, 81 P.3d 1048, 1051 (App.2004). The court, therefore, did not err in awarding attorney fees to Lethia based on the disparity in the parties' income. See Pearson v. Pearson, 190 Ariz. 231, 236, 946 P.2d 1291, 1296 (App.1997) (decision on attorney fees "lies within the trial court's sound discretion, `with the focus on the parties' relative abilities to pay the fees incurred'"), quoting Hrudka v. Hrudka, 186 Ariz. 84, 94-95, 919 P.2d 179, 189-90 (App. 1995).
b. Guardian ad litem fees
¶ 22 When the trial court ordered the appointment of a guardian ad litem for Vanetta, it specified that "[Hyatt] shall be initially responsible for the cost, subject to contribution by the respondent after the parties' financial situations have been assessed." In September 2005, the court's ruling appointing *229 Leigh Bernstein as guardian ad litem provided that "[p]ayment . . . shall be shared equally between the parties." The court's final order did not address guardian ad litem fees. On this record, we cannot conclude this omission was anything more than an oversight by the court which can be addressed on remand.
IV. Attorney Fees on Appeal
¶ 23 Pursuant to Rule 21, Ariz. R. Civ.App. P. and A.R.S. § 25-324, Lethia requests attorney fees on appeal. "Section 25-324 requires us to examine both the financial resources and the reasonableness of the positions of each party." Leathers v. Leathers, 216 Ariz. 374, ¶ 22, 166 P.3d 929, 934 (App. 2007). Although we are aware there is a disparity between Lethia's and Hyatt's financial resources, Hyatt is responsible for half of Lethia's and all of his own attorney fees below, as well as his own fees on appeal.[6] Further, although Hyatt contends Lethia's position on appeal was unreasonable, we conclude neither party has taken an unreasonable position on appeal. In our discretion, we deny Lethia's request for attorney fees on appeal.
Disposition
¶ 24 The trial court's order denying Lethia's motion based on claim preclusion is vacated and the case is remanded for further proceedings consistent with this opinion.
CONCURRING: GARYE L. VÁSQUEZ, Presiding Judge, and PETER J. ECKERSTROM, Judge.
NOTES
[1] Through her guardian ad litem, Vanetta filed a separate notice of appeal. We thereafter consolidated the appeals, and Vanetta joined in Lethia's briefs.
[2] The appeal and cross-appeal were stayed until the trial court entered an order regarding attorney fees.
[3] In 1993, however, neither Lethia nor Hyatt could have known Vanetta's disabilities might prevent her from obtaining employment so that she could not become self-supporting. This is especially true because, as the trial court recognized, Asperger's Syndrome as an independent diagnosis, and the potential ramifications of the diagnosis, "did not exist in the U.S. Diagnostic scales before 1994." And it also was not until after the stipulated order that the Social Security Administration determined Vanetta was severely impaired and qualified as disabled under the Social Security Act, 42 U.S.C. §§ 301-1397.
[4] Lethia's counsel explained at oral argument that she had discussed privity in her opening brief because it appeared the trial court had concluded Vanetta was in privity with Lethia in the original case and therefore was bound by the stipulated order. If such were the case, Lethia's arguments regarding privity would not be waived. See Parkinson v. Guadalupe Pub. Safety Ret. Local Bd., 214 Ariz. 274, ¶ 12, 151 P.3d 557, 560 (App.2007) ("We will affirm the superior court if its ruling was `correct for any reason, even if that reason was not considered' by the court."), quoting Glaze v. Marcus, 151 Ariz. 538, 540, 729 P.2d 342, 344 (App.1986).
[5] We assume the trial court's reference in its ruling to § 25-314, rather than § 25-324, is a clerical error.
[6] Because the trial court's initial order did not require Lethia to contribute to Vanetta's guardian ad litem fees, Hyatt remains responsible for Vanetta's fees on appeal. To the extent Hyatt requests that Lethia be ordered to pay half of Vanetta's fees on appeal, we decline to enter such an order and leave the trial court's order intact.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2453522/
|
509 F.Supp.2d 954 (2007)
CAUGHT FISH ENTERPRISES, LLC, a Colorado limited liability company, and Metal Roof Innovations, Ltd., a Colorado corporation, Plaintiffs,
v.
CONTEK, INC., d/b/a Snow Management Systems, a Vermont corporation, Defendant.
Civil Action No. 00-cv-02229-JLK.
United States District Court, D. Colorado.
June 18, 2007.
*955 *956 *957 Benjamin Baughman Lieb, Paul Sung Cha, Robert R. Brunelli, Sheridan Ross, P.C., Denver, CO, for Plaintiffs.
Donald A. Degnan, Holland & Hart, LLP-Boulder CO, Boulder, CO, Joseph Thomas Jaros, Holland & Hart, LLP-Denver, Denver, CO, for Defendant.
MEMORANDUM OPINION AND ORDER
KANE, District Judge.
Plaintiffs Caught Fish Enterprises, LLC ("Caught Fish") and Metal Roofing Innovations, Ltd. ("MRI") (collectively "CFE") allege Defendant Contek, Inc. ("Contek") has infringed on certain claims in CFE's U.S. Patent Nos. 5,228,248 ("'248 patent") and 5,983,588 ("'588 patent"). Determination of this suit will proceed in two steps. First, the court must decide the meaning and scope of the patent claims asserted to be infringed. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Second, the finder of fact must compare the properly construed claims to the device accused of infringing. Id. This matter is before me on the first of these steps, commonly referred to as claim construction.
Upon consideration of the parties' respective briefs, supplemental submissions and oral argument on the disputed claim terms, I entered an order generally adopting CFE's proposed construction of the disputed terms and notifying the parties that a written opinion would follow. See Order (Doc. 59). The findings and rationale for my claim construction decision are set forth in this opinion.
Background
CFE and Contek compete in the manufacture and sale of snowguards designed for controlling the movement of snow and ice deposited on metal roofs.[1] CFE's asserted patents and Contek's accused product both relate to this field, and especially to the device for attaching a snowguard to a metal roof.
It is undisputed that metal roofs are generally comprised of a number of watertight metal roofing panels laid side-by-side to cover a selected roof section. The roof panels have standing edges on their left and right sides, and are situated so that their standing edges abut and form a seam. Roofers then crimp the standing edges and/or fold them over each other to form a side joint, also referred to as a standing seam, which prevents water from penetrating the roof panels.
The asserted patents arise out of the inventions of Robert Haddock, who holds an ownership interest in both Caught Fish and MRI, and his design of a clamp-type mounting device to secure structures, such as snowguards, to the standing seam of a metal roof. Haddock's mounting device consists of a machined block of metal and several fasteners. The metal block includes a hollow cavity or slot designed to surround a standing seam, as well as bores or holes to accept fasteners or to attach snowguard cross-members or other items to it. In operation, the metal block is positioned over the roof seam and is secured by several blunt-nosed screws that rotate into contact with the seam through threaded side surface holes that extend *958 from the outside surface of the block to its hollow cavity. The device utilizes blunt-nosed fasteners instead of fasteners terminating in sharp or flat ends because the blunt end enables the fastener to frictionally engage the metal roof seam without puncturing or galling it in a manner that would allow water to penetrate the seam.
The U.S. Patent and Trademark Office ("PTO") granted Haddock several patents covering different aspects of his roof clamp system, including the '248 patent in 1993 and the '588 patent, a continuation-in-part of the '248 patent,[2] in 1999. Haddock subsequently assigned the asserted patents to Caught Fish, which then licensed them to MRI.
Defendant Contek manufactures and sells its own device for mounting snowguards on the standing seam of metal roofs. Like CFE's mounting apparatus, Contek's device utilizes a threaded fastener that passes through holes in a metal block and frictionally engages the standing seam with a blunt-nosed device. As relevant here, the difference between Contek's mounting apparatus and CFE's apparatus is that Contek's fastener is not a unitary piece but rather has two parts, a threaded cylinder with a concave nose and a separate blunt object, such as a ball bearing, "circle-lok" modified ball bearing or "sure grip pad," that fits into the cavity in the concave nose of threaded cylinder and frictionally engages the roof seam when the cylinder is rotated through the threaded hole. Contek asserts the functionality of its multi-part fastener improves on the unitary fastener utilized by CFE because the blunt end of the Contek fastener does not rotate against the metal seam, thus protecting the seam from possible paint removal or galling that could damage it, and because the two-part design allows the fastener to disengage or release under heavy snow loads, which can protect the roof from damage that might otherwise occur. Contek has obtained several patents for its snowguard mounting assembly, including U.S. Patent No. 5,613,328 ("'328 patent"), issued in 1997, and U.S. Patent No. 6,318,028 ("'028 patent"), issued in 2001.
CFE's and Contek's mounting devices also differ in the manner in which the cross-member (snowguard) that spans the distance between the seams is connected to the apparatus mounted on the standing seam. Under CFE's patents and products based on them, the cross-member attaches directly to the metal block or clamp that is fastened to the standing seam. See Pls.' Markman Br. (Doc. 33), Ex. 2 [hereinafter "'248 patent"], fig. 3a; id., Ex. 3 [hereinafter "'588 patent"], fig. 3a. In Contek's accused products, the cross-member connects to an intermediate structure, a bracket, that is attached to the metal block. See, e.g., Stipulated Exs. at Markman Hearing, Ex. 15 (Contek clamp);[3] Pls.' Markman Br., Ex. 7 [hereinafter "'328 patent"], fig. 1.
CFE alleges that Contek's mounting device infringes Claims 1-4, 6, 9, 10 and 13 of the '248 patent and Claims 1-12, 14-17, 19-35, 37-40 and 42-53 of the '588 patent. The parties dispute the scope and meaning *959 of certain terms recited in some of these claims. By stipulation of the parties, the disputed terms are: (1) "blunt-nosed screw" or "screw" as recited in Claim 1 of the '248 patent and Claims 1, 9, 15, 25, 32, and 38 of the '588 patent; (2) "member positionable within said first hole and being extendable within said slot" and similar language as recited in Claims 20, 43 and 48 of the '588 patent; (3) "interconnected with" as recited in Claim 1 of the '248 patent; and (4) "securing" as recited in Claims 9 and 32 of the '588 patent.
Claim Construction Principles
The claims of a patent define the invention to which the patentee is entitled. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.Cir.2005) (en banc). The Federal Circuit and Supreme Court have held that construction of patent claims to determine their scope and meaning is a pure question of law to be decided solely by the court. Markman, 52 F.3d at 979; id., 517 U.S. at 384-86, 116 S.Ct. 1384. This task requires that I examine the language of the claims, the patent specification and the prosecution history, all referred to as intrinsic evidence, to determine the "ordinary and customary meaning" of the disputed claim terms to a person of ordinary skill in the art in question at the time of the invention. Phillips, 415 F.3d at 1313. In considering the specification, however, I must take care not to import limitations from it into the claims. Id. at 1315, 1319-20; Laitram Corp. v. NEC Corp., 163 F.3d 1342, 1347 (Fed.Cir.1998); see also Rhine v. Casio, Inc., 183 F.3d 1342, 1346 (Fed. Cir.1999) ("particular embodiments appearing in a specification will not be read into the claims when the claim language is broader than such embodiments;" internal quotation omitted). I may also consider evidence extrinsic to the asserted patents, such as dictionary definitions, in construing the terms of a claim, so long as I consider the extrinsic evidence in the context of the claim language, specification and prosecution history, and the extrinsic evidence does not contradict any definition found in or ascertained from this intrinsic evidence. See Phillips, 415 F.3d at 1319-20, 1322-23.
The same terms appearing in different claims in the same patent "should have the same meaning unless it is clear from the specification and prosecution history that the terms have different meanings at different portions of the claims." Wilson Sporting Goods Co. v. Hillerich & Bradsby Co., 442 F.3d 1322, 1328 (Fed.Cir. 2006) (internal quotation omitted); see Phillips, 415 F.3d at 1314. Unless the intrinsic evidence compels a different conclusion, I must also give a claim term "the full range of its ordinary meaning as understood by persons skilled in the relevant art." Riverwood Int'l Corp. v. R.A. Jones & Co., 324 F.3d 1346, 1357 (Fed.Cir.2003); see Rexnord Corp. v. Laitram Corp., 274 F.3d 1336, 1342 (Fed.Cir.2001).
At different points in their briefs, the parties debate whether and to what extent I may consider Contek's accused device in construing the asserted patents. Under Federal Circuit authority, it is proper for a district court to consider the accused device in order to identify and "concentrate on those aspects of the claim whose relation to the accused device is in dispute." Pall Corp. v. Hemasure, Inc., 181 F.3d 1305, 1308 (Fed.Cir.1999); see Wilson, 442 F.3d at 1327. I may not and will not, however, "prejudge the ultimate infringement analysis by construing claims with an aim to include or, exclude an accused product, or, process." Wilson, 442 F.3d at 1327. While I will define the disputed claim terms in this case "with whatever specificity and precision is warranted by the language of the claim[s] and the evidence bearing on the proper construction, the task of determining whether the construed claim reads on the accused *960 product is for the finder of fact." PPG Indus. v. Guardian Indus. Corp., 156 F.3d 1351, 1355 (Fed.Cir.1998); see Union Carbide Chems. & Plastics Tech. Corp. v. Shell Oil Co., 425 F.3d 1366, 1373 (Fed.Cir. 2005) (requiring court to distinguish between legal question of claim construction and the factual question of infringement).
Analysis
A. "blunt-nosed screw" and "screw"
The parties' primary claim construction dispute concerns the meaning of the terms "screw" and "blunt-nosed screw" as used in both the '248 and '588 patent. The parties agree that the term "screw" as used in these patents means a "blunt-nosed screw."
Claim 1 of the '248 patent is representative of the manner in which the disputed terms are used in the asserted patents. It reads, with the disputed terms in italics:
1. An apparatus for controlling movement of ice and/or snow' along a predetermined area of a sloping surface, said surface including a plurality of spaced, longitudinal raised portions, said raised portions extending from an elevated portion of said surface to a lower portion thereof and each being laterally separated by a base portion, wherein said raised portions are positioned a greater distance above a reference plane than said base portions, said apparatus comprising:
clamp means for detachably engaging one of said raised portions, said clamp means including a body having a longitudinal cavity for receiving said one raised portion and means for frictionally engaging an external surface of said one raised portion, said means for frictionally engaging comprising at least one blunt-nosed screw threadably interconnected to said body, said screw being extendable into said cavity to deform said external surface of said one raised portion, wherein a first of said clamp means is positionable on a first of said raised portions and a second of said clamp means is positionable on a second of said raised portions; and
a cross-member interconnectable with said clamp means, wherein a first said cross-member extends between and is interconnected with said first and second clamp means above at least one of said base portions.
The parties agree that the ordinary and customary meaning of "blunt-nosed screw" to one skilled in the art at the time of the invention is a device with a blunted forward end, a shaft or cylinder with a continuous, spirally grooved thread and a tool member connection, such as a slot to accept a driving device. The parties also agree that a unitary structure having these elements is a "blunt-nosed screw." They do not agree, however, whether a "blunt-nosed screw" is limited to a unitary structure or whether, as CFE asserts and Contek disputes, it may also be comprised of several parts.
Neither party points to any intrinsic evidence that defines or addresses, directly or indirectly, whether the ordinary and customary meaning of a "blunt-nosed screw" to one skilled in the art of metal roofing encompasses a multi-piece device. Both parties instead rely on extrinsic evidence to support their arguments.
Webster's Third New International Dictionary provides several definitions of "screw" that are potentially relevant here. The first, relied upon in part by Contek, defines a "screw" as "a simple machine of the inclined plane type consisting of a spirally grooved solid cylinder and a correspondingly grooved hollow cylinder of equal dimensions in which the applied force acts in a spiral path along the grooves while the resisting force acts along the axis of the cylinder." Webster's Third New Int'l Dictionary of the English Language *961 Unabridged 2040 (1993); see Merriam Webster's Collegiate Dictionary 1049 (10th ed.1995) (reciting a similar definition relied upon by Contek). Other, related definitions describe a "screw" as "a cylinder with a helical cut groove on the outer surface . . . used variously (as to fasten, apply pressure, transmit motion, or make adjustments)," and "a cylindrical fastener that is usu. pointed, that has ahead with a slot or recess, that is helically or spirally threaded, and that is designed for insertion into material by rotating." Webster's Third New Int'l Dictionary at 2040. While these definitions can be read as suggesting that a "screw" is a unitary structure consisting of a spirally grooved solid cylinder, none definitively addresses this issue.
Webster's Third New International Dictionary offers an alternate definition that more closely addresses this question. This definition states that the term "screw" includes "any of several devices consisting wholly or partly of a screw." Id. (emphasis added). Under this definition, therefore, the ordinary meaning of the term "screw" includes devices that encompass both a spirally grooved solid cylinder or shaft and additional features or components.
The only evidence in the record regarding the ordinary and customary meaning of the term "screw" in the field of metal roofing is found in the declaration of Robert M. Haddock, the inventor of the '248 and '588 patents. Mr. Haddock testifies there that he has 30 years of experience in the steel and metal construction trades, including more than 15 years in the field of metal roof design and fabrication. Pls.' Markman Br., Ex. 1 [hereinafter "Haddock Decl."], ¶ 2. Based on this experience, Mr. Haddock declares that it is well-known in the field of metal roofing that fasteners such as screws come in many different shapes, sizes and configurations, including "threaded shaft-type fasteners that are comprised of multiple components, but are designed to function as a single unit." Id. ¶ 8. Mr. Haddock states that such threaded shaft-type, multi-component fasteners are known as "screws" and gives several examples of such devices that are common in the metal building trade. Id.
Mr. Haddock's testimony is unrebutted. Contek contends it nonetheless should be disregarded based on Federal Circuit authority holding that inventor testimony regarding the meaning of patent claims is not entitled to special deference, see Markman, 52 F.3d at 983, and that inventor testimony is entitled to little or no consideration when it is "a self-service, after the fact attempt to state what should have been part of his or her patent application." Bell & Howell Document Mgmt. Prods. Co. v. Altek Sys., 132 F.3d 701, 706 (Fed.Cir.1997). The testimony by Mr. Haddock relied on here does not fall within this authority because it describes the state of knowledge in the field of metal roofing at the time of the invention, rather than Mr. Haddock's intent and meaning in using the term "screw" in the asserted patents. In its most recent and comprehensive statement of evidence that district courts may properly rely upon in claim construction, the Federal Circuit specifically authorized consideration of extrinsic evidence, "including expert and inventor testimony," for the purpose, of "establish[ing] that a particular term in the patent or prior art has a particular meaning in the pertinent field." Phillips, 415 F.3d at 1317, 1318. That is precisely the purpose of the inventor testimony cited here and thus it may, be considered.
Contek also argues "screw" as used in the asserted patents must be construed to be a unitary structure because this construction is most consistent with the most common English usage of the term. This may be true, but the dictionary definition recited above as well as Mr. Haddock's *962 testimony indicates that "screw" as used in the metal roofing field can also encompass multi-part fasteners that include a spirally grooved cylinder or shaft.
"[U]nless compelled otherwise, a court must give a claim term the full range of its ordinary meaning as understood by persons skilled in the relevant art." Riverwood Int'l, 324 F.3d at 1357; Rexnord, 274 F.3d at 1342. Before adopting the broadest definition of a term based on a dictionary definition or other extrinsic evidence, however, I must scrutinize the intrinsic evidence to determine if this is the most appropriate definition. Free Motion Fitness, Inc. v. Cybex Int'l, Inc., 423 F.3d 1343, 1349 (Fed.Cir.2005); gee Phillips, 415 F.3d at 132223, 1324.
Having reviewed the language of the claims, the specification of the asserted patents and relevant prosecutorial history, I find no indication that the term "screw" must be limited to the narrower definition of a unitary structure. The intrinsic record suggests that "blunt-nosed screw" simply means a fastener with spirally grooved shaft and rounded end that frictionally engages the roof seam. Nothing in this record indicates a concern with whether this fastener is made up of one or multiple parts. Based on this and the extrinsic evidence cited above, I hold that the term "blunt-nosed screw" and "screw" as used in the asserted patents is not limited to a unitary structure.
My reasoning and result here is similar to that of the Federal Circuit in Free Motion Fitness, Inc. v. Cybex International, Inc., 423 F.3d 1343 (Fed.Cir.2005), an infringement action concerning a patent for an exercise apparatus comprising a resistance assembly, two adjustable extension arms that pivot on an axis substantially parallel to the axis of rotation of a pulley at the end of each arm, and a cable linking the resistance assembly to the arms. Id. at 1345. One of the issues on appeal was the proper construction of the term "adjacent" as used in claims describing the location of the resistance assembly of the exercise machine relative to the pivot point on each of its extension arms. Id. at 1345, 1349. The court observed that the intrinsic evidence did not define the term and that it had no specialized meaning in the relevant art. Id. at 1348. It next identified two definitions of "adjacent" in Webster's Third New International Dictionary that might apply, the first being "not distant" and the second being "relatively near and having nothing of the same kind intervening."[4]Id. at 1349. The court then returned to the intrinsic record and determined that nothing in it suggested a concern with intervening pivot points or excluding any intervening pivot points. Id. Accordingly, the court adopted the broader definition of "not distant" in construing the term "adjacent." Similarly, I find no concern in the asserted patents for a unitary as opposed to a multi-part screw and therefore also adopt the broader of the possible dictionary definitions of "screw" in finding that the term is not limited to a unitary structure.[5]
*963 I caution the parties that this decision goes only to the construction of the disputed term "blunt-nosed screw" and in no way finds or suggests that Contek's accused device constitutes a multi-part "blunt-nosed screw" that infringes on CFE's patents. The question of infringement is for the finder of fact, which may well find that one or more of Contek's combinations of a spirally grooved cylinder and blunt-ended ball bearing, "circle-lok" and/or "sure grip pad" does not constitute a "blunt-nosed screw" because it has other functionality or perhaps for other reasons.
B. "Member positionable within said first hole and being extendable within said slot" and similar language as used in Claims 20, 43 and 48 of the '588 patent
The parties dispute two elements of this claim language: the meaning of "member" and of "positionable within said hole and being extendable within said slot." The pertinent language of Claim 20 of the '588 patent, with the disputed terms in italics, is representative:
20. A mounting device attachable to a raised portion on a building surface, said mounting device comprising:
. . .
(d) a securing assembly comprising a first hole extending from one of said side surfaces through said mounting body to interface with said slot and a first member positionable within said first hole and being extendable within said slot to secure at least said upper part of said raised portion within said slot by engaging said upper part of said raised portion within said slot with said first member.
The first disputed term, "member," is defined broadly by common and technical dictionaries to mean a "structural unit such as a . . . beam or tie, or a combination of these" or a "distinct part of a whole." CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1367 (Fed.Cir.2002) (internal quotations and citations omitted). In CCS Fitness, the Federal Circuit found that these definitions encompass units of a larger whole and thus that the term "member" was not limited to single, unitary structure as asserted by the defendant in that case. See id.
Contek points to the prosecution history of the '248 and '588 patents to argue that "member" has a more limited meaning in these patents, namely a unitary blunt-nosed screw. CFE concurs that the prosecution statements relied upon by Contek show that Mr. Haddock and his counsel limited "member" to a "blunt-nosed fastening device," Pls.' Report in Further Support of Pls.' Markman Positions (Doc. 49) at 9, but dispute that the statements further limited this device to a unitary structure.
I find that the relevant prosecution history establishes that "member" as used in the '588 patent means "blunt-nosed screw." First, Claim 2 of the '248 patent application claimed a means for frictionally engaging that "comprises a member extendable from a wall of said cavity to contact said external surface of said one raised portion." Pls.' Markman Br., Ex. 3 [hereinafter '248 patent prosecution history"] 27 (emphasis added). After the Examiner rejected this claim as unpatentable over the prior art Opplinger in view of Darnall, Mr. Haddock deleted "member" from the claim and amended it to provide that the means for frictionally engaging was limited to a "blunt nose screw." Contek's Br. re: Interpretation of *964 Pls.' Patents (Doc. 35), Ex. D ('248 patent prosecution history) at 82-83, 110. This amendment provides insight into what Mr. Haddock originally claimed as his invention, and what he gave up in order to meet the Examiner's objections. Elkay Mfg. Co. v. Ebco Mfg. Co., 192 F.3d 973, 978 (Fed.Cir.1999); see Wang Labs., Inc. v. America Online, Inc., 197 F.3d 1377, 1384 (Fed.Cir.1999); see also Phillips, 415 F.3d at 1317 (prosecution history can demonstrate "how the inventor understood the invention and whether the inventor limited the invention in the course of the prosecution, making the claim scope narrower than it otherwise would be.") Because the '588 patent derives from the '248 patent and its patent application, this history is relevant to the '588 patent and its use of this term as well. See Wang, 197 F.3d at 1384; Elkay, 192 F.3d at 980.
The Conclusion that Mr. Haddock limited the meaning of the term "member" to "blunt nosed screw" is also supported by the prosecution history of the '588 patent With respect to several application claims, Mr. Haddock equated the term "member" as used in these claims with a "screw" and/or the blunt-nosed screw disclosed in the specification. See, e.g., Contek's Br. re: Interpretation of Pls.' Patents (Doc. 35), Ex. E ('588 patent prosecution history) at 189-91. Given that the inventor himself defined "member" to mean "screw" or "blunt-nosed screw" to obtain issuance, it would be improper to find a broader construction than this.
The conclusion does not mean, however, that the term "member" as stated in Claims 20, 43 and 48 must be unitary in structure. Contek's arguments in this regard are based on its contention that a "screw" or "blunt-nosed screw" can only be a unitary structure. I reject this contention for the reasons stated earlier in this decision. "Member" as used in the referenced claims means "blunt-nosed screw," which may have either a unitary or multi-part structure.
The referenced claims further require that the "member" or "members" be "positionable within" one or more holes in the "mounting body" and "being extendable within said slot to secure" the upper part of the raised portion "within said slot by engaging" the raised portion within the slot with the member(s). '588 patent, col. 20, ll. 3337 (Claim 20); see id., col. 22, I. 66-col. 23, ll. 3 (Claim 43), col. 23, ll. 7-12 (Claim 48). These terms are not defined in the claim language, specification or prosecution history, which leads me to consult dictionary definitions to determine their ordinary and customary meaning.
The root of the term "positionable" is the verb "position," whose ordinary meaning as relevant here is "to put in a or the proper position: PLACE, SITUATE." Webster's Third New Int'l Dictionary at 1769; see Knopik v. Amoco Corp., 96 F.Supp.2d 892, 905 (D.Minn.2000), aff'd, 95 Fed.Appx. 332 (Fed.Cir.2004). The ordinary meaning of "within" as used here is "in the inner or interior part of: INSIDE OF." Webster's Third New Int'l Dictionary at 2627; see Watson Indus., Inc. v. Murata Elec. N.Am., Inc., 301 F.Supp.2d 933, 942 (W.D.Wis.2003), aff'd, 115 Fed.Appx. 441 (Fed.Cir.2004). It is undisputed that the referenced "hole" is an opening in the "mounting body," which is the metal block or clamp, that extends from the outer surface of the clamp through the clamp body to the slot or cavity that surrounds the metal roof's standing seam.[6] Given these ordinary meanings and my construction of the term "member" to mean a "blunt-nosed *965 screw," I find the phrase "member positionable within first said hole" means the blunt-nosed screw, whether a unitary or multi-piece structure, is capable of being placed inside the hole that extends through the clamp to the slot surrounding the standing seam. This construction is consistent with the specification of both asserted patents.[7]
The parties agree that the final portion of this disputed language, the phrase "member . . . being extendable into said slot" means that the "member" must be able to enter the slot or cavity of the clamp and physically contact and deform the roof seam. See Pls.' Report in Further Support of Pls.' Markman Positions (Doc. 49) at 9; Defs.' Br. re: Interpretation of Pls.' Patents (Doc. 35) at 2728. This construction is supported by the dictionary definition of the relevant terms and is also consistent with the intrinsic evidence. Accordingly, I find this phrase means that the "member," construed for the reasons stated above to mean "blunt-nosed screw," is able to enter the slot of the clamp and physically contact and deform the roof seam.
C. "Interconnected with" and "securing"
The parties also dispute the meaning of "cross-member interconnected with said clamp means," as stated in Claim 1 of the '248 patent, and "securing a member" as stated in Claims 9 and 32 of the '588 patent. I address these terms together because the parties' dispute concerning these terms and their opposing constructions of them are the same.
The parties agree that both of these terms address the means by which a cross-member (snowguard) is attached to the clamps mounted on the standing seam of a metal roof. Their dispute is whether these terms require the cross-member to be directly attached to the clamps using a set screw or whether it may be attached to the clamps by any suitable means, including through use of an intermediate structure such as the brackets employed in Contek's accused products.
Webster's Third New International Dictionary defines "interconnect" to mean "to connect mutually or with one another" and "secure," as relevant here, to mean "to make fast." Webster's Third New Int'l Dictionary at 1177, 2053; see also Random House College Dictionary 1190 (rev. ed.1980) (defining "secure" to mean "to make firm or fast, as by attaching"). CFE argues that these broad definitions preclude the narrow interpretation of these terms urged by Contek and supports its broader interpretation. As further support for its position, CFE points to statements in the specifications for the '248 and '588 patents that "any suitable means maybe utilized for interconnecting" the clamp and cross-member, '248 patent, col. 7, ll. 62-63; '588 patent, col. 9, ll. 23-24, and the disclosure in each specification of different ways that the cross-member can be interconnected or secured to the clamp, including through use of an intermediate device that extends from the clamp to the cross-member. See '248 patent, col. 3, l. 52 col. 4, l. 33 & Figures 2b, 6a; '588 patent, col. 4, ll.4058 & Figures 2b, 6a. CFE also invokes the doctrine of claim *966 differentiation to support its interpretation, based on a comparison between independent Claim 1 and dependent Claim 14 of the '248 patent.[8]
Contek responds that both "interconnected with" and "securing" are not subject to standard claim construction but rather must be construed under the special rules applying to means-plus-function claim elements. Under these rules, Contek asserts, both terms must be narrowly construed to encompass only a connecting or securing of the cross-member and the clamp that involves the use of a set screw threaded through the mounting body.
A claim is written in a means-plus-function format if it portrays a function to be executed but provides no instructions as to the structure or materials for executing this function. See Phillips, 415 F.3d at 1311. 35 U.S.C. § 112, ¶ 6 restricts claim limitations written in this format to those structures, materials, or acts disclosed in the specification that perform the claimed function, and their equivalents. Personalized Media Communs., LLC v. ITC, 161 F.3d 696, 703 (Fed.Cir. 1998). In other words, a claim using the means-plus-function format "will cover only the corresponding step or structure disclosed in the written description, as well as the step or structure's equivalents." CCS Fitness, 288 F.3d at 1369.
The use of the word "means" triggers a rebuttable presumption that § 112, ¶ 6 applies, and the absence of that term creates a rebuttable presumption that it does not apply. CCS Fitness, 288 F.3d at 1369; Personalized Media, 161 F.3d at 703-04. Here, the disputed claim terms do not employ the word "means," thereby triggering the rebuttable presumption that the terms are not in the means-plus-function format and that § 112, ¶ 6 does not govern.
Contek may rebut the presumption by demonstrating that the disputed terms fail "to recite sufficiently definite structure or else recite[] a function, without reciting sufficient structure for performing that function." CCS Fitness, 288 F.3d at 1369 (internal quotations omitted). The presumption against finding a means-plus-function form when the word "means" is absent, however, "is a strong one that is not readily overcome." LG Elecs., Inc. v. Bizcom, Elecs., Inc., 453 F.3d 1364, 1372 (Fed.Cir.2006). As a result, the Federal Circuit has observed that it has "seldom held that a limitation not using the term `means' must be considered to be in means-plus-function form." Lighting World, Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354, 1362 (Fed.Cir.2004).
Contek asserts "interconnectable," "interconnected with" and "securing" are all means-plus-function limitations because they describe the function of securing the cross-member and the clamp without disclosing any "actual structure" to perform this function. Contek's Br. re: Interpretation of Pls.' Patents (Doc. 35) at 30. The Federal Circuit, however, has held that this approach is too restrictive, and that a claim recites sufficient structure to avoid application of § 112, ¶ 6 "if the claim term *967 is used in, common parlance or by persons of skill in the pertinent art to designate structure, even if the term covers a broad glass of structures and even if the term identifies the structures by their function." Lighting World, 382 F.3d at 1359-60. "What is important is whether the term is one that is understood to describe structure, as opposed to a term that is simply a nonce word or a verbal construct that is not recognized as the name of structure and is simply a substitute for the term `means for'." Id. at 1360.
The Federal Circuit applied these principles in Lighting World, Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354 (Fed.Cir. 2004), to find that the term "connector assembly for connecting each pair of adjacent support members" denoted sufficient structure to avoid construction as a means-plus-function limitation. Id. at 1358-63. To reach this conclusion, the court looked to the dictionary definitions of "connector," defined as "something that connects," and "connect," defined as "to join, fasten, or link together usu. by means of something intervening." Id. at 1361. The court found that these definitions demonstrated that the word "connector" as used in the disputed claim had a generally understood meaning as a unit that joins, fastens, or links each pair of adjacent support members. Id. This meaning, the court held, denoted sufficient structure to avoid application of § 112, ¶ 6, notwithstanding "[t]he fact that more than one structure may be described by that term, or even that the term may encompass a multitude of structures." Id. The court found the term "connector" was a description of structure generally understood by persons in the art, even though it might encompass "any structure that performs the role of connecting." Id.
As described above, the terms "interconnected with" and "securing" have essentially the same meaning as "connector" as examined by the Federal Circuit in its Lighting World decision. As a result, I also find that they describe sufficient structure to avoid being considered meansplus-functions terms subject to construction under the special principles of § 112, ¶ 6.
Considering the dictionary definitions of these terms, the claims in which they are used, the specifications and prosecution histories, I further find no support for Contek's narrow interpretation of these terms under the ordinary rules of claim construction. Accordingly, I find that these terms, as used in Claim 1 of the '248 patent and Claims 9 and 32 of the '588 patent, mean attaching a member to a roof clamp, either directly or through another device or assembly.
Conclusion
For the reasons stated above, I construe the claim terms disputed by the parties as follows:
"blunt-nosed screw" or "screw" as recited in multiple claims in the '248 and '588 patents means a unitary or multi-part device having a rotating tool connection member, a continuous, spirally grooved cylinder or shaft and a rounded end portion.
"Member positionable within first said hole and being extendable with said slot" and similar language as recited in Claims 20, 43 and 48 of the '588 patent means a blunt-nosed screw, whether unitary or multi-part, that is capable of being placed inside the cited hole that extends through the mounting body to the slot surrounding the standing seam in order to enter the slot to physically contact and deform the roof seam.
"Interconnected with" and "securing" as recited in Claim 1 of the '248 patent and Claims 9 and 32 of the '588 patent mean attaching a member to a roof clamp, either *968 directly or through another device or assembly.
NOTES
[1] Snowguards function as a barrier on metal roofs to prevent the movement of ice and snow down the pitch of the roof or to funnel snow and ice to designated fall off areas.
[2] A continuation-in-part patent application contains subject matter from the prior application and may also contain additional matter not disclosed in the prior application. Augustine Med., Inc. v. Gaymar Indus., Inc., 181 F.3d 1291, 1302 (Fed.Cir.1999).
[3] The parties stipulated to the admission of this and other exhibits in advance of the Markman hearing in this action. See Jt. Notice & Stip. Concerning Markman Hearing (Doc. 54) at 6-7 & Ex. 2. As is the case with trial exhibits, it is ordered that counsel for the parties retain custody of their respective hearing exhibits until such time as all need for the exhibits has terminated and the time to appeal has expired or all appellate proceedings have been terminated plus sixty days.
[4] The choice between these definitions was material because the accused device had intervening pivot points. See id. at 1346, 1348-49.
[5] I am also guided by the Federal Circuit's decision in Riverwood International Corp. v. R.A. Jones & Co., 324 F.3d 1346 (Fed.Cir. 2003), in which the court considered whether the term "flight bars" was limited to a unitary structure or could include a plurality of pieces. The court found that the term, which was not defined in either the intrinsic or external evidence, was not limited to a unitary structure because "[n]othing in the claim language, specification, or prosecution history suggests that flight bars must be of unitary structure. The district court, consistent with our guidance that a claim term is to be given `the full range of its ordinary meaning as understood by an artisan of ordinary skill' instructed the jury not to limit the term to the unitary structure found in the specification. We agree with that conclusion." Id. at 1358 (quoting Rexnord, 274 F.3d at 1342).
[6] Claim 20 of the '588 patent, for example, describes the "first hole" as "extending from one of said side surfaces through said mounting body to interface with said slot." '588 patent, col. 20, ll. 32-34.
[7] CFE asserts that this phrase should be interpreted to mean that the member is "wholly or partially positionable within a fastening hole." Jt. Notice & Stip. Concerning Markman Hearing (Doc. 54), Ex. 1 (Plaintiffs' proposed interpretation, emphasis added). The ordinary meaning of a "member positionable within" the fastening hole, however, does not suggest that this requirement is satisfied if only a portion of the member (screw) is capable of placement within the hole. CFE also fails to cite any intrinsic or external evidence supporting this proposed interpretation.
[8] Claim 14 recites:
The apparatus of claim 1, further comprising first and second extension means detachably connected to said first and second clamp means, respectively, for directly engaging said first cross-member, wherein said first and second extension means allows for increasing distance between at least a portion of said first cross-member and at least one base portion.
'248 patent, col. 12, ll. 5056.
CFE argues "interconnected with," as used in independent Claim 1 must be broad enough to encompass the use of extensions for attaching a cross-member to the mounting clamp, as Claim 14 provides, because otherwise this dependent claim could not exist.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2453473/
|
509 F.Supp.2d 1316 (2007)
Mark Henry ROY, a Minor, by his Father and Next Friend, Sony ROY, and Sony ROY, Individually, Plaintiffs,
v.
FULTON COUNTY SCHOOL DISTRICT, Vicki Denmark, Individually and in her capacity as Area Superintendent, Ronald C. Tesch, Individually and in his capacity as Principal, Jeri Groves, Individually and in her capacity as Assistant Principal, Natalie S. Forbes, Individually and in her capacity as School Resource Officer, and Larry McColley, Individually and in his capacity as School Resource Officer, Defendants.
Civil Action No. 1:06-CV-0886-JEC.
United States District Court, N.D. Georgia, Atlanta Division.
March 7, 2007.
*1317 *1318 Sandra Jackson Sheppard, Sheppard & Associates, Atlanta, GA, for Plaintiffs.
Aric M. Kline, Carlton Latain Kell, Brock Clay & Calhoun, Marietta, GA, for Defendants.
ORDER & OPINION
JULIE E. CARNES, District Judge.
This case is presently before the Court on defendant Fulton County School District's Motion to Dismiss for Failure to State a Claim [5], Individual School District Defendants' Motion to Dismiss for Failure to' State a Claim and for More Definite Statement [7], plaintiffs' First Motion to Amend Complaint [8], Fulton County School District's Motion to Dismiss Amended Complaint [11], Individual School District Defendants' Motion to Dismiss Amended Complaint [12], defendants' Motion for Leave to File Memorandum in Opposition to Plaintiffs' Motion for Leave to Amend [13], and plaintiffs' Second Motion to Amend Complaint [14]. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that defendant Fulton County School District's Motion to Dismiss for Failure to State a Claim [5] should be DENIED, Individual School District Defendants' Motion to Dismiss for Failure to State a Claim and for More Definite Statement [7] should be GRANTED in part and DENIED in part, plaintiffs' First Motion to Amend Complaint [8] should be GRANTED, Fulton County School District's Motion to Dismiss Amended Complaint [11] should be DENIED, Individual School District Defendants' Motion to Dismiss Amended Complaint should be GRANTED in part and DENIED in part, defendants' Motion for Leave to File Memorandum in Opposition to Plaintiffs' Motion for Leave to Amend [13] should be GRANTED, and plaintiffs' Second Motion to Amend Complaint should be GRANTED.
BACKGROUND
This case involves defendants' investigation and suspension of plaintiff Mark Henry Roy from Milton High School, in the Fulton County School District, in November of 2005. (Compl.[1].) On November 3, 2005, school officials received a report that Mark, a 10th grade student, had stolen an MP3 player from another student's locker and attempted to sell it. (Id. at ¶ 13, 19.) Defendant Groves, the Assistant Principal of Milton High School, and defendants Forbes and McColley, the school's resource officers, investigated the report. (Id. at ¶¶ 18, 19.) According to the allegations in plaintiffs' Complaint, the investigation included interviewing other students, discussing the allegations with Mark and taking his written statement, and searching Mark's locker. (Id. at ¶¶ 19-23.)
The first person the investigators questioned about the stolen MP3 player was another student who was allegedly involved in the theft. (Id. at ¶ 16.) This student, who plaintiffs describe in their Amended Complaint as "J.B., a white male," told investigators that he and Mark stole the MP3 player together after going from locker to locker. (Compl. [1] at ¶¶ 16, 19; Second Am. Compl. [14] at ¶ 32.) J.B. said that Mark then sold the MP3 player to another student for $40.00. (Second Am. Compl. [14] at ¶ 32.)
After speaking with J.B., the investigators questioned Mark about the theft. *1319 (Compl. [1] at ¶ 23 and Ex. 3.) When Mark denied the allegations, defendant Groves decided to search his locker. (Id. at ¶ 20.) Her search revealed a dead cell phone that did not appear to belong to Mark. (Id.) Defendant Groves and the other investigators concluded that the cell phone had been stolen from North Western Middle School. (Id.)
Following the locker search, the investigators questioned Mark a second time about the stolen MP3 player. (Id. at Ex. 3.) At some point during their questioning, the investigators obtained Mark's written statement. (Second Am. Compl. [14] at Ex. A.) Mark admitted in his statement that, on the preceding day, a friend had given him an MP3 player and told him to sell it. (Id.) He further admitted that he had attempted to sell the MP3 player to another friend for $40.00. (Id.) He claimed, however, that he did not steal the MP3 player, and did not know that it was stolen. (Id.)
Based on the above information, the investigators concluded that Mark had violated a provision in the school's disciplinary code prohibiting theft of private property. (Id. at ¶¶ 39-42.) Defendant Groves called plaintiff Sony Roy, Mark's father, and informed him about the MP3 incident. (Second Am. Compl; [14] at ¶ 22.) Mr. Roy came to the school that afternoon and had a lengthy discussion with the investigators. (Compl. [1] at ¶ ¶ 13-27.) At the end of their discussion, Groves informed Mr. Roy that she had decided to suspend Mark for eight days. (Id. at ¶ 26.) The next day, Groves sent Mr. Roy a letter confirming her decision. (Id. at ¶ 29 and Ex. 1.)
After discussing the incident with his son, Mr. Roy became convinced that Mark had been falsely accused of stealing the MP3 player. (Id. at ¶ 46 and Exs. 3, 7.) He notified defendant Tesch, the Principal of Milton High School, that he wished to appeal the suspension. (Id. at ¶ 30 and Ex. 2.) He also complained about the suspension to defendant Denmark, Area Superintendent for the Fulton County School District. (Compl. [1] at ¶ 31 and Ex. 13.) Tesch sent Mr. Roy a letter explaining that, based on his review, the investigation was properly conducted and the penalty was appropriate. (Id. at ¶ 32 and Ex. 4.) Denmark similarly responded that the school had "carefully and fairly investigated the incident" and that "a decision was made to suspend Mark based on the evidence and the school system's discipline code." (Id. at ¶ 43 and Ex. 14.)
Plaintiffs subsequently filed this action against the Fulton County School District, and all of the individuals involved in investigating and suspending Mark. (Compl.[1].) In their Complaint, plaintiffs allege that defendants' investigation and decision to suspend Mark violated his constitutional rights. (Id. at ¶¶ 47-63.) Plaintiffs assert claims against the School District, and the individual defendants involved in the in cident, under 42 U.S.C. § 1983. (Id.)
The School District and the individual defendants have filed motions to dismiss plaintiffs' Complaint for failure to state a claim. (Def. Fulton County's Mots. to Dismiss [5], [11]; Individual Defs.' Mots. to Dismiss [7], [12].) In response, plaintiffs have submitted two proposed Amended Complaints in an attempt to correct' any pleading deficiencies. (First Am. Compl. [8]; Second Am. Compl. [14].) Defendants' motions to dismiss, and plaintiffs' motions to amend, are currently before the Court.
DISCUSSION
I. Plaintiffs' Motions to Amend
Plaintiffs have filed two motions to amend their original complaint pursuant to Federal Rule 15(a). (Pls.' Mots. to Amend [8], [14].) Rule 15(a) provides that:
*1320 A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . . Otherwise a party may amend the party's pleading only by leave of court . . .; and leave shall be freely given when justice so requires.
FED.R.Civ.P. 15(a).
Defendants have not filed an Answer or other responsive pleading to plaintiffs' Complaint. See Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1284 (11th Cir.2000)(noting that a motion to dismiss is not a "responsive pleading" for Rule 15 purposes). As plaintiffs' first amendment is permitted as a matter of course under Rule 15, their first Motion to Amend [8] is GRANTED.
Plaintiffs must obtain leave to amend their Complaint a second time. FED. R.Civ.P. 15(a). Rule 15 instructs that "leave shall be freely given when justice so requires." Id. Courts therefore generally grant leave to amend unless there is a substantial reason to deny it, such as "undue delay, undue prejudice to defendants, [or] futility." Carruthers v. BSA Adver., Inc., 357 F.3d 1213, 1218 (11th Cir.2004); Thomas v. Town of Davie, 847 F.2d 771, 773 (11th Cir.1988).
There is no reason to deny leave to amend in this case. There clearly has been no undue delay, and defendants do not argue that they will be prejudiced by the amendment.[1] Accordingly, plaintiffs' Second Motion to Amend [14] is GRANTED.
II. Defendants' Motions to Dismiss
A. Standard for Dismissal Under Rule 12(b)(6)
Defendants have moved for dismissal pursuant to Federal Rule 12(b)(6) for failure to state a claim upon which relief can be granted. (Defs.' Mots. to Dismiss [5], [7], [11], [12].) In ruling on defendants' motions, the Court must assume plaintiffs' allegations are true, and construe all facts and inferences in the manner most favorable to plaintiffs. Scott v. Taylor, 405 F.3d 1251, 1253 (11th Cir.2005). Dismissal is only appropriate if plaintiffs "can prove no set of facts in support of [their] claim which would entitle [them] to relief." Horsley v. Feldt, 304 F.3d 1125, 1131 (11th Cir.2002).
B. Fulton County School District's Motion to Dismiss
To prevail on their § 1983 claim against the School District, plaintiffs must demonstrate that defendants violated plaintiffs' constitutional rights "pursuant to a custom or policy" of the district. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1307 (11th Cir.2001) (explaining that there is no respondent superior liability under § 1983) (citing Monell v. Dept. of Soc. Servs., 436 U.S. 658, 663, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). The School District argues that plaintiffs cannot meet. the custom or policy requirement, and that plaintiffs' claims against the district should therefore be dismissed. (Def. School District's Mots. to Dismiss [5], [12] at 5.)
*1321 Plaintiffs can meet the custom or policy requirement by showing that their constitutional violations resulted from: 1) an express policy of the district; 2) a wellsettled and pervasive custom or practice of the district; or 3) the actions of an official with final policymaking authority for the district. Denno v. Sch. Bd. of Volusia County, 218 F.3d 1267, 1276 (11th Cir. 2000); Cuesta v. Sch. Bd. of Miami-Dade County, 285 F.3d 962, 966 (11th Cir.2002). Plaintiffs' allegations do not support recovery on the basis of an express policy. Although plaintiffs cite a number of express policies in their Amended Complaint, they concede that all of these policies are "facially neutral" and "constitutional." (Am. Compl.[8] at ¶ 48-62.) The gist of plaintiffs' allegations is that school officials breached various express policies designed to protect students' constitutional rights. (Id.) Assuming that is true, the School District is not liable for its employees' breach of admittedly constitutional express policies. See City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.E d.2d 107 (1988) (noting that a municipality's "policies, rather than the subordinate's departures from them, are the act of the municipality").
Neither do plaintiffs' allegations authorize recovery on the basis of a custom or practice of the School District. In order to prevail on this theory, plaintiffs must demonstrate that defendants' actions were consistent with a custom or practice that "is so well-settled and pervasive that it assumes the force of law." Denno, 218 F.3d at 1277. Plaintiffs do not claim that defendants had a practice of treating students in the same manner in which they treated Mark. On the contrary, plaintiffs suggest that defendants singled Mark out and treated him in an arbitrary manner. (See Compl. [1] at Ex. 7 and Am. Compl. [8] at ¶¶ 64-70.) Such "`isolated incidents, are insufficient to establish a [policy or] custom.'" Id. (quoting Church v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir. 1994))
It may be possible, however, for plaintiffs to recover against the School District on a "final policymaker" theory. School districts may, and often do, delegate to principals and other school administrators final policymaking authority with regard to short-term suspensions. See Smith v. Greene County Sch. Dist., 100 F.Supp.2d 1354, 1361 (M.D.Ga.2000)(finding that a principal had final policymaking authority with respect to suspensions of less than ten days). The administrators in this case, particularly Principal Tesch and Area Superintendent Denmark, clearly exercised broad discretion with respect to Mark's investigation and suspension. (Compl. [1] at Exs. 4 and 14.) Whether any of the administrators acted as "final policymakers" for purposes of § 1983 depends on: 1) whether their discretionary decisions were constrained by policies not of their own making; and 2) whether their decision to uphold Mark's suspension was subject to review by the School District's authorized policymakers. Praprotnik, 485 U.S. at 127, 108 S.Ct. 915. The pleadings do not provide sufficient information to make this determination.
On summary judgment, when the record is better developed, the Court will consider whether Tesch, Denmark, or any other named defendant acted as a final policymaker with respect to the types of disciplinary decisions at issue in this case. As plaintiffs may ultimately be able to recover from the School District on a final policymaker theory, the district's motion to dismiss plaintiffs' claims is DENIED.
C. Individual Defendants' Motion to Dismiss
1. Official Capacity Claims
Plaintiffs seek to hold each named defendant personally liable under § 1983 in *1322 his individual and official capacity. (Second Am. Compl. [14] at ¶¶ 71-78.) The Eleventh Circuit has held that "when an officer is sued . . . in his or her official capacity, the suit is simply `another way of pleading an action against' . . . the city that the officer represents." Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir.1991). Consequently, it would be redundant to allow plaintiffs to sue both the School District and its officers in their official capacity. Id. The individual defendants' motions to dismiss plaintiffs' claims against them in their official capacity is therefore GRANTED.
2. Individual Capacity Claims
In order to hold defendants individually liable under § 1983, plaintiffs must establish that defendants: 1) deprived them of a constitutional right, 2) under color of state law. Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1522 (11th Cir.1995). Defendants do not dispute that they were acting under color of state law when they disciplined Mark Roy. (See Defs.' Mots. to Dismiss [7] and [12].) Defendants argue, however, that plaintiffs' allegations do not establish a constitutional deprivation. (Id. at 8-14.) With the exception of plaintiffs' Equal Protection claim, the Court agrees with defendants.
a. Unreasonable Search and Seizure
Plaintiffs claim that defendant Groves violated Mark's Fourth Amendment rights when she searched Mark's locker without his permission. (Second Am. Compl. [14] at ¶ ¶ 34, 62.) The Fourth Amendment requires that any search and seizure be "reasonable." New Jersey v. T.L.O., 469 U.S. 325, 33'7, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). In the school setting, a search is reasonable if it is justified by "reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school." Id. at 342, 105 S.Ct. 733.
Applying the rule announced in T.L.O., the Eleventh Circuit has held that there are reasonable grounds, for a search when school officials receive a direct tip that a student is in possession of contraband. C.B. v. Driscoll, 82 F.3d 383, 388 (11th Cir.1996). As the Court explained in C.B., a direct tip is "likely to be reliable because the student informant face[s] the possibility of disciplinary repercussions if the information [i]s misleading." Id. Consequently, a direct tip from a student informant generally supplies sufficient grounds to justify a search. Id. See also, Marner v. Eufaula City Sch. Bd., 204 F.Supp.2d 1318, 1325 (M.D.Ala.2002)(upholding the search of a student's vehicle after a drug-sniffing dog alerted to the vehicle).
Under the reasoning of T.L.O. and C.B., plaintiffs' Fourth Amendment claim is not viable. Plaintiffs allege that Groves searched Mark's locker after receiving a direct tip from J.B., a fellow student who was allegedly involved in the theft, that Mark had stolen an MP3 player out of another student's locker. (Compl. [1] at ¶ 20; Am. Compl. [8] at ¶ 19.) J.B.'s tip, which was selfincriminating, and thus even more likely to be reliable than the tip in C.B., supplied reasonable grounds for searching Mark's locker. T.L.O., 469 U.S. at 342, 105 S.Ct. 733; C.B., 82 F.3d at 388. Accordingly, defendants' motion to dismiss plaintiffs' Fourth Amendment claim for unreasonable search and seizure is GRANTED.
b. Procedural Due Process
Plaintiffs also argue that defendants violated Mark's Fourteenth Amendment rights by suspending him without adequate notice or hearing. (Compl. [1] at SI 50; Second Am. Compl. [14] at SI 72.) The Fourteenth Amendment prohibits the *1323 deprivation of property without due process. Goss v. Lopez, 419 U.S. 565, 572-73, 95 S.Ct. 729, 42 LE d.2d 725 (1975). Students who are entitled to a free public education under state law have a property interest in attending school. Id. School suspension decisions therefore implicate the procedural protections of the Fourteenth Amendment, and must be attended by due process. Id.
As the Eleventh Circuit clarified in C.B., however, the process that is due when a student is suspended for less than ten days is "extremely limited." C.B., 82 F.3d at 386. Specifically, the procedure "need consist only of `oral or written notice of the charges against [the student] and, if [the student] denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.'" Id. (quoting Goss, 419 U.S. at 582, 95 S.Ct. 729). "[O]nce school administrators tell a student what they heard or saw, ask why they heard or saw it, and allow a brief response, a student has received all the process that the Fourteenth Amendment demands." Id.
It is apparent from plaintiffs' allegations that defendants complied with the requirements of the Fourteenth Amendment in this case. After receiving a report that Mark was involved in the theft and attempted sale of an MP3 player, school officials, including Vice Principal Groves and Resource Officers Forbes and McColley, questioned Mark about the incident. (Compl. [1] at Exs. 3-4.) During the questioning, school officials informed Mark of the accusations against him, including J.B.'s allegation that Mark had stolen an MP3 player from a locker. (Id.) After explaining the evidence and allegations against Mark, the investigators took Mark's written statement, thus obtaining his side of the story. (Id.; Second Am. Compl. [14] at Ex. A.)
The procedure plaintiffs describe in their Complaint satisfies the requirements of the Fourteenth Amendment. Accordingly, defendants' motion to dismiss plaintiffs' due process claim is GRANTED.
c. Equal Protection
Finally, plaintiffs assert a claim under the Equal Protection Clause. (Second Am. Compl. [14] at ¶¶ 74, 78.) Specifically, plaintiffs claim that defendants violated Mark's constitutional right to equal protection by: 1) treating Mark, who is black, differently from a white student who was also allegedly involved in the MP3 theft; and 2) applying the "zero tolerance" policy to black students, but not to white students. (Second Am. Compl. [14] at 34; Am. Compl. [8] at ¶ 19-20, 69, 73.) These allegations are sufficient to state a claim for violation of Mark's right to equal protection of the law. See Campbell v. Rainbow City, 434 F.3d 1306, 1313 (11th Cir. 2006)("The Equal Protection Clause requires government entities to treat similarly situated people alike."). Accordingly, defendants' motion to dismiss plaintiffs' equal protection claim is DENIED.
Defendants move alternatively for a more definite statement of plaintiffs' equal protection claim. Pursuant to Federal Rule 12(e), defendants are entitled to a more definite statement of a claim that is "so vague or ambiguous that [defendants] cannot reasonably be required to frame a responsive pleading." FED.R.CIV.P. 12(e).
Plaintiffs' Complaint is not a model of clarity. Nevertheless, the basis of plaintiffs' equal protection claim is not exceedingly vague or ambiguous, and the allegations supporting the claim are sufficiently detailed to permit a response. See Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir.2001) ("Rule 8(a) requires only `a short and plain statement of the claim showing that the pleader is *1324 entitled to relief.'") and Parker v. Brush Wellman, Inc., 377 F.Supp.2d 1290, 1294 (N.D.Ga.2005) (Story, J.) ("a plaintiff should include in his pleading some brief factual description of the circumstances surrounding the acts or omissions upon which he bases his claim for relief'). Accordingly, defendants' motion for a more definite statement is DENIED.
CONCLUSION
For the foregoing reasons, the Court DENIES defendant Fulton County School District's Motion to Dismiss for Failure to State a Claim [5], GRANTS in part and DENIES in part the Individual School District Defendants' Motion to Dismiss for Failure to State a Claim and for More Definite Statement [7], GRANTS plaintiffs' First Motion to Amend Complaint [8], DENIES defendant Fulton County School District's Motion to Dismiss Amended Complaint [11], GRANTS in part and DENIES in part the Individual School District Defendants' Motion to Dismiss Amended Complaint [12], GRANTS defendants' Motion for Leave to File Memorandum in Opposition to Plaintiffs' Motion for Leave to Amend [13], and GRANTS plaintiffs' Second Motion to Amend Complaint [14].
SO ORDERED.
NOTES
[1] Defendants suggest that plaintiffs' second proposed amendment is futile because it does not correct the pleading deficiencies of the original or first amended complaints. (Defs.' Opp'n to Pls.' Second Mot. for Leave to Amend Pleading [15] at 1-2.) To address defendants' futility argument, the Court must necessarily evaluate the Second Amended Complaint to determine whether it states a claim against defendants. Under the circumstances, it does not make sense to deny plaintiffs' proposed amendment on grounds of futility. If the allegations in the Second Amended Complaint are deficient, as defendants suggest, the Court will simply dismiss the Second Amended Complaint, along with the original and First Amended Complaint, for failure to state a claim.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2453474/
|
509 F.Supp.2d 548 (2007)
AIKEN COUNTY, Plaintiff,
v.
Samuel W. BODMAN, Secretary of the Department of Energy in his official capacity, United States Department of Energy, Defendants.
Civil Action No. 1:05-cv-2737-RBH.
United States District Court, D. South Carolina, Aiken Division.
June 22, 2007.
*549 *550 Alexander G. Shissias, John Adams Hodge, Thomas R. Gottshall, Haynsworth Sinkler Boyd, Columbia, SC, for Plaintiff.
Robert F Daley, Jr., Us Attorneys Office, Columbia, SC, for Defendants.
ORDER
R. BRYAN HARWELL, District Judge.
Pending before the court is Defendants' [Docket Entry # 19] motion to dismiss. Defendants' motion was extensively briefed by the parties. On May 24, 2007, a hearing was held on the matter before the undersigned.
Factual Background and Procedural History
In September 2000, the United States signed the Plutonium Management and Disposition Agreement with the Russian Federation in which the United States and the Russian Federation agreed to dispose of 34 metric tons each of excess weapons grade or defense plutonium. Both countries intended to achieve this goal through either immobilization and/or conversion of the defense plutonium to a mixed oxide (MOX) fuel for use in commercial nuclear reactors. In the United States, the conversion of defense plutonium and defense plutonium materials into MOX will take place at the Savannah River Site ("SRS") in Aiken County, South Carolina upon completion of a MOX fabrication facility.[1]
The Bob Stump National Defense Authorization Act for Fiscal Year 2003, PL No. 107-314 ("2003 Appropriations Act"), which was amended by the Energy and Water Development Appropriations Act, 2006, PL No. 109-103 ("2006 Appropriations Act"), and is now codified at 50 U.S.C. § 2566, governs the construction and operation of the MOX facility at the SRS and outlines the methods through which the United States can meet its obligations under the Plutonium Management and Disposition Agreement. Section 2566 requires a plan for construction and operation of the MOX facility as well as a plan for corrective actions if construction or operation of the MOX facility is behind schedule. The provisions of 50 U.S.C. § 2566 also set forth certain reporting requirements and/or certifications and limitations on shipments of weapons grade *551 plutonium to the SRS. Additionally, the statute provides for "economic and impact assistance" to the State of South Carolina beginning in 2014 if the MOX facility does not stay on schedule. The statute implies that the State of South Carolina may sue the Department of Energy, which counsel for the DOE conceded at the hearing on this matter;[2] however, any injunction obtained by the State of South Carolina would toll deadlines that would trigger payment of the economic and impact assistance.
Aiken County brought this action against the United States Department of Energy and Samuel Bodman in his official capacity as Secretary of the Department of Energy (collectively referred to as "DOE") alleging the DOE violated provisions of 50 U.S.C. § 2566. This case arises from the fact that the DOE, through various reports to Congress, has indicated the construction of the MOX facility was years behind schedule and the MOX production objective would not be met by the statutory deadline of 2012.[3] Aiken County contends that because the Secretary has determined the MOX production objective will not be met by the new statutory deadline of 2012, § 2566(b)(4) requires the Secretary to issue an order or directive suspending shipments of plutonium to the SRS until the Secretary certifies that the MOX production objective can be met by the new 2012 statutory deadline. Counsel for the parties stated at the hearing that currently no defense plutonium or defense plutonium materials are being shipped to the SRS and there are no immediate plans to ship defense plutonium and defense plutonium materials to the SRS.
Aiken County's amended complaint seeks the following relief:
1) A declaration that:
a) having determined in 2005 that it was "impossible" to achieve the MOX production objective by the statutory deadlines under the original 2003 Act, the Secretary violated original Section 3182 by failing to submit a corrective action plan to Congress by August 15, 2005. The DOE Secretary further violated section 3182 of the original 2003 Act by failing to specify the corrective measures DOE would take to put the MOX program back on schedule and by failing to establish benchmarks to ensure that the MOX production objective would be met;
b) the Secretary's 2006 certification to Congress that the new statutory deadlines cannot be met, coupled with the Secretary's statement that the MOX production objective cannot be achieved by 2015, triggered the agency's statutory obligation to first certify to Congress that the statutory deadlines can be met before shipments of defense plutonium and defense plutonium materials to the SRS may continue;
c) Congress, in its amendments to the 2003 Act, did not relieve the Secretary or the DOE of the obligation to first certify to Congress that the statutory deadlines for the MOX production objective can be met before shipments of defense plutonium and defense plutonium materials to the SRS can continue; and
d) having made no certification to Congress that the MOX production *552 objective can be met by the new statutory deadlines, the Secretary and the DOE lack the authority to continue shipments of defense plutonium and defense plutonium materials to the SRS until such time as the Secretary certifies to Congress that the MOX production objective can be met by the new statutory deadlines.
2) Mandamus order and injunction compelling the DOE Secretary to comply with his statutory obligations to issue an order or official directive immediately suspending all shipments of defense plutonium and defense plutonium materials to the SRS until the DOE secretary certifies that the MOX production objective can be met under the new statutory deadlines; and
3) That this court retain jurisdiction over this case until the DOE Secretary certifies to Congress that the MOX production objectives can be met under the new statutory deadlines.
DOE moved to dismiss the amended complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted because: (1) Aiken County does not have standing, as parens patriae, to bring this lawsuit; (2) the statute Aiken County seeks to enforce does not create a private cause of action for non-monetary damages that Aiken County can enforce; (3) there is no "final agency action" to review under the Administrative Procedures Act;, (4) this lawsuit is not ripe for adjudication; and (5) the mandamus statute does not apply.
Discussion
Aiken County argues that it is not asserting a private cause of action under 50 U.S.C. § 2566. Rather, Aiken County, as a neighboring landowner to the SRS, is seeking review of the DOE's refusal to issue an official order or directive suspending shipments of defense plutonium and defense plutonium materials to the SRS under the Administrative Procedures Act, 5 U.S.C. § 501, et seq. ("APA"). Aiken County's claim must fail, however, because there has been no "final agency action" for this court to review under the APA. Additionally, Aiken County's amended complaint is due to be dismissed because the current matter is not ripe for review. The concept of ripeness and the need for "final agency action" as a prerequisite for judicial review of an agency action under the APA are closely related. However, the court will address each issue separately.
Standing to Sue Under The Administrative Procedures Act
The Administrative Procedure Act ("APA") provides that "[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." 5 U.S.C.A. § 702.
In Lujan v. Defenders of Wildlife, the Supreme Court set forth the minimum standing requirements under Article III of the Constitution. 504 U.S. 555, 112 S.Ct. 2130, 119 L.E d.2d 351 (1992). For a plaintiff to establish Article III standing, the plaintiff must show: 1) an injury in fact that is concrete and particularized and actual or imminent, not conjectural or hypo thetical; 2) a causal connection between the injury and the complained of conduct; and 3) the injury is redressable by a favorable decision. Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130. A prerequisite for the exercise of a right to review under the APA is that the plaintiff must satisfy the minimum standing requirements of Article III. Motor Coach Industries, Inc. v. Dole, 725 F.2d 958, 963 (4th Cir.1984). "The APA has broadened the `categories of injury that may be alleged in support of article III standing,' but it has *553 not displaced the analytical framework under which the constitutional determination is made." Motor Coach, 725 F.2d at 963. "Neither the Administrative Procedures Act, nor any other congressional enactment, can lower the threshold requirements of standing under Art. III." Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 487 n. 24, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).
The Fourth Circuit has recognized that in the APA context, which is the provision with which we are concerned in this case, the Supreme Court considers the Article III standing requirements satisfied when three elements are present: 1) the actual injury must be within the zone of interests protected by the statute; 2) the injury must be fairly traceable to the specific agency action challenged; and 3) the alleged injury must be redressable by a favorable decision. Motor Coach, 725 F.2d at 963 (citing Simon v. Eastern, Kentucky Welfare Rights Org., 426 U.S. 26, 38-39, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)).
Similar to the plaintiffs in Lujan v. National Wildlife Federation, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), Aiken County argues that it is not asserting a private cause of action under 50 U.S.C. § 2566; Aiken County merely seeks review of DOE actions or inactions under the APA. "When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the `agency action' in question must be `final agency action.'" National Wildlife Federation, 497 U.S. at 882, 110 S.Ct. 3177; 5 U.S.C. § 704. Thus, in order for a plaintiff to have standing to challenge an agency action under the APA, the plaintiff must: 1) identify some "final agency action" that causes an injury that can be redressed by the courts and 2) establish that the injury he complains of arguably falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. National Wildlife Federation, 497 U.S. at 882-83, 110 S.Ct. 3177; Motor Coach, 725 F.2d at 963; Robishaw Engineering, Inc. v. United States, 891 F.Supp. 1134, 1147 (E.D.Va.1995).
Aiken County contends that the "final agency action" it is seeking to have reviewed is the DOE's failure or refusal to issue an order or official directive suspending all shipments of defense plutonium and defense plutonium materials to the SRS until the DOE Secretary certifies that the MOX production objective can be met by the 2012 statutory deadline. Section 551(13) of the APA defines "agency action" as "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). Indeed, in certain circumstances, an agency's failure or refusal to act can constitute a "final agency action" subject to judicial review. See San Juan Citizens' Alliance v. Babbitt, 228 F.Supp.2d 1224 (D.Colo.2002) (district court exercised jurisdiction to review agency's failure to comply with the National Environmental Policy Act (NEPA)); Natural Resources Defense Council, Inc. v. Fox, 93 F.Supp.2d 531 (S.D.N.Y.2000) (district court exercised jurisdiction to review Environmental Protection Agency's (EPA) refusal to declare that state's failure to submit total maximum daily loads (pollution limits) concerning state water bodies constituted constructive submission of inadequate total maximum daily loads); Florida Keys Citizens Coalition, Inc. v. West, 996 F.Supp. 1254,. 1257 (S.D.Fla. 1998) (district court exercised jurisdiction under APA to review Army Corps of Engineers alleged failures to maintain records of wetland acreage loss and consult with *554 other agencies before granting permits to discharge materials into U.S. waters).
In ascertaining whether agency action is final and therefore subject to review, courts should take a functional, pragmatic approach. Robishaw Engineering, 891 F.Supp. at 1151. An agency action is "final" and reviewable under the APA when the agency completes its decision making process and the result of that process is one that will directly affect the parties. Franklin v. Massachusetts, 505 U.S. 788, 797, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992). In National Wildlife Federation, the Supreme Court stated that "[e]xcept where Congress explicitly provides for our correction of the administrative process at a higher level of generality, we intervene in the administration of laws only when, and to the extent that, a specific `final agency action' has an actual or immediately threatened effect." National Wildlife Federation, 497 U.S. at 894, 110 S.Ct. 3177 (emphasis added) (citing Toilet Goods Ass'n, Inc. v. Gardner, 387 U.S. 158, 164-66, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967)). Factors to consider when determining whether an "agency action" is a "final agency action" include: 1) whether the action is a definitive statement of the agency's position; 2) whether the action has the status of law and requires immediate compliance; 3) whether the action has a direct and immediate impact on the plaintiff's day-to-day business; 4) whether the request for declaratory relief is designed to speed enforcement and prevent piecemeal litigation; and 5) whether the questions presented are primarily legal rather than factual. Robishaw Engineering, 891 F.Supp. at 1151 (citing FTC v. Standard Oil Co., 449 U.S. 232, 239-240, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980); Natural Resources Defense Council, Inc. v. EPA, 16 F.3d 1395, 1407 (4th Cir.1993)).
In this case, there is no "final agency action" for the court to review. First, the failure or refusal of the DOE to issue an order or official directive suspending shipments of defense plutonium to the SRS does not create an actual or immediately threatened effect on Aiken County. As noted throughout this Order, there are no shipments of defense plutonium in transit or scheduled to arrive at the SRS in the immediate future. Second, the DOE has not indicated one way or the other whether it intends to ship defense plutonium to SRS in the future. The actions of the DOE simply do not constitute the completion of its decision making process: As there are no shipments of defense plutonium planned or in transit, the DOE's actions or failure to act do not have a direct and immediate impact on Aiken County's day-to-day business. Finally, Aiken County has not demonstrated that the DOE's failure or refusal to order the suspension of future plutonium shipments amounts to a definitive statement of the agency's position. As a result, there is no "final agency action" for this court to review.
Aiken County may have made a showing that they, as neighboring landowners to the SRS, are "arguably" within the "zone of interests" that the suspension provisions contained in 50 U.S.C. § 2566(b)(4) are designed to protect. The intent behind the provisions of 50 U.S.C. § 2566 appear to be two-fold. First, in connection with its ties to foreign policy and non-proliferation agreements, 50 U.S.C. § 2566 was intended to implement the construction and operation of a MOX facility at the SRS. Second, § 2566 was intended to prevent the possibility of a buildup of defense plutonium and defense plutonium materials at the SRS. It would appear at first glance that individuals and landowners within the immediate vicinity of the SRS are intended to be protected by *555 the suspension provisions that prevent the buildup of defense plutonium at the SRS. Section 2566 also contains, as a last resort, provisions for the removal of any such defense plutonium. A review of the Congressional Record indicates that, in addition to the DOE and the State of South Carolina, the safety and health of South Carolina citizens was taken into account when the MOX facility and previous incarnations of 50 U.S.C. § 2566 were discussed in Congress. 148 Cong. Rec. S3844-01 (daily ed. May 2, 2002) (statement of Sen. Thurmond). As stated by the late Senator Thurmond, "[n]either I nor anyone else who represents South Carolina at the Federal or State level is willing to see the Savannah River Site become the de facto dumping ground for the nation's nuclear materials." 147 Cong. Rec. S7895-05 (daily ed. July 19, 2001) (statement of Sen. Thurmond).
However, it is unnecessary to decide whether Aiken County arguably falls within the "zone of interests" 50 U.S.C. § 2566 is designed to protect as the court has determined that there has been no final agency action. For that reason, Aiken County does not have standing to sue the DOE under the APA for the DOE's refusal to issue an order or official directive suspending shipments of defense plutonium to the SRS.
Ripeness
Ripeness is a justiciability doctrine for determining when judicial review of a matter is appropriate. Erwin Chemerinsky, Constitutional Law, Principles and Policies § 2.6.1 (2d ed.2002). The ripeness doctrine is "designed `to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.'" Nat'l Park Hospitality Assn v. Dep't of the Interior, 538 U.S. 803, 807-08, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)).
Whether administrative action is ripe for judicial review requires an evaluation of the fitness of the issues for judicial decision and the hardship to the parties if the court withholds consideration. Nat'l Park Hospitality, 538 U.S. at 808, 123 S.Ct. 2026. The Supreme Court has held that a court must consider: 1) whether delayed review would cause hardship to the plaintiffs; 2) whether judicial intervention would inappropriately interfere with further administrative action; and 3) whether the court would benefit from further factual development of the issues. Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). With regard to the hardship inquiry, the plaintiff must show "adverse effects of a strictly legal kind." Nat'l Park Hospitality, 538 U.S. at 809, 123 S.Ct. 2026. The "adverse effects" must be of the sort that traditionally would qualify as harm. Ohio Forestry, 523 U.S. at 733, 118 S.Ct. 1665.
The ultimate relief Aiken County is seeking in this lawsuit is an Order that shipments of defense plutonium be suspended until the DOE certifies that it can meet the MOX production objective by the 2012 statutory deadline. At the hearing, Aiken County stated that the issue we are here on is "whether the shipments of defense plutonium should at this point stopped."[4] However, in this case, it is undisputed that currently there are no *556 shipments of defense plutonium or defense plutonium materials in transit or scheduled for delivery to the SRS. Also, pursuant to the provisions of 50 U.S.C. § 2567, "[f]or each shipment of defense plutonium or defense plutonium materials to the Savannah River Site, the Secretary shall, not less than 30 days before the commencement of such shipment, submit to the congressional defense committees a report providing notice of such shipment." 50 U.S.C. § 2567(b). Furthermore, although formal notification to the Governor of South Carolina is not required by statute, at the hearing counsel for the DOE stated that based on his experience from prior litigation "there is informal consultation with the Governor's office."[5] Under these circumstances, Aiken County cannot demonstrate that it will suffer hardship if review of this matter is delayed. See Ohio Forestry, 523 U.S. at 733, 118 S.Ct. 1665.
This case also presents a circumstance where further factual development of the issues is needed for adjudication. The construction of the MOX facility is directly tied to available funds appropriated from Congress. As stated by the DOE at the hearing and supported by a review of the Congressional Record, funding for the MOX facility could be increased, decreased, or completely "zeroed out."[6] The future of the MOX facility itself is not certain, nor is it clear whether future shipments of defense plutonium to the SRS will ever occur. As such, this case is not ripe for the court to review. Perhaps the ripeness problem will be alleviated when the DOE Secretary notifies Congress of the DOE's intent to reinstate shipments of defense plutonium or defense plutonium materials to the SRS. Until that time, any Order or Opinion issued by this court on the merits of Aiken County's allegations would constitute an advisory opinion, which this court is not willing to do. See Flast v. Cohen, 392 U.S. 83, 86, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (stating "[w]hen the federal judicial power is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III").
Conclusion
Because there has been no "final agency action" for this court to review and this matter is not ripe adjudication, Aiken County's amended complaint is due to be dismissed. DOE's [Docket Entry # 19] motion to dismiss is GRANTED. This case is hereby DISMISSED without prejudice.
IT IS SO ORDERED.
NOTES
[1] In the Department of Energy's December 2006 report to Congress on the Construction and Operation of the MOX fabrication facility, the Department stated that design of the MOX facility was approximately 85% complete and the site had been prepared for the construction phase. [Docket Entry # 35-3].
[2] Transcript of Motion to Dismiss Hearing, at 53 [Docket Entry # 37].
[3] The term "MOX production objective" means production at the MOX facility of MOX from defense plutonium and defense plutonium materials at an average rate of not less than one metric ton of MOX per year. 50 U.S.C. § 2566(h)(1).
[4] Transcript of Motion to Dismiss Hearing, at 15 [Docket Entry # 37].
[5] Id. at 5.
[6] Id. at 9.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2453484/
|
509 F.Supp.2d 1125 (2007)
Christy MATHIS, Plaintiff,
v.
WACHOVIA formerly known as Southtrust, Defendant.
No. 5:05cv163/RS.
United States District Court, N.D. Florida, Panama City Division.
March 7, 2007.
*1126 *1127 *1128 *1129 Alvin L. Peters, Alvin L. Peters PA, Cecile M. Scoon, Peters & Scoon PA, Panama City, FL, for Plaintiff.
Kevin William Shaughnessy, Rexford H. Stephens, Baker & Hostetler LLP, Orlando, FL, for Defendant.
*1130 ORDER
RICHARD SMOAK, District Judge.
Before the Court is Defendant's Motion for Summary Judgment (Doc. 35) and Plaintiff's Response (Doc. 66). The Motion for Summary Judgment is granted.
FACTS
Plaintiff Christy Mathis (Mathis) is an African-American woman who was hired by SouthTrust bank in July 2000. She was employed as a head teller and head teller supervisor at the SouthTrust branch located at Thomas Drive in Panama City, Florida, and from 2005 until 2006 as a teller with Wachovia after its merger with SouthTrust. Mathis claims that several actions of SouthTrust/Wachovia were racially discriminatory and retaliatory in violation of federal and state law.
Mathis provides the following specific allegations of disparate treatment, disparate impact, hostile environment, and retaliation:,
1. Mathis received 90 days probation for cashing a $3,070 check while another white teller did not receive any discipline despite violating the same policy;
2. Mathis received a 90 day probation for not running a money order through a check scanner while her white manager did not receive any discipline for her involvement in the incident;
3. Mathis was unfairly placed on probation for 90 days for an out of policy loss of $1,863.95;
4. Mathis was placed on probation after not conforming to Wachovia's dress code within 24 hours while another white employee who violated the dress code was not threatened with any disciplinary action or given any deadline to change her appearance
5. Mathis' application for the Financial Services Representative (FSR) position was rejected in favor of a less experienced white man;
6. Mathis' application for the Financial Center Manger (FCM) position was rejected in favor of a less experienced white woman;
7. Wachovia's actions demonstrate a compelling pattern of preferential treatment given to white employees and more severe treatment being given to the African American employees, including exclusion from leadership positions;
8. The discrimination at Wachovia was so "severe and consistent" towards Mathis and other African-American employees that she has been denied the opportunity to work in an environment free of discrimination and hostility; and
9. Mathis was removed from the Merger Ambassador Program in retaliation for her complaints to the EEOC regarding racial discrimination at Wachovia.
On June 30, 2004, Mathis filed a charge of racial discrimination against South-Trust with the Florida Commission on Human Relations (FCHR). On June 7, 2005, Mathis filed a second charge of discrimination with the FCHR alleging racial discrimination, hostile environment, and retaliation for filing the first charge of discrimination against SouthTrust. Mathis received a right to sue letter from the EEOC on. December 27, 2005. Subsequently, after exhausting all of her administrative remedies, Mathis filed her Third Amended Complaint (Doc. 12) with this Court on February 14, 2006, alleging racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (42 USC § 2000e et seq), Chapter 760 of the Florida Statutes, and the Civil Rights Act of 1866 (42 USC § 1981).
Wachovia contends that Mathis cannot establish a prima facie case of racial discrimination, hostile environment, or retaliation, and even she could, all of' its decisions were based on legitimate, nondiscriminatory reasons that were not *1131 pretextual. In addition, Wachovia argues that Mathis cannot establish a prima facie case of disparate impact.
A. The Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting Advisory Committee Note to 1963 Amendment of Fed.R.Civ.P. 56(e)). "An issue of fact is `material' if it is a legal element of the claim, as identified by the substantive law, governing the case, such that its presence or absence might affect the outcome of the suit." Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir.1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). "It is `genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Tipton, 965 F.2d at 998 (citing Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356).
The basic issue before the court on a motion, for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251, 106 S.Ct. at 2512. The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden, the court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993); Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.1992). Thus, "[i]f reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir.1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, "[a] mere `scintilla' of evidence supporting, the [nonmoving] party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990) (citing Anderson, 477 U.S. at 251, 106 S.Ct. at 2511).
If the movant satisfies its initial burden under Rule 56(c) by demonstrating the absence of a genuine issue of material fact, the burden shifts to the nonmovant to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (quoting Fed.R.Civ.P. 56(e)) (emphasis omitted). Otherwise stated, the nonmovant must "demonstrate that there is indeed a material issue of fact that precludes summary judgment." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). "The nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a whole." Tipton, 965 F.2d at 998 (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. at 2513 (citing Adickes, 398 U.S. at 158-59, 90 S.Ct. at 1609). *1132 In light of the summary judgment standard, this Court will apply the relevant substantive law to the facts of the case.
B. Race Discrimination
Mathis claims that her treatment was racially motivated and discriminatory, violating Title VII (42 U.S.C. § 2000e et seq.), 42 U.S.C. § 1981, and the Florida Civil Rights Act (FCRA), Chapter 760. "Where, as here, a plaintiff predicates liability under Title VII on disparate treatment and also claims liability under section[] 1981 . . ., the legal elements of the claims are identical." Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir.1985); see also, Godoy v. Habersham County, 2006 WL 3592415, *2 (11th Cir.2006)(holding that since "claims under Title VII and § 1983 . . . have the same elements of proof and analytical framework" they can be discussed concurrently). In addition, "[a] claim under the FCRA is analyzed under the same standards as a Title VII claim." Tippie v. Spacelabs Medical, Inc., 180 Fed.Appx. 51, 53 n. 1 (11th Cir.2006) (citing Harper v. Blockbuster Entm't Corp., 139 F.3d 1385, 1387 (11th Cir.1998)).
Title VII prohibits an employer from "discharg[ing] any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). "The two theories of intentional discrimination under Title VII are disparate treatment discrimination and pattern or practice discrimination." Burke-Fowler v. Orange County, Fla., 447 F.3d 1319,1322 (11 th Cir.2006). While "[b]oth pattern and practice and disparate treatment claims require proof of discriminatory intent; disparate impact claims do not." E.E.O.C. v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1273 (11th Cir.2000). Mathis seems to allege that she suffered discrimination under all three theories of Title VII, and as such, each of her claims will be analyzed in turn.
i. Disparate Treatment
"Disparate treatment claims require proof of discriminatory intent either through direct or circumstantial evidence." E.E.O.C. v. Joe's Stone Crab, 220 F.3d 1263, 1286 (11th Cir.2000). A prima facie claim of discrimination can be established three ways: 1) direct evidence; 2)circumstantial evidence; or 3) statistical proof. See Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir.1990). Mathis claims that there is both direct and circumstantial evidence supporting her claims.
a. Direct Evidence
Mathis states that she can "present direct proof of racial animus." (Doc. 57, Plaintiff's Trial Brief and Memorandum of Law, p. 5). Direct evidence of discrimination is "evidence, which if believed, proves [the] existence of [a] fact in issue without inference or presumption." Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir.1987) (quoting Black's Law Dictionary 413 (5th ed.1979) (citation omitted and emphasis omitted)). "Direct evidence relates to actions or statements of an employer reflecting a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee." Caban-Wheeler v. Elsea, 904 F.2d 1549, 1555 (11th Cir.1990) (citing Hill v. Metropolitan Atlanta Rapid Transit Authority, 841 F.2d 1533, 1539 (11th Cir. 1988)). "`Only the most blatant remarks, whose intent could be nothing other than to discriminate . . .' will constitute direct evidence of discrimination." Damon v. Fleming Supermarkets, Inc., 196 F.3d 1354, 1359 (11th Cir.1999) [citing Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081-82 (11th Cir.1990) (citations omitted)].
*1133 There are no allegations that could be construed as direct evidence of intent to discriminate by Wachovia. Therefore, Mathis' claim must fail because of the total absence of proof.
b. Circumstantial Evidence
Turning to the circumstantial evidence provided by Mathis in alleging discrimination, the Court must apply the three-tiered analysis set forth in McDonnell Douglas and refined in Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981). See Byrd v. Lakeshore Hosp., 30 F.3d 1380, 1383 (11th Cir. 1994). Under the McDonnell Douglas analysis, a plaintiff is required to first establish, by a preponderance of the evidence, a prima facie case that creates a rebuttable presumption of unlawful discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. "The plaintiff's burden of establishing a prima facie case serves, in part, to assure that the plaintiff has some competent proof that she was treated differently than similarly situated employees." Lang v. Star Herald, 107 F.3d 1308, 1312 (8th Cir.1997). Second, if the plaintiff successfully establishes the prima facie case of discrimination, the burden of production "then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Finally, if the employer successfully articulates some legitimate, nondiscriminatory reason for the employee's rejection, the plaintiff must demonstrate by a preponderance of the evidence that the employer's stated reason for rejecting the employee was merely a pretext for discriminating against her. Id. at 804, 93 S.Ct. at 1825. Despite the shifting burdens of proof, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.
Mathis has failed to establish a prima facie case of discrimination. Even if she had done so, Mathis has not provided sufficient evidence for a reasonable jury to determine that SouthTrust/Wachovia's decisions to discipline or not promote Mathis were premised on anything other than legitimate, non-pretextual reasons.
aa.Prima Facie Case
Under the McDonnell Douglas framework, "the plaintiff first has the burden of establishing a prima facie case of discrimination, which creates a rebuttable presumption that the employer acted illegally." McCalister v. Hillsborough County Sheriff 2006 WL 3741883, *2 (11th Cir. 2006). To establish a prima facie case of disparate treatment under this rubric, a plaintiff must show: (1) she is a member of a protected class; (2) she was qualified for the job; (3) she suffered an adverse employment action; and (4) she was replaced by a person outside her protected class or was treated less favorably than a similarly-situated individual outside her protected class. Maynard v. Bd. of Regents of the Div. of Univ. of Fla. Dep't of Educ., 342 F.3d 1281, 1289 (11th Cir.2003).
Mathis provides several examples of disparate treatment that took place during her tenure with SouthTrust/Wachovia in order to prove that the bank's actions were motivated by race, all of which can be divided into two discrete areas discipline and promotion. Each area will be analyzed in turn.
Disciplinary Actions
Mathis was disciplined several times during her tenure with SouthTrust/Wachovia. She contends that, at a minimum, the following disciplinary acts were based on race: 1) In March 2003, Mathis received a 90 day probation for cashing a check over *1134 $3,000; 2) In March 2004, Mathis received a 90 day probation for her involvement with a fraudulent Canadian money order that resulted in a loss of over $70,000; 3) In December 2004, Mathis was placed on probation for 90 days for an out of policy loss of $1,863.95; and 4) In March 2005, Mathis was told to change her hair color by supervisors and formally written up; a white employee was "gently" asked to "tone down her suggestive clothes and make-up." Finally, for cases involving alleged racial bias in the application of discipline for violation of work rules, the Eleventh Circuit has tailored the general Title VII standard as follows: plaintiff, in addition to being a member of a protected class, must show she "has engaged-either (a) disputedly or (b) admittedly-in misconduct similar to persons outside the protected class; and that similarly situated, nonminority employees (that is, persons outside the protected class) received more favorable treatment." Jones v. Bessemer Carraway Medical Ctr., 137 F.3d 1306, 1311 n. 6 (11th Cir.1998), modified in nonrelevant part on denial of reh'g, 151 F.3d 1321 (11th Cir.1998) (modifying Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989)).
Both parties agree that Mathis is a part of the protected class. Wachovia focuses on its argument that Mathis cannot identify any similarly situated employees outside of her protected class who were treated more favorably. When a plaintiff alleges discriminatory discipline, to determine whether employees are similarly situated, the Court must evaluate "whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways." Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (citations and quotation marks omitted). When making that determination, "[w]e require that the quantity and quality of the comparator's misconduct be nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges." Id. (citation omitted); see also Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181, 1185 (11th Cir.1984) (requiring a plaintiff bringing a discriminatory discipline claim to show "that the misconduct for which he was discharged was nearly identical to that engaged in by an employee outside the protected class whom the employer retained") (citations, quotation marks, and alterations omitted).
It is undisputed that Mathis violated SouthTrust policy by cashing a check for over $3000 without approval from a supervisor, resulting in a loss of over $3000 for the bank. She claims that Jarod Griffin (Griffin), a white teller, was not placed on probation for violating the same policy. (Doc. 37, Exhibit 3, Mathis Deposition (Mathis Depo)100:17-25). Mathis argues that this directly violates SouthTrust's policies. According to Mathis, "He [Griffin] had a he had a policy violation that I feel was in the same guidelines as myself." (Mathis Depo, 104:11-12). Thus, in Mathis' opinion, she felt that Griffin had violated a provision within the same guidelines.
In August 2002, Griffin deposited a credit card check for $1600 without placing a hold on the deposit as required by SouthTrust's policies and procedures. Eventually, the check was returned for insufficient funds. Mathis claims that according to the "records," the account was "charged off and the bank was not paid $1243.77." (Doc. 66, part 3). Wachovia contends (and the Court agrees) that there is no evidence in the record demonstrating that Wachovia lost money as a result of Griffin's error. Mathis also contends that Griffin should have been placed on probation in January 2003, for depositing another credit card check for $1100 (along with $400 cash) which was also subsequently returned for insufficient funds. She states that Sonya *1135 Richbourg wrote a memorandum indicating that the "bank suffered a loss." Id. Mathis does not provide any evidence to the amount of the bank's loss beyond her own contention that it was over $1000. On the other hand, according to the records custodian for Wachovia, SouthTrust's employment records indicate that this event did not lead to a loss over $1000 and the Market Operations department did not classify it as an out of policy violation, unlike Mathis' situation. (Doc. 38, Butler Affidavit, ¶ 12).
Wachovia also provides evidence that a member of the Mathis' protected class, Vaun Marks, also deposited a credit card check for $1,600 a few days earlier which was returned for insufficient funds. In a vein similar to Griffin, Marks was not subjected to any, discipline. Mathis contends that Marks' actions, unlike Griffin's, did, not cost the bank a $1,000 loss, the minimum amount necessary to trigger the discipline provision. There is nothing in the record that supports Mathis' contention. Overall, Mathis' contentions regarding Griffin and Marks are based on conclusory allegations without any support in the record, and as a result, they have no probative value. See e.g. Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir.2000)(holding that "This court has consistently held that conclusory allegations without specific supporting facts have no probative value").
Even if Mathis' contentions had some factual support in the record i.e. Griffin and Marks' errors had cost the bank the amount of money she alleges there are still several distinctions that can be drawn between the actions of Griffin and Marks and the actions of Mathis. First, Griffin/Marks' transactions involved the improper depositing of credit card checks without placing a hold on them. Mathis cashed a check immediately without obtaining proper approval. Jason McCormick, a white backup head teller at the Thomas Drive branch, received the same punishment as Mathis (90 day probation) when he cashed a check for over $1600 without approval, in violation of the teller operations manual (TOM).[1] (Doc. 38, Butler Appendix, Exhibit 3). Second, Mathis' level of employment was senior to that of both Griffin and Marks. Mathis was a teller supervisor in charge of both Griffin and Marks. Third, the decisions to discipline Mathis and not Griffin or Marks were based on the policy decisions of upper management at SouthTrust. A written communication authored by Financial Center Manager (FCM) Richbourg and dated March 10, 2003, states that SouthTrust's Operations Officer explained that the bank had "charged off' Griffin's and Marks' transactions to fraud and not as an "out of policy charge due to no holds being placed on the account." (Doc 37, Mathis Depo, Exhibit 16). "Keeping in mind that Title VII does not take away an employer's right to interpret its rules as it chooses, and to make determinations as it sees fit under those rules," no reasonable jury could find that Griffin and Marks were similarly situated to Mathis. Maniccia v. Brown, 171 F.3d 1364, 1369 (11th Cir.1999) (citations and quotation marks omitted).
*1136 Mathis also contends that the 90 day probation she received for depositing a foreign money order without scanning it was discriminatory since the FCM, Lynette Freeman, did not receive any discipline despite her approval of the transaction. Wachovia claims that the two were not similarly situated because their levels of experience were different Mathis had been a teller supervisor for several years, and in theory, was intimately familiar with SouthTrust's policies. On the other hand, Freeman had only been an employee for four days and had not received any formal training from SouthTrust. Mathis claims that she tried to dissuade Freeman from cashing the money order although she admits that she was the person that actually processed the check. Based on the fact that Freeman was, at least in theory, Mathis' supervisor, logic dictates that she should have borne some responsibility for the incident. However, under these circumstances, it is clear that Freeman and Mathis were not similarly situated because even though. Freeman was Mathis' manager, she had not received any formal training as of the date this transaction occurred. In addition, the disciplinary histories of the two women were vastly different. Thus, the "quantity and quality" of their transgressions differ, and as a result, these employees were not similarly situated.
As to the 90 day probation that Mathis received after processing a check for over $1800 without placing a hold, Mathis contends that the check was "ok" and "not out of policy." Once again, Mathis' conclusory statement has no probative value. It is clear that Mathis signed the form disciplining her for this infraction and actually asked for a copy of the specific TOM policy in question. (Doc. 37, Mathis Deposition, Exhibit 16). Unlike previous occasions, Mathis did not indicate on the form that she disagreed or had any opposition to the discipline being imposed. In addition, Wachovia correctly claims that Mathis has not identified any employee who was similarly situated and received less discipline. (Doc. 37, Mathis Deposition, Exhibit 16). As a result, this claim must also fail at the prima facie stage.
Finally, Mathis alleges that a white teller, Nicole Grezla, was similarly situated and disciplined less severely for violating the same dress code policy as her. Specifically, Mathis contends that Grezla was not ordered to comply with the dress code within 24 hours. It is undisputed that Grezla's heavy makeup and tight clothes did not comply with Wachovia's dress code. It is also undisputed that Freeman asked Mathis to convey this to Grezla (Mathis did not do so), and Freeman eventually asked Grezla to change, at a minimum, her makeup. According to Wachovia, Grezla did so by the next day. Mathis contends that "Grezla's appearance never changed after Ms. Freeman spoke to her about her style of dress." (Doc. 66, part 3). Mathis does not dispute that Grezla changed her makeup.
While Wachovia does not dispute that Grezla was not given a 24 deadline to comply with Freeman's request, it still contends that Mathis and Grezla were not similarly situated. Wachovia argues that Grezla was not an experienced Teller Supervisor with the responsibility to guide other employees and she did not attend the Merger Ambassador meeting which led to Mathis' discipline. Also, as Wachovia suggests, Mathis was directly involved in Grezla's situation and she could have suggested disciplinary action be taken against Grezla to insure her immediate compliance. In addition, Grezla actually changed her makeup within 24 hours if Mathis had changed her hair color as required, there is no evidence that she would have then been placed on probation. In fact, as soon as Mathis complied with Wachovia's *1137 dress code mandate, her probation was rescinded.[2] As a result, Mathis has failed in establishing a prima facie case with respect to any of the disciplinary actions taken by SouthTrust/Wachovia.
Failure to Promote
Mathis unsuccessfully applied for two promotions while employed at South-Trust/Wachovia: 1) In April 2003, Mathis applied for the Financial Services Representative (FSR) position at SouthTrust's Harrison Avenue branch; and 2) In August 2003, Mathis applied for the Financial Center Manager (FCM) position at SouthTrust's Thomas Drive Branch. Mathis claims that the denial of these promotions was premised on race. As for failure to promote claims, the Eleventh Circuit has tailored the general Title VII standard as follows: "In order . . . to establish a prima facie case of discrimination for [Wachovia's] failure to promote h[er], [s]he must show that (1)[s]he is a member of a protected class; (2)[s]he was qualified and applied for the promotion; (3)[s]he was rejected despite h[er] qualifications; and (4) other equally or less qualified employees who were not members of the protected class were promoted." Jerome v. Marriott Residence Inn Barcelo Crestline/AIG, 2006 WL 3487152, * 2 (11th Cir.2006); Wu v. Thomas, 847 F.2d 1480, 1483 (11th Cir. 1988).
The parties agree that Mathis is a member of a protected class. The parties disagree about prongs two and four. Mathis argues that she was qualified for the positions and that a lesser qualified non-black employee was promoted to each of these positions. Wachovia claims that Mathis was not qualified for either of the positions and that there were no employees outside of the protected class with qualifications equal to or lesser than Mathis who received the positions in question. For the reasons below, Mathis has not met her burden to establish a prima facie case.
As to the FSR position, Wachovia argues that because of Mathis' 90 day probation, she was barred from applying for a promotion by SouthTrust's Career Opportunity policy which precludes an employee on probation from applying for a promotion. Mathis does not dispute that this policy did bar her from applying for this position. However, Mathis contends that another employee, Jarod Griffin, should also have been denied the opportunity to apply for the position since she believed he had violated the same policy. After discussing this issue with Mathis, Michelle Garcia, the human resources manager for SouthTrust's market, exempted Mathis from the probation promotion policy and allowed her to take the Sales Professional Selector Exam (Selector Exam). Wachovia states that Mathis' exam results (an overall score of a "D") did not meet the minimum standards for the position and Mathis' overall qualifications did not meet the minimum requirements for the position. As a result, Mathis was not interviewed or selected for the position. Mathis "disputes the grade given to me or the need for the test." (Doc. 66, part 3, Third Affidavit of Mathis, ¶ 7).
While the Court must resolve all factual inferences in favor of the non-moving party, that party cannot refute the moving party's factual allegations with a "scintilla" of evidence; there must be enough of a showing that the jury could reasonably find for that party. Mathis has not provided any evidence that the grade given to her was fraudulent. In fact, in *1138 Mathis' deposition, she confirms Wachovia's contention:
Q. Did you actually take the test?
A. Yes, I did.
Q. Did you pass the test?
A. It's graded on certain areas. So, I don't know if it was a pass or a fail, it's just that you are graded in certain categories . . .
Q. Were some of your grades in these categories lower than necessary for the position?
A. Yes.
(Mathis Deposition, 145:14-24). In addition, Mathis does not point to any South-Trust policy that would have allowed someone with her specific qualifications to bypass taking the exam.[3]
Mathis also unsuccessfully applied for the vacant position of the Financial Center Manager at SouthTrust's Thomas Drive branch in August 2003. Mathis claims that she was denied the position on account of race and did not even merit an interview despite her familiarity with the bank's financial products and the fact she had filled in as the de facto FCM during the time period that SouthTrust reviewed applications for the vacant FCM position. According to Wachovia, Mathis was not selected because she did not meet the minimum qualifications necessary for the position. Wachovia claims that while Mathis possessed experience in the operations side (three years experience as a full time head teller/teller supervisor at SouthTrust) and reported directly to the FCM, Human Resources determined that Mathis did not have enough sales experience to become an FCM.[4]
Wachovia's notice of the FCM opening stated that requirements for the job were as follows: "Strong sales orientation; excellent communication skills, previous retail bank experience with emphasis in consumer and commercial banking, previous loan production and business development experience." (Doc. 38, Appendix to Butler Aff, Exhibit 6). In addition, the description stated the FCM position required a person in that position to "plan, direct, and manage the market planning, business development, and service activities of the branch in order to achieve the branch sales, financial, and marketing goals and to improve the share of market for branch area." Id. The job description also stated that previous banking experience as a branch manager and a four year degree in business, management, or finance was preferred. Id.
It is clear that Mathis did not fulfill the requirements for the FCM position. In an email from Shirley Fiano of the Human Resources Department and dated August 13, 2003, Fiano explains that she provided Mathis with an explanation (not enough sales experience) for the denial of her application and provided her with specific guidance on how to obtain the requisite experience necessary to become a FCM. (Doc. 38 Appendix to Butler Affidavit, Exh. 7). In addition, it is true that the competitiveness of Mathis' `application would have been enhanced by the experience Mathis gained during the period when the FCM position was vacant. However, *1139 Wachovia's records custodian confirms that the decision to reject Mathis' application occurred prior to the resignation of FCM Sonya RichBourg. (Doc. 38, Butler Affidavit, ¶ 19). Mathis contends that this is not true, and argues that RichBourg left in June 2003, but provides no factual evidence to support that contention. Even if Mathis was qualified for the position, Mathis has not provided enough evidence for a reasonable jury to conclude that the eventual hire, Lynette Freeman, was equally or lesser qualified than she. Freeman's resume is replete with sales experience and she had served for two years as a Financial Specialist with Wachovia. (Doc. 38, Appendix to Butler Affidavit, Exhibit 8). Mathis certainly had more overall banking experience, but her experience was primarily in the operations side with little direct experience in sales. Thus, Mathis has not met the requirements for a prima facie case in either of the situations in which she was denied a promotion.
bb. Employer's Legitimate Nondiscriminatory Reason
Even if Mathis had established a prima facie case for her discrimination claims, Wachovia satisfied its burden of articulating a legitimate, nondiscriminatory reason for each of its actions with respect to Mathis. In showing that it had a legitimate, nondiscriminatory reason for its actions, the defendant's burden is "exceedingly light." Perryman v. Johnson Prods. Co. Inc., 698 F.2d 1138, 1142 (11th Cir. 1983) (citing Burdine, 450 U.S. at 254-55, 101 S.Ct. at 1094). "The defendant only needs to produce evidence of a reason for its decision; it does not need to prove that it was actually motivated by that explanation." Sermons v. Fleetwood Homes of Georgia, 227 F.Supp.2d 1368, 1380 (citing Burdine, 450 U.S. at 254, 101 S.Ct. at 1094). "[The proffered reason] is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Burdine 450 U.S. at 254-55, 101 S.Ct. at 1094. The defendant's burden at this stage of the analysis is "merely one of production, not of proof." Lee v. Russell County Bd. of Educ., 684 F.2d 769, 773. (11th Cir.1982). "As long as the defendant articulates its reason with some specificity so that the plaintiff has a `full and fair opportunity to demonstrate pretext,' the defendant's burden has been met." Sermons, 227 F.Supp.2d at 1380 (quoting Burdine, 450 U.S. at 255-56, 101 S.Ct. at 1095).
As to disciplining and not promoting Mathis, Wachovia has provided legitimate non-discriminatory reasons for its actions. In summary, Wachovia states that Mathis was disciplined for violating specific TOM regulations and policies. Also, at least on the occasions when Mathis admitted to committing the specific violation in question, "the law is clear that, even if a Title VII claimant did not in fact commit the violation with which [s]he is charged, an employer successfully rebuts any prima facie case of disparate treatment by showing that it honestly believed the employee committed the violation." Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir.1989). In addition, Wachovia states that Mathis was not promoted because she did not have the requisite qualifications necessary for the positions. Wachovia has clearly satisfied its burden.
cc. Pretext
Once a defendant offers a legitimate, nondiscriminatory reason for its actions, the plaintiff must attack that reason "head on and rebut it' so as to show that the reason is really pretext for discrimination." Sermons, 227 F.Supp.2d at 1381 (quoting Chapman v. Al Transport, 229 F.3d 1012, 1030 (11th Cir.2000)). Pretext can be established by evidence which *1140 "cast[s] sufficient doubt on the defendant's proffered nondiscriminatory reasons to permit a reasonable fact finder to conclude that the employer's proffered `legitimate reasons were not what actually motivated its conduct.'" Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 605 (11th Cir. 1994). Stated differently, "the plaintiff may attempt to establish that he was the victim of intentional discrimination `by showing that the employer's proffered explanation is unworthy of credence.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Burdine, 450 U.S. at 256, 101 S.Ct. at 1095). The proffered explanation is unworthy of belief if the plaintiff demonstrates "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder" could disbelieve it. Combs v. Plantation Patterns, Meadowcraft, Inc., 106 F.3d 1519, 1538 (11th Cir.1997) (quoting Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1072 (3d Cir.1996)) (citation and internal quotation marks omitted). In order to prove pretext, the plaintiff may offer "direct evidence of discrimination in the form of statements and admissions or by circumstantial evidence in the form of comparative or statistical evidence." Woody v. St. Clair County Comm'n, 885 F.2d 1557, 1560 (11th Cir.1989) (citing Miles v. M.N.C. Corp., 750 F.2d 867, 870 (11th Cir. 1985)). The plaintiff may also establish pretext by showing that the employer did not rely on the proffered explanations for its actions. See Israel v. Sonic-Montgomery FLM, Inc., 231 F.Supp.2d 1156, 1162 (M.D.Ala.2002) (citing Chapman, 229 F.3d at 1024). Mathis does not meet her burden of establishing that a reasonable trier of the facts could find that Wachovia's explanations for disciplining and not promoting Mathis were pretextual.
Mathis primarily attempts to demonstrate pretext by relying on circumstantial evidence in the form of comparative evidence. However, none of that evidence comes remotely close to establishing pretext on the part of Wachovia. As to the promotions Mathis was denied, Wachovia had legitimate and consistent reasons for why Mathis did not receive the requested jobs she did not have the requisite qualifications. Griffin eventually received the FSR job, in part, because he had served as a "FSR floater." While it is true that he did not take the Selector Exam, Wachovia's explanation that his prior work experience supplanted the necessity for testing him is logical and worthy of credence since the purpose of the Selector Exam is to determine whether an applicant is capable of performing the functions of an FSR ably. Since Griffin had successfully performed the functions of an FSR in practice, it hardly made sense for him to have taken a test that would provide only a theoretical prediction as to his ability to handle the job.
As to the FCM position, Mathis has not provided any evidence that her rejection for lack of sales experience was pretextual. Mathis was simply not qualified for the job. The eventual hire, Freeman, had far more sales experience than Mathis and thus met the qualifications of the job. While Mathis was not interviewed for the FCM job at Thomas Drive, it is worthwhile to note that her former FCM, Carol Ringheiser, a white woman, applied for the job as well, but was not afforded an interview. (Mathis Depo, 69:11-13). In addition, the eventual hire, Lynette Freeman, was a minority, although Mathis did not realize it at the time.
Mathis' discipline and her various probations do not establish pretext on the part of Wachovia. All actions were taken because *1141 of violations of SouthTrust/Wachovia policies. In fact, because of Mathis' disciplinary history, the bank actually could have been have tougher on her. None of Mathis' alleged comparators are similarly situated, and the reasons provided by Wachovia for their treatment are consistent and fall within the guidelines of its policies. A final note on this issue: one of Mathis' duties as head teller was to train all tellers. Ironically, Mathis broke many of the policies she was tasked with enforcing for other tellers. It is not surprising nor indicative of any racial animus, that upper management disciplined her and chose not to promote her.
ii.Pattern, and Practice
Mathis claims that there was a "compelling pattern of preferential pattern of preferential treatment given to white employees and more severe treatment being given to the African American employees." She states that there is "evidence of a consistent pattern of racially based enforcement of discipline and denial of promotion opportunities for [Mathis] herself and other African American employed at SouthTrust and Wachovia in the Bay County Area from 2000 to 2006." (Doc. 66, Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment, p. 2).
In order to show a pattern and practice, the following standard is applicable:
In contrast, a pattern and practice claim either may be brought . . . if there "reasonable cause to believe that any person or group of persons is engaged in a pattern or practice" of discrimination, 42 U.S.C. § 2000e-6(a) (1994); see also In re Employment, 198 F.3d at 1310 n. 8, or by a class of private plaintiffs under 42 U.S.C. § 2000e, et. seq., see Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1549 (11th Cir.1986). In such suits, the plaintiffs must establish "`that [] discrimination was the company's standard operating procedure.'" Cox, 784 F.2d at 1559 (quoting Teamsters, 431 U.S. at 336, 97 S.Ct. 1843, 52 L.Ed.2d 396); see also Franks v. Bowman Transportation Co., 424 U.S. 747, 772, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). To meet this burden of proof, a plaintiff must "prove more than the mere occurrence of isolated or accidental or sporadic discriminatory acts. It ha[s] to establish by a preponderance of the evidence that [] discrimination [is] the company's standard operating procedure-the regular rather than unusual practice." Teamsters, 431 U.S. at 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (footnote and internal quotation marks omitted). While "pattern or practice cases are a variant of the disparate treatment theory and thus `[p]roof of discriminatory motive is critical,'" statistical evidence often is used to establish the existence of a pattern or practice. Lujan v. Franklin County Bd. of Educ., 766 F.2d 917, 929 (6th Cir.1985) (quoting Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396). A plaintiff may establish a pattern or practice claim "through a combination of strong statistical evidence of disparate impact coupled with anecdotal evidence of the employer's intent to treat the protected class unequally." Mozee v. American Commercial Marine Service Co., 940 F.2d 1036, 1051 (7th Cir.1991) We also point out that "direct evidence of an intent to discriminate" may be used to establish a pattern or practice claim. Lujan, 766 F.2d at 929 n. 15. Finally, we observe that in determining pattern or practice liability, the government is not required to prove that any particular employee was a victim of the pattern or practice; it need only establish a prima facie case that such a policy existed.
E.E.O.C. v. Joe's Stone Crab, 220 F.3d 1263, 1286-87 (11th Cir.2000).
*1142 Mathis submits anecdotal evidence from four SouthTrust/Wachovia African American employees, excluding herself, to establish her claim that "the pattern [of discrimination at SouthTrust/Wachovia]. . . . is clear and unequivocal." (Doc. 66, p. 4). Mathis provides the following specific examples: 1) Charles Gage, an African American maintenance employee at South-Trust was promised a job as maintenance supervisor by his boss, but eventually his "white boss hired someone white without experience, denying Mr. Cage even the opportunity to apply for the job"; 2) Janifred Peacock, an African American woman who served as a FSR at SouthTrust, was asked to remove her application for the FCM position after Kim Ellis, a white member of upper management, stated that Peacock did not "look the part of a manger [sic] [and was] not professional enough." Peacock was also denied a promotion to FCM at Thomas Drive, which was eventually given to an "unqualified white person with little or no knowledge of how to run a bank"; 3) In 2005, Beverly Washington, an African American woman employed as a head teller at SouthTrust was not given the assistance and training necessary to succeed in that position, thus forcing her to resign. The white employee hired to replace Washington was provided with the necessary assistance; and 4) Carla Houston, a head teller at SouthTrust was ignored, unfairly disciplined, and harassed by her white supervisor. Houston was so upset by this treatment, she mentioned that she might resign; she changed her mind the following day, but was sent home nonetheless. Houston was terminated for abandoning her job.
Mathis claims that because of their race, all of these African American employees were denied professional opportunities and disciplined in a discriminatory manner. Mathis also cites to the testimony of Vaun Marks; Carol Jones, a white female formerly employed as FCM at Wachovia ("to me it looks like SouthTrust (n/k/a Wachovia) has two sets of standards: one for whites and one for blacks"); Carla Houston; and Mathis, herself. In essence, all of their testimony supports Mathis' contention that certain African American employees and white employees were treated differently.
Assuming that all of Mathis' claims are true, Mathis still does not provide enough evidence for a reasonable jury to conclude that racial discrimination was SouthTrust/ Wachovia's standard operating procedure. While Mathis provides anecdotal evidence of what she alleges to be a pattern of discrimination, she does not provide any information regarding whether these African Americans were the only ones that applied for promotions or faced discipline during the time she was employed. She cannot satisfy her burden of proof by providing "isolated" incidents of discrimination rather, she must show that such a practice of discrimination was regular. Without providing the Court with any statistical evidence of Wachovia's alleged practice of discriminatory treatment towards African Americans, it is impossible to conclude that a reasonable jury could find that Wachovia's standard operating procedure provided for racially discriminatory treatment towards black employees. As a result, Mathis has failed to establish a prima facie case of pattern and practice racial discrimination claim.
iii.Disparate Impact
Before addressing the substance of Mathis' disparate impact claim, it is necessary to address whether Mathis complied with the notice pleading requirements of the Federal Rules of Civil Procedure. Specifically, Wachovia contends (and the Court agrees) that Mathis did not allege a disparate impact claim until her motion for summary judgment.
*1143 The Federal Rules of Civil Procedure "impose a relatively lenient obligation upon pleaders in federal court . . . [a] pleader generally meets this obligation by notifying the opponent of the claim and proposed relief to such a degree that the opponent is able to formulate a response." Federal Practice and Procedure (Quick Reference Guide), p. 137 (2006) (citing Hamilton v. Allen-Bradley Co., 217 F.3d 1321 (11th Cir.2000) vacated and superseded (holding "Detail is not the bedrock on which a proper complaint stands; all that is required is that the defendant be put on notice of the claim being asserted against it and the ground on which it rests")). "A complaint need not specify in detail the precise theory giving rise to recovery. All that is required is that the defendant be on notice as to the claim being asserted against him and the grounds on which it rests." Hamilton v. Allen-Bradley Co., 244 F.3d 819, 823 (11th Cir.2001).
Mathis' Third Amended Complaint is difficult to follow and as far as the Court can discern, there is nothing in it that would provide notice of a disparate impact claim. Rather, Mathis includes that claim in her motion for summary judgment.[5] Even, assuming that there is enough in the Third Amended Complaint to satisfy the Federal Rules, Mathis still does not meet the criteria necessary to support a prima facie disparate impact claim, and thus this claim too must fail.
According to Title VII, "[i]n the first stage of a disparate impact case, the `complaining party [must] demonstrate [] that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.'" In re Employment, 198 F.3d at 1311 (quoting 42 U.S.C. § 2000e-2(k)(1)(A)(i)). "To `demonstrate' means to `meet[] the burdens of production and persuasion.'" Id. (quoting 42 U.S.C. § 2000e(m) (1994)). "In other words, in order to surmount the first hurdle in a disparate impact race discrimination case, the plaintiff must make out a prima facie case `that [a] facially neutral employment practice ha[s] a significantly discriminatory impact.'" Id. (quoting Connecticut v. Teal, 457 U.S. 440, 446, 102 S.Ct. 2525, 2530, 73 L.Ed.2d 130 (1982)). As the Supreme Court explained in Watson, "the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group." Watson, 487 U.S. at 994, 108 S.Ct. 2777, 101 L.Ed.2d 827 (emphasis added); see also Edwards v. Wallace Community College, 49 F.3d 1517, 1520 (11th Cir.1995) (observing that "[a] plaintiff must identify a specific employment practice that leads to the disparate impact"); MacPherson, 922 F.2d at 771 (noting that "`a plaintiff must demonstrate that it is the application of a specific or particular employment practice that has created the disparate impact under attack' ") (internal citation omitted).
Mathis claims that the employment practice in question is Wachovia's "policy" of not doing investigations into "the apparent racial inequities" in the workplace. This is clearly not a facially neutral employment policy and as a result, Mathis cannot successfully assert a disparate impact claim.
C. Hostile Environment
Mathis claims that the discrimination at Wachovia "has been so severe and consistent towards [her] and other African-American employees that [she] has been denied the opportunity to work in an *1144 environment free of discrimination and hostility." (Doc. 53, Joint Pretrial Stipulation, p. 4). In order to succeed on a claim for hostile work environment, a plaintiff must satisfy the following elements: (1) that she belongs to a protected group; (2) that she has been subject to unwelcome harassment; (3) that the harassment must have been based on a protected characteristic of the employee, such as race; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) that the employer is responsible for such environment under either a theory of vicarious or of direct liability. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.2002). Wachovia submits that with the exception of the first prong, Mathis cannot meet the criteria to establish a prima facie claim of hostile environment.
Mathis contends that South-Trust/Wachovia was "aware or notified on numerous occasions that discriminatory actions were occurring" and yet did not adequately investigate these incidents.(Doc. 39, Plaintiff's Motion for Summary Judgment, p. 8). As a result, Wachovia's "refusal to follow its own rules and to investigate and discipline for racial discrimination" created a hostile environment for all African-Americans. Mathis contends that this was an "unwritten policy" of Wachovia that left African-American employees "vulnerable, afraid, and encourage[d] white employees to be abusive as the white employees have seen that there are [sic] and no consequences for racist discriminatory behavior." Id. In addition, she contends that her supervisors promoted a hostile work environment by intentionally and unlawfully preventing her from professional advancement. (Doc. 12, Third Amended Complaint, ¶ 81). In support, Mathis submits the testimony of Carol Jones, a white female who formerly served as a branch manager with Wachovia who stated that "the good ole boys" at Wachovia were not concerned with protecting the "rights of others outside that group." Despite this claim, the Court finds that Mathis clearly does not establish a prima facie case, and in particular, fails to demonstrate how any reasonable jury could determine that the treatment of Mathis and African-Americans generally, by Wachovia was harassing, (much less severe and hostile to the point of altering her terms of employment) or based on race.
The Eleventh Circuit has held that "[a] hostile work environment claim under Title VII is established upon proof that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) In evaluating the whether the harassment was severe or pervasive, the following criteria is useful:
`In evaluating the objective severity of the harassment, we consider, among other factors: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance.' Id. at 1276. Moreover, `simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.' Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998) (citation omitted).
Galloway v. GA Tech. Auth., 182 Fed. Appx. 877, 882 (11th Cir.2006). In addition, *1145 "[t]he employee must present concrete evidence in the form of specific facts, not just conclusory allegations and assertions." Godoy v. Habersham County, 2006 WL 3592415, *2 (11th Cir.2006) (citing Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir.1990)). Mathis complains that Wachovia did not investigate instances of discrimination that she perceived. There is simply no factual evidence supporting Mathis' statement. In addition, there is no evidence that Wachovia employees frequently engaged in conduct that was physically threatening or humiliating towards Mathis or other African-American employees or that any such conduct interfered with any African-American's job performance. In addition, assuming Mathis' claims regarding these isolated incidents to be true, they still did not bare any indicia of racial animus on Wachovia's part. As stated above, the Court found that Wachovia's justifications for disciplining or not promoting Mathis to be legitimate and without pretext. Consequently, Mathis' hostile environment claim must fail as well.
D. Retaliation
In her Third Amended Complaint, Mathis contends that Wachovia also retaliated against her after she complained to Wachovia about the racial discrimination and hostile work environment that she and other African-Americans were experiencing and filed her first charge with the EEOC in June 2004 and second charge in June 2005. As a result of these actions, Mathis contends that Wachovia retaliated by "ma[king] [Mathis'] work environment worsen", forced Mathis to wait for promotions, removed/demoted her from the Merger Ambassador program, and wrote her up for the color of her hair. While Mathis alleges all of these claims in her Third Amended Complaint, in her Motion for Summary Judgment, she focuses on her removal/demotion from the Ambassador program and the actions taken by Wachovia as a result of her hair color.[6]
In order to establish a prima facie case of retaliation, a plaintiff must demonstrate that 1) she was engaged in a statutorily protected activity, 2) she was subjected to an adverse employment action, and 3) the adverse employment action was causally related to her protected activities. See e.g. Farley v. Nationwide Mutual Insurance, Co., 197 F.3d 1322, 1336 (11th Cir.1999). If the plaintiff can establish a prima facie case of retaliation, a presumption of retaliation is created, and "`the burden shifts to the defendant to rebut the presumption by producing legitimate reasons for the adverse employment action.'" Sullivan v. National Railroad Passenger Corp., 170 F.3d 1056, 1059 (11th Cir.1999) (quoting Raney v. Vinson Guard Service, 120 F.3d 1192, 1196 (11th Cir.1997)) (citation omitted), cert. denied, 528 U.S. 966, 120 S.Ct. 402, 145 L.Ed.2d 314 (1999).
In showing that it had a legitimate reason for its actions, the defendant's burden is "exceedingly light." Perryman v. Johnson Prods. Co. Inc., 698 F.2d 1138, 1142 (11th Cir.1983) (citing Texas Dept. Of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). "The defendant only needs to produce evidence of a reason for its decision; it does not need to prove that it was *1146 actually motivated by that explanation." Sermons v. Fleetwood Homes of Georgia, 227 F.Supp.2d 1368, 1380 (S.D.Ga.2002) (citing Burdine, 450 U.S. at 254, 101 S.Ct. 1089). The defendant's burden at this stage of the analysis is "merely one of production, not of proof." Lee v. Russell County Bd. of Educ., 684 F.2d 769, 773 (11th Cir.1982). "As long as the defendant articulates its reason with some specificity so that the plaintiff has a `full and fair opportunity to demonstrate pretext,' the defendant's burden has been met." Sermons, 227 F.Supp.2d at 1380 (quoting Burdine, 450 U.S. at 255-56, 101 S.Ct. 1089).
If the defendant produces legitimate reasons for its actions, "the presumption of retaliation disappears." Johnson v. Booker T. Washington Broad. Serv., 234 F.3d 501, 507 (11th Cir.2000). The plaintiff "must then attack that reason `head on and rebut it' so as to show that the reason[s][are] really pretext[s] for [retaliation]." Sermons, 227 F.Supp.2d at 1381 (quoting Chapman v. Al Transport, 229 F.3d 1012, 1030 (11th Cir.2000)). Pretext can be established by evidence which "cast[s] sufficient doubt on the defendant's proffered [legitimate] reasons to permit a reasonable fact finder to conclude that the employer's proffered `legitimate reasons were not what actually motivated its conduct.'" Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 605 (11th Cir.1994). Stated differently, the plaintiff may establish that he was the victim of [retaliation] "by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256, 101 S.Ct. 1089. The proffered explanation is unworthy of credence if the plaintiff demonstrates "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder" could disbelieve it. Combs v. Plantation Patterns, Meadowcraft, Inc., 106 F.3d 1519, 1538 (11th Cir.1997) (quoting Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1072 (3d Cir.1996)) (citation and internal quotation marks omitted). In order to prove pretext, the plaintiff may offer "direct evidence . . . in the form of statements and admissions or by circumstantial evidence in the form of comparative or statistical evidence." Woody v. St. Clair County Comm'n, 885 F.2d 1557, 1560 (11th Cir.1989) (citing Miles v. M.N.C. Corp., 750 F.2d 867, 870 (11th Cir.1985)). The plaintiff may also establish pretext by showing that ECUA did not rely on the proffered explanations for its actions. See Israel v. Sonic-Montgomery FLM, Inc., 231 F.Supp.2d 1156, 1162 (M.D.Ala.2002). A plaintiff may not, however, establish pretext "merely by questioning the wisdom of the employer's reason' as long as "the reason is one that might motivate a reasonable employer." Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir.1997) ("Federal courts do not sit to second-guess the business judgment of employers").
In this case, Mathis states that she lodged complaints with her employer and with the EEOC concerning racial harassment. "Statutorily protected expression includes filing complaints with the EEOC and complaining to superiors about sexual harassment." Johnson v. Booker T. Washington Broad. Serv., 234 F.3d 501, 507 (11th Cir.2000)(citing Rollins v. State of Fla. Dept. of Law Enforcement, 868 F.2d 397, 400 (11th Cir.1989)). In its Motion for Summary Judgment, Wachovia limits its argument to the second and third elements of the claim. Mathis has satisfied the first prong of her, claim.
As for the second requirement of the prima facie case of retaliation, an adverse employment action must "either be an ultimate employment decision or else must `meet some threshold level of substantiality.'" Stavropoulos v. Firestone, *1147 361 F.3d 610, 617 (11th Cir.2004) (quoting Bass v. Bd. of County Comm'rs, Orange County, Fla., 256 F.3d 1095, 1117 (11th Cir.2001)). In other words, "An adverse employment action is' an, ultimate employment decision, such as discharge or failure to hire, or other conduct that alters the employee's compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affects his or her status as an employee." Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th Cir.2000) (citation and internal marks omitted). An alleged retaliatory act must be both subjectively and objectively retaliatory. Gupta, 212 F.3d at 587. Wachovia contends that removal from the Ambassador Program in 2005 was not an adverse employment action because it did not equate with higher pay, better working conditions, or any other tangible job benefits. In addition, Wachovia contends that giving Mathis one day to change her hair color or face probation is at most a "minor annoyance." While it is a close call, the Court finds that the removal of Mathis from the Ambassador Program was an adverse employment action because it deprived Mathis of an employment opportunity and decreased her status as an employee. On the other hand, while Mathis was temporarily placed on probation for not changing her hair color within the requisite time period, she did not lose any job benefits and as a result, this would not qualify as an adverse employment action.
Finally, in order to establish a prima facie case of retaliation, Mathis must prove that the adverse employment action was causally related to her protected activities. Mathis' complaint to the EEOC occurred in June 2004, while her removal from the program occurred in March 2005. There was a nine-month gap between the two events, along with the major intervening event of the merger between SouthTrust and Wachovia. In a recent decision by the Eleventh Circuit, the court held that a seven month gap, without further evidence, was "insufficient to show the requisite causal connection necessary to establish a prima facie case of retaliation." Wallace v. Georgia Dept. of Transp., 2006 WL 3626967, *3 (11th Cir. 2006). As such, under the circumstance of this case, the nine month gap precludes a retaliation claim. However, even if Mathis could have established a prima facie case, Wachovia clearly had a legitimate, nonpretextual reason for removing Mathis from the Ambassador program and for placing her on probation non-compliance with the dress code. As a result, Mathis' retaliation claim must fail.
Conclusion
1. Wachovia's Motion for Summary Judgment (Doc. 35) is granted.
2. The clerk shall enter judgment dismissing Mathis' claims with prejudice.
3. The clerk shall close the file.
NOTES
[1] The TOM is the "bible" for new tellers, containing teller policies (e.g. security procedures, cash control procedures) and disciplinary guidelines. It provides a "certain level of uniformity to disciplinary issues for teller and teller supervisor positions" and states that a "teller's overall performance will be considered" when determining what disciplinary action is appropriate. (Doc. 38, Butler Affidavit, Exhibit 1). The TOM guidelines allowed for some discretion as they were "not intended to replace the good judgment of supervisory personnel when additional issues and/or unique circumstances are identified." (Doc. 38, Butler Affidavit, Exhibit 1).
[2] Mathis contends that Cassandra Goetz, a white female, also dressed inappropriately. However, as with Grezla, Goetz is not a proper comparator because she was a floater teller, not a head teller.
[3] Even if Mathis had satisfied the second prong, her prima facie case would have failed because no reasonable jury could conclude that Griffin's qualifications, including his prior experience as a FSR, were equal to or less than Mathis' credentials with respect to the FSR position. See Alexander v. Fulton County, 207 F.3d 1303, 1340 (11th Cir.2000) ("In a Title VII action, it is not the role of the Court to second-guess the wisdom of the employer's decision as long as the decisions are not racially motivated").
[4] SouthTrust was divided into two sections operations and sales. As Teller Supervisor, Mathis supervised the operations unit
[5] The Court has already denied the Plaintiff's Motion for Summary Judgment. Doc. 73.
[6] The Court has already addressed the fact that there Wachovia had legitimate, non-pretextual reasons for disciplining and not promoting Mathis and as such, it need not regurgitate that discussion again. Suffice it to say, based on the evidence in the record, no reasonable jury could find that Mathis was not promoted or disciplined because of any retaliation on the part of SouthTrust/Wachovia. The Court will address Mathis' contentions regarding her removal from the Ambassador program and Wachovia's demand that she change the color of her hair in further detail.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1078752/
|
COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Bray and Annunziata
MARLOWE HEATING & AIR CONDITIONING
AND
TRANSCONTINENTAL INSURANCE COMPANY
v. Record No. 0719-95-4 MEMORANDUM OPINION *
PER CURIAM
CLIFFORD ROBERT LONG AUGUST 21, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Jonathan S. Rochkind; Law Offices of John W. Sheldon,
on brief), for appellants. Appellants submitting on
brief.
(Craig A. Brown; Ashcraft & Gerel, on brief), for
appellee. Appellee submitting on brief.
Marlowe Heating & Air Conditioning and its insurer
(hereinafter collectively referred to as "employer") appeal from
a decision of the Workers' Compensation Commission ("commission")
awarding benefits to Clifford Robert Long ("claimant"). The
commission overruled the deputy commissioner's finding that
claimant's evidence failed to establish an injury by accident on
August 1, 1991, arising out of and in the course of his
employment. On appeal, employer contends that the commission
erroneously applied Board of Supervisors v. Martin, 3 Va. App.
139, 348 S.E.2d 540 (1986), as the basis for reversing the deputy
commissioner. We agree, reverse the commission's decision, and
remand the case for reconsideration in light of this opinion. 1
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Because we reverse the commission's decision and remand, we
will not address the issue raised by claimant on his cross-
appeal, i.e., whether the commission erred in failing to award
disability benefits from September 1, 1991 through January 15,
1992.
2
I. FACTS
Claimant was a steam fitter/foreman who worked for employer.
Claimant testified that on August 1, 1991, while working on a
project for employer at the Pentagon, he stepped on a loose tile,
causing him to fall and strike his right knee on a steel cross
bar. Claimant denied that he had injured his right knee before
August 1, 1991, but admitted that he had received medical
treatment for arthritis in his right knee before August 1, 1991.
Claimant sought medical treatment on August 5, 1991, from
Dr. Thomas Fieldson, who noted right leg, hip, and ankle pain but
no specific diagnosis. Moreover, there was no indication in Dr.
Fieldson's August 5, 1991 notes that claimant gave any history of
a specific injury or accident.
On November 19, 1991, Dr. Neil A. Green, an orthopedic
surgeon, examined claimant. Dr. Green noted complaints of right
hip, thumb, and knee pain. There is no evidence in Dr. Green's
notes of an August 1, 1991 accident as described by claimant at
the hearing. Rather, Dr. Green indicated an accident date of
July 1, 1991. He also noted that, "[p]atient states no specific
incident of injury but has been followed by Dr. Fieldson for a
significant period of time concerning pain in his right
extremity."
On his December 3, 1991, December 10, 1991, and January 16,
1992 visits to Dr. Jeffrey H. Phillips, an orthopedic surgeon who
practices with Dr. Green, claimant did not give any history of a
3
specific work-related accident. In the caption to his notes, Dr.
Phillips referenced a July 1, 1991 date of accident. Not until
January 28, 1992, did Dr. Phillips note that "[Long] tells me now
that he hurt his knee when he fell at work. This is a new
history."
In his January 24, 1992 statement to an insurance
representative, claimant stated that the first time he
experienced right knee problems was on a job at Andrews Air Force
Base at the end of July 1991. Claimant stated that he fell over
a brace located in a trench and hurt his knee on that occasion.
He also stated that he aggravated the July 1991 knee injury while
on the Pentagon job approximately three days before he went to
the doctor on August 5, 1991. He asserted that this aggravation
occurred when he stepped on a loose tile and bumped his knee.
Finally, claimant testified that he reported the August 1,
1991 accident to employer and that he filled out an accident
report two days later. Jean Marlowe, employer's vice-president,
investigated the claim and testified that no one at the company
had any knowledge of an alleged injury until December 1991, when
claimant called her concerning additional medical treatment.
Claimant filed a claim for workers' compensation benefits on
January 14, 1993. The deputy commissioner heard evidence and
ruled that, in light of the inconsistencies in the record,
claimant failed to prove an injury by accident. The deputy
specifically noted the following factors: (1) claimant made no
4
mention to anyone at work of the August 1, 1991 incident; (2)
claimant did not describe an injury by accident to Dr. Fieldson
on August 5, 1991; (3) claimant denied any specific injury when
he came under Dr. Green's care, who referenced a date of accident
of July 1, 1991; and (4) in his recorded statement, claimant
alleged that the onset of his knee pain occurred in a July 1991
accident in Maryland. The commission reversed the deputy's
ruling and awarded benefits from January 16, 1992 to February 23,
1992. The commission stated that it could not rely upon the
medical histories to determine how the accident occurred.
II. CONSIDERATION OF MEDICAL HISTORIES
The commission was confronted with inconsistent and
incomplete accounts of when claimant sustained his knee injury.
It was within the commissions's discretion to consider this
evidence in adjudicating the claim.
The commission erroneously applied Martin. It gave no
weight to claimant's prior inconsistent and incomplete histories
given to his physicians. In McMurphy Coal Co. v. Miller, 20 Va.
App. 57, 59, 455 S.E.2d 265, 266 (1995), we held that under
common law rules of evidence, medical histories are admissible
substantively as party admissions. Thereafter, we recognized in
Pence Nissan Oldsmobile v. Oliver, 20 Va. App. 314, 456 S.E.2d
541 (1995), that, under Rule 2.2 of the Rules of the Virginia
Workers' Compensation Commission, the commission may consider
medical histories in determining how an accident occurred. Rule
5
2.2 gives the commission "'[t]he discretion to give probative
weight to hearsay statements in arriving at its findings of
fact.'" Id. at 319, 456 S.E.2d at 544 (quoting Williams v.
Fuqua, 199 Va. 709, 714, 101 S.E.2d 562, 566 (1958)). As we
stated in Pence, "[t]he commission's broad statement [that it
could not rely on medical histories to determine how an accident
occurred] is contrary to the common law principles enunciated in
Martin, [Kane Plumbing, Inc. v.] Small, [7 Va. App. 132, 371
S.E.2d 828 (1988)] and Miller, [and] . . . is contrary to Rule
2.2 . . . ." Pence, 20 Va. App. at 319, 456 S.E.2d at 544.
"By failing to consider [the inconsistent and incomplete
medical histories], the commission ignored relevant evidence that
supported the appellants' position and, when coupled with other
evidence, this action may have affected the outcome of this
case." McMurphy, 20 Va. App. at 60, 455 S.E.2d at 267.
Accordingly, we remand this case for review to the commission so
it may properly consider all relevant evidence to determine
whether claimant proved that he sustained a compensable injury by
accident arising out of and in the course of his employment.
Reversed and remanded.
6
|
01-03-2023
|
10-09-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2453538/
|
509 F.Supp.2d 986 (2007)
Richard COOK and Carmen L. Cook, Plaintiffs,
v.
CHASE MANHATTAN MORTGAGE CORPORATION, a New Jersey Corporation, Defendant.
No. 2:05-cv-00016.
United States District Court, D. Utah, Central Division.
March 19, 2007.
*987 D. Bruce Oliver, Salt Lake City, UT, for Plaintiffs.
James D. Gilson, Callister Nebeker & McCullough, Salt Lake City, UT, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
PAUL G. CASSELL, District Judge.
This case requires the court to determine whether Defendant Chase Manhattan Mortgage Corporation appropriately managed the mortgage loan of Plaintiffs Richard and Carmen L. Cook. The current dispute arises out of the Cooks' alleged defaults on their home mortgage loan and the ultimate foreclosure of their property. A little over one year after the Cooks were evicted from their home, they filed suit against Chase alleging breach of contract, fraud, and violations under the Real Estate Settlement Procedures Act, Fair Debt Collection Practices Act, and the Utah Mortgage Lending and Servicing Act. At the heart of these claims is the allegation that Chase improperly failed to credit payments to their account, forcing the Cooks to make a July 2002 payment of $3,098.76 to cure an alleged history of non-payment. As primary support for these claims, the Cooks argue that their payments to Chase of $500.00 a month were more than sufficient to cover what they believed was a fixed monthly payment obligation of $419.92.
Chase has filed for summary judgment arguing the Cooks' July 2002 payment of $3,098.76 to reinstate the loan was an accord and satisfaction of their dispute and the Cooks are precluded from making claims about the alleged missed payments prior to the Reinstatement. Chase also argues that the doctrines of waiver and estoppel preclude the Cooks' causes of action because the Cooks failed to seek or obtain judicial relief to stop the 2003 foreclosure. Moreover, Chase asserts there is no factual dispute that the Cooks missed and/or failed to make timely payments for many months, and that their payments of $500.00 were not sufficient to cover their payment obligations specifically escrow items provided for in the loan documents and plainly described in annual notice letters received by the Cooks.
The court finds that the Cooks' July 2002 payment was in accord and satisfaction of its pre-July 2002 dispute with Chase, and, accordingly, the Cooks are *988 precluded from alleging misapplication of funds prior to this payment. Even if the Cooks were not precluded from asserting claims against Chase for misapplication of funds, there is no genuine dispute that the Cooks' apparent misunderstanding of its obligations resulted in their failure to properly make numerous payments leading up to July 2002. For those claims that arguably fall outside the purview of the Reinstatement, Chase has demonstrated that no genuine issue of material fact exists that would prevent summary judgment for Chase on these claims. With regard to Chase's alleged wrongful acts between July 2002 and November 2003, Chase has also demonstrated that there is no genuine factual dispute that the Cooks failed to properly make numerous payments and that Chase acted appropriately in the default proceedings and ultimate foreclosure of the Cook property. Consequently, the court GRANTS Chase's motion for summary judgment on all claims (# 23).
BACKGROUND
When considering a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party.[1] Viewed in this light, the court finds the following facts.
In August 1999, the Cooks received a mortgage loan from M & T Mortgage Corporation, and signed a Note, dated August 4, 1999, which memorialized the loan. The Note was secured by a Deed of Trust on the property and residence located at 473 South 1000 West, Salt Lake City, Utah, 84104. The Deed of Trust, also dated August 4, 1999, was signed by the Cooks. By September 1, 1999, M & T Mortgage had assigned all its rights to the Note and Deed of Trust to Chase Manhattan Mortgage Corporation.
The Note
The Note provides that the Cooks "will pay principal and interest by making payments every month," with these payments to take place "on the [first] day of each month beginning on October 1999."[2] Under the Note, the Cooks agree to "make these payments every month until [they] have paid all of the principal and interest and any other charges described below that [they] may owe under [the] Note."[3] Item 3(B) reads that the monthly payment will be in the amount of $419.92. Under the "Default" provision, the Cooks would be considered to be in default it they did not "pay the full amount of each monthly payment on the date it [was] due . . ."[4] Should the Cooks default on the loan, the Note provides that the holder
may send [the Cooks] a written notice telling [them] that if [they] do not pay the overdue amount by a certain date, the Note holder may require [them] to pay immediately the full amount of principal which has not been paid and all the Interest that [they] owe on that amount. The date must be at least 30 days after the date on which the notice is delivered or mailed to [the Cooks].[5]
The last numbered item, entitled "Uniform Secured Note," reads:
The Note is a uniform instrument with limited variations in some jurisdictions. In addition to the protection give[n] to the Note Holder under this Note, a Mortgage, Deed of Trust or Security Deed (the "Security Instrument"), dated the same date as this Note, protects the Note Holder from possible losses which *989 might result if [the Cooks] do not keep the promises which [they] make in this Note. That Security Instrument describes how and under what conditions [the Cooks] may be required to make immediate payment in full of all amount [they] owe under this Note.[6]
The Deed of Trust
Concurrent with their signing of the Note, the Cooks signed a Deed of Trust that secured the Note. The Deed of Trust "secures to [Chase]: (a) the repayment of the debt evidenced by the Note, with Interest, and all renewals, extensions and modification of the Note . . . and (c) the performance of Borrower's covenants and agreements under this [Deed of Trust] and the Note."[7] Item 2 under the "Uniform Covenants" section provides for funds for taxes and insurance. It reads in part:
Subject to applicable law or to a written waiver by Lender, Borrower shall pay to Lender on the day monthly payments are due under the Note, until the Note is paid in full, a sum ("Funds") for: (a) yearly taxes and assessments which may attain priority over this Security Instrument as a lien on the Property; (b) yearly leasehold payments or ground rents on the Property, if any; (c) yearly hazard or property insurance premiums. . . . These items are called "Escrow Items."[8]
This section states that the lender may collect and hold these escrow item funds "in an amount not to exceed the maximum amount a lender for a federally related mortgage loan may require for Borrower's escrow account under the Real Estate Settlement Procedures Act of 1974 as amended from time to time . . . unless another law that applies to the Funds sets a lesser amount."[9] In addition to signing their names at the end of the Deed of Trust, the Cooks initialed the page that contained this information about the escrow items.
The Cooks' 2002 Default
In each of the years 2000, 2001, 2002, and 2003, the Cooks received an Annual Escrow Account Disclosure Statement. In the Annual Statement dated October 25, 2001, it reads that the Cooks' "NEW monthly mortgage payment for the coming year will be $565.39 of which $419.92 will be for principal and interest and $145.47 will go into [the Cooks'] escrow account."[10] Under the "NEW payment breakdown" in this October 2001 statement, $419.92 was for principal and interest, $82.78 was for escrow, and $62.69 was for a "shortage spread," creating a total monthly payment of $565.39.
In a certified letter dated May 26, 2002, Chase informed the Cooks that they were in "default under the terms of the Note and Deed of Trust because the Cooks failed to pay the required monthly installments and late charges."[11] The Cooks contacted Chase to dispute the default. Lundberg & Associates, in a letter dated June 27, 2002, informed the Cooks that their loan had been referred to its office to begin foreclosure proceedings. After receiving this latter letter, the Cooks hired attorney Greg Smith to help them seek a reinstatement quote, which he did. The Cooks provided Mr. Smith with copies of all of the checks in their possession relating *990 to their mortgage payments and Mr. Smith in turn prepared a "Payment History" that he provided to Chase as part of a written dispute of Chase's position.[12] Lundberg responded to the Cooks' request for a reinstatement quote in a letter dated July 10, 2002, in which it provided the Cooks with a reinstatement quote of $3,098.76 that was good until July 29, 2002. In another letter, dated July 13, 2002, Lundberg responded to the Cooks' written dispute of their default status. In this July 13 letter, Lundberg justifies its position by explaining that although the Cooks had been making payments of $500.00 per month as evidenced by the Payment History supplied by the Cooks the actual monthly payment due was $565.39. The July 13 letter noted that the last check of the Cooks to be applied to the loan was the March 2002 payment.
Later in July, the Cooks received a Notice of Default and Election to Sell. This Notice, recorded on July 16, 2002, and date marked as "Sent" on July 17, 2002, states that the Cooks' payments "are due for the months of April 2002 through July 2002 in the amount of $565.39 per month. Under the provisions of the promissory note and trust deed, the principal balance of $41,338.99 is accelerated and now due, together with accruing interest, late charges, costs and trustees' and attorneys' fees."[13] On July 22, 2002, the Cooks paid Chase $3,098.76. Upon receipt of this payment, Chase canceled the Notice of Default, stopped the foreclosure, and reinstated the loan.
The Cooks' 2003 Default
In a letter addressed to the Cooks dated December 8, 2002, Chase informed the Cooks that they were "in default for failure to make the required monthly payments as they [became] due."[14] Four months later, in a letter dated April 25, 2003, Chase once again informed the Cooks that they were in default under the terms of the Note and Deed of Trust. The April letter reads in part:
You are in default because you have failed to pay the required monthly installments and late charges. As of the date hereof, principal, interest, escrow, late charges, and fees of $1,015.04 are due on the loan. . . . If there is reason to dispute the debt, or any portion thereof, you must notify Chase Manhattan in writing within 30 days of this notice.[15]
Upon receipt of the April 2003, letter, Ms. Cook sent a payment of $513.91 to Chase, even though the April letter stated that $1,015.04 was due. Ms. Cook called Chase to dispute the content of the letter and allegedly received a call back from Chase informing them that their "mortgage payment was being credited the six months of payments paid the year prior, the $3,098, relieving [them] of any obligation to make a payment till November 2003."[16] The Payment History submitted by the Cooks does not indicate that the Cooks made payments in November or December of 2002, or made any payments after April 2003.
*991 Chase sent a letter to the Cooks dated June 10, 2003, which notified the Cooks that Chase had once again forwarded their loan to Lundberg to immediately initiate foreclosure proceedings. In a letter sent to the Cooks dated June 12, 2003, Lundberg confirmed that their loan had been referred to its office to begin foreclosure proceedings. The Cooks remember being notified during the Summer of 2003 that there was going to be a foreclosure on their property because of Chase's contention that they were past due on making loan payments.[17] Also, on June 27, 2003, Ms. Cook signed for a certified letter from Lundberg with the heading, "Notice of Default and Election to Sell." This letter, dated June 16, 2003, states:
Under the provisions of the promissory note and trust deed, the unpaid principal balance is accelerated and now due, together with accruing interest, late charges, costs and trustees' and attorneys' fees. Accordingly, the trustee has elected to sell the property described in the trust deed.[18]
On September 22, 2003, a Notice of Trustee's Sale for October 23, 2003, was posted in a conspicuous place on the Cook property. The Cooks do not remember seeing the notice posted on their property because they were in Las Vegas at the time.[19] Notice for the trustee's sale of the Cook property was published in The Intermountain Commercial Record & The Salt Lake Times three times between September 19, 2003, and October 3, 2003. On October 23, 2003, the Cook Property was sold by the Trustee of the Trust Deed to the highest bidder at the foreclosure sale.
In November 2003, the Cooks were evicted from the property by the sheriff. On the morning of their November 2003 eviction, Ms. Cook showed an unsigned letter to the sheriff and informed him that the letter had been sent to her from Chase. The letter, dated November 11, 2003, states that Chase had decided to credit $3,098.76 to the Cooks' loan amount and that their next payment was due December 1, 2003. The letter contains a number of irregularities. The body of the letter reads as follows:
Dear Mortgagor: 11/11/03
Research has been completed on the payment information provided.
The refund balance of $3098.76 has been posted to your account. As of July 01, 2003 to November 01, 2003 this amount has been adjusted to your loan, 6 payments of $513.00 per month.
As of today your loan payment is due December 01,2003 in the amount of $513.00. With a $20.00 balance to be applied to your suspended funds.
If you have any further questions regarding this issue please contact Customer Service Department at 1-800-848-9136.
Chase's goal is to provide [sic] the highest quality service.[20]
Chase denies sending the letter and maintains that the letter is a forgery. Although the Cooks admit to receiving notice that Chase was initiating foreclosure proceedings against them, the Cooks assert that they did not become aware of the sale until after they were being evicted. At no time did the Cooks, from the time of their *992 receipt of the default notices in June 2003 to their eviction from the property in November 2003, send a written dispute to Chase regarding the default and foreclosure proceedings.
The Cooks filed a Complaint against Chase in state court on November 19, 2004, alleging breach of contract, fraud, and violations under the Real Estate Settlement Procedures Act, Fair Debt Collection Practices Act, and the Utah Mortgage Lending and Servicing Act. The case was removed to federal court in January 2005. On March 1, 2006, Chase filed a motion for summary judgment.[21]
STANDARD OF REVIEW
Summary judgment is appropriate "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."[22] In evaluating a motion for summary judgment, the evidence and reasonable inferences drawn therefrom should be viewed in the light most favorable to the nonmoving party, in this case, the Cooks.
In addition to seeking summary judgment on the basis of undisputed fact and law, Chase also seeks summary judgment based on affirmative defenses. Where the defendant seeks summary judgment on the basis of affirmative defenses, the defendant "must demonstrate that no disputed material fact exists regarding the affirmative defense asserted."[23] If Chase meets this initial burden, the Cooks must then demonstrate with specificity the existence of a disputed material fact.[24] If the Cooks fail to make such a showing, Chase's affirmative defenses will bar the Cooks' respective claims, and Chase will be entitled to summary judgment on those claims as a matter of law.[25]
DISCUSSION
At the heart of the Cooks' claims against Chase is the allegation that Chase improperly failed to credit payments to their account before the July 2002 Reinstatement. As specific causes of action, the Cooks allege breach of contract, fraud, and violations under the Real Estate Settlement Procedures Act, Fair Debt Collection Practices Act, and the Utah Mortgage Lending and Servicing Act. Specifically, the Cooks assert that Chase has misapplied funds on six occasions:
(1) In January 2000, Chase corrected an error created in their accounting in October 1999, where Chase lost two money orders. In a letter dated January 14, 2000, Chase conceded an error and attempted to correct the Cooks payment history;
(2) On June 7, 2000, the Cooks were accused to not paying their April 2000, May 2000, and June 2000 payments. In response, Carmen Cook faxed the proof of those three payments;
(3) In March 2002, Chase accused the Cooks that not enough had been paid for their payments. Proof of payment again was paid despite the fact they had always overpaid;
*993 (4) In April 2002, Chase accused the Cooks of missing five payment. Carmen Cook faxed over the proof;
(5) In July 2002, Chase accused the Cooks of missing three payments. Carmen Cook faxed over the proof; and
(6) In November 2003, in a letter dated November 11, 2003, Chase informed the Cooks that their refund balance of $3,098.76 had been posted to the account to cover the payments from July 1, 2003 to November 1, 2003 with an additional $20.00 to be applied to suspended funds.[26]
As support for these allegations, the Cooks point to the fact that they were making mortgage payments of $500.00 even though they believed that their monthly obligation was only $419.92.
Chase argues that the Cooks' July 2002 payment of $3,098.76 to reinstate the loan was in accord and satisfaction of their dispute that now precludes the Cooks from making claims about the allegedly mismanaged payments prior to the Reinstatement. With respect to the 2003 foreclosure, Chase argues that the doctrines of waiver and estoppel precludes the Cooks' causes of action because the Cooks failed to seek or obtain judicial relief to stop the foreclosure. Moreover, Chase asserts there is no factual dispute that the Cooks missed and/or failed to make timely payments for many months, and that their payments of $500.00 were not sufficient to cover the payment obligations specifically escrow items provided for in the loan documents and plainly described in annual notice letters received by the Cooks.
The court finds that Chase did not misapply funds and that it fully complied with its statutory and contractual obligations, devoid of any fraud, misrepresentation, and mismanagement. The Cooks' July 2002 payment was in accord and satisfaction of its pre-July 2002 dispute with Chase, and, accordingly, the Cooks are barred from making claims of mismanagement prior to the Reinstatement. Regardless of this preclusion, the Cooks have failed to produce evidence supporting the first five alleged instances of Chase's misapplication of funds (the pre-reinstatement allegations) other than testimony that they consistently made monthly mortgage payments of $500.00 a month. As is more fully discussed below, the $500.00 payments were not sufficient. For those claims that arguably fall outside the purview of the reinstatement payment, Chase has demonstrated that no genuine issue of material fact exists that would prevent summary judgment for Chase on these claims. With regard to Chase's alleged wrongful acts between July 2002 and November 2003, the court finds that the Cooks have failed to raise a material disputed fact that would save them from summary judgment on these claims.
Before analyzing the specifics of each claim, the court notes that much of this case can be resolved or at the least, better understood by a close examination of the loan documents. Throughout their pleadings and affidavits, the Cooks assert that their monthly payment was a fixed $419.92.[27] They are correct in so far as the $419.92 was a fixed payment representing *994 the principal and interest of the loan.[28] However, what the Cooks apparently fail to consider is that the Deed of Trust provides for the payment of "Funds for Taxes and Insurance"; in other words, escrow items.[29] Specifically, the Cooks were required to pay, on the day monthly payments were due under the Note, "yearly taxes and assessments which may attain priority over [the Deed of Trust] as a lien on the Property" and "yearly hazard or property insurance premiums."[30] In each of the years 2000, 2001, 2002, and 2003, the Cooks received from Chase an "Annual Escrow Account Disclosure Statement" informing them of their monthly payment for the upcoming year.[31] For example, the October 25, 2001 statement provided for a "monthly mortgage payment for the coming year [of] $565.39 of which $419.92 [would] be for principal and interest and $145.47 [would] go into [the Cooks'] escrow account."[32] Despite having received this October 2001 letter, the Cooks made payments of only $500 for the first six months of 2002.[33] Consequently, the Cooks' assertions that they "always overpaid" because they made payments of $500.00 are simply inaccurate.
With this backdrop, the parties' frustrations in this case are understandable. Unfortunately for the Cooks, their apparent misunderstanding of the loan documents and failure to account for the escrow items critically undermines their allegations that Chase mismanaged and misapplied their payments. Consequently, the Cooks' allegations of mismanagement fall flat especially in light of the July 2002 Reinstatement. There are, however, allegations against Chase that are arguably outside the purview of the 2002 Reinstatement, such as Chase's statutory obligation to respond to written inquiries.[34] As more fully described below, these claims also fail because Chase has demonstrated that no genuine issue of material fact exists that would prevent summary judgment for Chase.
Because the court finds that the July 2002 Reinstatement operates as an accord and satisfaction that precludes most of the Cooks' claims arising before the Reinstatement, the court will separate its discussion into pre-July 2002 events and post-July 2002 events.
A. Pre July-2002 Events
The Cooks' allegations of mismanagement by Chase do not only fail as a matter of undisputed fact and law, but their July 2002 Reinstatement payment of $3,098.76 operates as an accord and satisfaction that precludes the Cooks from asserting claims of mismanagement that allegedly occurred before the Reinstatement.[35] Of the six instances of Chase's alleged mismanagement detailed *995 by the Cooks, five of these alleged events occurred before the July 2002 Reinstatement. With respect to the two alleged instances of misapplied funds taking place in 2000, the Cooks have failed to submit any evidence supporting these allegations. Moreover, these claims, at least with respect to RE SPA, are barred by a three-year statute of limitations.[36] With respect to the 2002 claims of misapplication of funds, the Cooks' Reinstatement precludes these claims as a matter law.
Under Utah law, an accord and satisfaction, which creates a new contract between parties, occurs when there is a "(1) a bona fide dispute over an unliquidated ed amount, (2) a payment made in full settlement of the entire dispute, and (3) acceptance of the payment."[37] In other words, an accord and satisfaction is brought about when both parties agree that "a different performance than that required in the original contract will be made in substitution of the performance originally agreed upon."[38] Based on the facts of this case, the court finds that the Cooks' July 2002 payment to Chase of $3,098.76 constituted a valid accord and satisfaction. First, the parties were involved in a dispute regarding the status of the Cooks' account. Second, the Cooks' payment of $3,098.76 was made in full settlement of the dispute. Third, Chase accepted the payment, and in return, agreed to cancel the foreclosure and reinstate the loan.
The court finds support for its application of accord and satisfaction to the Reinstatement from the case Fowers v. Gurney.[39] In that case, the Utah Supreme Court reviewed the trial court's holding that the defendant was not liable for the deficiency on a mortgage foreclosure.[40] In affirming the trial court's judgment, the Powers court found that the defendant's payment to reinstate the mortgage loan was an accord and satisfaction that satisfied the deficiency judgment.[41] This court finds that Chase has also successfully asserted this affirmative defense and that the Cooks have failed to demonstrate with specificity the existence of a disputed material fact.[42] Accordingly, the Cooks are precluded from making claims about the alleged misapplication of funds prior to the July 2002 Reinstatement.
The court also finds that Chase fully complied with its statutory and contractual obligations in its pre-July 2002 interactions with the Cooks that arguably were not a part of the dispute that was resolved with the Reinstatement. Specifically, RE SPA requires Chase to respond to the Cooks' written inquiries within twenty days, and to investigate the issue, correct any errors, and provide a written explanation of the actions, within sixty days.[43] With respect to the obligation to respond to a written letter and investigate the dispute, the record demonstrates that Chase timely responded to the Cooks' July 2002 written inquiry, and investigated the matter in accordance with statute.[44] The Cooks admit *996 in their Opposition memorandum that "Chase responded to Plaintiffs `qualified written dispute letter' through counsel who attempted to `justify' proceeding with the foreclosure."[45] The Cooks have not come forward in its summary judgment briefing with evidence of other written disputes to Chase. Also, as is more fully described below, there is no genuine dispute as to any material facts that would support the Cooks' other causes of action in this case.
Even if the court were not to view the Reinstatement as an accord and satisfaction that precludes the Cooks' claims, these claims nevertheless fail as a matter of undisputed fact and law. As has been discussed above, the Cooks' apparent belief of their mortgage obligation was incorrect. A thorough reading of the Note and Deed of Trust, coupled with an examination of the Cooks' Payment History, depositions, and affidavits, demonstrate that the Cooks failed to pay the full amount of their required monthly payments at the beginning of each month in the last months of 2001 and the early months of 2002, and that Chase responded to any inquiries from the Cooks in accordance with its statutory and contractual obligations.
B. Post July-2002 Events
The Cooks' claims against Chase stemming from alleged wrongful acts between July 2002 and November 2003 fail as a matter of law because Chase has demonstrated that there is no genuine dispute as to material facts regarding the Cooks' 2003 default and the foreclosure of their property.
Chase asserts the affirmative defense of waiver and estoppel to these claims, arguing that the Cooks' failure to seek or obtain judicial relief to stop the 2003 foreclosure that was premised on the 2003 breaches now estops the Cooks from making claims against Chase in connection with those events. As legal support for this defense, Chase points to the case American Falls Canal Securities Co. v. American Savings & Loan Assoc.[46] In American Falls, the court reviewed the trial court's award of excess proceeds to the owner of a parking structure that was sold at foreclosure. Pertinent to this case, the court noted that "a party otherwise in position to object to a mortgage foreclosure sale may well be precluded from doing so based upon conduct sufficient to bring into operation the doctrines of waiver and estoppel."[47] The Cooks contend that the case is inapplicable because not only did American Falls received notice of the sale and, along with its counsel, attend the sale, but it had also written a letter, to the eventual buyer stating that it "had no interest in purchasing the parking structure, in bringing the loan current, or in bidding at the sale."[48] Although the court finds the American Falls case distinguishable from the current case, the affirmative defense of waiver and estoppel may still be applicable. The court, however, finds it unnecessary to apply this doctrine because the undisputed facts surrounding the foreclosure dictates summary judgment in favor of Chase.
A brief analysis of each of the Cooks' claims demonstrates that there is no genuine dispute of a material fact that would preclude summary judgment in favor of Chase.
1. Real Estate Settlement Procedures Act
In their complaint, the Cooks allege that Chase violated 12 U.S.C. § 2601, which *997 requires a loan servicer to respond to a qualified written request within twenty days, and, within sixty days, make appropriate correction in the account (if necessary) and explain any action in a written correspondence. As was noted above, there is a three-year statute of limitations applied to Section 2605(e).[49] The Cooks conceded in their Opposition that the statute of limitations appears to apply and agreed to "limit the contested transactions to the preceding period of November 20, 2001, to November 19, 2004."[50] Regardless, the only evidence of a qualified written request supplied by the Cooks was their July 2002 letter. It is undisputed that Chase investigated the matter and responded appropriately, even if the Cooks may have disagreed with Chase's conclusions.[51]
2. Utah Mortgage and Service Act of 1990
The Cooks' second cause of action is for alleged violations of the Utah Mortgage Lending and Servicing Act of 1990.[52] The specific part of the statute cited by the Cooks requires a lender to credit the borrower's account as of the date a payment was received or by the next banking day.[53] Chase is entitled to summary judgment on this issue on at least two grounds. As noted above, the Cooks mistakenly believed that they overpaid when they made their $500.00 payments. Based on this belief, the Cooks allege that Chase failed to accurately reflect the payments, and had they done so, the foreclosure would not have occurred. The evidence shows that for many months, the Cooks failed to make proper payments. In particular, the Cooks stopped paying entirely after April 2003, and missed payments in November and December 2002.[54] Chase explained its actions in numerous default letters.[55] The Cooks failed to produce evidence that Chase failed to credit the Cooks' account as of the date it was received or by the next banking day as outlined in the statute.
Even if Chase had failed in this regard, Chase falls under at least one of the exceptions to this requirement. The statute provides that "[a] lender . . . must credit to a mortgagor's account any payment received as of the date it was received . . . unless: (a) the payment is insufficient to pay the principal, interest, late charges, and the reserves then due; (b) the loan has been referred to an attorney because of default. . . ."[56] As has been discussed throughout the opinion, the Cooks failed to account for the reserves when making many of their payments. Furthermore, Chase may even qualify for the referral exception because it had referred the loan to its attorney for collection.[57] For all of these reasons, Chase is entitled to summary judgment on this claim.
3. Fair Debt Collection Practices Act
The Cooks' third cause of action alleged violations under the Fair Debt Collection Practices Act[58] also fails as a *998 matter of law. In their complaint, the Cooks point to two statutes that Chase allegedly violated: 15 U.S.C. § 1692e and 1692(f). Section 1692e(4) reads that a debt collector is prohibited from:
The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.[59]
Once again, the Cooks' misunderstanding of its mortgage obligations caused them to believe that the default and foreclosure was unlawful. However, the record does not demonstrate any unlawful actions by Chase, rather, it shows that Chase acted appropriately in its dealing with the Cooks. The record is also clear that Chase intended to foreclose on the property, and that is an action that it eventually took.
The Cooks also assert that Chase violated Section 1692(e)(7), which prohibits "[t]he false representation or implication that the consumer committed any crime or other conduct in order to disgrace the consumer." There is no evidence in the record that Chase, in an attempt to disgrace the Cooks, falsely represented or implied that the Cooks had committed any crime or other conduct. Both of these claims fail as a matter of undisputed fact and law.
4. Contract and Fraud Claims
Finally, the court finds that Chase is also entitled to summary judgment on the contract and fraud claims because the Cooks failed to pay their required monthly loan payments in full as required by their loan, and Chase has demonstrated that it complied with its contractual, statutory, and other obligations in its management of the Cook mortgage loan. As primary support for their breach of contract and fraud claims, the Cooks once again state that they overpaid each month.[60] With respect to the fraud claim, the Cooks allege that "[a]ll of the defendants, and Chase, knew, or reasonably should have known, that Plaintiff was falsely informed that he owed $3,096 in order to reinstate his loan under paragraph 18 of the Deed of Trust."[61] Both of these claims fail, primarily due to the Cooks' apparent misunderstanding of their loan obligations.
In addition to their arguments that they "overpaid" each month, the Cooks have attempted to avoid summary judgment by pointing to an alleged phone call from Chase in April 2003, informing the Cooks that their payment of $3,098 made in 2002 was being credited to their account, and an alleged letter from Chase dated November 11, 2003, informing the Cooks that the $3,098.76 had been posted to their account to cover payments from July 1, 2003 to November 1, 2003. Chase asserts that the November 11 letter is a forgery.[62] Upon close examination of the November 11 letter, the court also has its strong suspicions about the authenticity of the letter. In particular: the date is on the same line as "Dear Mortgagor"; the letter reads that "Chase's goal is to provided the highest quality service" (emphasis added); the body of the letter does not align with the headings or the signature block; there are numerous spacing irregularities; the letter reads that "6 payments of $513.00 per *999 month" had been adjusted to the loan but refers only to "July 01, 2003 to November 01, 2003" (five months); the letter contains no reference to an account number. In light of these irregularities, a strong argument can be made that no reasonable juror could find the letter really came from Chase. Nevertheless, the court is required to view the facts in the light most favorable to the nonmoving party.[63] Therefore, the court will proceed on the assumption that the Cooks received the telephone call in April and that the curious November 11 letter is, indeed, from Chase. This assumption, however, does not defeat Chase's right to summary judgment on all claims in this case.
Even if the Cooks received a telephone call in April informing them that their account was credited the $3,098.76, the Cooks subsequently received written notices that their loan was in default and that foreclosure proceedings were being initiated. It is undisputed that Chase and or its agent sent the Cooks three letters during the summer of 2003, informing them of their default and the pending foreclosure.[64] Ms. Cook signed for one of these letters[65] and testified at her deposition that during the summer of 2003, she was aware that Chase believed they were in default and that there were foreclosure proceedings pending against their property.[66] Another one of these letters states that "[u]nless within 30 days after [the Cooks] receive this notice, [the Cooks] dispute the validity of the debt or a portion thereof, the debt will be assumed to be valid."[67] Furthermore, a notice of the trustee sale was placed on their property and a written notice of the sale was published in a newspapers on three separate occasions.[68] Consequently, no reasonable juror could conclude that this earlier phone call somehow trumped the subsequent notices or somehow proves breach of contract, fraudulent action, or statutory violations.
With regard to the November 11 letter, the property had been sold at foreclosure before this letter was allegedly sent.[69] Chase maintains without dispute that the account with the Cooks had been terminated by virtue of the October 2003 foreclosure sale.[70] Thus, even if this letter were sent to the Cooks on November 11, it could not be a material fact that would defeat Chase's claims for summary judgment on the contract claim because the contract had terminated by that time. Also, the November 11 letter does not preclude summary judgment for Chase on the fraud and statutory claims. Chase could not have committed fraud against the Cooks in November 2003, because it no longer had any relationship with the *1000 Cooks contractual or otherwise. The letter refers to the fact that "[a]s of today" a subsequent loan payment of $513.00 was due December 1, 2003. But since, as a matter of law, the contract had terminated, no such payment was due and the record is undisputed that Chase never attempted to collect it. The letter could therefore, at most, be circumstantial, evidence of some earlier violation or fraud. But because Chase was entitled to collect all the funds it obtained earlier from the Cooks, no such fraud existed, and no statutory violation occurred. Chase is therefore entitled to summary judgment on all claims.
CONCLUSION
For the foregoing reasons, the court GRANTS Chase's motion for summary judgment (# 23). The Clerk's Office is directed to close this case.
SO ORDERED.
NOTES
[1] Cortez v. McCauley, 438 F.3d 980, 988 (10th Cir.2006).
[2] Note, Item 3(A), Def.'s Mem. Supp. Summ. J. Ex. 1 [Docket No. 24].
[3] Id.
[4] Id. at Item 6(B).
[5] Id. at Item 6(C).
[6] Id. at Item 10.
[7] Deed of Trust, Def.'s Mem. Supp. Summ. Ex. 2 at 1.
[8] Id. at Item 2(a).
[9] Id.
[10] Annual Escrow Account Disclosure Statement of Oct. 25, 2001, Def.'s Mem. Supp. Summ. J. Ex. 3.
[11] Notice of Default Letter dated May 26, 2002, Def.'s Mem. Supp. Summ. J. Ex. 4.
[12] The record is unclear as to whether the Cooks' written dispute of their default status and their request for a reinstatement quote was contained in the same letter or two separate letters. The important fact is that the Cooks submitted a written inquiry of their account status.
[13] Notice of Default and Election to Sell Property letter dated July 15, 2002, Def.'s Mem. Supp. Summ. J. Ex. 10.
[14] Notice of Default dated Dec. 8, 2002, Def.'s Mem. Supp. Summ. J. Ex. 13.
[15] Notice of Default Letter dated Apr. 25, 2003, Def.'s Mem. Supp. Summ. J. Ex. 14.
[16] C. Cook Aff. ¶ 14; R. Cook Aff. ¶ 14.
[17] C. Cook Dep. 43:5-20.
[18] Notice of Default and Election to Sell letter dated June 16, 2003, Def.'s Mem. Supp. Summ. J. Ex. 17.
[19] C. Cook Dep. 45:2-8.
[20] Letter from Chase dated Nov. 11, 2003 Def.'s Mem. Supp. Summ. J. Ex. 26. The court's recreation of the body of this letter includes the apparent spacing and typing irregularities found in the original document.
[21] The long delay between this order and the original motion for summary judgment is a result of a colleague judge's recusal in this matter months after the summary judgment motion had been fully briefed.
[22] Fed.R.Civ.P. Rule 56(c).
[23] Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir.1997) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
[24] Id.
[25] Id.
[26] Pl.'s Mem. Opp. Summ. J. 8 [Docket No. 26].
[27] R. Cook Aff. If ¶ 7; C. Cook Aff. ¶ 7 ("These two documents bound us to a fixed mortgage payment of $419.92."); Pl.'s Mem. Opp. Summ. J. at 3 [Docket No. 26] ("The monthly payment was a fix $419.92. (Principal and Interest). . . . Despite the mortgage of $419.92, Plaintiffs always paid $500.00 a month."); Pl.'s Mem. Opp. Summ. J. at 5 [Docket No. 26] (However, being that Plaintiff's mortgage was a fix mortgage and had a fix payment of $419.92.); Compl. ¶ 13 [Docket No. 1] ("Plaintiff was to make his monthly mortgage payments to Chase for a sum of less than $500.").
[28] See Note, Item 3(B), Def.'s Mem. Supp. Summ. J. Ex. 1 [Docket No. 24].
[29] Deed of Trust, Def.'s Mem. Supp. Summ. J. Ex. 2 at 2(a) [Docket No. 24].
[30] Id.
[31] See C. Cook Dep. 13:21-25; see also Annual Disclosure Statements 2000-2003, Def.'s Mem. Supp. Summ. J. Ex. 3 [Docket No. 24].
[32] Annual Escrow Account Disclosure Statement of Oct. 25, 2001, Def.'s Mem. Supp. Summ. J. Ex. 3 [Docket No. 24].
[33] Payment History, Def.'s Mem. Supp. Summ. J. Ex. 7. It should also be noted that these payments were not made on the first of every month but were made on the following dates: 01/04/2002; 03/05/2002; 03/20/2002; 4/05/2002; 05/06/2002; 06/05/2002.
[34] See 12 U.S.C. § 2605(e).
[35] Pl.'s Mem., Opp. Summ. J. 8.
[36] See 12 U.S.C. § 2614.
[37] Smith v. Grand Canyon Expeditions Co., 84 P.3d 1154, 1158 (Utah 2003).
[38] Bennion v. LeGrand Johnson Construction Co., 701 P.2d 1078, 1082 (Utah 1985).
[39] 22 Utah 2d 54, 448 P.2d 713 (1968).
[40] Id. at 713.
[41] Id. at 714.
[42] Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir.1997) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
[43] 12 U.S.C. § 2605(e).
[44] See Letter Explaining Past Due Amount dated July 13, 2002, Def.'s Mem. Supp. Summ. J. Ex. 11.
[45] Pl.'s Mem. Opp. Summ. J. at 6.
[46] 775 P.2d 412 (Utah 1989).
[47] Id. at 414.
[48] Id.
[49] See 12 U.S.C. § 2614.
[50] Pl.'s Mem. Opp. Summ. J.
[51] Letter Explaining Past Due Amount dated July 13, 2002.
[52] Utah Code Ann. § 70D-1-1 through 70D-1-21 (2001 & Supp.2006).
[53] Id. at § 70D-1-7.
[54] Payment History, Def.'s Mem. Supp. Summ. J. Ex. 7.
[55] See, e.g., Notice of Default and Election to Sell letter dated June 16, 2003, Def.'s Mem. Supp. Summ. J. Ex. 17.
[56] Id. (emphasis added).
[57] Letter from Lundberg to Cooks dated June 27, 2002, Def.'s Mem. Supp. Summ. J. Ex. 6.
[58] 15 U.S.C. § 1692-1692(n) (1998).
[59] 15 U.S.C. § 1692(e) (emphasis added).
[60] Compl. ¶ 77 ("During the period of 1999 to 2003, Plaintiff did better than make his principal and interest payments, as a matter of fact he paid more than the required sum.").
[61] Id. ¶ 90.
[62] Def.'s Mem. Supp. Summ. J. 7.
[63] Cortez v. McCauley, 438 F.3d 980, 988 (10th Cir.2006).
[64] See Notice of Default and Election to Sell letter dated June 16, 2003, Def.'s Mem. Supp. Summ. J. Ex. 17.; Letter from Lundberg to Cook dated June 12, 2003, Def.'s Mem. Supp. Summ. J. Ex. 16; Letter from Chase to Cooks dated June 10, 2003, Def.'s Mem. Supp. Summ. J. Ex. 15.
[65] Notice of Default and Election to Sell letter dated June 16, 2003, Def.'s Mem. Supp. Summ. J. Ex. 17.
[66] C. Cook Dep. 43:5-20.
[67] Letter from Lundberg to Cook dated June 12, 2003, Def.'s Mem. Supp. Summ. J. Ex. 16.
[68] Affidavit of Posting Notice of Trustee's Sale dated Sep. 20, 2003, Def.'s Mem. Supp. Summ. J. Ex. 19.
[69] See Trustee's Deed, dated Oct. 23, 2003, Def.'s Mem. Supp. Summ. J. Ex. C.
[70] Def.'s Mem. Supp. Summ. J. 9. Defense counsel mistakenly writes that the foreclosure sale took place in September 2003, but the important issue is that the loan account had been terminated before the Cooks allegedly received the November 11, 2003 letter.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2453506/
|
256 P.3d 466 (2011)
162 Wn. App. 865
STATE of Washington, Respondent,
v.
John M. LUNDY, Appellant.
No. 40448-6-II.
Court of Appeals of Washington, Division 2.
July 26, 2011.
*467 Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Appellant.
John C. Skinder, Thurston County Prosecutor's Office, Olympia, WA, for Respondent.
PART PUBLISHED OPINION
ARMSTRONG, J.
¶ 1 A jury convicted John Lundy of possession of a stolen vehicle, two counts of unlawfully issuing bank checks, and two counts of bail jumping. Lundy appeals, arguing (1) the trial court erred by using a modified version of jury instruction 4.01 to instruct the jury on the State's burden of proof; (2) the trial court improperly commented on the evidence; (3) a witness gave impermissible opinion testimony; (4) insufficient evidence supports one of his bail jumping convictions; (5) the trial court erred by admitting propensity evidence without a limiting instruction; (6) the trial court erred by denying his motion for a jury instruction on the "uncontrollable circumstances defense to bail jumping"; (7) the "to convict" bail jumping instructions omitted essential elements of the crime; (8) his counsel ineffectively represented him by failing to object to numerous pieces of evidence; (9) the trial court incorrectly calculated his offender score; and (10) the trial court erred by finding that aggravating factors justified an exceptional sentence without jury findings of fact. Finding no reversible error, we affirm Lundy's convictions. We remand, however, for the sentencing court to reconsider Lundy's exceptional sentence.
FACTS
¶ 2 In March 2009, Lundy wrote several checks that were returned for insufficient funds. On March 7, he purchased a truck from Chris Gay with a $240 down payment and a contract to pay the remaining $2,310 in 10 weekly installments. When Gay attempted to cash Lundy's check, it was returned for insufficient funds. Gay attempted to contact Lundy by e-mail and telephone but received no response. He never received the next scheduled payment for the truck either. After two weeks, Gay reported the truck stolen. On March 27, Lundy was pulled over and taken into custody for possession of a stolen vehicle.
¶ 3 Lundy had also purchased several items from NAPA Auto Parts, including an alternator, with checks written on March 11 and March 13. His friend, Nick Robbins, returned the alternator the next day for a cash refund. Lundy also purchased several items from Rochester Lumber, including a chainsaw, with checks written on March 14 and March 19. Robbins returned the chainsaw the next day and the store issued a refund check. When the stores attempted to deposit Lundy's checks, they were returned for insufficient funds.
¶ 4 The State charged Lundy with possession of a stolen vehicle and two counts of unlawfully issuing bank checks for the checks written to NAPA Auto Parts and Rochester Lumber. When Lundy failed to appear for pretrial hearings on July 1, September 23, and October 19, 2009, the State amended the information to include three counts of bail jumping.
¶ 5 At trial, Paul Lemmon, a fraud investigator for Bank of America, testified that Lundy had opened an account on January 30, 2009. His deposits from January to March 2009 totaled about $420. During that time, he wrote approximately 40 checks totaling $3,800. The State asked how many checks Lundy had written between January 30 and March 4, and Lemmon listed 21 checks and their amounts. The State asked whether Lundy had sufficient funds to cover any of those checks and Lemmon said no. The *468 State also presented account statements showing that Lundy had generated numerous nonsufficient fund fees during that time period. Gay and employees from NAPA Auto Parts and Rochester Lumber testified to the events described above.
¶ 6 Lundy testified that he opened the account after getting a job through the work release program at the Thurston County Jail. He claimed that he thought he had signed up for direct deposit but later discovered that several checks had not been deposited into his account. He testified that he believed he had sufficient funds to cover the checks that he had written and did not intentionally write bad checks.
¶ 7 In support of the bail jumping charges, the State produced court documents detailing the pretrial hearings and bench warrants issued in Lundy's case. The State called Kelley McIntosh, an employee for Thurston County Pretrial Services, to explain these documents. The State's evidence showed that Lundy's case was called in open court with no response on July 1, September 23, and October 19, 2009. Lundy had signed orders directing him to appear in court on July 1 and October 19. Notice of the September 23 hearing was mailed to him, but was not sent to the correct address.
¶ 8 Lundy acknowledged that he had missed court hearings on July 1 and October 19. He testified that it was difficult for him to keep track of his court hearings because he had ongoing cases in several jurisdictions, including "Pierce County, Chehalis tribal, Chehalis municipal, here [Thurston County] in two different courts, and in Tumwater." II Report of Proceedings (RP) at 295. He and his wife, Josephine Lundy, testified that conflicting court dates and confusion over where he was scheduled to appear had prevented him from appearing at his hearings in Thurston County. Josephine also testified that she thought Lundy had missed court on one occasion because he was in the Chehalis Tribal Jail for "at least four or five days" around September 12, 2009. II RP at 264-67.
¶ 9 Shortly before closing arguments, defense counsel requested an instruction on the "uncontrollable circumstances defense to bail jumping." II RP at 355. He explained that Lundy was not going to testify initially but had changed his mind during the trial, and argued that Lundy's testimony had brought in enough evidence to warrant giving the instruction. The trial court denied the motion, ruling the request was timely under the circumstances but there was insufficient evidence to support the instruction.
¶ 10 The jury acquitted Lundy of the September 23 bail jumping charge and found him guilty on all other counts. At sentencing, Lundy stated that he had no objection to the State's list of his prior convictions or the State's calculation of his offender score. The sentencing court found that aggravating circumstances under RCW 9.94A.535(2) supported an exceptional sentence for possession of a stolen vehicle and sentenced Lundy to 70 months for that conviction. The court also sentenced Lundy to 29 and 12 months for the unlawful issuance of bank checks convictions, and 55 months for each of the bail jumping convictions, to be served concurrently.
ANALYSIS
I. Reasonable Doubt Instruction
¶ 11 Lundy contends that the trial court erred by using a modified version of the Washington Pattern Jury Instruction (WPIC) 4.01 to instruct the jury on the State's burden of proof. He argues that State v. Bennett, 161 Wash.2d 303, 318, 165 P.3d 1241 (2007), requires trial courts to use WPIC 4.01 and that any deviation from its language requires reversal.
¶ 12 As a threshold matter, Lundy did not object to this instruction at trial. He asserts that the State proposed WPIC 4.01 and the trial court substituted its own instruction without notifying counsel. The State agrees that the trial court "made some minor changes" to WPIC 4.01, but argues that the instruction was still a correct statement of the law. Br. of Resp't at 35. Because the State's proposed instructions were not included in the record before us, it is impossible to verify whether the proposed instruction differs from the instruction given to the jury. But even assuming that the trial court altered the instruction, as the parties agree *469 that it did, we hold that the error was harmless.
¶ 13 In Bennett, our Supreme Court held that the reasonable doubt instruction commonly referred to as the Castle instruction[1] "satisfied the minimum requirements of due process," but directed trial courts to use only WPIC 4.01 in the future:
We also exercise our inherent supervisory power to instruct Washington trial courts to use only the approved pattern instruction WPIC 4.01 to instruct juries that the government has the burden of proving every element of the crime beyond a reasonable doubt.
Bennett, 161 Wash.2d at 318, 165 P.3d 1241. The Bennett court reasoned that "[e]ven if many variations of the definition of reasonable doubt meet minimum due process requirements, the presumption of innocence is simply too fundamental, too central to the core of the foundation of our justice system not to require adherence to a clear, simple, accepted, and uniform instruction." Bennett, 161 Wash.2d at 317-18, 165 P.3d 1241.
¶ 14 The reasonable doubt instruction used here, instruction 9, stated:
A defendant is presumed innocent. This presumption continues throughout the entire trial unless you find during your deliberations that it has been overcome by evidence beyond a reasonable doubt.
Each crime charged by the State includes one or more elements which are explained in a subsequent instruction. The State has the burden of proving each element of a charged crime beyond a reasonable doubt. The defendant has no burden of proving that a reasonable doubt exists.
A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. If, from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.
Clerk's Papers (CP) at 29. In contrast, WPIC 4.01 provides:
The defendant has entered a plea of not guilty. That plea puts in issue every element of the crime charged. The State is the plaintiff and has the burden of proving each element of the crime beyond a reasonable doubt. The defendant has no burden of proving that a reasonable doubt exists.
A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. If, from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.
11 Washington Practice: Washington Pattern Jury InstructionsCriminal 4.01, at 85 (3d ed. 2008). Thus, instruction 9 modified the WPIC by reversing the order of the first two paragraphs and modifying the first three sentences of the paragraph on the State's burden of proof. Because our Supreme Court has unambiguously directed trial courts to use only WPIC 4.01, the trial court erred by modifying the instruction. Bennett, 161 Wash.2d at 318, 165 P.3d 1241.
¶ 15 An erroneous jury instruction, however, is generally subject to a constitutional harmless error analysis. State v. Brown, 147 Wash.2d 330, 332, 58 P.3d 889 (2002). We may hold the error harmless if we are satisfied "`beyond a reasonable doubt that the jury verdict would have been the same absent the error.'" State v. Bashaw, 169 Wash.2d 133, 147, 234 P.3d 195 (2010) (quoting Brown, 147 Wash.2d at 341, 58 P.3d 889). Even misleading instructions do not require reversal unless the complaining party can show prejudice. State v. Aguirre, 168 Wash.2d 350, 364, 229 P.3d 669 (2010).
*470 ¶ 16 But in State v. Castillo, 150 Wash. App. 466, 472, 208 P.3d 1201 (2009), Division One of this court declined to apply a harmless error analysis to a trial court's failure to use the WPIC, reasoning:
For several reasons, we reject the State's harmless error argument. First, the supreme court issued its decision in Bennett on August 30, 2007, some eight months before Castillo's trial. Thus, there can be no argument that the court and counsel had insufficient time to learn of the express directive to lower courts to use WPIC 4.01.
Second, there is nothing ambiguous about the supreme court's directive: trial courts are to use only WPIC 4.01 as the reasonable doubt instruction "until a better instruction is approved." The court neither said nor implied that lower courts were free to ignore the directive if they could find the error of failing to give WPIC 4.01 harmless beyond a reasonable doubt.
We decline to follow Castillo. Although the Bennett court cautioned against altering WPIC 4.01, the court did not hold that modifying WPIC 4.01 automatically constitutes reversible error. Absent such a holding, we decline to treat this error as a structural error and instead follow the general rule that erroneous jury instructions are subject to a constitutional harmless error analysis. See Bashaw, 169 Wash.2d at 147, 234 P.3d 195; Brown, 147 Wash.2d at 332, 58 P.3d 889.
¶ 17 Accordingly, we hold that instruction 9, although contrary to the Bennett court's directive, was harmless beyond a reasonable doubt. By reversing the order of the first two paragraphs, instruction 9 emphasized the presumption of innocence. Lundy cannot show that he was prejudiced by that emphasis. Furthermore, instruction 9 accurately described the State's burden of proof by clearly instructing the jury that the State must prove each element of the crimes charged beyond a reasonable doubt and that the defendant has no burden of proving that a reasonable doubt exists. Because Lundy cannot show that he was prejudiced by the instruction or that it relieved the State of its burden of proof, we are satisfied beyond a reasonable doubt that the jury verdict would have been the same absent the error. See Bashaw, 169 Wash.2d at 147, 234 P.3d 195.
¶ 18 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur: HUNT, J., and WORSWICK, A.C.J.
NOTES
[1] See State v. Castle, 86 Wash.App. 48, 935 P.2d 656 (1997).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2453516/
|
251 P.3d 224 (2011)
241 Or. App. 457
STATE of Oregon, Plaintiff-Respondent,
v.
Andrew Aaron TUCKER, Defendant-Appellant.
08031165C2; A140357.
Court of Appeals of Oregon.
Argued and Submitted August 18, 2010.
Decided March 16, 2011.
*226 Jesse W. Barton, Salem, argued the cause for appellant. On the brief was Charles M. Simmons.
Denis M. Vannier, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.
Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and ROSENBLUM, Judge.
WOLLHEIM, J.
Defendant appeals his convictions for robbery in the second degree, ORS 164.405, burglary in the first degree, ORS 164.225, burglary in the second degree, ORS 164.215, and aggravated theft in the first degree, ORS 164.057. On appeal, defendant raises three assignments of error. First, he asserts that the trial court erred in giving a "natural and probable consequences" jury instruction addressing accomplice liability. Second, defendant contends that, because he was not "actually present" when the robbery took place, he could be convicted, at most, of only third-degree robbery and that the trial court erred in denying his motion for judgment of acquittal on the charge of robbery in the second degree after first granting the motion. Finally, defendant argues that the trial court abused its discretion in denying his motion for leave to contact the jurors. Following our recent decision in State v. Lopez-Minjarez, 236 Or.App. 270, 237 P.3d 223, modified on recons., 237 Or.App. 688, 240 P.3d 753 (2010), we conclude that the trial court erred in giving the "natural and probable consequences" jury instruction, and that the error probably affected the jury verdict. Accordingly, we reverse and remand Counts 1, 2, and 4. However, because we conclude that the evidence was overwhelming as to defendant's guilt of burglary in the second degree (Count 3), we affirm defendant's conviction on that count. With regard to the remaining assignments of error, we conclude that the trial court did not err.
Except as otherwise noted, we state the facts in the light most favorable to the state because defendant was convicted of the charged offenses. State v. Viranond, 346 Or. 451, 453, 212 P.3d 1252 (2009). Zachariah Vitale and Rocky Vitale are cousins.[1] Rocky worked for defendant, who lived in Idaho and was reputed to be affiliated with "a mild version of the mob" there. In November 2007, defendant told Rocky to rob a specific house in Boise, Idaho. The owner of the house, Santy, owed defendant some money for poker, and defendant wanted Rocky to "hit" the house because Santy was playing poker in defendant's area. Rocky and Zachariah robbed the house and took Santy's pool cues, worth approximately $1,200 to $1,300, as well as a car owned by Santy's friend. The Vitales and defendant agreed that half of the money would go to defendant and the Vitales would split the remainder.
Later, defendant met with Rocky and Moui Mercer Stone to discuss additional potential targets to rob. At this point in the narrative, the state's version of the facts differs from defendant's; the state and defendant disagree *227 on defendant's level of involvement in planning two burglaries. The state's theory is that Stone suggested the Vitales "hit" two additional houses, the Sullivan house and the Murakami house, and that defendant planned both burglaries with the Vitales and Stone. Defendant's theory is that, although he helped plan the Sullivan burglary, he was not involved in planning the Murakami burglary.
On November 21, 2007, the Vitales met with Stone at a restaurant in Ontario and Stone drove them by the Sullivan house. The Vitales attempted to rob that house, which turned out to be empty. The Vitales returned to the restaurant and called Stone. They also tried to call defendant, but were unable to reach him. Stone then took the Vitales to the Murakami house. Stone told them that there was an old lady who lived there by herself and she had money and jewelry. Stone specifically told them to make sure to get Murakami's wedding ring.
Rocky and Zachariah entered the Murakami house through the garage. Murakami was asleep when the two men entered her bedroom. Rocky told her to go down to the basement and bring up the money. Murakami told him that all of her money was in the bank. Rocky threatened to kill Murakami if she did not give him her money and he threatened to kill her dog if the dog did not stop barking. The Vitales ransacked the house, put Murakami's property in a plastic sack and made her take off her wedding ring (valued at $28,900), and put it in the sack as well. The Vitales put Murakami in the bathroom and secured the door closed. After the Vitales left, Murakami escaped and drove to the police station.
Meanwhile, the Vitales drove to Nyssa, where an officer stopped their vehicle because one of the tail lights was out. At that time, Rocky was driving. The officer impounded the car because Rocky did not have a valid license. Rocky told the officer that the property in the back of the car belonged to a friend's grandmother, whom they were helping move. The officer gave Rocky and Zachariah a ride to a nearby town in Idaho. Rocky called defendant several times, but defendant did not answer. Shortly thereafter, the officer heard a radio dispatch describing the burglary and became suspicious about the car he had impounded. The officer met with Murakami's daughter, who was able to identify the property through the windows of the car.
The next morning, the Vitales met with defendant and Stone to discuss how to get the car out of impound. Defendant suggested that the Vitales go to Stone Island in Mexico to hide out. The Vitales tried to flee to Mexico, but were caught by the police in Nevada. After his arrest, Rocky informed the police about defendant's involvement in the burglaries. Defendant was charged with robbery in the second degree of Murakami (Count 1), burglary in the first degree of the Murakami house (Count 2), burglary in the second degree of the Sullivan house (Count 3), aggravated theft in the first degree of Murakami's property (Count 4), and four counts of criminal conspiracy.
At trial, the state's theory was that defendant was guilty of all of the charged offenses as an accomplice. Rocky, Zachariah, Stone, and the officer testified. There was testimony to support defendant's and the state's theories about defendant's level of involvement in the burglaries. The testimony supporting defendant's theory was as follows: Stone testified that defendant and she did not plan the robberies. She also said that, when she suggested robbing the Sullivan and Murakami houses to defendant, she meant it as a joke, and that defendant was not in the car when she showed the Vitales the Sullivan and Murakami houses.
However, in support of the state's theory and inconsistent with her other testimony, Stone also testified that the Vitales worked for defendant and that defendant asked her to find some places to burglarize. Zachariah testified that he did not discuss the burglaries with defendant, and defendant did not tell him what to do, though he did take instructions from Rocky. Rocky testified that defendant did not know about the Murakami burglary. But Rocky also testified that, before the Sullivan burglary, "[defendant's] friend [Stone] needed help collecting and that I was going to go and collect for her." Rocky said there was no doubt that the kind of "collecting" would be the same as *228 the collecting he had done at Santy's house, that is, robbery. Rocky testified that he discussed robbing "the Sullivans and some other people" with defendant and Stone.
After the conclusion of the state's case, defendant moved for a judgment of acquittal on all counts. The court initially granted defendant's motion for a judgment of acquittal on the second-degree robbery charge, but after further colloquy, the court reversed that ruling. The court granted defendant's motion for judgment of acquittal on the conspiracy counts.
The state asked the court to give the following instruction:
"A person who aids and abets another in committing a crime, in addition to being criminally responsible for the crime that is committed, is also criminally responsible for any acts or other crimes that are committed as a natural and probable consequence of the planning, preparation or commission of the alleged intended crime or crimes.
"The accomplice is not liable if the other participant or participants acted outside the purpose of the criminal scheme."
Defendant took exception to the "natural and probable consequences" jury instruction. In response, the prosecutor argued,
"I need to * * * be able to argue the natural and probable consequences [were that] they intended to go to the Sullivan house to commit robbery and burglary in the first degree, because they thought it was someone's home. And the natural and probable consequence when you put that in motion and someone's moved out of their house is that they're going to need to continue to do the robbery and the burglary."
Defendant responded that the "natural and probable consequences" instruction relieved the state of its burden to prove that defendant intended the crimes be committed and instead "invit[ed] the jury to consider what crimes the defendant probably believed would be committed." Nonetheless, the court gave the "natural and probable consequences" jury instruction.
The jury found defendant guilty of robbery in the second degree (Count 1), burglary in the first degree (Count 2), burglary in the second degree (Count 3), and aggravated theft in the first degree (Count 4). Three of the four convictionsCounts 1, 2, and 4 related to the Murakami burglary and theft.
I. "NATURAL AND PROBABLE CONSEQUENCES" JURY INSTRUCTION
Defendant asserts that the trial court erred in giving the jury the "natural and probable consequences" instruction. "We review jury instructions as a whole and will reverse only if we can fairly say that the instructions probably created an erroneous impression of the law in the minds of the jurors that affected the outcome of the case." Maas v. Willer, 203 Or.App. 124, 129, 125 P.3d 87 (2005), rev. den., 340 Or. 411, 134 P.3d 169 (2006). In Lopez-Minjarez, we held that the "natural and probable consequences" jury instruction affirmatively misstates the law with respect to accomplice or accessorial liability, that it "is not an accurate statement of the law and that it probably created an erroneous impression of the law in the minds of the jurors." 236 Or.App. at 286-87, 237 P.3d 223 Accordingly, we conclude that the court in this case erred in giving the "natural and probable consequences" instruction.
Thus, the remaining issue here is whether the incorrect jury instruction probably affected the outcome in this case. Defendant asserts that, as we held in Lopez-Minjarez, id. at 289, 237 P.3d 223, the error probably affected the jury verdict. The state argues that the facts of this case are distinguishable from those in Lopez-Minjarez and that, reading the jury instructions as a whole, there is little likelihood that the "natural and probable consequences" instruction affected the jury verdict. We agree with defendant.
In Lopez-Minjarez, the defendant was charged with burglary, assault, and murder. Id. at 276, 237 P.3d 223. The state's theory was that the defendant was directly involved in the crimes or, alternatively, that he was an accomplice on those charges. The court gave an instruction very similar to the one in this *229 case, "Uniform Criminal Instruction No. 1052, `Aider Or AbettorLiability For Probable Consequences'":
"A person who aids or abets another in committing a crime, in addition to being criminally responsible for the crime that is committed, is also criminally responsible for any acts or other crimes that were committed as a natural and probable consequence of the planning, preparation, or commission of the intended crime."
Lopez-Minjarez, 236 Or.App. at 275, 237 P.3d 223. In closing argument, "the prosecutor highlighted the natural and probable consequences principle as a significant feature of accomplice liability." Id. at 277, 237 P.3d 223. We concluded that the trial court erred in giving the "natural and probable consequences" instruction, because the instruction is not an accurate statement of the law. Id. at 286, 237 P.3d 223.[2] We also rejected the state's "dilution" argument, that is, that the instruction probably did not affect the verdict because the court had properly instructed the jury on all of the elements of the crimes. We explained that, despite the other proper instructions, "the jurors reasonably could have convicted defendant of the homicides simply because they believed that the homicides were the natural and probable consequences of the earlier crimes. Yet, that is not the law." Id. at 288, 237 P.3d 223.
The state makes an argument here that is similar to the one we rejected in Lopez-Minjarez. The state first points out that the "natural and probable consequences" instruction in this case was different from the instruction in Lopez-Minjarez, because here it included an additional sentence: "The accomplice is not liable if the other participant or participants acted outside the purpose of the criminal scheme." However, that additional sentence did not correct the legal error in the "natural and probable consequences" instruction, which allows a jury to hold a defendant criminally liable not only for the crimes he intended to aid or abet, but for any other crime that the jury finds is a "natural and probable consequence" of the crimes the defendant aided and abetted. See id. at 282, 237 P.3d 223. Second, the state contends that, because the court correctly instructed the jury on the elements of each crime, the "natural and probable consequences" instruction probably did not affect the verdict, and that we should affirm because the evidence of defendant's guilt was overwhelming. We reject that contention with regard to the counts related to the Murakami burglary (Counts 1, 2, and 4).
As in Lopez-Minjarez, the jury in this case could have convicted defendant of the Murakami offenses on either of two theories: that defendant intended his accomplices to commit the Murakami crimes, or that he intended for them to commit the Sullivan burglary and, when that failed, he was liable for the Murakami crimes as a natural and probable consequence of the first crime. Viewed in the light most favorable to the state, the testimony at trial regarding whether defendant helped plan the Murakami burglary was equivocal at best. Stone testified that defendant and she did not plan the robberies. She also said that, when she suggested robbing the Sullivan and Murakami houses to defendant, she meant it as a joke, and that defendant was not in the car when she showed the Vitales the Sullivan and Murakami houses. Zachariah testified that he did not discuss the burglaries with defendant, and that defendant did not tell him what to do. Rocky testified that defendant did not help plan the Murakami burglary:
"[Prosecutor:] Let me ask this: How far in advance of this robbery did you and [Stone] and the defendant come up with the plan to do these robberies?
"[Rocky:] Uh, the Murakami's, no, but the Sullivans, yes. I don't think he could've known about the Murakamis, but you never know."
The Vitales also testified that they did not talk to defendant on the night of the burglaries *230 and could not get in touch with him until the next morning.
The state points out that Stone also testified that the Vitales worked for defendant and that defendant asked her to find some places to burglarize. Rocky testified that before the Sullivan burglary, "[defendant's] friend [Stone] needed help collecting and that I was going to go and collect for her." Rocky said there was no doubt that the kind of "collecting" would be the same as the collecting he had done at Santy's house, that is, robbery. Rocky testified that he discussed robbing "the Sullivans and some other people" with defendant and Stone.
In sum, although there is some evidence that defendant intended for Stone, Rocky, and Zachariah to commit the Murakami burglary, that evidence is not overwhelming. The fact that the court gave the jury both the "natural and probable consequences" instruction and the correct instructions likely confused the jury about how it was supposed to consider the evidence. Accordingly, we conclude that the incorrect "natural and probable consequences" instruction probably affected the jury verdict on Counts 1, 2, and 4, and we reverse and remand on those counts.
However, we conclude that the evidence was overwhelming as to Count 3, burglary in the second degree of the Sullivan house, and that the erroneous instruction likely did not affect the verdict. Both Rocky and Stone testified that they planned the Sullivan burglary with defendant. Although Zachariah did not say that he discussed the Sullivan burglary with defendant, he testified that Rocky told him what to do, based on Rocky's conversations with defendant. Moreover, defendant's argument on appeal is that he was only involved in the planning of the original crime, that is, the Sullivan burglary. Thus, we affirm the conviction on Count 3, the Sullivan burglary.
II. MOTION FOR JUDGMENT OF ACQUITTAL
Defendant asserts that because he was not "actually present" when the Murakami robbery took place, he could be convicted, at most, of only third-degree robbery. We considered and rejected the same argument in State v. Smith, 229 Or.App. 243, 249-50, 211 P.3d 961 (2009), rev. den., 348 Or. 115, 228 P.3d 1214 (2010), and therefore reject his assertion without further discussion.[3]
Defendant also contends that the trial court erred in denying his motion for judgment of acquittal on the charge of robbery in the second degree after first granting the motion. The state asserts that the trial court did not err in reconsidering defendant's motion, because defendant did not detrimentally rely on the order granting judgment of acquittal. We agree with the state.
Motions for judgment of acquittal are governed by ORS 136.445, which provides:
"In any criminal action the defendant may, after close of the state's evidence or of all the evidence, move the court for a judgment of acquittal. The court shall grant the motion if the evidence introduced theretofore is such as would not support a verdict against the defendant. The acquittal shall be a bar to another prosecution for the same offense."
Defendant argues that when the trial court first granted his motion for judgment of acquittal, that was a bar to further prosecution for the same offense and, accordingly, the trial court erred in reversing its oral order.
We addressed that issue in State v. Sperry, 149 Or.App. 690, 945 P.2d 546 (1997), rev. den., 328 Or. 275, 977 P.2d 1173 (1999), which is analogous to this case. In Sperry, the defendant argued that, once the court granted his motion for a judgment of acquittal, "the trial court could not subsequently reverse itself and reinstate the count." Id. at 696, 945 P.2d 546. But we held that
"an oral ruling allowing a motion for judgment of acquittal is not preclusive, and may be rescinded, where, as here, neither the parties nor the court have detrimentally relied on that rulinge.g., through presentation of arguments, introduction of evidence, *231 or instruction or discharging of the juryin the interval between the oral allowance and rescission."
Id. at 698, 945 P.2d 546. Here, as in Sperry, nothing substantive occurred between the court's oral ruling granting the motion and its reversal of that ruling and, therefore, we conclude that the trial court did not err in reinstating the count.
Relying on Smith v. Massachusetts, 543 U.S. 462, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005), defendant argues that the trial court violated state and federal constitutional double jeopardy protections by reinstating the count of robbery in the second degree after first granting his motion for judgment of acquittal. Defendant's reliance on Smith is misplaced. In Smith, after the trial court granted a motion for acquittal, the trial proceeded to the defendant's presentation of his case. It was only after the defendant had presented his case that the trial court reinstated the dismissed count. The Supreme Court held that the defendant was prejudiced because "[t]he seeming dismissal may induce a defendant to present a defense to the undismissed charges when he would be better advised to stand silent." Id. at 472, 125 S.Ct. 1129. Here, there was no similar possibility of prejudice, and accordingly, no error.
III. MOTION TO CONTACT THE JURORS
Finally, defendant asserts that the trial court abused its discretion in denying his motion for leave to contact the jurors after trial. We review a court's decision to deny a post-trial motion to contact jurors for abuse of discretion. State v. Wright, 323 Or. 8, 20, 913 P.2d 321 (1996).
Five months after the trial, an alternate juror approached defendant's counsel in a store and told him that she was concerned that one of the jurors had not based his decision on evidence in the record. The alternate juror reported that the juror said he thought defendant "was guilty because his haircut made it clear [that] he was a Mafioso." Defendant asked the court for leave to contact the jurors to investigate whether misconduct had occurred. The state argued that the conduct was not sufficient to intrude on the jury verdict. The court found that defendant had not shown that the juror's misconduct had deprived defendant of a fair trial, and it denied the motion to contact the jurors.
Under UTCR 3.120(2)(b), a party may have contact with a juror if "there is a reasonable ground to believe that a juror or the jury has been guilty of fraud or misconduct sufficient to justify setting aside or modifying the verdict or judgment."[4] However, "[t]here is a strong policy in Oregon to protect jury verdicts from attack, and courts are hesitant to interrogate jurors after they have reached a verdict in order to probe for potential misconduct." Koennecke v. State of Oregon, 122 Or.App. 100, 103, 857 P.2d 148, rev. den, 318 Or. 26, 862 P.2d 1306 (1993).
We agree with the trial court that the evidence that a juror said he thought defendant was guilty because of his haircut was not a sufficient basis on which to believe that the juror was guilty of fraud or misconduct so as to justify setting aside or modifying the verdict. Accordingly, we conclude that the trial court did not abuse its discretion in denying defendant's motion to contact the jurors.
Convictions on Counts 1, 2, and 4 reversed and remanded; case remanded for resentencing; otherwise affirmed.
NOTES
[1] Because the Vitales share the same last name, we refer to them by their first names.
[2] Under ORS 161.155(2)(b), a person is liable for the conduct of another person if, "[w]ith the intent to promote or facilitate the commission of the crime," the person aids or abets another person in planning or committing the crime. (Emphasis added.) Nothing in the statute extends criminal liability to acts that are the "natural and probable consequences" of the act a defendant intended to aid and abet. Lopez-Minjarez, 236 Or.App. at 282, 237 P.3d 223.
[3] For the same reason, we also reject defendant's argument that the trial court erred in instructing the jury on the elements of robbery in the second degree.
[4] UTCR 3.120 provides, in part:
"(1) Except as necessary during trial, and except as provided in subsection (2), parties, witnesses or court employees must not initiate contact with any juror concerning any case which that juror was sworn to try.
"(2) After a sufficient showing to the court and on order of the court, a party may have contact with a juror in the presence of the court and opposing parties when:
"* * * * *
"(b) there is a reasonable ground to believe that a juror or the jury has been guilty of fraud or misconduct sufficient to justify setting aside or modifying the verdict or judgment."
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2453519/
|
260 P.3d 540 (2011)
243 Or. App. 591
STATE of Oregon, Plaintiff-Respondent,
v.
Amanda N. PETTENGILL, Defendant-Appellant.
08CR0464FE; A141965.
Court of Appeals of Oregon.
Submitted December 16, 2010.
Decided June 22, 2011.
Peter Gartlan, Chief Defender, and Erica Herb, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, David B. Thompson, Interim Solicitor General, and Erin C. Lagesen, Assistant Attorney General, filed the brief for respondent.
Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and ROSENBLUM, Senior Judge.
SCHUMAN, P.J.
Like State v. Savastano, 243 Or.App. 584, 260 P.3d 529 (2011), this case raises the question of whether the prosecution violated Article I, section 20, of the Oregon Constitution by aggregating several theft offenses without using a systematic, consistently applied policy. We conclude that defendant did not carry her burden of establishing that the prosecution violated the constitution as she alleges. We therefore affirm.
Between June 2005 and June 2007, defendant worked in her employer's accounting department. After she left the company, her supervisor received information leading her to believe that defendant had committed many thefts, some by crediting herself with extra overtime pay and some by not posting the full amount of payments received. Defendant was subsequently indicted on three charges of theft in the first degree. To arrive at that charging decision, the prosecution invoked ORS 164.115(5), which provides:
"The value of single theft transactions may be added together if the thefts were committed:
"* * * * *
"(b) Against the same victim, or two or more persons who are joint owners, within a 180-day period."
In the present case, the statute allowed the prosecutor to aggregate a series of misdemeanor thefts so as to produce three felony counts. Before trial, defendant filed a motion to prohibit the court from aggregating the theft transactions pursuant to ORS 164.115(5), contending that doing so without being guided by a systematic policy, consistently *541 applied, violated her right to equal treatment under Article I, section 20, of the Oregon Constitution. The state responded that the prosecutor made charging decisions in theft cases according to a policy that consisted of a list of 26 factors to be taken into consideration in each case. The court denied defendant's motion, and she was subsequently convicted. On appeal, she assigns error to the court's denial of her motion to prohibit use of ORS 164.115(5).
As we explained in Savastano, 243 Or. App. at 588, 260 P.3d 529,
"The law governing standardless distribution of privileges and immunities under Article I, section 20, is well settled. That provision bars unlawful governmental discrimination against individuals as individuals, as well as against individuals based on their membership in some class. State v. Buchholz, 309 Or. 442, 446, 788 P.2d 998 (1990); State v. Clark, 291 Or. 231, 237, 630 P.2d 810, cert. den., 454 U.S. 1084 [102 S.Ct. 640, 70 L.Ed.2d 619] (1981). The former type of unlawful discrimination occurs when the state distributes a benefit or burden in a standardless, ad hoc fashion, without any `coherent, systematic policy.' State v. Freeland, 295 Or. 367, 375, 667 P.2d 509 (1983). The prohibition on ad hoc distribution of burdens or benefits `reaches forbidden inequality in the administration of laws under delegated authority as well as in legislative enactments.' Clark, 291 Or. at 239 [630 P.2d 810]. It constrains, among other things, prosecutorial discretion, including prosecutorial charging decisions. State v. McDonnell, 313 Or. 478, 837 P.2d 941 (1992) (decision to offer plea bargain); Buchholz, 309 Or. at 446-47 [788 P.2d 998] (same); State v. Farrar, 309 Or. 132, 786 P.2d 161, cert. den., 498 U.S. 879 [111 S.Ct. 212, 112 L.Ed.2d 171] (1990) (decision whether to prosecute for aggravated murder or murder); Freeland, 295 Or. 367 [667 P.2d 509] (decision whether to charge by information or indictment); State v. Reynolds, 289 Or. 533, 539-40, 614 P.2d 1158 (1980) (decision whether to charge for murder or felony murder). To prevail on such a claim, the defendant has the burden of establishing the lack of criteria or, if these are criteria, the lack of consistent enforcement. City of Salem v. Bruner, 299 Or. 262, 271, 702 P.2d 70 (1985). The criteria need not be formally promulgated; in fact, they need not even be written policies. Clark, 291 Or. at 246 [630 P.2d 810].
"Analysis of a claim that the state, directly or by delegated authority, has run afoul of the individual-based aspect of Article I, section 20, involves two inquiries: First, has a state actor made a decision that confers a privilege or imposes an immunity of constitutional magnitude? Second, if so, has the person claiming a constitutional violation shown that the decision did not result from the application of `sufficiently consistent standards to represent a coherent, systematic policy'? Freeland, 295 Or. at 375 [667 P.2d 509]."
In the present case, defendant acknowledges the existence of a policy, but contends that "[w]ithout a more detailed explanation of how the prosecutor reached her charging decision, it is impossible to determine whether her choice to apply ORS 164.115(5) to defendant's conduct was made pursuant to a coherent and systematic policy that is applied consistently to all defendants."
Defendant may be correct that a list of general factors, including (as did the prosecutor's list in the present case) "any other circumstances or factors unique to the case," does not automatically and necessarily meet the requirements of Article I, section 20. To do so, the policy must be systematically and consistently applied. Freeland, 295 Or. at 377, 667 P.2d 509. However, to prevail, defendant must demonstrate inconsistency. Bruner, 299 Or. at 271, 702 P.2d 70. She made no attempt to do so in this case. The court did not err in denying her motion.
Affirmed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2634512/
|
2004 UT 48
R.A. McKell Excavating, Inc., a Utah corporation, Plaintiff and Appellant,
v.
Wells Fargo Bank, N.A., a national banking association; Carter Construction Development, L.L.C., a Utah limited liability company, d.b.a. Carter Development, L.L.C.; The Ranches, L.C., a Utah limited liability company; and John Does 1-25, Defendants and Appellee.
Nos. 20020716, 20020855.
Supreme Court of Utah.
FILED June 18, 2004.
This opinion is subject to revision before final publication in the Pacific Reporter.
Jack W. Reed, Mark S. Middlemas, Salt Lake City, for plaintiff.
J. Randall Call, James A. Boevers, Salt Lake City, for defendant.
WILKINS, Associate Chief Justice:
¶1 Plaintiff R.A. McKell Excavating, Inc. ("McKell") appeals the district court's grant of summary judgment to defendant Wells Fargo Bank, N.A. ("Wells Fargo" or the "Bank"). In granting the Bank's motion, the district court concluded that McKell failed to timely file its mechanic's lien foreclosure action pursuant to Utah Code section 38-1-11(1)(a). We reverse.
FACTUAL AND PROCEDURAL HISTORY
¶2 In January 2000, Carter Construction Development, L.L.C. ("Carter") hired McKell to perform excavation, grading, surface, and subsurface improvements on a proposed residential subdivision located in Utah County. The total contract price was approximately $204,000 and the scope of the project consisted of sewer line, water line, storm drain, sidewalk, and site work. On or about January 3, 2000, McKell commenced work under the contract. Two days later, on January 5, Wells Fargo recorded a trust deed on the real property to secure a $780,000 loan made to Carter for the purpose of funding the purchase of the subdivision lots.[1]
¶3 As McKell's work proceeded, Carter was extremely slow in making payments. After repeated attempts to procure progress payments, as contemplated by the contract, McKell suspended operations on or about October 5, 2000. At that time, Carter owed McKell nearly $29,000 for already-completed work. McKell then entered into negotiations with Carter, in hopes of receiving remuneration for all services rendered prior to October 5, 2000. However, when it became clear that Carter was unable, or unwilling, to satisfy its obligations, McKell recorded a mechanic's lien on the real property on November 2, 2000. In accordance with Utah Code section 38-1-7(2)(c), McKell indicated on the lien notice that it last furnished labor, services, equipment or material to the project on or about October 5, 2000. Subsequently, McKell filed a complaint to foreclose its lien on November 21, 2001, one year and nineteen days after it was recorded. Wells Fargo counterclaimed, arguing that its trust deed had priority over the mechanic's lien due to McKell's failure to comply with the applicable statute of repose set forth in Utah Code section 38-1-11(1)(a).
¶4 Section 38-1-11(1)(a) requires a non-residential property lien claimant to initiate an enforcement action within "12 months from the date of final completion of the original contract." Utah Code Ann. § 38-1-11(1)(a) (2001). Citing the lien notice, the Bank contended that "final completion of the original contract" occurred on October 5, 2000the last date McKell provided labor, services, equipment, or material to Carter. Because McKell did not file its complaint until November 21, 2001, over one year later, Wells Fargo asserted that the foreclosure action was untimely and, therefore, the mechanic's lien was invalid.
¶5 In response, McKell emphasized that a portion of the original contract remained unfinished and, notwithstanding its earlier suspension of work, expressed an intent to fulfill its outstanding obligations to Carter if adequate progress payments were made for services rendered prior to October 5, 2000. According to McKell, "final completion"and the attendant triggering of the statute of reposedid not occur until November 2001, when Carter's breach became apparent. Thus, McKell argued that its complaint was timely filed.
¶6 Following Wells Fargo's motion for judgment on the pleadings, which was treated as a summary judgment motion, the district court ruled in favor of the Bank. Specifically, the district court interpreted section 38-1-11(1)(a) and determined that "final completion of the original contract" does not require a mechanic's lien claimant to finish all work anticipated by the contract before commencing an enforcement action. Instead, it concluded that "cessation" or "abandonment" of work also constitutes "final completion" and found, sua sponte, that McKell terminated the project on October 5, 2000the last day McKell furnished labor, services, equipment, or material to Carter, as evidenced by the lien notice. As such, the district court reasoned that the statute of repose began to run on October 6, 2000, and expired on October 5, 2001, forty-six days before McKell filed its complaint. Alternatively, the district court also noted that, even if it were to accept the recording date of the mechanic's lienNovember 2, 2000as the triggering event, McKell was still late. Thus, the district court awarded summary judgment to Wells Fargo. After having the order certified as a final judgment, McKell now appeals.
STANDARD OF REVIEW
¶7 We review questions of statutory interpretation for correctness, affording no deference to the district court's legal conclusions. Stephens v. Bonneville Travel, Inc., 935 P.2d 518, 519 (Utah 1997). In the context of a summary judgment motion, we likewise employ a correctness standard and "view the facts and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party." Hermansen v. Tasulis, 2002 UT 52, ¶ 10, 48 P.3d 235 (internal quotation omitted).
ANALYSIS
¶8 The central issue presented in this appeal is whether, properly interpreted, Utah Code section 38-1-11(1)(a) bars McKell's mechanic's lien foreclosure action. Pursuant to general principles of statutory interpretation," we . . . look first to the . . . plain language," recognizing that "our primary goal is to give effect to the legislature's intent in light of the purpose the statute was meant to achieve." Evans v. State, 963 P.2d 177, 184 (Utah 1998). In doing so, we "assume that each term . . . was used advisedly; thus the statutory words are read literally, unless such a reading is unreasonably confused or inoperable." Johnson v. Redevelopment Agency, 913 P.2d 723, 727 (Utah 1995) (internal quotation omitted).
¶9 Here, McKell contends that the plain language of section 38-1-11(1)(a) mandates that "final completion of the original contract" occur before the statute of repose begins to run. See Utah Code Ann. § 38-1-11(1)(a) (2001). Referencing previous versions of this provision, McKell argues that the legislature was aware of alternative triggering events for the statute of repose, but specifically chose "final completion" to apply to non-residential property lien claimants. For example, McKell notes that prior to May 2, 1994, section 38-1-11 required enforcement actions to be initiated within "twelve months after the completion of the original contract, or the suspension of work thereunder for a period of thirty days." Id. § 38-1-11 (1988) (emphasis added). Likewise, the immediate predecessor to the current section 38-1-11(1)(a), which was in effect from May 2, 1994 to May 1, 1995, provided that a complaint be filed within "twelve months from the date the lien claimant last performed labor and services or last furnished equipment or material on an original contract." Id. § 38-1-11(1)(a) (1994) (emphasis added). Finally, McKell points to section 38-1-11(1)(b) of the current statute, which addresses liens on residential property and, using language nearly identical to that found in the 1994 version of section 38-1-11(1)(a), dictates that enforcement actions be filed within "180 days from the date the. . . claimant last performed labor and services or last furnished equipment or material." Id. § 38-1-11(1)(b) (2001) (emphasis added). In short, McKell asserts, based on the plain language of section 38-1-11(1)(a) and the selection of alternative triggering events in both section 38-1-11(1)(b) and earlier versions of the statute, that the legislature deliberately chose "final completion of the original contract" as the prerequisite for the running of the statute of repose for non-residential property lien claimants. We agree.
¶10 A straightforward examination of section 38-1-11(1)(a) supports our conclusion. The American Heritage Dictionary defines "final" as "[p]ertaining to or constituting the end result of a process or procedure." The American Heritage Dictionary of the English Language 492 (1981). In turn, "completion" is defined as "[t]he act of concluding, perfecting, or making entire." Id. at 272. Thus, given the plain and ordinary meaning of these words, it is clear that "final completion of the original contract" necessarily implies the satisfaction of all obligations contemplated by the initial agreement.[2]
¶11 Although Wells Fargo urges us to reject such an interpretation, on grounds that it will allow lien claimants to cloud title to non-residential property in perpetuity, we find this argument unpersuasive. The purpose of the mechanic's lien statute is to "provide protection to those who enhance the value of a property by supplying labor or materials," not to safeguard the rights of property owners. AAA Fencing Co. v. Raintree Dev. & Energy Co., 714 P.2d 289, 291 (Utah 1986). Furthermore, in those rare instances where a lien claimant's interest is served by denying that "final completion" has occurred, a quiet title action remains a viable option for property owners seeking to expeditiously resolve such disputes.
¶12 In this case, it is undisputed that at the time McKell filed its complaint on November 21, 2001, it had not yet completed the full scope of work contracted for by Carter. Consequently, we hold that, for purposes of triggering the statute of repose, the requirement of "final completion of the original contract" was not satisfied and, therefore, section 38-1-11(1)(a) does not bar McKell's foreclosure action.
¶13 Lastly, although our decision is based on the plain language of section 38-1-11(1)(a), we also hold that the district court erred in equating "cessation" or "abandonment" with "final completion." In finding sua sponte that McKell abandoned the project on October 5, 2000the last day it furnished labor, services, material, or equipment to Carter, as evidenced by the lien noticethe district court wrote an additional triggering event into the statute, one which was conspicuously rejected by the legislature in the May 1, 1995 amendment. Had the legislature intended the statute of repose for liens on non-residential property to run from "the date the . . . claimant last performed labor and services or last furnished equipment or material" instead of from "final completion of the original contract," it could have said so explicitly, as it did in the context of residential property. See Utah Code Ann. § 38-1-11(1)(a), (b) (2001).
CONCLUSION
¶14 We reverse the district court's grant of summary judgment to Wells Fargo on its claim that McKell failed to comply with the statute of repose governing mechanic's lien foreclosure actions. Based on the plain language of Utah Code section 38-1-11(1)(a), we hold that, absent a breach, "final completion of the original contract" means that all obligations contemplated by the initial agreement must be satisfied before the statute of repose begins to run. Here, McKell had not completed the full scope of work contracted for by Carter at the time the complaint was filed and, therefore, "final completion" had not occurred. Consequently, McKell's enforcement action was timely. McKell is awarded its attorney fees for the appeal pursuant to Utah Code section 38-1-18(1) (2001). Reversed and remanded for further proceedings consistent with this opinion and for determination of attorney fees.
¶15 Chief Justice Durham, Justice Durrant, Justice Parrish, and Judge Peuler concur in Associate Chief Justice Wilkins' opinion.
¶16 Having disqualified himself, Justice Nehring does not participate herein; District Judge Sandra N. Peuler sat.
NOTES
[1] The $780,000 loan was due and payable in full on June 5, 2001, and when Carter defaulted, the Bank elected to foreclose, which ultimately led to the instant action.
[2] However, we note that "final completion of the original contract" may also occur upon breach, as happened here.
|
01-03-2023
|
11-01-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2634520/
|
100 P.3d 571 (2004)
In re the MARRIAGE OF Leslie A. FICKLING, Appellee, and
Nicholas T. Fickling, Appellant.
No. 03CA1644.
Colorado Court of Appeals, Div. III.
August 26, 2004.
*572 Elaine G. Edinburg, P.C., Elaine G. Edinburg, Edwards, Colorado, for Appellee.
Goodman and Wallace, L.L.P., Kerry H. Wallace, Kristin McKnight, Edwards, Colorado, for Appellant.
Opinion by Judge GRAHAM.
In this dissolution of marriage proceeding, Nicholas T. Fickling (father) appeals from the trial court's permanent orders that substantially reduced his parenting time from the amount awarded in a stipulation and temporary orders. We affirm.
Father and Leslie A. Fickling (mother) were married in 1988 and are the parents of one child. A petition for the dissolution of the parties' marriage was filed in October 2001.
In December 2001, the parties entered into a stipulation for the temporary allocation of parenting time, and it was approved by the court. The stipulation provided that the child would move from one parent's residence to the other on a weekly basis, with additional provisions for vacations and other special occasions.
In September 2002, mother moved for the appointment of a special advocate to assist the parties in developing a permanent parenting plan. As one of the grounds for this motion, mother stated that she no longer believed that the existing parenting plan was in the child's best interests. A special advocate was appointed. In February 2003, the special advocate submitted her initial report, recommending that the existing parenting schedule be continued. On March 6, 2003, she submitted an addendum, recommending a completely different schedule. She advised the court that upon learning of her original recommendations, the child had expressed dissatisfaction with them and had suggested that she could do better in school if she could reside primarily with her mother during the school year. After further discussions with the child, the special advocate recommended that the child spend weekdays with mother and most weekends with father during the school year, with the schedule reversed during the summer.
On March 10, 2003, the special advocate further revised her report, recommending that the child return to mother's residence on Sunday evenings during the school year, rather than remaining with her father until Monday morning. The result of the suggested changes was a reduction in father's parenting *573 time from 182 overnights per year to 100.
In April 2003, the court entered permanent orders that essentially adopted the special advocate's recommendations, granting mother parenting time during the school week and granting father parenting time three of four weekends per month during the school year, with the schedule to be reversed during the summer months. Acknowledging that father's parenting time under the new schedule would be "eroded" compared to the status quo, the court also awarded father parenting time during the child's spring vacation every year.
I.
Father first contends that the trial court erred as a matter of law by applying the best interests of the child standard in substantially reducing his parenting time instead of the endangerment standard set forth in § 14-10-129(1)(b)(I), C.R.S.2003. We disagree.
Whether the court has applied the correct legal standard in making its findings is a question of law that we review de novo. People in Interest of J.R.T., 55 P.3d 217 (Colo.App.2002), aff'd, 70 P.3d 474 (Colo.2003).
In allocating parental responsibilities, including parenting time, the court is required to apply the best interests of the child standard, giving "paramount consideration to the physical, mental, and emotional conditions and needs of the child." Section 14-10-124(1.5), C.R.S.2003.
However, a parent's "parenting time rights" cannot be "restricted" unless the court finds that the parenting time "would endanger the child's physical health or significantly impair the child's emotional development." Section 14-10-129(1)(b)(I). The statute specifically gives the trial court authority to modify "an order granting or denying parenting time rights." Section 14-10-129(1)(a)(I), C.R.S.2003.
The term "parenting time rights" is not defined. This term introduces the concept of "rights," which is not present in the provisions that allow the trial court to allocate parenting time. The distinction is an important one because we are called upon to determine whether the modification of temporary orders granting parenting time is subject to the higher endangerment standard imposed by § 14-10-129(1)(b)(I). Father thus contends that if the trial court's permanent orders substantially reduce the amount of parenting time originally specified in the temporary orders, the permanent orders are subject to the endangerment standard, not the best interests of the child standard. We are not persuaded.
In construing the standard set forth in § 14-10-129(1)(b)(I), we must ascertain and effectuate the underlying legislative intent from the plain and ordinary meaning of the statutory language. See People v. Longoria, 862 P.2d 266 (Colo.1993). Constructions that defeat the obvious legislative intent should be avoided so as to give consistent and sensible effect to all parts of a statutory scheme. People v. Dist. Court, 713 P.2d 918 (Colo.1986). We decline to follow a statutory construction that leads to an unreasonable or absurd result. People v. Woellhaf, 87 P.3d 142 (Colo.App.2003)(cert. granted Mar. 22, 2004). Each word in a statute should be considered in the interpretation. City of Florence v. Bd. of Waterworks, 793 P.2d 148 (Colo.1990).
The General Assembly has declared that it is in the best interest of all parties to encourage frequent and continuing parenting time between each parent and the minor children of the marriage after separation or dissolution. Section 14-10-124(1), C.R.S. 2003. The court's discretion with respect to allocation of parenting time must be exercised consistently with this policy. In re Marriage of Velasquez, 773 P.2d 635 (Colo. App.1989).
Parties frequently allocate parenting time pursuant to a stipulated separation agreement. See § 14-10-112(1), C.R.S.2003. Such an agreement is not binding on the court. Section 14-10-112(2), C.R.S.2003. However, the court may enter a temporary order allocating temporary parental responsibilities, including temporary parenting time *574 and temporary decision-making responsibility. Section 14-10-125, C.R.S.2003.
Temporary orders regarding parenting time and decision-making responsibility are intended to determine those matters pending final orders. Temporary orders are not determinative of the permanent orders regarding allocation of parental responsibility or other matters. In re Marriage of Lawson, 44 Colo. App. 105, 608 P.2d 378 (1980)(an agreement for temporary custody is not res judicata as to the permanent order for custody).
We conclude that temporary orders do not grant "parenting time rights" as that term is specified in § 14-10-129(1)(b)(I), but simply provide for parenting time pending a final determination at permanent orders. While temporary orders are enforceable, we do not view them in the same way we view permanent orders, which establish rights in connection with the decree of dissolution that stay in effect until one party establishes a change in circumstances. We do not address whether parenting time could be restricted in temporary orders, such as by supervised visitation. See In re Marriage of West, 94 P.3d 1248 (Colo.App.2004).
Only permanent orders grant "parenting time rights." Therefore, the question whether a restriction has occurred in parenting time need be answered only when permanent, not temporary, orders are modified. To hold otherwise would undermine the role that stipulations and temporary orders play in family law.
Our review of the Uniform Dissolution of Marriage Act (UDMA) confirms this analysis. The UDMA encourages trial courts to issue temporary orders without a formal hearing whenever possible, to avoid trauma for the parties and the child. See UDMA § 403 official comment. Cases from other UDMA jurisdictions consistently demonstrate that because temporary orders are intended to result from an abbreviated proceeding, not a full hearing on the merits, the trial court is not obligated to give substantial weight to the temporary orders when determining the permanent orders. See, e.g., Horton v. Horton, 961 S.W.2d 67 (Mo.Ct. App.1997)(in determining custody following dissolution, there is no presumption in favor of the parent who had physical custody of the child during separation); In re Marriage of Kovash, 260 Mont. 44, 858 P.2d 351 (1993)(court was not required to find change in circumstances before modifying temporary custody order in dissolution proceeding and entering final custody order that differed from temporary order).
"Temporary child custody is merely an initial determination made to ascertain which of [the] parents will keep [the] children until such time as [a] full hearing on custody can be [held]."... If changed circumstances are required to be proven before modifying temporary custody orders, parents would be forced to litigate temporary custody. This result would be contrary to the purpose of the statute.
In re Marriage of Kovash, supra, 858 P.2d at 355 (quoting In re Marriage of Allen, 237 Mont. 64, 771 P.2d 578, 580 (1989)).
A division of this court has recognized that temporary orders are indeed only temporary when it determined that "a temporary order is not `in any way res judicata' as to the permanent order." In re Marriage of Lawson, supra 44 Colo.App. at 107, 608 P.2d at 380; see In re Marriage of West, supra, (applying the endangerment standard to the modification of parenting time after permanent orders and using the permanent orders as the baseline for considering whether a restriction occurred).
We therefore conclude that the trial court did not err in applying the best interests of the child standard in establishing the parties' parenting time rights in the permanent orders.
II.
Father next contends that the trial court abused its discretion by unduly limiting and restricting his parenting time without proper consideration and balancing of the factors set forth in § 14-10-124(1.5). We disagree.
The determination of parenting time is a matter within the sound discretion of the trial court, taking into consideration the *575 child's best interests and the policy of maintaining the child's relationship with both parents. In re Marriage of England, 997 P.2d 1288 (Colo.App.1999).
Factors to be considered by the court in determining parenting time pursuant to § 14-10-124(1.5)(a), C.R.S.2003, include the wishes of the child's parents and the child; the interaction of the child with her parents; the child's adjustment to home, school, and community; the physical proximity of the parties to each other; and the ability of each party to place the needs of the child ahead of his or her own needs. Although specific findings as to each factor need not be made, the findings must be sufficient to allow a reviewing court to determine that the decision is supported by competent evidence. In re Marriage of Finer, 920 P.2d 325 (Colo. App.1996).
Before making its determination in this matter, the trial court heard testimony from the parties, the special advocate, several of the child's teachers, the child's doctor, members of the child's extended family, and others.
These witnesses addressed the factors set forth in § 14-10-124(1.5)(a). Evidence presented to the court included the special advocate's reports and several of the child's school reports. The child's school reports revealed a decline in her grades when the stipulated parenting plan had been in place, and the child told the special advocate that she thought she could do better in school if she spent the school week with her mother.
The court was advised of the child's preference for a different schedule, the alternative parenting schedules considered by the parties, and the special advocate's reasons for her recommendations.
The court acknowledged that it had "heard and read voluminous evidence" and stated that it had "considered all of the statutory factors" in reaching its decision. The court noted that the child herself had indicated that "it would be better for her academic career" if she spent school nights with her mother. The court then adopted the plan recommended by the special advocate.
In applying the best interests of the child standard, the court properly considered and applied the factors set forth in § 14-10-124(1.5)(a), and we will not disturb its findings.
Judgment affirmed.
Judge TAUBMAN and Judge DAILEY concur.
|
01-03-2023
|
11-01-2013
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.