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796 S.W.2d 837 (1990)
303 Ark. 309
Randy D. LEACH, Petitioner,
v.
STATE of Arkansas, Respondent.
No. CR90-51.
Supreme Court of Arkansas.
October 8, 1990.
Callis L. Childs, Conway, for petitioner.
Theodore Holder, Asst. Atty. Gen., Little Rock, for respondent.
NEWBERN, Justice.
Randy D. Leach seeks a writ of prohibition to prevent his being tried on one conspiracy charge, and he asks that the trial court be instructed to hold an evidentiary hearing to determine whether he should be tried on another. His fundamental point is that he has been convicted on yet a third conspiracy charge and that, because all were included in a single conspiracy, it would constitute double jeopardy to try him again. We have no basis at this stage of the litigation to hold that it would constitute double jeopardy to try Leach on the one charge as to which he seeks the writ. Nor have we a basis for ordering the hearing he requests. The writ is denied.
*838 Leach was indicted for having conspired with persons named Clements and McMillen to commit aggravated robbery of a Wal-Mart courier. He was indicted separately for conspiring, again with Clements and McMillen, to burglarize the residence of persons named Wilkinson. Leach was a named, but unindicted, conspirator with Clements and McMillen with respect to conspiracies to rob a J.C. Penny's store and Unique Fashions store.
Leach, asserting his Fifth Amendment right, declined to testify at the trials of Clements and McMillen. Leach was then charged by information with conspiring with Clements and McMillen to steal a flatbed trailer. Leach had been a named but unindicted conspirator with respect to that offense.
The record submitted with the petition now before us contains an order, taken from the record of the proceedings against McMillen, that all of the alleged conspiracies, with the exception of that relating to the theft of the flatbed trailer, were one continuous agreement and thus should be tried as one offense as required by Ark. Code Ann. § 5-3-403 (1987). After McMillen was convicted of the one "merged" conspiracy, he was tried for the flatbed trailer conspiracy and convicted. On appeal we reversed, finding nothing in the record to support the view that the flatbed trailer conspiracy should not also have been included with the others as part of one agreement.
Leach has been tried and convicted of the Wal-Mart courier conspiracy. He contends now that the ruling in the record of the proceedings against McMillen to the effect that all of the conspiracies but the one to steal the flatbed trailer were but one agreement should prevent him from being tried for the Wilkinson conspiracy. In addition, he asks us to order the trial court to hear evidence that the flatbed trailer conspiracy was also a part of the one agreement and thus that he should not now be tried for that offense either.
At first blush, the argument that it is "inescapable" that the Wilkinson and flatbed trailer conspiracies should be treated as part of the the one agreement which included the Wal-Mart conspiracy seems compelling. On reflection, however, and viewing the limited purposes of a writ of prohibition, it becomes clear that we should not grant the writ. We have no idea what the evidence in this case will show about whether the conspiracies were separate agreements. The evidence may have been clear in McMillen's trial that the agreement was continuing and encompassed all the alleged proposed crimes, but judicial notice may not be taken of the record in a separate case. Smith v. Dean, 226 Ark. 438, 290 S.W.2d 439 (1956). See also Braswell v. Gehl, 263 Ark. 706, 567 S.W.2d 113 (1978).
While it may be suspected, we cannot know the evidence will be the same in this case as it was in the McMillen case with respect to the conspiracy or conspiracies. A writ of prohibition will not be granted unless it is clearly warranted. Reynolds v. Rogers, 297 Ark. 506, 763 S.W.2d 660 (1989). Usually we must find that the trial court lacked jurisdiction before we will order the writ. See, e.g., Abernathy v. Patterson, 295 Ark. 551, 750 S.W.2d 406 (1988), where we wrote "[p]rohibition is an extraordinary writ and is never issued to prohibit a trial court from erroneously exercising its jurisdiction, only where it is proposing to act in excess of its jurisdiction." In Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987), we granted the writ, although we characterized it as "an appeal from a refusal to grant a summary judgment," where the court was not lacking in jurisdiction of the subject matter of the case or the parties. We concluded that a trial in the matter at hand would have been useless because its result would have been a foregone conclusion. That holding does not apply here, as we cannot be certain that the testimony and resulting conclusions of the trial court may not be different in Leach's case from those in McMillen's.
Leach raises other points and requests including his insistence that we order *839 the circuit court to hold a hearing on the question of whether the flatbed trailer conspiracy was part of the one agreement. Should that charge proceed to trial, we assume Leach will be allowed to move for its dismissal at some point and to present his evidence that it was part of the conspiracy included in the one of which he has been convicted.
Leach asks us to order the circuit judge who tried all of the cases mentioned to recuse because of ex parte communications, and he asks that the information charging the flatbed trailer conspiracy be dismissed because it is solely the result of vindictiveness of the prosecutor toward Leach for his refusal to testify against McMillen and Clements. No authority has been cited which would empower this court to decide these matters prior to the trial court's decision of them. We assume these matters will be taken up in due course if the remaining indictment and information proceed to trial, and if they are decided adversely to Leach they may be addressed on appeal.
Writ denied.
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796 S.W.2d 953 (1990)
Jerry G. HARLAN, Wanda G. Harlan, Glenn F. Nabors, and Nancy A. Nabors, Plaintiffs/Appellees,
v.
Stanley Hall HARDAWAY, Defendant/Appellant.
Court of Appeals of Tennessee, Middle Section, at Nashville.
May 11, 1990.
Permission to appeal Denied September 24, 1990.
*954 Charles W. Bone, Janet P. Medlin, Ben A. Burns, Baker, Worthington, Crossley, Stansberry & Woolf, Nashville, for defendant/appellant.
Aleta Arthur Trauger, J. Graham Matherne, Wyatt, Tarrant, Combs, Gilbert & Milom, Nashville, for plaintiffs/appellees.
Permission to appeal Denied by Supreme Court September 24, 1990.
OPINION
KOCH, Judge.
This appeal involves a dispute arising from the construction and sale of a condominium unit. The developers brought suit against the purchaser in the Chancery Court for Davidson County after he repudiated the purchase agreement. The trial court heard the case without a jury and awarded the developers a $38,298 judgment. The purchaser has appealed, insisting that the developers are not entitled to recover because they materially breached *955 the purchase agreement. We affirm the judgment.
I.
Stanley Hall Hardaway graduated from college in 1985 and joined his family's construction business in Nashville. Sometime during 1986, he learned of a condominium development called Harbor Village being constructed on Coleman Lake in Madison and became interested in purchasing a unit there. The project was being developed by a partnership consisting of Jerry G. Harlan, Glenn F. Nabors, and their wives.
The development was in its early stages when Mr. Hardaway first visited the property. He was not interested in any of the units already under construction but told the sales agents that he was interested in another planned unit overlooking the lake. Even though the developers had not intended to build the unit at that time, they decided to change their construction schedule, thinking that it would be helpful to have a Hardaway living in their development.
Mr. Hardaway and his father agreed to purchase a unit for $139,500. On July 11, 1986, they signed a standard purchase agreement containing several handwritten changes insisted on by Mr. Hardaway's father. One of these changes was a liquidated damage clause providing for a $100 per day penalty for every day after January 31, 1987 that the use and occupancy certificate was not issued. The developers agreed to the liquidated damage clause but only in return for the Hardaways' agreement to extend the completion date to February 28, 1987.
The Hardaways also talked with the sales agents, and later with Mr. Nabors, about installing a "rubber roof" on Mr. Hardaway's unit instead of the asphalt roof being used on the other units. Mr. Nabors agreed to install a rubber roof on the unit at no additional charge even though it was more expensive and instructed the roofing subcontractor accordingly.
Constructing Mr. Hardaway's unit earlier than planned required the developers to obtain additional financing and to draw up additional plans requiring regulatory approval. These activities delayed the start of construction, and so work on Mr. Hardaway's unit did not begin until late October, 1986. Mr. Hardaway became concerned about the delay, and on November 12, 1986, he sent a letter to the development's sales agents stating that he would enforce the liquidated damage clause if his unit did not receive a use and occupancy permit by March 1, 1987.
Mr. Hardaway also became engaged during November. He and his fiancee scheduled their wedding for March 7, 1987 to enable them to move into the new condominium the week before the ceremony. The development's sales representatives and interior decorator assured them that they would do all they could to make sure that the unit was finished on time.
The young couple insisted on a number of changes in the design of their unit, including additional air conditioning, a larger deck, and a marble tub in the master bathroom. They also chose unique, fashionable interior colors and carpets that required different fixtures. The developers agreed to make these changes for an additional charge.
As the wedding approached, it became clear that the unit would not be completed on time. Mr. Hardaway expressed his disappointment in a February 24, 1987 letter and reiterated his intention to enforce the liquidated damage clause. The sales representatives assured Mr. Hardaway that every effort would be made to have the unit finished by the time he and his wife returned from their honeymoon; however, it was still not completed on March 16, 1987 when the couple returned to Nashville.
The parties signed a new purchase agreement at Mr. Hardaway's request on March 19, 1987. The terms of this agreement were the same as those in the first agreement, except for the price which had been *956 increased to $146,368 to reflect the cost of the extra work and for the deletion of Mr. Hardaway's father's signature. Thus, the contract still provided for a February 28, 1987 completion date even though that date had already passed and still included the liquidated damage clause.
The City issued a certificate of use and occupancy on March 27, 1987, and the parties scheduled the closing for April 3, 1987. Mr. Hardaway and his father inspected the unit on April 2, 1987. In a letter dated April 3, 1987, Mr. Hardaway notified the developers that "[t]oo much remains to be completed for us to close on April 3rd as we had hoped." He listed thirty-six items that remained to be completed and stated that he would "be forced to take some other type of action" if these items were not completed within seven days.
At his father's suggestion, Mr. Hardaway's letter raised for the first time the status of the development's other amenities. He proposed that the title company hold $3,000 in escrow to assure the completion of the swimming pool, the tennis courts, and the jogging trail. He also proposed that he should be excused from paying the monthly maintenance fee until the completion of the construction on the exterior of his unit and the other recreational amenities.
The parties met at the unit on April 8, 1987. They resolved the items on the punch list but could not agree on Mr. Hardaway's proposals concerning the maintenance fee and the escrow arrangement. The developers told Mr. Hardaway that they would not agree to these suggestions out of fairness to the other Harbor Village residents. When Mr. Hardaway and his lawyer refused to abandon these issues, Mr. Nabors told Mr. Hardaway in a raised voice, "Look son ... I am not going to listen to this anymore, and we are not going to talk about that." Mr. Hardaway abruptly left the meeting because he was offended by Mr. Nabors' comments and tone of voice.
Mr. Harlan telephoned Mr. Hardaway on April 9, 1987 to placate him and to convince him to proceed with the closing. He apologized for his partner's statements and assured Mr. Hardaway that the recreational amenities would be completed. Mr. Hardaway responded stating, "I think that definitely shows class in you but I don't think Mr. Nabors has any class, in my opinion." The sales agents also telephoned Mr. Hardaway and offered to escrow their sales commission to assure the completion of the recreational amenities.
Notwithstanding these assurances, Mr. Hardaway prepared a letter dated April 9, 1987 repudiating the contract because the unit had not been completed on February 28, 1987. He also based his action on the developers' failure to complete the swimming pool, the tennis courts, and the jogging trail and on the fact that the common areas had not yet been conveyed to the homeowners' association. Four days later, Mr. Hardaway and his wife bought a new home in Goodlettsville.
The developers sued Mr. Hardaway in November, 1987 seeking specific performance and damages. However, they were finally able to sell Mr. Hardaway's unit in December, 1987 for $140,000 and, thereafter, only sought the damages stemming from Mr. Hardaway's repudiation of the purchase agreement. The trial court heard the developers' complaint and Mr. Hardaway's counterclaim without a jury and awarded the developers $38,298.
II.
Mr. Hardaway's first argument is that he had no obligation to perform under the purchase agreement because the developers had failed to perform a condition precedent to the agreement's enforceability. We disagree. Mr. Hardaway did not assert this defense at trial and would have been unsuccessful had he done so because the portion of the agreement on which he relies cannot reasonably be interpreted as a condition precedent.
A.
The developers filed two documents in the register's office in August, 1985 *957 when they first began to develop Harbor Village. The first was a "declaration of covenants, conditions and restrictions;" the second, the "by-laws of Harbor Village P.U.D. Assn. Inc." Even though the declaration referred to a "plat of record," the property description, attached as an exhibit to the declaration, stated that "the Plat ... has not yet been placed on record in said Register's Office." There is, likewise, no evidence of the recordation of a master deed.
Both the purchase agreements Mr. Hardaway signed contained the following language:
That for and in consideration of the mutual covenants set forth, Seller does hereby agree to sell unto Purchaser and Purchaser hereby agrees to purchase from Seller the following described property upon the price, terms and conditions hereinafter set forth:
Building: 4
Unit: 1
in Harbor Village, A De Minimis PUD according to a De Mimimis [sic] PUD Plat of Harbor Village, A De Minimis PUD, a Declaration and Master Deed Establishing Harbor Village as a De Minimis PUD Association and by-laws of Harbor Village Owner's [sic] Association all of which will be filed of record in the office of the Registrar of Deeds for Davidson County, Tennessee, prior to the closing of sale.
No mention of the recordation of the master deed was made until Mr. Hardaway's April 3, 1987 letter and the fateful April 8, 1987 meeting. During the meeting, Mr. Hardaway's lawyer suggested that Mr. Hardaway should not be required to pay the monthly maintenance fee until the developers had recorded the master deed. After the developers refused to excuse the maintenance fee, Mr. Hardaway stated in his April 9, 1987 repudiation letter that the assessments could not commence until the common areas were conveyed to the owners' association.
B.
Mr. Hardaway's answer contained several affirmative defenses but never mentioned the lack of master deed or that the developers' failure to file the master deed was the non-performance of a condition precedent. He did not rely on this defense at trial, although he continued to insist that he could not have been required to pay the monthly maintenance fee until the master deed was recorded. The first succinct articulation of the condition precedent defense appears in Mr. Hardaway's appellate brief. It comes too late.
Appellate courts do not, as a general rule, consider issues not dealt with in the trial court and not properly developed in the proof. See East Sevier County Util. Dist. v. Wachovia Bank & Trust Co., 570 S.W.2d 850, 853-54 (Tenn. 1978). Thus, defenses not asserted in the trial court cannot be asserted for the first time on appeal. Ex parte Calhoun, 187 Tenn. 372, 375-76, 215 S.W.2d 789, 791 (1949); Washington v. Atlanta Life Ins. Co., 175 Tenn. 529, 534, 136 S.W.2d 493, 494-95 (1940); Alumax Aluminum Corp., Magnolia Div. v. Armstrong Ceiling Sys., Inc., 744 S.W.2d 907, 910 (Tenn. Ct. App. 1987).
The non-performance of a condition precedent is an affirmative defense that must be pled. Tenn.R.Civ.P. 9.03. If it is not properly raised in the trial court, it will not be considered on appeal. Mack v. Hugger Bros. Constr. Co., 10 Tenn. App. 402, 419 (1929).
C.
Even if Mr. Hardaway had asserted a condition precedent defense in the trial court, it would have been to no avail. The parties never intended the recordation of the master deed to be a condition precedent, and the language on which Mr. Hardaway relies is not sufficient to create one.
Whether a contractual provision is or is not a condition precedent depends upon the parties' intention which should be *958 gathered from the language they employ and in light of all the circumstances surrounding the contract's execution. Buchanan v. Johnson, 595 S.W.2d 827, 830 (Tenn. Ct. App. 1979). Courts do not favor conditions precedent and will, as a general matter, construe doubtful language as imposing a duty rather than creating a condition precedent. Buchanan v. Johnson, 595 S.W.2d at 831; Restatement (Second) of Contracts § 227(3) (1979); 3A A. Corbin, Corbin on Contracts § 635 (1960).
The existence of a condition precedent does not depend upon the use of any particular language. Nashville & Northwestern R.R. v. Jones, 42 Tenn. (2 Cold.) 574, 583-84 (1865). However, the presence of a condition is usually signalled by a conditional word or phrase such as "if," "provided that," "when," "after," "as soon as," and "subject to." Cobb v. Gross, 291 S.C. 550, 354 S.E.2d 573, 574 (Ct.App. 1987); 5 S. Williston, A Treatise on the Law of Contracts § 671 (3d ed. 1961); 3A A. Corbin, Corbin on Contracts § 639 (1960).
Having reviewed the language of the agreement relied upon by Mr. Hardaway in light of these rules of construction, we are unpersuaded that it creates a condition precedent to Mr. Hardaway's duty to perform. It was a comparatively unimportant part of the description of the property that, at most, provided for an orderly plan of procedure and whose purpose had been substantially accomplished by the recordation of the declaration and by-laws. See McCrory v. McCormick, 400 Ill. 203, 79 N.E.2d 485, 487-88 (1948); Elmore v. Reese, 268 Md. 490, 303 A.2d 381, 386 (1973); Hill v. Benevicz, 224 Md. 79, 167 A.2d 104, 110 (1961); Rom Terminals, Ltd. v. Scallop Corp., 141 A.D.2d 358, 529 N.Y.S.2d 304, 306 (1988).
The developers' performance under the promised plan of procedure was not required at any specified time but merely "prior to the closing of the sale." Mr. Hardaway repudiated the contract prior to the closing, thereby eliminating the developers' duty to perform. Under the facts of this case, repudiation was not a remedy available to Mr. Hardaway on April 9, 1987.
Mr. Hardaway did not link the developers' failure to record the master deed to the validity of the purchase agreement but rather to his obligation to pay the monthly maintenance fee. Instead of repudiating the contract, he should have called on the developers for assurances that they would record the master deed prior to the closing. See Restatement (Second) of Contracts § 251 (1979). Had the developers failed to provide these assurances or had they failed to perform prior to the closing, Mr. Hardaway might have been justified in refusing to perform. As it was, Mr. Hardaway never gave the developers the opportunity to do either and, in doing so, effected an anticipatory repudiation of the contract.
III.
Mr. Hardaway also asserts that his performance should be excused because the developers breached the purchase agreement by not completing his unit by February 28, 1987. Again we disagree. Mr. Hardaway waived his right to use the scheduled completion date as a basis for repudiating the contract.
A.
Harbor Village's standard purchase agreement provided that "[t]ime is of the essence of this contract and each and all conditions herein." With regard to the construction of each unit, it stated:
Purchaser fully understands and is aware that Seller anticipates that the building in which the De Minimis Unit described herein will be completed as described herein if not already completed, but cannot provide a fixed date for occupancy, by reason of factors influencing the rate of construction such as, but not limited to, acts of God, strikes, wars and material shortages. In any event, Seller *959 will cause the said building containing the De Minimis Unit to be completed no later than ____ from the date of this contract unless grounds arise which are legally supportable to establish impossibility of performance for reasons beyond the control of the Seller.
In the event of a default by the seller, it also provided that
If for any reason consummation of this transaction is prevented after acceptance of this Agreement by Seller's act, neglect or inability to deliver as per this Agreement, the Purchaser shall be entitled to the refund of his deposit, plus interest as provided in Paragraph 1 of this Agreement, or other remedy as provided by law. In the event of cancellation of this Agreement, then all rights and obligations hereunder shall terminate.
The parties eventually agreed that the building containing Mr. Hardaway's unit would be completed on February 28, 1987. At the Hardaways' insistence, they also added a liquidated damages clause to the paragraph dealing with the seller's default that stated:
Unit shall be delivered to Buyer for occupancy prior to Feb. 28th, 1987. Seller will pay to the Buyer 100.00/day for any day after this date for a U & O certificate.
Whether the parties intended the liquidated damage clause to be Mr. Hardaway's exclusive remedy if the unit was not finished on time need not be decided because Mr. Hardaway, by his conduct both before and after February 28, 1987, waived his right to insist upon strict adherence to the scheduled completion date.
B.
A contracting party may, either expressly or by conduct, waive its right to insist on the other party's strict performance. Tennessee Adjustment Serv., Inc. v. Miller, 54 Tenn. App. 313, 325, 390 S.W.2d 696, 701 (1964); Morristown Lincoln-Mercury, Inc. v. Roy N. Lotspeich Publishing Co., 42 Tenn. App. 92, 102, 298 S.W.2d 788, 793 (1957). The principle extends to the time within which contractual obligations must be performed. Bokor v. Holder, 722 S.W.2d 676, 680 (Tenn. Ct. App. 1986); Petway v. Loew's Nashville & Knoxville Corp., 22 Tenn. App. 59, 67, 117 S.W.2d 975, 980 (1938); Welch v. W.W. Dillon Co., 7 Tenn. App. 430, 434 (1928); Thompson v. Menefee, 6 Tenn. App. 118, 129 (1927).
There can be no waiver without complete knowledge of the facts. Bailey v. Life and Casualty Ins. Co., 35 Tenn. App. 574, 584-85, 250 S.W.2d 99, 103 (1952). However, all the parties in this case knew well before February 28, 1987 that Mr. Hardaway's unit would not be ready for occupancy by the scheduled completion date.
Despite this knowledge, Mr. Hardaway continued to insist, both before and after February 28, 1987, that the developers perform. He signed a new contract after the completion date; he instructed the developers to complete his April 3, 1987 punch list; and he repeatedly stated that he expected liquidated damages for every day after February 28, 1987 that the developers did not obtain a use and occupancy permit for his unit. His conduct through April 8, 1987 amounts to a waiver of his right to rely on the developers' inability to complete his unit by February 28, 1987 as a basis to repudiate the purchase agreement.
IV.
Finally, Mr. Hardaway insists that the developers' failure to install a rubber roof on his unit justified repudiating the purchase agreement. Again we disagree. The agreement does not require the developers to install a rubber roof.
The standard specifications for the Harbor Village units called for built-up asphalt roofs. Mr. Hardaway's father preferred another type of roofing material and, during the negotiations, asked the developers to install a "rubber roof" instead. The developers agreed to install a "rubber roof" after the purchase agreement was *960 signed, but the parties never amended the purchase agreement to reflect their understanding about the rubber roof.[1]
The developers instructed their roofer to install a "rubber roof" on Mr. Hardaway's unit. The roofer installed what he called a "rubberized roof," one better able to accommodate the expansion and contraction caused by the changes in the weather. Mr. Hardaway's father inspected the roof after it was finished and decided that it was not the type of roof he had in mind when he requested a "rubber roof." He called this to the developers' attention and requested that his son be provided with a ten-year warranty on the materials and workmanship. The developers obtained a ten-year manufacturer's warranty on the materials and a similar workmanship warranty from the roofer.
The developers' failure to install a "rubber roof" satisfactory to Mr. Hardaway's father is not a material breach of the purchase agreement because the agreement does not require the developers to install a rubber roof. It is, at most, a breach of a separate oral agreement entered into contemporaneously with the purchase agreement. It cannot provide Mr. Hardaway with a reason to repudiate the purchase agreement unless it also demonstrated that the developers had abandoned the purchase agreement or had completely disabled themselves from substantially performing. See Church of Christ Home for Aged, Inc. v. Nashville Trust Co., 184 Tenn. 629, 642, 202 S.W.2d 178, 183 (1947); Brady v. Oliver, 125 Tenn. 595, 614, 147 S.W. 1135, 1139 (1911).
The installation of a "rubberized roof" instead of a "rubber roof" is not evidence that the developers intended to abandon the purchase agreement or that they had disabled themselves from performing. By the time Mr. Hardaway repudiated the agreement, the developers had obtained the ten-year warranties requested by his father and had agreed to repair minor defects in the roof's installation. Rather than abandoning their contract, the developers were attempting to honor it when Mr. Hardaway repudiated the contract.
Mr. Hardaway should have honored rather than repudiated the contract. If using a "rubberized roof" instead of a "rubber roof" was a material shortcoming, then Mr. Hardaway could have sought damages for the diminished value of the unit. However, since he has failed to prove that the "rubberized roof" was not the functional equivalent of a "rubber roof," he has failed to demonstrate that he was entitled to damages or to repudiate the purchase agreement.
V.
We affirm the judgment and remand the case for whatever further proceedings may be required. We also tax the costs of this appeal to Stanley Hall Hardaway and his surety for which execution, if necessary, may issue.
TODD, P.J., and CANTRELL, J., concur.
NOTES
[1] Accordingly, the purchase agreement is silent about the installation of a "rubber roof." It provides only that
proposed improvements upon the De Minimis Property shall be substantially similar to the drawings shown to Purchaser; however, the Seller shall have the right to make reasonable modifications to the plans and specifications as it deems advisable.
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796 S.W.2d 805 (1990)
Ex parte Jerry OCCHIPENTI, Relator.
No. 01-90-00489-CV.
Court of Appeals of Texas, Houston (1st Dist.).
September 6, 1990.
Rehearing Overruled October 4, 1990.
*806 John Knoff, Houston, for appellant.
Carol Wind, Houston, for real party in interest.
Before EVANS, C.J., and O'CONNOR and DUNN, JJ.
OPINION
DUNN, Justice.
On May 30, 1990, the 315th District Court of Harris County adjudicated relator, Jerry Occhipenti, in contempt for failure to pay court-ordered child support, assessed punishment at 180 days confinement, and ordered relator confined thereafter until he paid the child support arrearages. On June 8, 1990, this Court granted relator's motion for leave to file a petition for writ of habeas corpus, set bail at $500, and ordered relator released from custody pending a final determination of the validity of his confinement. Tex.R.App.P. 120(d). Relator had been confined for approximately eight days prior to the time we granted his motion for leave to file.
On February 11, 1981, the trial court ordered relator to pay the real party in interest $50 per week in child support every Friday beginning on February 13, 1981. On August 31, 1989, the real party in interest filed a motion for contempt against relator. The motion alleged that, as of August 9, 1989, relator had paid only $200 in child support since February 13, 1981, and the total arrearages were $21,950. The motion also alleged repeated past violations and anticipated future violations by relator of the February 11, 1981, order between the filing of the motion and the date of the show cause hearing. The real party in interest sought, among other things, that relator be held in contempt, and that he be confined for a period not to exceed six months and thereafter until the child support arrearages were paid in full.
A show cause hearing was originally set for May 16, 1990, but was reset to May 30, 1990, so that relator could hire an attorney. Following the show cause hearing on May 30, 1990, the trial court found relator in contempt of its February 11, 1981, order to pay child support. The trial court's order recites that relator appeared pro se at the May 30, 1990, show cause hearing. The trial court found that, as of May 30, 1990, the total amount of child support arrearages was $21,950, and that relator currently had the ability to pay this amount. The trial court also found that relator had the ability, but failed to pay his child support payments that were due on January 4, 1990, January 11, 1990, January 18, 1990, and January 25, 1990, for which the trial court assessed punishment at 180 days confinement. Thereafter, relator was ordered confined until he paid the $21,950 child support arrearages.
Relator has not filed a statement of facts from either the May 16, 1990, or the May 30, 1990, hearings. At oral argument, the real party in interest indicated that tape recordings were made of these hearings. On July 30, 1990, the real party in interest filed the tapes with this Court. *807 However, this Court lacks authority to consider the tapes because no Texas Supreme Court order exists authorizing the Harris County district courts to enter into a pilot project to study the use of an electronic recording system. See Darley v. Texas Uvatan, Inc., 741 S.W.2d 200 (Tex.App. Dallas 1987, no writ) (discusses supreme court order allowing Dallas County district courts to use electronic recording systems). Even if such a project existed in Harris County, this Court would not have the authority to consider the tapes because the court reporter did not certify them, and copies of the typewritten and original tape logs certified by the court reporter were not filed in this Court. 741 S.W.2d at 202 (sets out requirements for statement of facts on appeal from a proceeding in which an electronic tape recording has been made). Therefore, this case comes to this Court without a statement of facts.
This Court may order the release of the relator in a habeas corpus proceeding where the commitment, or the order on which it is based, is void. Ex parte Barnett, 600 S.W.2d 252, 254 (Tex.1980); Ex parte Crawford, 684 S.W.2d 124, 126 (Tex. App.Houston [14th Dist.] 1984, orig. proceeding); Ex parte McKinley, 578 S.W.2d 437 (Tex.Civ.App.Houston [1st Dist.] 1979, orig. proceeding).
It is difficult to determine what claims relator asserts as his first point of error. Relying on Ex parte Martinez, 775 S.W.2d 455 (Tex.App.Dallas 1989, orig. proceeding), relator asserts in his original application that the contempt judgment is void because the trial court did not appoint an attorney to represent him in violation of Tex.Fam.Code Ann. sec. 14.32(f) (Vernon Supp.1990).[1] In a contempt proceeding where incarceration is a possible punishment, section 14.32(f) requires a trial court to advise an obligor of his right to an attorney and that one would be appointed to represent the obligor if he was indigent.
In a supplemental brief filed with this Court on August 3, 1990, relator asserts that the trial court did not give him the admonishments set out in section 14.32(f). The record before us reflects that relator obtained a two week postponement of the hearing so that he could hire an attorney, and that he appeared at the May 30, 1990, contempt hearing without an attorney. Thus, the record reflects that relator knew of his right to be represented by an attorney.
Therefore, we understand relator's first point of error to be that the contempt judgment is void either because: (1) relator was indigent and he did not validly waive his right to court appointed assistance of counsel, a constitutional claim; or (2) the trial court failed to comply with section 14.32(f), a procedural irregularity. See Ex parte Linder, 783 S.W.2d at 759; Ex parte Walker, 748 S.W.2d 21, 22 (Tex.App.Dallas 1988, orig. proceeding) (unless an indigent obligor is advised of his right to court-appointed counsel, his failure to request counsel is not a waiver of his constitutional right to assistance of counsel). Relying on Linder, the real party in interest urges us to presume, in the absence of a statement of facts, that the judgment is valid. 783 S.W.2d at 760. The following discussion disposes of both of relator's claims.
In resolving relator's first point, we discuss: (1) the holdings in Martinez and Linder; (2) criminal law principles; and (3) the application of the presumptions we apply in reviewing the trial court's judgment and how these presumptions affect our review of the substantive merits of relator's claim or claims.
The case of Martinez involved a factual situation similar to the one here. Without filing a statement of facts, relator filed a habeas corpus proceeding and claimed he did not validly waive his right to counsel at the contempt hearing. 775 S.W.2d at 456. Relying on Ex parte Gunther, 758 S.W.2d 226 (Tex.1988), the Martinez court concluded that section 14.32(f) required a contempt judgment to contain a recital that a pro se relator validly waived counsel, and that in *808 the absence of such a recital, the contempt judgment is void. Martinez, 775 S.W.2d at 457-58. The real party in interest argued that in the absence of a statement of facts, the appellate court should presume the validity of the contempt judgment. 775 S.W.2d at 457. In rejecting this contention, the Martinez court concluded that the Gunther court did not have a statement of facts before it, apparently applied the criminal law rule that a valid waiver of counsel may not be presumed from a silent record, and placed the burden on the real party in interest to see that a contempt judgment contains a recital that a pro se relator validly waived counsel. Martinez, 775 S.W.2d at 457-58; see also Carnley v. Cochran, 369 U.S. 506, 515, 82 S. Ct. 884, 889, 8 L. Ed. 2d 70 (1962) (waiver of counsel may not be presumed from a silent record); Samudio v. State, 648 S.W.2d 312, 314 (Tex.Crim.App.), cert. denied, 462 U.S. 1132, 103 S. Ct. 3113, 77 L. Ed. 2d 1368 (1983); Linder, 783 S.W.2d at 762-63 (Burnett, J., dissenting).
The Linder court rejected Martinez. Linder, 783 S.W.2d at 761. Noting that a relator bears the burden of showing his entitlement to relief in a habeas corpus proceeding, and that the issues of whether the trial court complied with section 14.32(f) and whether a pro se relator validly waived counsel involve factual determinations, the Linder court stated that it could not review these claims in the absence of a statement of facts. 783 S.W.2d at 760. The Linder court also reexamined the Martinez court's reading of Gunther, and concluded that the Gunther court had a statement of facts before it when it determined that relator did not validly waive counsel, and that neither Gunther nor section 14.32(f) require a trial court's judgment to contain a recital that a pro se relator validly waived counsel. Linder, 783 S.W.2d at 760. We agree with the Linder court's reading of Gunther.
The Linder court, in effect, attached little, if any, significance to the absence of a recital in a contempt judgment that a pro se relator validly waived counsel, and placed the burden on a relator in a habeas corpus proceeding to bring up a statement of facts showing that he did not validly waive counsel, and that the trial court did not comply with section 14.32(f). Linder, 783 S.W.2d at 760; compare Samudio, 648 S.W.2d at 314-15 (state bears the burden of showing a valid waiver of counsel in a direct appeal in a criminal case).
We begin our analysis with the rule that the same protections that apply to a defendant in a criminal proceeding apply to a contemnor in a contempt proceeding. Ex parte Johnson, 654 S.W.2d 415, 420-21 (Tex.1983). The rule that applies to a waiver of a right to a jury trial also applies to a waiver of right to counsel. Samudio, 648 S.W.2d at 314. In a direct appeal in a criminal proceeding, a valid waiver of counsel cannot be presumed from a silent record, and the state bears the burden of establishing that the record affirmatively shows a valid waiver of counsel. See 648 S.W.2d at 314-15. Where a judgment contains a recital that a defendant validly waived counsel, this Court presumes the truthfulness of the recital and the validity of the judgment, and the defendant has the burden of demonstrating the falsity of the recital to overcome the presumption. Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim.App.1984) (op. on reh'g).
However, this is a habeas corpus proceeding. Relator bears the burden of showing his entitlement to relief in a habeas corpus proceeding. Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S. Ct. 1019, 1024-25, 82 L. Ed. 1461 (1938) (in a habeas corpus proceeding, the burden of proof rests upon defendant to show that he did not validly waive his constitutional right to counsel); Ex parte Auten, 458 S.W.2d 466, 468 (Tex. Crim.App.1970) (petitioner in a habeas corpus proceeding has the burden of proving by a preponderance of the evidence that he did not validly waive a constitutional right that he asserts was denied him); Ex parte Dulaney, 146 Tex. 108, 203 S.W.2d 203 (1947) (relator has the burden to show that the order or writ of commitment is absolutely void); see also Samudio, 648 S.W.2d at 314 (waiver of jury can never be presumed from a silent record, "at least on *809 direct appeal") (emphasis added). Our habeas corpus rules require no less. Tex.R. App.P. 120(b)(6) (places burden on relator to present facts sufficient to establish his right to relief); Tex.R.App.P. 120(b)(7) (places burden on relator to present a statement of facts when appropriate). Moreover, we see no constitutional prohibition in placing the burden on a relator in a habeas corpus proceeding to show that he did not validly waive counsel. Johnson, 304 U.S. at 468-69, 58 S. Ct. at 1024-25.
We are aware of no authority that places the burden on the real party in interest in a habeas corpus proceeding to bring up a statement of facts showing a valid waiver of counsel. The authorities we find are to the contrary. Johnson, 304 U.S. at 468-69, 58 S. Ct. at 1024-25; Auten, 458 S.W.2d at 468; see also Samudio, 648 S.W.2d at 314. Requiring the real party in interest to bring up a statement of facts showing a valid waiver of counsel impermissibly shifts the burden of proof from relator to the real party in interest in a habeas corpus proceeding. See Linder, 783 S.W.2d at 760. Such a rule would be inconsistent with the policy that a judgment should not be lightly set aside by collateral attack, and that when collaterally attacked in a habeas corpus proceeding, a judgment is presumed valid until a relator has discharged his burden of showing otherwise. Johnson, 304 U.S. at 468-69, 58 S. Ct. at 1024-25 (when collaterally attacked, the judgment carries a presumption of regularity, and where a pro se defendant acquiesces in a trial resulting in his conviction and later seeks release by habeas corpus, the burden of proof rests upon him to establish that he did not validly waive counsel); Auten, 458 S.W.2d at 468.
Based on the foregoing, we hold that neither Gunther nor section 14.32(f) requires a contempt judgment to contain a recital that a pro se relator knowingly and intelligently waived counsel. Linder, 783 S.W.2d at 760. Consequently, the judgment comes to this Court with a presumption of validity. Johnson, 304 U.S. at 468-69, 58 S. Ct. at 1024-25; see Breazeale, 683 S.W.2d at 450-51 (judgment that complies with applicable statutes carries with it a presumption of regularity and truthfulness); Samudio, 648 S.W.2d at 314-15. We further hold that since this is a habeas corpus proceeding, it is relator's burden to demonstrate that the trial court did not comply with section 14.32(f), and that he did not validly waive counsel. Johnson, 304 U.S. at 468-69, 58 S. Ct. at 1024-25; Auten, 458 S.W.2d at 468. Relator failed to sustain this burden by his failure to present this Court with a statement of facts. Linder, 783 S.W.2d at 760.
Relator has failed to establish his entitlement to relief on this point. Tex.R.App.P. 120(b)(4), (7). We overrule relator's first point of error.
Relator's second point of error asserts that the trial court's order is void because "[it] lacked findings setting out specifically and with particularity, or incorporating by reference the provisions of the final order...." We understand relator to be arguing that the trial court's judgment is void because it does not contain sufficient findings on the provisions of the February 11, 1981, decree for which enforcement was sought as required by Tex.Fam. Code Ann. sec. 14.33(a) (Vernon Supp.1990). We disagree. The contempt judgment set out in ordinary and concise language what the February 11, 1981, decree required; how relator violated it; and the relief ordered by the trial court. Ex parte Bagwell, 754 S.W.2d 490, 491 (Tex.App.Houston [14th Dist.] 1988, orig. proceeding) (section 14.33(a) requires an enforcement order to indicate what the prior final order, judgment or, decree required; how contemnor violated the order; and the relief ordered by the court).
Relator's second point of error is overruled.
Relator's third point of error asserts that the civil or coercive portion of the contempt judgment is void because it is based on a finding of total arrearages. He does not appear to challenge his sentence for criminal contempt of 180 days confinement. See generally Ex parte Raymer, 644 S.W.2d 889, 890-91 (Tex.App.Amarillo 1982, orig. proceeding) (discusses distinction *810 between criminal and civil contempt). Assuming relator challenges his sentence for criminal contempt, this portion of the trial court's judgment is valid because it is based on specific findings of the dates on which relator did not comply with the February 11, 1981, decree. Ex parte Johnson, 778 S.W.2d 168, 169 (Tex.App.Houston [1st Dist.] 1989, orig. proceeding).
Therefore, since the sentence for criminal contempt is valid, it would be premature for us to address the validity of the civil portion of the order. Once relator has served his sentence for criminal contempt, he may file another motion for leave to file a petition for writ of habeas corpus if the trial court continues to confine him under the civil portion of the order.
To the extent relator's third point of error challenges his sentence for criminal contempt, we overrule it. To the extent his third point of error challenges the civil portion of the order, we do not address it.
Relator's fourth point of error asserts that the real party in interest's motion for contempt did not give him adequate notice of the specific contemptuous acts he committed because the trial court's specific findings on relator's failure to pay his child support payments covered acts occurring after the filing of the motion for contempt. We disagree. The motion for contempt pled that relator had repeatedly violated the February 11, 1981, order, and that future violations of a similar nature might arise between the filing of the motion and the date of the contempt hearing. Tex.Fam.Code Ann. sec. 14.311(e) (Vernon Supp.1990). We hold that this was sufficient notice to relator that the real party in interest intended to have him held in contempt for his contemptuous acts occurring after the filing of the motion. Id. Moreover, relator has waived this point by his failure to make any special exceptions requesting further notice of the charges against him. Ex parte Stephens, 734 S.W.2d 761, 762 (Tex.App.Fort Worth 1987, orig. proceeding); Ex parte Blackmon, 529 S.W.2d 570, 573 (Tex.Civ.App. Houston [1st Dist.] 1975, orig. proceeding).
Relator's fourth point of error is overruled.
Relator is remanded to the custody of the sheriff of Harris County to serve the remainder of his sentence for criminal contempt.
NOTES
[1] The case of Ex parte Linder, 783 S.W.2d 754, 761 (Tex.App.Dallas 1990, orig. proceeding), overruled Martinez.
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796 S.W.2d 348 (1990)
32 Ark.App. 43
A. TENENBAUM COMPANY, Appellant,
v.
DIRECTOR OF LABOR and Terry Thrasher, Appellees.
No. E 89-88.
Court of Appeals of Arkansas, Division I.
October 3, 1990.
*349 Wayne A. Gruber, No. Little Rock, for appellant.
Allan Pruitt, Little Rock, for appellees.
COOPER, Judge.
The appellee in this unemployment compensation case, Terry Thrasher, was employed by the appellant as a truck driver. On October 4, 1988, while off duty and *350 driving his own automobile, the appellee was charged with driving while intoxicated. He was placed on unpaid leave by his employer the next day. The appellee was awarded unemployment benefits on November 30, 1988. The employer appealed to the Appeal Tribunal, which found that the appellee was discharged for reasons other than misconduct connected with the work. The employer appealed this decision to the Board of Review. Prior to a decision by the Board, the appellee was convicted of driving while intoxicated and the conviction was entered into evidence. The Board affirmed the decision by the tribunal. From that decision, comes this appeal.
For reversal, the appellant contends that the Board erred in concluding that the appellee's off-duty DWI did not constitute misconduct connected with the work, and that the Board's decision is not supported by substantial evidence. We affirm.
Citing Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983), the appellant contends that when an off-duty arrest has some nexus with the work and results in harm to the employer the employee has engaged in misconduct as defined by Ark. Code Ann. § 11-10-514 (1987). While it is true that an off-duty arrest may constitute misconduct, the issue of misconduct is a question of fact for the Board of Review, and, on appeal, the Board's findings are conclusive if they are supported by substantial evidence. Dillaha Fruit Co. v. Everett, 9 Ark.App. 51, 652 S.W.2d 643 (1983). We review the evidence in light most favorable to the successful party and, even if there is evidence upon which the Board might have reached a different result, we do not substitute our findings for those of the Board even though we might have reached a different conclusion had we made the original determination upon the same evidence. Grigsby v. Everett, 8 Ark. App. 188, 649 S.W.2d 404 (1983).
The facts are not in serious dispute. The appellant's written policy provided that a driving record which contained a DWI would render an applicant ineligible for employment or would warrant firing a driver. According to the appellant's fleet supervisor, Robert Forgy, the appellee knew of the policy. Mr. Forgy stated that the reason for the policy was the difficulty in insuring drivers who had been cited for driving while intoxicated and because employing a driver who had been cited for driving while intoxicated left the company vulnerable in lawsuits. However, the record shows that, although the appellant informed the employer that he had been charged with DWI while off duty and that he was going to plead not guilty, there is no indication that the employer asked the appellee whether he had, in fact, been driving while intoxicated, or made any other effort to determine whether the charges had any basis in fact prior to terminating the appellee.
"Misconduct" involves: (1) disregard of the employer's interests, (2) violation of the employer's rules, (3) disregard of the standards of behavior which the employer has a right to expect of his employees, and (4) disregard of the employee's duties and obligations to his employer. Feagin v. Everett, supra. Moreover, there is an element of intent associated with a determination of misconduct. Mere inefficiency or poor performance does not, in itself, constitute misconduct: the Board must determine that there was an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design in order to find misconduct. Id. at 64, 652 S.W.2d at 842.
Arkansas Code Annotated § 11-10-514 (1987) provides for disqualification for benefits where the employee is discharged for misconduct connected with the work. The reason for the employee's discharge is thus a crucial fact in determining whether the disqualification applies, and the employer's reason must, of necessity, be based on the employer's knowledge at the time of the discharge. The record in this case shows only that the employer knew that the appellee had been cited for DWI and that he intended to plead not guilty at the time the appellee was discharged, and that the mere fact that an employee was cited for DWI would have an adverse effect on the employer. *351 Viewing the evidence, as we must, in the light most favorable to the Board's decision, we think that the Board could reasonably find that the appellee was discharged merely because he had been issued a citation for DWI, without regard to the truth or falsity of the charge against him. Because there was relevant evidence from which reasonable minds could conclude that the appellee was not discharged because of his conduct, but instead was discharged merely because he had been ticketed for DWI, we hold that the Board did not err in finding that the appellee was discharged for reasons other than misconduct connected with the work. We affirm.
Affirmed.
MAYFIELD, J., agrees.
JENNINGS, J., concurs.
JENNINGS, Judge, concurring.
A number of courts have been faced with the issue presented here and the decisions are in conflict. For a comprehensive review of those decisions see Yardville Supply Co. v. Bd. of Review, Dep't. of Labor, 536 A.2d 324 (N.J.Super.Ct.App.Div.1988), reversed on appeal in Yardville Supply Co. v. Bd. of Review, Dep't. of Labor, 554 A.2d 1337 (N.J.1989). I am persuaded by the reasoning of the Minnesota Court of Appeals in Schnaare v. Five G's Trucking, Inc., 400 N.W.2d 762 (Minn.Ct.App.1987). Furthermore, the question seems to me to be one of law, because the facts are not in dispute. See Arkansas Employment Sec. Div. v. National Baptist Convention, U.S.A., Inc., 275 Ark. 374, 630 S.W.2d 31 (1982).
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403 S.W.2d 807 (1966)
Theodore R. XANTHULL, Appellant,
v.
The STATE of Texas, Appellee.
No. 39577.
Court of Criminal Appeals of Texas.
May 25, 1966.
Rehearing Denied June 25, 1966.
*808 Crouch & Ferguson, by Paul F. Ferguson, J. David Gooch, Alvin, for appellant.
Tom Kenyon, Dist. Atty., Wallace N. Shaw and Ogden Bass, Asst. Dist. Attys., Angleton, and Leon B. Douglas, State's Atty., Austin, for the State.
OPINION
DICE, Commissioner.
The offense is burglary; the punishment, six years.
The indictment charged the burglary of a house occupied and controlled by G. M. Shepard.
Shepard, the prosecuting witness, testified that he was yard manager for the Griesenbeck Lumber Company in the city of Angleton. On Saturday, September 25, 1965, the witness closed the business at noon for the week-end. All windows and doors to the building were locked. When he returned on Monday morning it was discovered that, without the witness's consent, the building had been broken into and the place burglarized. One of the windows in the building was broken and a door was open. Inside the building the cash drawer had been prized open and tools were scattered over the floor. Among the tools was a hammer belonging to the company, which hammer was introduced in evidence as state's exhibit #1. $11.40 was missing from the cash drawer.
Deputy sheriff Andy DeSham testified that he went to the lumber company building on the morning of September 27 and, in his investigation, found the hammer (state's exhibit #1) behind a counter. The deputy testified that he was in charge of the identification section of the sheriff's office and that a part of his work was the classification of fingerprints. He related in detail his education, training, and experience in the field of fingerprints and stated that in the course of his investigation of the burglary he photographed a palm *809 print on the hammer. He stated that he had made a comparison of the print with a palm print of the appellant, and expressed his opinion that the print on the hammer was the palm print of appellant.
On September 27, 1965, appellant made and signed a written statement to deputy sheriff A. J. Schamerhorn, in which statement appellant admitted having committed the burglary by breaking and entering the building on the night of September 26, 1965.
The confession was admitted in evidence by the court as state's exhibit #3 after testimony was presented, both in the absence of the jury and in the jury's presence, relative to its execution and voluntary nature.
At such hearings, deputy sheriff Schamerhorn testified that on September 27, 1965, appellant freely and voluntarily made the confession after having been by the witness duly warned. The officer testified that appellant first made the statement to him orally. The two then went to another office, where appellant dictated the statement to a secretary who typed it. While the statement was being dictated by appellant and transcribed by the secretary, deputy Schamerhorn was in and out of the office. After the statement had been transcribed, appellant signed it. Later, the statement (state's exhibit #3) was typed on another form and signed by appellant.
The court, in his findings of fact duly entered of record, certified that appellant freely and voluntarily made the confession to officer Schamerhorn after having been duly warned.
Appellant did not testify before the court or the jury upon any issue in the case.
Appellant predicates his appeal upon seven formal bills of exception.
We first overrule bill #1, which complains of the court's refusal to instruct a verdict of not guilty. The evidence is sufficient to support the jury's verdict finding appellant guilty of the offense charged.
By bill #2, appellant insists that reversible error was committed when he was brought into court in jail clothing. In support of his contention appellant relies upon certain decisions by this court in cases where the accused was brought into court in handcuffs.
In these cases, such practice has been condemned but held to be within the sound discretion of the trial court, subject to the closest scrutiny and review by this court. Mouton v. State, 155 Tex. Crim. 450, 235 S.W.2d 645.
The bill of exception certifies that "before any proceedings were had, and before the Court's charge was read to the jury," appellant was brought into court in coveralls, issued to county prisoners with lettering on the back identifying the garments as county jail issue, and that "before said proceedings were initiated" in the cause his counsel "approached the bench" and objected to the manner in which appellant was clothed. While the bill certifies the reasons assigned by appellant as a basis for his objection and that the objection was overruled, it does not certify to facts sufficient to show injury or prejudice to appellant. No error is presented by the bill. Clark v. State, Tex.Cr.App., 398 S.W.2d 763; Mouton v. State, supra.
By bill of exception #3, appellant complains that the court erred in permitting deputy sheriff DeSham to express his opinion that it was appellant's palm print on the hammer, over the objection that he had not been shown to be qualified as an expert on palm prints.
Deputy sheriff DeSham testified fully as to his training and experience in the classification of fingerprints and was shown to be qualified as an expert in that field. Stevenson v. State, Tex.Cr.App., 395 S.W.2d 626. He further testified that palm prints were akin to fingerprints and were a series of friction ridges "biologically the same as the bulbar ridge on the end of the *810 finger." Under the record, the court did not err in permitting him to testify as an expert on palm prints.
By bills of exception #4 and #6, appellant insists that the court erred in admitting his written confession in evidence (state's exhibit #3) because (1) it was not taken by the person named therein and (2) it was signed without his having been given the statutory warning.
We find no reversible error in the bills.
Under the record, the confession was shown to have been made to deputy Schamerhorn, the person named therein, and not to the secretary who merely reduced it to writing. Sutton v. State, 166 Tex. Crim. 580, 317 S.W.2d 58; Brionez v. State, 168 Tex. Crim. 9, 323 S.W.2d 459.
While only one warning was given to appellant, it appears that both statements were made to Officer Schamerhorn and were signed by appellant in view of the officer's warning. This was sufficient to authorize their admission in evidence. 24 Tex.Jur.2d 264-265, Sec. 662. The first statement signed by appellant was drawn under Art. 727 of the Code of Criminal Procedure of 1925 and the last statement (state's exhibit #3), which was signed on the same day or following day, was drawn under the provisions of Art. 38.22 of the 1965 Code of Criminal Procedure. State's exhibit #3 was not, in fact, another confession but except for form was substantially the same as the statement first signed by appellant, which was not introduced in evidence by the state.
It should be pointed out that in his charge the court instructed the jury not to consider the confession introduced in evidence unless they believed from the evidence beyond a reasonable doubt that it was freely and voluntarily made by appellant after having been duly warned by the person to whom it was given. The jury were further charged that they could not convict appellant solely upon his confession but that the same must be corroborated by other evidence in proof of the corpus delicti.
By bill of exception #5, appellant insists that the court erred in admitting in evidence state's exhibit #1, which was the hammer that deputy sheriff DeSham testified he found at the lumber yard office after the burglary. Appellant's objection was on the ground that the proper predicate had not been laid because it had been outside the care, custody, and control of the officer prior to the time it was introduced in court.
The deputy identified the exhibit as the hammer which he found at the lumber yard and stated that it had been in his possession until he brought it to court on the day of the trial. While he admitted it had been out of his sight after he brought it to court, his identification was sufficient to authorize its admission in evidence. The bill is overruled.
Appellant's remaining bill of exception, #7, complains that the court erred in refusing to grant a mistrial when the district attorney, during his interrogation of deputy sheriff DeSham relative to his qualification as a finger and palm print expert, asked: "State whether or not you have attended any courses concerning the operation of a polygraph," and the witness answered: "Yes, sir, Texas A. & M. University, six weeks."
The record reflects that upon objection being made by appellant, the jury was instructed by the court not to consider the reference to a polygraph. There was no further mention of a polygraph. We perceive no reversible error in the bill.
The judgment is affirmed.
Opinion approved by the court.
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403 S.W.2d 630 (1966)
STATE of Missouri, Respondent,
v.
Frederick Donald MACON, Appellant.
No. 51550.
Supreme Court of Missouri, Division No. 1.
June 13, 1966.
*631 Norman H. Anderson, Atty. Gen., Moody Mansur, Asst. Atty. Gen., Jefferson City, for respondent.
Newmark & Baris, Irl B. Baris, St. Louis, for appellant.
HOLMAN, Presiding Judge.
Defendant has appealed from the order of the trial court overruling his motion to vacate filed under S.Ct. Rule 27.26, V.A.M.R.
On March 7, 1962, a jury found defendant guilty of the offense of first degree robbery and the court, under the provisions of § 556.280, RSMo 1959, V.A.M.S., fixed his punishment at imprisonment in the penitentiary for a period of ten years. On March 19, 1962, defendant's motion for new trial was overruled and he was formally sentenced by the court. At that time defendant also withdrew his plea of not guilty to charges of burglary and stealing and entered a plea of guilty thereto. The court sentenced him to five years' imprisonment on each offense but provided that those sentences should run concurrently with the sentence in the robbery case.
The motion to vacate sought to set aside the judgments in both cases. In State v. Engberg, Mo.Sup., 391 S.W.2d 868, we indicated that in a proceeding under Rule 27.26 it is improper to attack more than one judgment in a single motion. However, since these judgments were entered at the same time and involved related offenses we will consider the motion on appeal as applicable to all of the judgments.
In his effort to set aside the robbery judgment defendant alleges (1) that the assistant circuit attorney made prejudicial and highly inflammatory remarks at the time of exhibiting a shotgun to the jury, at which time he was rebuked by the court although defendant's counsel failed to object; and (2) that he was denied due process because his appointed counsel (not his present attorney) was so inexperienced and incapable that he did not render effective assistance to defendant.
The first point alleged, if true, would have been merely a trial error which may not be considered in support of a motion of this nature. State v. Hagedorn, Mo.Sup., 305 S.W.2d 700. However, we will discuss it because it is also relied on to support defendant's contention relating to the ineffectiveness of his counsel. A sawed-off shotgun (alleged to have been used in the robbery) was admitted in evidence. Just as the jury was about to retire to begin its deliberations the assistant circuit attorney picked up the gun and indicated a desire that the jury take it to the jury room. The trial judge (out of the hearing of the jury) rather sternly advised him that he should not exhibit the gun in that manner and that it should not be taken to the jury room. The court then asked defendant's attorney if it was "all right with you to send it down," and upon his objection the matter was apparently abandoned.
We do not see that defendant's attorney was deficient in any respect in regard to the foregoing incident. The trial judge was apparently under the erroneous impression that the exhibit should not be sent to the jury room except by agreement. He therefore took action so quickly that there was no occasion for an objection. Later, when the question was presented to him, defendant's counsel objected and the gun was not sent to the jury room. We are unable to see how any more could have been accomplished by any attorney.
In order to determine the issue concerning the effectiveness of the services rendered by defendant's attorney we have, perhaps ex gratia, read the entire transcript of the trial. The state presented a number of lay witnesses who testified that defendant confessed to the offense in their presence. In an effort to diminish the effect *632 of that testimony defendant's attorney cross-examined those witnesses, as well as others, extensively, and, we think, rather skillfully. He also presented a witness who testified to facts supporting defendant's alibi, and made about the only type of argument which could have been made under the circumstances.
As indicated, we have concluded that defendant was represented in a creditable manner and that the contention in that regard affords no basis for vacating the judgment. State v. Worley, Mo.Sup., 371 S.W.2d 221; State v. Schaffer, Mo.Sup., 383 S.W.2d 698.
In regard to the judgments entered on his plea of guilty to the burglary and stealing charges defendant alleged that "his plea of guilty was involuntary: he was on parole from the State of California and, in addition to having been found guilty, he was an easy prey to the veiled threats and implications to what `could happen to him on the other charge if he did not plead guilty': Trial under the Habitual Criminal Act. * * * [N]o inquiries were made by the court as to whether such plea was voluntary, [or] whether the accused knew the consequences and implications of such plea * * *." The transcript discloses that after the motion for new trial was overruled in the robbery case the circuit attorney mentioned the other charges to the court and then the following occurred: "Mr. Kroening: We have previously entered a plea of not guilty. This morning, at the court's discretion, we would like to change that plea to a plea of guilty. The Court: Mr. Macon, you have heard the statement of the Circuit Attorney and the statement of your counsel. Do you have anything to say, or any reason or cause to give to this Court why the sentence and judgment of this Court should not now be pronounced against you? Mr. Frederick Donald Macon: No, sir. [The circuit attorney then gave a brief statement of the facts.] (Discussion off the record.) The Court: Do you have any reason to give the Court why sentence should not be pronounced against you? Mr. Frederick Donald Macon: No, sir. The Court: The Court will sentence you to the state penitentiary for five years on the charge of burglary second degree, and five years on the charge of stealing: these sentences to run concurrently with the sentence imposed in Cause No. 1654J."
The allegations concerning "veiled threats and implications" are mere conclusions and are insufficient to warrant a hearing. Defendant has also alleged, however, that the court failed to ascertain whether he knew the consequences of his plea of guilty before accepting it. We have held that under certain circumstances a failure of the trial court to explain the consequences of a plea of guilty before its acceptance is error, even where the defendant is represented by counsel. See State v. Blaylock, Mo.Sup., 394 S.W.2d 364, and S.Ct. Rule 25.04. However, under the circumstances presented in the case before us, we do not think defendant was prejudiced by the failure of the trial court to explain the range of punishment for the offenses involved. This for the reason (among others) that the court stipulated that the sentences imposed were to run concurrently with a sentence previously imposed. Since the plea of guilty did not result in sentences which required that defendant serve any additional time in prison, we rule that no prejudicial error resulted from the failure of the court to explain the range of punishment to defendant before accepting his plea of guilty.
As indicated, we have concluded that the record discloses that the defendant is not entitled to the relief sought in his motion and we accordingly rule that the trial court did not err in overruling it without a hearing.
The judgment is affirmed.
All concur.
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403 S.W.2d 434 (1966)
Joe Givos ACOSTA, Appellant,
v.
The STATE of Texas, Appellee.
No. 39454.
Court of Criminal Appeals of Texas.
March 23, 1966.
Rehearing Denied May 25, 1966.
Second Motion for Rehearing Denied June 22, 1966.
*435 Clyde W. Woody, Marian S. Rosen, Fred H. Dailey, Jr., John P. Farra, Houston, for appellant.
Carol S. Vance, Dist. Atty., Ted Hirtz and F. M. Stover, Asst. Dist. Attys., Houston, and Leon B. Dougas, State's Atty., Austin, for the State.
OPINION
MORRISON, Judge.
The offense is the possession of heroin with a prior conviction for possession of heroin alleged for enhancement; the punishment, 30 years.
The evidence introduced before the jury reflects that police officers of the Narcotic Division of the Houston Police, together with a representative of the Department of Public Safety, armed with a search warrant, arrived at appellant's home, intercepted him as he and his family were backing his automobile out his driveway, and exhibited the warrant to appellant and his wife. The family re-entered the house where a search was conducted, and, finally, under a flower which appeared to have been recently transplanted, a jar was found which was shown to contain over 100 grams of heroin in two rubber containers. The chain of custody was shown and the substance was identified by expert testimony to be 48 to 50 percent pure heroin. The prior conviction was established, and appellant did not testify or offer any evidence in his own behalf.
Since almost all the matters complained about by appellant in an exhaustive brief and argument occurred in the absence of the jury, they will be discussed in the order presented.
Appellant first contends that the heroin seized was inadmissible because the probable cause recited in the affidavit for the search warrant was insufficient under the holdings of the Supreme Court of the United States in a number of cases including Aguilar v. State of Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723; Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2d 1503; Etchieson v. Texas, 378 U.S. 589, 84 S. Ct. 1932, 12 L. Ed. 2d 1041; and Barnes v. Texas, 380 U.S. 253, 85 S. Ct. 942, 13 L. Ed. 2d 818.
The affidavit in Aguilar, supra, recited that the affiants "have received reliable information from a credible person and do believe that heroin * * * and other narcotics and narcotic paraphernalia are being kept at * * * (petitioner's) premises for the purpose of sale and use contrary to the provisions of the law." The Court held that the above did not contain an affirmative allegation that the *436 informant or the affiants spoke with personal knowledge.
The affiant in Giordenello v. United States, supra, recited:
"The undersigned complainant [Finley] being duly sworn states: That on or about January 26, 1956, at Houston, Texas in the Southern District of Texas, Veto Giordenello did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation; in violation of Section 174, Title 21, United States Code.
And the complainant further states that he believes that ______ are material witnesses in relation to this charge."
The Court held that the above did not contain an affirmative allegation that affiant spoke with personal knowledge and failed to indicate any source of complainant's belief.
The affidavit in Etchieson v. State, Tex.Cr.App., 372 S.W.2d 690, recited:
"My belief as aforesaid is based on the following facts:
`(A) I have been informed of the existence of the foregoing set out facts by reliable, credible and trustworthy citizen of Dallas, Dallas County, Texas,
`(B) and further from a source that we do not wish to divulge."
In a Per Curiam opinion Etchieson was reversed.
The affidavit in Barnes v. State, Tex. Cr.App., 390 S.W.2d 266, in which the writer dissented, and which was reversed by the Supreme Court of the United States in Barnes v. Texas, supra, upon their holding that the warrant for the arrest of Mrs. Barnes' husband contained no affirmative allegations that the affiant spoke with personal knowledge, did not indicate any source of complainant's belief, nor set forth any other sufficient basis upon which the finding of probable cause could be made.
We will now set forth the affidavit before us in the case at bar:
"On the 14th day of May, 1965, affiants received reliable information from a credible person that heroin was being possessed by Joe Givos Acosta, at 7515 Force Street, Houston, Harris County, Texas. Although I do not desire to name this person, on about four prior occasions he has given information to me concerning narcotics being possessed by certain individuals, and on every occasion his information has proven to be true. Based upon the information he gave to me, affiants on the morning of the 14th day of May, 1965, set up surveillance of the house located at 7515 Force Street, and from approximately 7:00 a. m. to 10:00 a. m. of that day we observed several persons whom we know to be users of narcotics, enter the house, remain for approximately five minutes each, and then leave."
Because of the late filing of the officer's return, the court heard evidence on the issue of probable cause in the absence of the jury, and, in the course thereof, it was developed that two of the "several people" whom the officers observed to enter appellant's house, remain approximately five minutes and then leave were Victor Valdez and Martin Damian, each of whom had narcotic charges pending against them at the time of appellant's trial and each of whom were known by the officers to be narcotic addicts. We hold that the affidavit in the instant case does set forth a sufficient basis upon which a finding of probable cause could be made. United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684. The cases cited by appellant do not support his contention that the trial court erred in refusing to grant his motion to suppress evidence seized under the search warrant.
Appellant next contends that the court erred in not requiring the affiants to identify the informer. He admits that he did not request the court to direct *437 the witness to name his informer, but contends that he should have been permitted to question the affiant as to the age, sex and past criminal record of the informer in order that the court might intelligently pass upon the question of the existence of probable cause. This is the same position taken by appellant's counsel in Thayer v. State, Tex.Cr.App., 397 S.W.2d 236, wherein we adhered to our prior holding in Artell v. State, Tex.Cr.App., 372 S.W.2d 944.
Appellant cites a number of cases from other jurisdictions, and we hold, as we have in the past, that it is only those cases which were described by the Supreme Court of the United States in Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639, that the name of the informer should be disclosed. That is, where the informer "had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly" committed the act. It would appear from the holding of the opinion of the Supreme Court of the United States in Rugendorf v. United States, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887, that the Court does not intend to extend the rule announced in Roviaro v. United States, supra.
Appellant next contends that the court erred in declining to sustain his motion to suppress the evidence acquired by the execution of the search warrant because the warrant was not promptly returned by the officer executing the same to the magistrate who issued it as provided by Sec. 16 of Article 725b, Vernon's Ann. P.C., and Article 324, Vernon's Ann.C. C.P. The officer swore unequivocally that he made his return on the back of the warrant on the day it was executed, but that through some error it was not delivered to the magistrate until the day this trial began.
Recently in Daltwas v. State, Tex. Cr.App., 375 S.W.2d 732, we held that the failure of the officers to make a return on the search warrant or deliver to appellant an itemized copy of the return, in the absence of a showing of injury, reveals no error. This record is silent as to any demand made by this appellant or his counsel that they might see the officer's return prior to trial. Hence, no injury is shown.
He next contends that the trial court did not conduct his hearing as to the voluntary nature of the confession in accordance with the mandate of this Court in Lopez v. State, Tex.Cr.App., 384 S.W.2d 345, and of the Supreme Court of the United States in Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908. In Lopez v. State, supra, we said:
"In new trials arising hereunder and in future trials in this state where there is a fair question of voluntariness of a confession of the defendant, the trial judge shall grant to the defendant the opportunity to object to the use of said confession; shall grant a fair hearing before the Court on the issue of voluntariness, and from all of the evidence and without regard to the truth or falsity of the confession, shall make a clear cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend."
In the absence of the jury the prudent trial judge allowed appellant's counsel full latitude to explore the practice of the issuance of search warrants in Harris County and what occurred in this case. Appellant testified that he was hit and kicked by the officers while in his home, but his wife, who was called, did not support him in this claim. He stated that he was threatened with the loss of his children and that his wife and her parents, who resided with him, would be jailed unless he promised to make a statement when he arrived at the police station, *438 and yet he chose not to make an issue of fact before the jury, and no evidence of the involuntary nature of the confession was submitted before them. In his confession which was made and signed within an hour after appellant's arrival at the police station after appellant had been fully warned and advised of his right to counsel and which the court found to have been voluntarily made, he recited that he had gone to San Antonio on the Wednesday preceding his arrest and purchased $2,000 worth of heroin. It should be noted that in the absence of the jury one of the arresting officers, while being questioned by appellant's counsel as to what transpired in appellant's back yard immediately after the heroin was discovered, was asked and answered the following:
"Q. Did you ask him any questions concerning the identity of the individual who owned the heroin?
A. He stated that it was his before anybody asked him anything in regard to it. He was shocked as to how it was found."
Prior to the asking of this question, the court had, in the presence of the jury, sustained appellant's objection to anything appellant may have said at the time the heroin was discovered. His claim that appellant's family was held in custody for more than an hour is without foundation. It would be strange police practice to allow members of a suspect's family to wander about the house while a search was being conducted therein. His claim that the court erred in permitting the prosecutor to question appellant as to the truthfulness of his statement, to which question the appellant answered, "The things in the statement are not true", need not be considered because even if inadmissible the jury was not present, and this Court has always held that the court is presumed not to have considered inadmissible evidence.
Appellant next contends that the court erred in permitting the chemist when recalled as a witness to testify how many capsules the bulk heroin found in appellant's possession would fill. The chemist had already testified that the jar contained 111.2 grams of 49 percent pure heroin. We have concluded that it was not reversible error to permit the State to translate this testimony into terms understandable to the jury.
We overrule appellant's contention that the records of the Texas Department of Correction concerning appellant's prior conviction were inadmissible as hearsay. Broussard v. State, Tex.Cr.App., 363 S.W.2d 143.
We also overrule his contention that the court erred in overruling his motion to quash the indictment because the same failed to inform him if the State intended to proceed against him under Article 725b, Sec. 23(1), V.A.P.C. or Article 62, V.A.P.C. This Court has held that Article 725b is a special statute that contains its own cumulation of punishment provision for a subsequent conviction for its violation.
Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.
ON APPELLANT'S MOTION FOR REHEARING
MORRISON, Judge (dissenting).
My Brethren overrule appellant's motion for rehearing, but I cannot bring myself to join them in such action. This is so because after further study, I have become convinced that the following portion of the opinion which I prepared originally is entirely erroneous, to-wit: "His claim that the court erred in permitting the prosecutor to question appellant as to the truthfulness of his statement, to which question the appellant answered, "The things in the statement are not true', need not be *439 considered because even if inadmissible, the jury was not present, and this Court has always held that the court is presumed not to have considered inadmissible evidence." I would be a poor judge indeed if I was not always ready to admit that I had erred. I overlooked the fact that appellant was questioned repeatedly, over strenuous objections, about the truth or falsity of certain admissions contained in the confession; for example, he was asked, "You told Officer Dunlap the truth when you gave him the statement and the things that went into the statement are the things that you told Officer Dunlap?"
It is now apparent that the question here presented may not be disposed of, as I did originally, by reference to Texas procedure because it has reached Federal Constitutional dimensions. My conviction arises from a re-examination of Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735, 5 L. Ed. 2d 760, and cases which followed the holding of the Supreme Court in that case. In Rogers, supra, the Supreme Court of the United States was reviewing a State court conviction where the trial court in the absence of the jury on a hearing as to the voluntary nature of the confession had considered the truth or falsity of the confession as one element of its reliability authorizing its introduction. The Court in reversing the State court conviction said, "Any consideration of this `reliability' element was constitutionally precluded, precisely because the force which it carried with the trial judge cannot be known." Rogers, supra, was later cited as authority on this question in Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908; see also 1 A.L.R. 3d 1205. This latter case was the basis for the reversal of our own decision in Lopez v. State, 366 S.W.2d 587.
On remand from the Supreme Court of the United States, Lopez v. State, 384 S.W.2d 345, we incorporated the Jackson v. Denno rule and said:
"In new trials arising hereunder and in future trials in this state where there is a fair question of voluntariness of a confession of the defendant, the trial judge shall grant to the defendant the opportunity to object to the use of said confession; shall grant a fair hearing before the Court on the issue of voluntariness and from all of the evidence and without regard to the truth or falsity of the confession, shall make a clear cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend. Upon request, such hearing shall be held and the court's ruling made in the absence of the jury. Unless the trial judge is satisfied that the confession was voluntarily made he shall exclude it. If the confession has been found to have been voluntarily made and held admissible by the Court, it is recommended that the trial judge enter an order stating his findings, which order should be filed among the papers of the cause but not exhibited to the jury. Should the defendant testify at such a hearing, the cross-examination of the defendant shall be limited solely to the facts surrounding the voluntariness of the confession, and the defendant shall not be subject to cross-examination except for the limited purpose of facts involving the voluntary nature of his confession, nor shall the defendant be compelled to take the stand upon the trial of the cause upon its merits because of his testimony at this hearing."
What I have said above is consistent with the reasoning in my recent dissent in Hill v. State, Tex.Cr.App., 403 S.W.2d 421.
Realizing the error of my ways in time, I respectfully dissent to the action of my Brethren.
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63 F. Supp. 2d 828 (1999)
Holly K. COEN, Plaintiff,
v.
RIVERSIDE HOSPITAL, et al., Defendants.
No. 3:97CV7425.
United States District Court, N.D. Ohio, Western Division.
April 19, 1999.
Guy Saglioccolo, Toledo, OH, Mary Patricia Toth, Law Offices of Mary Patricia Toth, Toledo, OH, for plaintiff.
Ronald S. Moening, Sr., Robison, Curphey & O'Connell, Toledo, OH, for defendants.
*829 ORDER
CARR, District Judge.
This is a Title VII case in which the defendants have moved to dismiss on the basis that the complaint was not filed within ninety days of the receipt by plaintiff of the right to sue notice. (Doc. 44). For the reasons that follow, motion shall be overruled.
The EEOC sent the right to sue letter by certified mail. The envelope containing the right to sue letter indicates that the letter carrier left notice of attempted delivery on February 12, 1997, and February 19, 1997. The notation on the envelope also indicates that the letter would be returned on February 27, 1997.
Plaintiff took delivery of the letter on February 25, 1997. Her complaint in this case was filed on May 27, 1997, the day following Memorial Day.
For the filing of the complaint to have been timely, it had to be filed within ninety days after plaintiff's receipt of the right to sue letter. 42 U.S.C. § 2000e-5(f)(1). According to defendants, plaintiff received the right to sue letter when she had notice of the attempt to deliver the letter.[1] This contention is based on the Fourth Circuit's holding in Watts-Means v. Prince George's Family Crisis Center, 7 F.3d 40, 42 (4th Cir.1993);
[T]he limitations period is triggered when the Postal Service delivers notice to a plaintiff that the right-to-sue letter is available for pick up, and not when the letter is actually picked up. Requiring actual pick up to trigger the period would allow for ... manipulation of the limitations period....
Similar concerns with possible manipulation of the limitations period had led that court earlier to reject the argument that the ninety day period begins to run only with actual receipt by the plaintiff of the right to sue letter. Harvey v. City of New Bern Police Dep't, 813 F.2d 652 (4th Cir. 1987).
Arguing against application of this doctrine, plaintiff points out that no other court to consider the issue has taken the Fourth Circuit's approach. Those courts have looked, rather, to whether the plaintiff has been at fault for any delay in actual receipt of the right to sue letter. St. Louis v. Alverno College, 744 F.2d 1314 (7th Cir.1984); Jones v. Madison Serv. Corp., 744 F.2d 1309 (7th Cir.1984). In the view of these cases, a plaintiff must take reasonable steps to ensure actual receipt of the right to sue letter.
The better approach, in my view, is to reject the doctrine of constructive receipt espoused by the Fourth Circuit in Watts-Means and Harvey. See Franks v. Bowman Transp. Co., 495 F.2d 398, 404 (5th Cir.1974), rev'd on other grounds, 424 U.S. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976) (doctrine of constructive receipt inapplicable in Title VII cases, because such doctrine "would poorly serve the remedial purposes of Title VII"). In circumstances such as this, where actual receipt occurs within the period allowed by the Postal Service for claiming undelivered mail, there will be no opportunity for the kind of "manipulation" of the limitations period that was troublesome to the Fourth Circuit in Watts-Means and Harvey. In the normal course, the letter will be returned within a couple of weeks after the initial attempt at its delivery to the EEOC.[2]
*830 As defendants argue, plaintiff may have the burden of proof to show compliance with the ninety day filing requirement, see Williams v. Enterprise Leasing, 911 F. Supp. 988 (E.D.Va.1995). I decline to require, as part of that burden, a showing by plaintiff of why she failed to respond earlier to the notices of nondelivery. To require a plaintiff to explain her unresponsiveness and then to ask courts to determine which reasons are acceptable and which are not would simply add an undesirable and unnecessary layer of uncertainty. The law and litigants are better served by a clear and simple rule, whereby the limitations period starts running on the date of actual receipt after earlier notices of attempt to deliver. This is especially true where, as here, the defendants allege no prejudice from the delay between the notices of attempted delivery and plaintiffs actual receipt of the letter.
It is, therefore,
ORDERED THAT defendants' motion to dismiss be, and the same hereby is overruled.
So ordered.
NOTES
[1] Plaintiff claims not to remember receiving notice on February 12th. Defendant is willing to accept this representation on her behalf, which does not affect their argument. If receipt of the right to sue letter is deemed to have occurred on February 25th, plaintiff's complaint was still not filed within the requisite ninety days. In any event, even if receipt were deemed to have occurred on the earlier date, the outcome in this case would be the same.
[2] My ruling in this case is limited to its facts: namely, actual receipt of the right to sue letter after initial notices of attempt to deliver and prior to return of the letter to the sender. Were the letter thereafter sent again and received, a question might properly arise about plaintiff's failure to have responded earlier to the notices of attempted delivery. In such cases, it might be appropriate to ask the plaintiff to show cause for her failure to have responded to the earlier notices.
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871 S.W.2d 838 (1994)
Juan Ignacio PERRETT, Appellant,
v.
The STATE of Texas, Appellee.
No. C14-92-01134-CR.
Court of Appeals of Texas, Houston (14th Dist.).
February 3, 1994.
*839 Tom Zakes, Houston, for appellant.
Ernest Davila, Houston, for appellee.
Before ROBERTSON, CANNON and DRAUGHN, JJ.
OPINION
DRAUGHN, Justice.
Appellant was charged with the felony offense of aggravated sexual assault of a child under fourteen (14) years of age. Appellant pleaded guilty, without an agreed recommendation as to punishment, to the charge. The trial court accepted appellant's plea as voluntary and assessed his punishment at five (5) years confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a motion for new trial alleging ineffective assistance of counsel, which the trial court denied. In a single point of error, appellant contends that the trial court erred in denying his motion for new trial because he was denied effective assistance of counsel at the time of his plea. We affirm.
In his sole point of error, appellant alleges that the trial court erred in denying his motion for new trial because he did not have effective assistance of counsel at the time he pled guilty. Specifically, appellant alleges that his trial counsel, Hector Chavana, misinformed him about the possibility of deportation and failed to meet with him while in jail.
The granting of a motion for new trial on the ground of ineffective assistance of counsel is a matter entirely within the trial court's discretion. Tex.R.App.P. 30(b); State v. Thomas, 768 S.W.2d 335, 336 (Tex.App. Houston [14th Dist.] 1989, no pet.); Messer v. State, 757 S.W.2d 820, 827 (Tex.App. Houston [1st Dist.] 1988, pet. ref'd) (opinion on rehearing); Jiminez v. State, 727 S.W.2d 327, 328 (Tex.App.Houston [1st Dist.] 1987, no pet.). When considering a motion for new trial, the trial judge possesses broad discretion in assessing the credibility of witnesses and in weighing the evidence to determine whether a different result would occur upon retrial. Messer, 757 S.W.2d at 827. The trial judge's findings should not be disturbed unless an abuse of discretion has been shown. Tollett v. State, 799 S.W.2d 256, 259 (Tex. Crim.App.1990).
*840 At the hearing on the motion for new trial, the trial court is authorized to hear evidence by affidavit or otherwise and to determine the issues. Tex.R.App.P. 31(d). In this case, appellant's motion for new trial was heard on affidavits and testimony. The affidavits of appellant and his trial counsel, Hector Chavana, were presented at the hearing. After hearing all of the evidence, the trial court denied appellant's motion for new trial. We must now determine if the trial court abused its discretion.
A defendant in a criminal case is entitled to reasonably effective assistance of counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App.), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1986); Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim.App.1980). We are guided by the federal standard enunciated in Strickland v. Washington in determining whether a defendant received effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Wilkerson, 726 S.W.2d at 548. The defendant must show: (1) counsel's performance was deficient, and (2) the deficient performance may have fatally prejudiced the defendant's case. Essentially, appellant must show that (1) counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is defined as a probability sufficient to undermine confidence in the outcome. Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App.), cert. denied, ___ U.S. ___, 113 S.Ct. 245, 121 L.Ed.2d 178 (1992).
Judicial scrutiny of counsel's performance must be highly deferential. We must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. An ineffectiveness claim cannot be demonstrated by isolating one portion of counsel's representation. McFarland v. State, 845 S.W.2d 824, 843 (Tex.Crim.App.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993). Therefore, in determining whether the Strickland test has been met, counsel's performance must be judged on the totality of the representation. Strickland, 466 U.S. at 670, 104 S.Ct. at 2056. The defendant must prove ineffective assistance of counsel by a preponderance of the evidence. Cannon v. State, 668 S.W.2d 401, 403 (Tex.Crim.App.1984).
In the present case, appellant contends that his trial counsel, Chavana, was ineffective for two reasons. First, appellant alleges that Chavana told him that if he pleaded guilty and received deferred adjudication, he would be subject to deportation. He claims, in effect, that this assertion induced him to plead guilty. In Chavana's affidavit, he stated that he told appellant that "even if he were granted any form of a probated or deferred sentence, that he would be subject to deportation, denial of naturalization, or exclusion from admission to the United States, based on the fact that he was not a citizen." We note appellant's trial counsel's statement was correct as to regular probation, but not as to deferred adjudication because the trial court makes no finding of guilt. See Tex.Code Crim.Proc.Ann. art. 42.12, § 5 (Vernon Supp.1993). Chavana's advice, even though partially incorrect, did not automatically result in ineffective assistance of counsel warranting reversal. Appellant has failed to show that but for the advice he would have changed his plea.
The record reveals that on August 21, 1992, appellant pled guilty to the charge of aggravated sexual assault of a child under fourteen (14) years of age. Before accepting the plea, the trial court fully admonished appellant concerning the consequences of his plea in accordance with article 26.13 of the Texas Code of Criminal Procedure. Appellant signed the written admonishments, which specifically set out the possibility of deportation for non-citizens. The written admonishments expressly stated:
Pursuant to Article 26.13(d), Code of Criminal Procedure, the court admonishes you the Defendant as follows and instructs you to place your initials by each item if you fully understand it:
*841 (6) If you are not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense with which you are charged in this case may result in your deportation, or your exclusion from admission to this country, or your denial of naturalization under federal law.
Now Comes the Defendant in the above captioned cause and makes the following statements and waivers prior to the court accepting my plea of guilty or plea of nolo contendere.
(8) I fully understand the consequences of my plea herein, and after having fully consulted with my attorney, request that the trial court accept said plea;
(9) I have freely, knowingly and voluntarily executed this statement in open court with the consent of and approval of my attorney.
The record reveals that appellant initialed each paragraph of the written admonishments, including those cited above.
At the hearing on the motion for new trial, the trial court stated the following to appellant's counsel, Tom Zakes:
Mr. Zakes, you understand the law states that this is not a basis for deportation. I will go ahead and announce on the record that the Court will not take that as any negative effect on Mr. Perrett because if anything that might have caused him from the very beginning to ask for a jury trial and hope to be acquitted knowing that if he got deferred adjudication, that he would still, maybe, be deported. He still came before me, entered a plea of guilty, and was hoping to receive probation. And the Court very well remembers Mr. Perrett and does remember Mr. Perrett was unhappy that he did not get probation. Mr. Perrett perhaps was not aware that the Court could have just as well given him 60 years for violating a young girl of under 14 years of age while the defendant is a man of 22 years. I gave him a break and sentenced him to the minimum of five years. The record will reflect that the mother of the child was not opposed to probation. No representation was ever made in this courtroom that the mother's wishes or lack of opposition would automatically guarantee anybody probation on a crime as horrible as this.
Assuming appellant had pled not guilty, and the jury had found him guilty, he would still be subject to deportation. Appellant has failed to show any harm by his counsel's incorrect statement. Despite the alleged erroneous advice and the court's oral and written admonishments, appellant still entered a plea of guilty.
The trial court also noted that appellant entered a plea of guilty hoping to get probation. On August 21, 1992, Chavana filed a Motion for Probation, which was signed by appellant. The entry of a guilty plea in hope of escaping the possibility of a higher sentence will not invalidate a guilty plea. See, e.g., Galvan v. State, 525 S.W.2d 24, 26 (Tex.Crim.App.1975).
Secondly, appellant asserts that he was harmed by his trial counsel's failure to meet with him in the jail for individual consultations, which were not available in court. We disagree. In Chavana's affidavit, he stated that: "I spoke with him on July 20 and August 14 in court regarding his case. I did not visit him at anytime in the Harris County Jail." Appellant has failed to specifically show how meeting with his counsel at the jail would have benefitted his defense. See, e.g., Yuhl v. State, 784 S.W.2d 714, 717 (Tex. App.Houston [14th Dist.] 1990, pet. ref'd). Moreover, appellant has failed to show how jail consultations, as opposed to court consultations, would have impacted the outcome of the case.
The State's attorney testified at the hearing that he spoke with Chavana on several occasions about appellant's case. Also, the State maintained an open file, and Chavana looked through the file, which included the offense report and medical records from the rape kit exam at the hospital.
After reviewing the totality of the representation, we find that the first prong of Strickland has not been satisfied because the evidence failed to show the performance of appellant's trial counsel was deficient. The fact that appellant's counsel made mistakes *842 at trial, and other counsel might have tried the case differently, does not show ineffective representation. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App.1984). In this case, the two alleged errors do not rise to the level of ineffective assistance of counsel so as to warrant reversal. Thus, appellant failed to establish the initial showing of ineffective assistance of counsel. And even if such alleged errors were assumed to be below the standard, there is no showing that the result would have been different. We find that the trial court did not abuse its discretion in denying appellant's motion for new trial and overrule appellant's sole point of error.
Accordingly, the judgment of the trial court is affirmed.
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508 P.2d 8 (1973)
The HARTFORD INSURANCE GROUP, aka Hartford Fire Insurance Company, aka Hartford Accident and Indemnity Company, an insurance corporation, Appellant,
v.
Eugene WINKLER, Individually, et al., Respondents.
No. 6924.
Supreme Court of Nevada.
April 2, 1973.
*9 Rose, Norwood & Edwards, Ltd. and Roger L. Hunt, Las Vegas, for appellant.
Beckley, DeLanoy & Jemison, Las Vegas, for respondents.
OPINION
MOWBRAY, Justice:
This is an appeal from an order of the district court denying appellant's motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. NRCP 50(b).[1]
The Winklers, who are the respondents on appeal and who were the plaintiffs below, commenced this action against the appellant, The Hartford Insurance Group, as a second insurer of Tonya Webb, to recover damages the Winklers suffered when the vehicle in which they were riding was struck by an automobile driven by Tonya but owned by her parents, Mr. and Mrs. Archie Hughes. The Winklers first sued Tonya. Her parents' insurer provided a defense and later offered full policy limits in an effort to settle the case. Upon advice of her counsel, Tonya stipulated *10 that judgment be entered in favor of the Winklers and against her and that the policy limits of her parents' insurer be accepted as partial satisfaction of the judgment. Additionally, Tonya assigned to the Winklers whatever rights she had under the policy of her former husband, Edward Webb, in exchange for the Winklers' agreement not to levy execution on any of Tonya's property, but to look solely to the policy for recovery on the judgment.[2]
Hartford initially denied liability on the ground that Tonya was not a resident of her husband's household at the time of the accident, and later upon the additional ground that Tonya was not driving a "non-owned" vehicle when she struck the Winklers' car. A jury trial was held on the issue of whether Tonya Webb was covered under her former husband's policy. The jury found that Tonya was so covered and returned a verdict in favor of the Winklers for $58,450.
After the jury's verdict was returned, appellant moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The motion was predicated upon Hartford's contentions that Tonya Webb was barred as a matter of law from recovery under the policy because (1) Tonya was not a named insured at the time of the accident, since she was not then a resident of her husband's household and (2) if she were, she was precluded from recovery because she was not operating a nonowned vehicle when the accident occurred.
Edward and Tonya were married on December 24, 1963, and they took up residence in Arizona. During the latter part of March or early April 1965, Tonya visited her parents in Mesquite, Nevada. While she was visiting her parents, she filed for a divorce in Nevada, on May 13, 1965. On June 25, 1965, after the divorce action had been filed, but before the divorce was granted, Tonya, while driving her parents' car in Utah, failed to heed a stop sign at a highway intersection and collided with the Winkler vehicle. Tonya and Edward were divorced on August 16, 1965.
After their marriage, Edward applied to Hartford for an insurance policy in his and Tonya's names. The policy was issued on January 8, 1964, in the name of Edward only.[3] The policy was purchased with funds of the community. It was Edward's intention to obtain coverage for Tonya as well as for himself. The premium was the same whether or not Tonya was specifically named therein as an insured. When the policy was issued, Tonya also received a card from Hartford indicating she was insured under the policy, as did Edward. The definition of the named insured as set forth in section 1, page 2, of the policy is as follows: "`[N]amed insured' means the individual or husband and wife named in Item 1 of the declarations, but if only one individual is named the term `named insured' also includes his spouse, if a resident of the same household."
It would appear from the record that, even though Tonya was not specifically named as an insured in the policy when issued, she was covered at that time. Mr. James Burns, Hartford's expert witness, testified in substance that a wife would receive the same coverage as her husband, whether or not she was named in the policy, providing she was a resident of her husband's household at the time the policy was issued. Indeed, during oral argument, counsel for Hartford, upon questioning by the court, conceded that Tonya was a named insured within the provisions of the policy at the time of its issuance. It is only reasonable to assume that at the time the policy was written the parties who purchased it believed that both of them were covered by the policy. In this case, the *11 policy is silent as to when the wife had to be a resident of her husband's household. The trier of fact could properly conclude that, when the wife was a resident of the household at the time the policy was issued and the policy is silent as to the time the wife had to be a resident of her husband's household, she qualified as a "named insured" as long as she remained the husband's spouse. As the Arizona court declared in Eureka-Security Fire & Marine Ins. Co. v. Simon, 1 Ariz. App. 274, 401 P.2d 759, 762-763 (1965), rehearing denied June 10, 1965, review denied July 6, 1965:
"... The courts have said:
"`Contracts of insurance are not to be construed to relieve insurance companies that write them from coverages broader than they intended and from coverages they would not advisedly have taken, it to do so is to leave one without protection who might reasonably be held to be within the policy's provisions. Contracts of insurance are always construed most strongly against the insurance company. Garnsky v. Metropolitan Life Insurance Co., 232 Wis. 474, 287 N.W. 731, 124 A.L.R. 1489; 32 C.J. 1152; 29 Am.Jur., Secs. 166-167.' Johnson v. Maryland Casualty Co., 4 Cir., 125 F.2d 337 at 340 (1942).
"Stated another way, a policy of insurance is to be construed liberally in favor of the insured and strictly against the insurer. North British & Mercantile Ins. Co. v. San Francisco Securities Corporation, 30 Ariz. 599, 249 P. 761 (1926); Maryland Cas. Co. v. Hoffman, 75 Ariz. 103, 252 P.2d 82 (1952). It has been stated that the reason for this rule is that the insured usually has no choice in the selection or means employed in drafting insurance contracts, and that because these contracts are drawn and selected with great care and deliberation by expert legal advisers either employed by or acting exclusively in the interest of the insurance company, any ambiguity or uncertainty therein is the fault of the insurer. Berry v. Acacia Mutual Life Ass'n, 49 Ariz. 413, 67 P.2d 478 (1937)."
In this case the trial judge so instructed the jury, and properly so.[4]
In Aetna Casualty and Surety Company v. Miller, 276 F. Supp. 341 (D.Kan. 1967), a policy was issued only in the name of the husband. At the time of the accident a divorce was pending between the husband and wife, and they were living in different states. In Aetna, the court held as a matter of law, quoting from Cal-Farm Insurance Company v. Boisseranc, 151 Cal. App. 2d 775, 312 P.2d 401 (1957), that the term "resident" had no absolute meaning, and that the meaning varied according to circumstances. Accordingly, the federal court in Kansas said that the wife was a resident of the same household as her husband at the time of the accident. 276 F. Supp. at 347, 348, the federal court stated:
"Other cases in point [besides Cal-Farm] are Olson v. Standard Marine Insurance Co., 109 Cal. App. 2d 130, 240 P.2d 379; Mazzilli v. Accident & Casualty Ins. Co., 35 N.J. 1, 170 A.2d 800; Central Manufacturers' Mutual Ins. Co. of Van Wert, Ohio v. Friedman, 213 Ark. 9, 209 S.W.2d 102, 1 A.L.R. 2d 557.
"The Court has no difficulty in concluding, as a matter of law under the factual situation here posed and well-grounded court decisions, the particular provisions of the automobile liability insurance policy before the Court are ambiguous, uncertain and equivocal in phraseology, and thus incapable of uniform connotation.
*12 "...
"One of the great shames of American society is the ever-increasing divorce rate and breakup of families which lead to increased crime, social and economic irresponsibility, and a lessening of the moral fiber of good citizenship. Couple this with the population explosion and great increase in motor vehicle traffic in a mobileminded nation. If it were necessary as a condition precedent to driving an automobile on a public highway under the protection of the Financial Responsibility law, to examine the marital status of every driver to find out whether he was married, divorced or separated temporarily from his fireside, bed and spouse, by duty, business, or a family quarrel, no citizen using the highway could ever reasonably expect to be protected by the other motorists' compliance with the state laws requiring the carrying of automobile liability insurance.
"This Court does not believe that an insurance company, doing business as a quasipublic institution, can or should be able to avoid liability under ambiguous provisions of a policy by attempting to require the spouse of the policy owner as an `insured' to remain under the same roof and in the same physical household during the legal existence of a marriage. Neither does this Court believe it is incumbent upon a user of the highways to conduct a `bed check' to see if another motorist is fully and safely insured by the fact that conjugal bliss is present in his home at the time."
The jury could properly conclude that Tonya was a named insured under the provisions of the policy at the time of the accident.
We turn to consider Hartford's contention that, even if Tonya was covered by her prior husband's policy, she is barred from recovery in this case because she was not driving a nonowned automobile at the time of the accident. The policy provided coverage for those insured thereunder when operating a nonowned vehicle. A nonowned vehicle is described in the policy as one not owned by, or furnished to, or available for the regular use of, either the named insured or a resident of the same household.
Tonya had been living with her parents about 3 months when the accident occurred. Ann Hughes, Tonya's mother, testified that Tonya seldom used the car. Tonya, on the other hand, testified that she used the car often when in Mesquite prior to leaving for summer school in Utah. There was only one key for the car. Tonya, if using the car other than about town in Mesquite, had first to obtain her parents' permission. There was no testimony as to any usage by Tonya during the month of June, when she and her mother attended summer school in Utah. It was on their first trip home from summer school that Tonya, accompanied by her mother, had the accident.
While past use of an automobile is relevant in determining whether the automobile was regularly available to Tonya, the critical time period would be the month of June. In American Casualty Co. v. Lattanzio, 78 N.J. Super. 404, 188 A.2d 637, 641 (1963), the court stated:
"... Evidence as to the past history of the use of the automobile is of assistance in determining whether there was such an arrangement, but it is the condition which obtained at the time of the accident which governs, and evidence of the past use of the automobile must be related to this date."
The single fact that Tonya did not have a key to the automobile and was required to obtain permission to use the automobile is in itself sufficient to support a finding that the automobile was not available for her regular use. American Casualty Co. v. Lattanzio, supra, continues, at 641:
"... A requirement that specific authorization be obtained as a prerequisite to the use of the vehicle would sustain a finding that it was not `furnished' for his regular use. Likewise, evidence that the insured *13 was without access to the vehicle or the keys required to operate it, would constitute strong evidence to the same effect. Assuming that the vehicle was furnished to him, it would remain to be determined whether it was furnished for his regular use. If the use for which the vehicle was furnished was an irregular, infrequent or casual one, it would not come within the exclusionary clause and hence would be covered by the policy."
In the case of Motorists Mutual Ins. Co. v. Sandford, 8 Ohio App. 2d 259, 221 N.E.2d 596, 597 (1966), the court defined "regular":
"`Regular,' as defined by Webster's New International Dictionary, means constant, systematic. It has been defined as steady, methodical."
The term "regular use" also has been defined by the Arizona court in Travelers Indemnity Company v. Hudson, 15 Ariz. App. 371, 488 P.2d 1008, 1012 (1971):
"... The phrase `regular use' is undefined in the policy. However, the term denotes continuous use; uninterrupted normal use for all purposes; without limitation as to use; and customary use as opposed to occasional use or special use... ."
In the instant case, it cannot be said as a matter of law that Tonya was not driving a nonowned vehicle at the time of the accident and thus was barred from recovery. We conclude, therefore, that the trial judge's finding that Tonya was not precluded from recovery under the policy as a matter of law was proper and correct.
Hartford next complains that the trial judge improperly instructed the jury. Although conceding the propriety of Instruction 19, supra, appellant urges that that instruction should have been amplified by Proposed Instruction D-2, which provided as follows:
"However, if you determine that the language of the insurance policy is clear and unambiguous, then the policy of insurance must be construed according to the ordinary, plain meaning as would to any type of contract. You must then determine the facts as they exist in this case and apply them to the contract as you find it."
We do not agree. Instruction 19 properly stated the law governing the issue involved. Eureka-Security Fire & Marine Ins. Co. v. Simon, 1 Ariz. App. 274, 401 P.2d 759 (1965), supra. Proposed Instruction D-2 added nothing thereto, and it was proper to reject it.
Additionally, appellant argues that the trial judge erred in refusing to give Proposed Instructions D-3 through D-7.[5] The *14 judge did give, without objection, Instruction 19-B, which read as follows:
"In order for the Plaintiffs to recover in the present action, Plaintiffs must establish that on June 25, 1965, the time of the Winkler accident, Tonya Webb was entitled to the insurance coverage afforded to a named insured operating a non-owned vehicle within the meaning of the Hartford policy admitted into evidence."
Proposed Instructions D-3 through D-7 covered in general the same ground as Instruction 19-B. It is not error for a trial judge to refuse additional instructions that cover the same ground as an instruction already given. Eikelberger v. State ex rel. Dep't of Hwys., 83 Nev. 306, 311, 429 P.2d 555, 558 (1967). Further, Proposed Instructions D-3 through D-7 are couched in the language of "formula" instructions. The use of formula instructions is described in Ivie v. Richardson, 9 Utah 2d 5, 336 P.2d 781, 786 (1959):
"... This kind of instruction, sometimes referred to as a `formula' instruction, which makes a recital in accordance with the contention of a party and ends with the conclusion: `* * * and if you so find, then your verdict must be for [the party]' is not generally a good type of instruction to give. This is so because it lends itself to the error just noted [it fails to take into account the possible contributory negligence of the party] and also because it tends to be argumentative rather than to set out the principles of law applicable to the issues impartially as to both parties. For such reasons it is better to avoid giving instructions of that type." (Footnote omitted.)
The jury had before it the insurance policy which was received in evidence. The policy, read in connection with Instructions 19, 19-A, and 19-B, fully advised the jury as to the issues and the burden of proof involved in the case.
We find no error in the manner in which the trial judge instructed the jury.
The remaining assignments of error have been fully considered, and we find them wholly lacking in merit. N.R.S. 178.598.
The order of the district judge, denying appellant's motion for a judgment notwithstanding the verdict or, in the alternative a new trial, is affirmed.
THOMPSON, C.J., and GUNDERSON, BATJER and ZENOFF, JJ., concur.
NOTES
[1] NRCP 50(b):
"(b) Motion for Judgment Notwithstanding the Verdict. Not later than 10 days after service of written notice of entry of judgment, a party, whether or not he has moved for a directed verdict, may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion; or if a verdict was not returned, such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial."
[2] Edward and Tonya were still married at the time of the accident, but they were divorced soon thereafter.
[3] The copy of the application produced by Hartford at trial indicated that Tonya's name had been crossed out, but there is nothing in the record to indicate who did so.
[4] Instruction 19 provided as follows:
"The language of an insurance policy should be considered not in accordance with what the insurer intended the words to mean, but what a reasonable person in the position of insured would have understood them to mean. If the contract was prepared by the insurer and contains provisions reasonably subject to different interpretations, one favorable to the insurer and one advantageous to the insured, the one favorable to the insured will be adopted."
[5] Proposed Instruction No. D-3:
"In considering this case, you must consider all facts to determine whether or not Tanya [sic] Hughes Webb Cromer fits within the policy definitions as set forth in the policy of insurance present in this case. If you find that on June 25, 1965 she did not qualify under certain of the policy definitions, then in that event you must find for the Defendant."
Proposed Instruction No. D-4:
"In considering this case, you must determine whether or not Tanya [sic] Hughes Webb [Cromer] was the insured as set forth by the definition of the policy. You must further determine whether the automobile she was driving on the day of the accident, July [sic] 25, 1965, was a non-owned vehicle as defined by the policy. If you determine under the facts that Tanya [sic] Hughes Webb [Cromer] was not a named insured or was not driving a non-owned automobile as defined by the terms of the policy of insurance issued by the Defendant, Hartford Insurance Group, then you must find for the Defendant."
Proposed Instruction No. D-5:
"In considering this case, you must determine whether or not Tanya [sic] Hughes Webb Cromer fits within the policy definitions of a named insured and was driving a non-owned automobile as defined by the said policy. If after considering the facts you find that the policy of insurance does not cover her with respect to either or both of the said definitions, then your determination must be for the Defendant."
Proposed Instruction No. D-6:
"You are instructed that the definition of `non-owned automobile' is as follows:
"`"Non-Owned automobile" means an automobile not owned by or furnished or available for the regular use of either the named insured or any resident of the same household, and includes, while used therewith, a home trailer not owned by the named insured or a utility trailer, but "non-owned automobile" does not include a temporary substitute automobile.'
"If you find that Tanya [sic] Hughes Webb Cromer was not driving a vehicle within the above definition of `non-owned automobile', then you must find for the Defendant."
Proposed Instruction No. D-7:
"In considering this case, you must determine whether Tanya [sic] Hughes Webb Cromer fits within the policy definition of `named insured'. Such definition reads as follows: `"named insured" means the individual or husband and wife named in Item 1 of the declarations, but if only one individual is named, the term "named insured" also includes his spouse, if a resident of the same household'. `Item 1 of the declarations' reads as follows, `Webb, Edward M., Box 639, Taylor, Arizona'.
"Whether Tanya [sic] Hughes Webb Cromer falls within the above definition is for you to determine. If you determine that she does not, you must find for the defendant."
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403 S.W.2d 594 (1966)
STATE of Missouri, Respondent,
v.
Leroy GOOD, Appellant.
No. 51831.
Supreme Court of Missouri, Division No. 1.
June 13, 1966.
*595 Norman H. Anderson, Atty. Gen., Donald R. Wilson, Asst. Atty. Gen., Jefferson City, for respondent.
Dewey S. Godfrey, Jr., St. Louis, for appellant.
HOUSER, Commissioner.
Leroy Good appeals from the judgment of the Circuit Court of the City of St. Louis, Division No. 1, overruling his motion, filed under Criminal Rule 27.26, V.A.M.R., to vacate the judgments and sentences imposed in three cases.
On June 26, 1963 appellant was sentenced to three consecutive five-year terms in the penitentiary on three separate charges, two of which were statutory rape and one of which was sodomy. After he was confined in the penitentiary he filed this proceeding, alleging that he was sentenced in violation of state and federal constitutions and laws, for the reason that the sentences "are unjust, severe, arbitrary and amount to excessive punishment and that at the time he was sentenced he had been advised by his counsel of record * * * that he was to receive two years on each of said cases, said two-year sentences to run concurrently and not consecutively. * * * that this Petitioner was unable to understand and comprehend the meaning of the Court, *596 when, during the course of said sentencing, he was asked if he fully understood that the Court could sentence him to the full limit of the punishment as allowed by the statutes of the State of Missouri and that at the time of being so questioned by the Court he remained under the full idea and comprehension that he was to be sentenced to a sentence of two years concurrently on all three charges."
The circuit judge conducted a hearing on the motion on October 15, 1965. Appellant was present and was represented by counsel. Appellant testified, as did his former counsel, Mr. Curtis, who represented him when he entered his pleas of guilty. A transcript of the hearing of June 26, 1963 was introduced in evidence. Appellant originally pleaded not guilty. On the date last mentioned he and Mr. Curtis appeared in court, withdrew the pleas of not guilty and entered a plea of guilty to each of the three charges, whereupon counsel for the state recommended two years on each charge, to run concurrently, for a total of two years. The following then transpired:
"The Court: You understand that I'm not bound by that. You understand that Mr.your name is Leroy Good?
"Mr. Good: Yes, Your Honor.
"The Court: You have been convicted on three prior occasions, is that correct?
"Mr. Good: Yes, sir.
"The Court: And you understand in the case here, No. 411-L, that you are charged with Statutory Rape? You understand that Mr. Curtis who has served as your attorney indicated that you wanted to enter a plea of guilty to that charge?
"Mr. Good: Yes, I told Mr. Curtis that.
"The Court: You did that of your own free will?
"Mr. Good: Yes, Your Honor."
The court then questioned appellant for some time and in considerable detail with respect to the facts in each of the three cases, and ascertained that in each case appellant had voluntarily authorized his attorney to plead guilty for him. Then the following occurred:
"The Court: You understand there has been no promise made to you of any kind or character?
"Mr. Good: No promise, never made any promise, no.
"The Court: You understand that you're entitled to trial by Jury in the event you see fit to have a jury trial?
"Mr. Good: I understand that, yes, sir.
"The Court: You understand that the Court is not bound to take any recommendation of the State?
"Mr. Good: Recommendation of the State?
"The Court: You understand that I'm not bound to take any recommendation of any kind or character?
"Mr. Good: Yes, sir.
"The Court: You understand that?
"Mr. Good: Yes, sir, I do, yes.
"The Court: I will not take the recommendation of the State in Cause No. 411-L. Is there any reason you should not be sentenced at this time.
"Mr. Curtis: No legal reason why he shouldn't be sentenced.
"The Court: All right. 411-L, on Indictment for Statutory Rape, the defendant will be sentenced to five years in the Missouri State Penitentiary.
"Any legal reason why you should not be sentenced in Cause No. 412-L?
"Mr. Good: No, Your Honor.
"The Court: Cause No. 412-L on the charge of Sodomy the defendant will be sentenced to five years in the Missouri State Penitentiary. Such sentence shall run consecutively to the sentence imposed in *597 Cause No. 411-L, and the total is ten years.
"Cause No. 413-L, any legal reason why you should not be sentenced?
"Mr. Good: No, Your Honor.
"The Court: The defendant will be sentenced to a term of five years in the Missouri State Penitentiary to run consecutively to the sentence heretofore imposed in 411-L and 412-L for a total of fifteen years. That's for the three cases.
"Do you want to make application for jail time?
"Mr. Curtis: Yes, Your Honor.
"The Court: Jail time will be allowed in the three matters. The Defendant will be ordered committed to the Department of Corrections for, to serve the sentences and be remanded to the custody of the Sheriff at this time.
"Mr. Good: Did I hear you correctly, Your Honor, Oh, please.
"The Court: Tell me what you thought you heard?
"Mr. Good: Did you say fifteen years in the Penitentiary?
"The Court: Yes, five, five and five.
"Mr. Good: Oh, Your Honor, please, sir.
"The Court: Remanded to the custody of the Sheriff.
"Mr. Good: Oh, oh. * * *"
At the hearing on October 15, 1965 appellant testified that while awaiting trial Mr. Curtis visited him at the jail and told him that the circuit attorney would recommend a two-year sentence in the penitentiary, to run concurrently on all three charges; that he entered a plea of guilty to these charges with that in mind, and that he thought he would receive and expected to receive a sentence on that basis, that is, two years on each charge, to run concurrently, and not consecutively, for a total of two years. He remembered and acknowledged the accuracy of the record of the questions and answers given at the hearing of June 26, 1963, including the fact that the judge had told him that he was not bound by the circuit attorney's recommendation of two years and that he had assured the court that no promises were being made for his plea of guilty. He conceded that he had made no objection after each five-year sentence was imposed, claiming that he had been thinking only of the two-year recommendation. He further claimed that prior to entering the pleas of guilty he was not informed by the court or by anyone acting for the court as to the range of punishment for charges of statutory rape and sodomy, and that he did not know exactly what maximum sentence he could receive.
Mr. Curtis on June 26, 1963 had been a member of the bar for one year. He testified that he advised appellant that the circuit attorney would recommend two years on each count, to run concurrently; that appellant "may have known" that the recommendation was not binding on the judgethat he so informed his clientbut that based on his experience as a lawyer and what other lawyers had told him, he informed appellant that the recommendation of the circuit attorney was always acceptedthat for all practical purposes the judge was sure to accept the recommendation. Mr. Curtis knew the range of punishment prior to the entry of the pleas but did not remember whether he told appellant the range of punishment. No objection was raised by Mr. Curtis at the time the three sentences were passed and he gave the court no reason why appellant should not be sentenced to five-year terms. After the sentences were passed, perhaps that afternoon, Mr. Curtis asked the judge to set aside the sentences so that not guilty pleas could be entered, but "it was too late." Mr. Curtis did not file a motion to set aside the sentences and withdraw the pleas of guilty, although he understood that the court had control over the sentences and *598 judgments for thirty days after entry of judgment.
There was in evidence a report to the circuit judge of an examination of appellant at a hospital, dated June 5, 1963, which stated: "Because of his age and the mild degree of organic brain damage, he is not a candidate for any extensive psychotherapy. However, under a certain amount of external controls, it is unlikely that he would repeat his actions with minors in the future as he has demonstrated in the past with these controls. Any form of long term institutionalization would be of no therapeutic benefit, nor would it serve to punish him nor to protect society."
On this appeal it is claimed that the court erred in failing to fully determine whether appellant knew the exact nature of the charges filed against him; whether appellant knew the full range of punishment that could be imposed for these charges, or whether appellant was proceeding under some misapprehension or mistake in entering the pleas. Appellant's theory is that he did not know and understand the consequences of his plea; that he was induced to plead guilty by the holding out of hope which proved to be false and that he is the victim of mistake and misapprehension. It is argued that appellant had less than an eighth grade education, some organic brain damage, and a striking personality trait that made it virtually impossible to obtain a direct yes or no answer from him; that when a court knows that a defendant pleading guilty is relying upon receiving a certain number of years of imprisonment the judge, in addition to notifying defendant that the court will not be bound by the recommendation, should tell defendant what the judge has in mind relative to a sentence, ask if he still wants to proceed on his plea of guilty or go to trial, and permit him to withdraw his plea of guilty and consult further with counsel as to further procedure.
The State contends that appellant's motion states no right to relief under Criminal Rule 27.26, V.A.M.R.; that this procedure may not be used in lieu of an appeal; that the proper procedure would have been to file a motion to vacate and set aside the judgment and sentence, and to appeal from an order overruling the same on the ground that the trial court abused its discretion, as was done in State v. Williams, Mo.Sup., 361 S.W.2d 772. In proceedings under Criminal Rule 27.26 this Court on many occasions has determined whether the defendant understood the consequences of his plea, State v. Bursby, Mo.Sup., 395 S.W.2d 155, 159; State v. Blaylock, Mo.Sup., 394 S.W.2d 364, and whether the defendant was misled or under any misapprehension when he entered his plea of guilty, State v. Williams, Mo.Sup., 391 S.W.2d 227; State v. Waller, Mo.Sup., 382 S.W.2d 668; State v. Harris, Mo.Sup., 382 S.W.2d 642; State v. Richardson, Mo.Sup., 347 S.W.2d 165; State v. Freedman, Mo.Sup., 282 S.W.2d 576, and we will review these questions on this appeal.
Did appellant know the exact nature of the charges filed against him? Of this there can be no question. He testified that during the year 1963 he was indicted by the grand jury on three charges of sodomy, rape and statutory rape, and that he was duly arraigned and entered pleas of not guilty thereon. The charges must have been read to him when he was "duly arraigned." He was 68 or 69 years of age, and although he had less than an eighth grade education he had served in the Marine Corps in 1920, had been employed for years as a journeyman printer, and his responses to the questions asked indicate that he was intelligent and capable of understanding. Nor was appellant an uninformed novice in sex crimes. In 1950 he was convicted on a charge of rape and two charges of sodomy. He received three concurrent three-year sentences and served time in the penitentiary thereon. At the hearing of June 26, 1963 he was represented by a lawyer of his own choosing, who consulted with him while he was in jail. When he came before Judge Casey *599 on June 26, 1963 he was very carefully informed as to each of the three charges, and in each case was separately and thoroughly questioned by the judge as to the age and the race of the girl involved, the date and place of each offense, exactly what they did together and how they did it, in detail. At the hearing appellant testified that he pled guilty and admitted all of these offenses, stated to the court that there was no question of his guilt and said "I know I should be punished."
Did appellant know the full range of punishment that could be imposed for these charges? The record does not show that appellant was informed by the court of the minimum and maximum punishment that could be imposed on each charge and that the sentences could run concurrently or consecutively. We have said that it is the duty of the court to question the accused carefully to determine that he is fully informed and correctly understands these things, and that a perfunctory examination will not suffice. State v. Bursby, supra. Appellant, who had the burden of proving the invalidity of the sentences, State v. Warren, Mo.Sup., 344 S.W.2d 85, testified that he was never "informed by the Court or by anyone acting on behalf of the Court, as to the range of punishment for the charges of statutory rape and sodomy" and that he did not "exactly" know the maximum sentence possible. (Our italics.) He did not establish, however, that he was not informed by others or that he did not know that he could get as much as five years on each charge. He must have known that he could get at least three years for rape and sodomy, because he had received three-year sentences for these crimes in 1950. In Bursby the accused was sentenced without the benefit of counsel, whereas appellant Good had counsel of his own choosing at his side. Considering the experience of appellant in sex crimes, his previous convictions and incarceration in the penitentiary on charges of rape and sodomy, and the fact that he was represented by and had advised with his own lawyer, who knew the range of punishment, we conclude that there was sufficient evidence upon which to base a finding that this appellant knew and understood that he could receive up to five years on each of the three charges, and that the sentences could be made to run consecutively, and we so find.
Was appellant proceeding under some misapprehension or mistake in entering the pleas? The law is clear that if an accused is misled or induced to plead guilty by mistake, misapprehension, persuasion, or the holding out of hopes which prove to be false or illfounded, he should be permitted to withdraw his plea. State v. Cochran, 332 Mo. 742, 60 S.W.2d 1, 2; State v. Williams, supra, 391 S.W.2d, l.c. 234, 235. Obviously, when appellant went before the court for sentencing he thought that he would receive three two-year sentences and that they would run concurrently. Clearly, appellant entertained an illfounded hope that he would receive the lesser sentence. Instead, as it turned out, he received three five-year sentences to run consecutively. Nevertheless, we find no mistake, misapprehension or holding out of false hopes in the legal sense requiring the trial court to permit the withdrawal of the pleas of guilty or requiring this Court to set aside the sentences and judgments.
Before sentence was passed accused and his attorney were not only given a reasonable opportunity to know and realize that they were mistaken in their belief that accused would receive a two-year sentence and that their belief was a misapprehension and a false and ill-founded hope, but also were expressly warned by the sentencing judge that a two-year sentence would not be meted out. This information was brought home to accused and his counsel in ample time to object and request leave to withdraw the pleas of guilty, but they did not object or make such request. After the pleas were entered and the judge had satisfied himself that accused knew what he was charged with and that the guilty pleas were voluntarily entered, the judge *600 next satisfied himself that no promises had been made to the accused to induce the pleas. For a second time he informed accused that the court was not bound to take the recommendation of the state. Then, referring to the first case, the judge positively stated "I will not take the recommendation of the State." The judge, having informed accused only a moment before this that accused was entitled to a trial by jury if he wished, asked if there was any reason why he should not be sentenced at that time. Instead of asking that the plea be withdrawn, which both accused and counsel might well have considered advisable in view of the announced attitude of the judge, accused's counsel stated that there was none, thereby indicating that accused was ready to submit to sentencing with the full knowledge that he would not receive a two-year sentence. A five-year sentence was imposed. Neither accused nor his counsel objected or requested remedial or dilatory action. The judge then granted allocution on the second case and, accused himself stating that there was no legal reason why sentence should not be pronounced, the judge issued a second five-year sentence and decreed that the second run consecutively to the first for a total of ten years. The accused and his counsel still stood silent. The judge then granted allocution on the third case and, no legal reason to the contrary having been advanced, issued a third five-year sentence, to run consecutively to the first two, for a total of fifteen years. From the transcript it may be inferred that accused could hardly believe his ears, but even then neither he nor his counsel objected, asked the court to reconsider, or made any affirmative effort whatever to rectify the situation. Not until later in the day, perhaps that afternoon, did Mr. Curtis ask the court to set aside the sentences.
Appellant was not entitled as a matter of right to withdraw his pleas of guilty. Whether a withdrawal of the pleas should have been allowed was a matter resting in the sound discretion of the trial judge. Appellant, citing State v. Kellar, 332 Mo. 62, 55 S.W.2d 969; State v. Jonagan, 311 Mo. 540, 278 S.W. 775; State v. Hamilton, 337 Mo. 460, 85 S.W.2d 35; State v. Sublett, 318 Mo. 1142, 4 S.W.2d 463, concedes that the trial court's decision on the question will not be overthrown except for an abuse of judicial discretion.
We find no abuse of discretion. A mature, experienced defendant, accompanied by an attorney of his own choosing, appeared before a judge who thoroughly, patiently and pointedly disabused accused and his counsel of their preconceived ideas with reference to the length of term of imprisonment he hoped to receive; in effect offered accused a jury trial even after pleas of guilty were entered, and positively stated that he would not assess the recommended punishment. With full knowledge that the judge would not give him three concurrent two-year sentences accused submitted to allocution and sentence three times without objection and without acting upon the judge's suggestion that he was entitled to trial by jury if he saw fit to have a jury trial. In these circumstances accused may not now complain that the judge did not follow the state's recommendation but assessed a more severe penalty than he had hoped for and anticipated at the time he entered the courtroom for sentencing. See State v. Freedman, Mo.Sup., 282 S.W.2d 576, 581 [3].
There was no duty on the court, as claimed, to "tell defendant what the judge [had] in mind" as to the sentence he intended to impose. State v. Williams, supra, 361 S.W.2d, l.c. 774 [1]; State v. Bursby, supra, 395 S.W.2d, l.c. 159 [4].
The judgment is affirmed.
WELBORN, C., not sitting.
HIGGINS, C., concurs.
PER CURIAM.
The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.
All of the Judges concur.
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403 S.W.2d 953 (1966)
Mildred L. WILSON, Respondent,
v.
EMERY BIRD THAYER COMPANY and Commercial Union Insurance Company of New York, Appellants.
No. 24482.
Kansas City Court of Appeals, Missouri.
April 4, 1966.
Motion for Rehearing and/or Transfer Denied June 6, 1966.
*954 Fred H. Metcalf, Kansas City, for appellants.
Theo C. Anderson, Kansas City, for respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied June 6, 1966.
CROSS, Presiding Judge.
This case arose as a claim under the Workmen's Compensation Law. The employer, Emery Bird Thayer Company and its insurer have appealed from a judgment of the circuit court affirming the Industrial Commission's final award of compensation benefits in the total sum of $3,246.50 to claimant-employee, Mildred L. Wilson. The facts pertinent to the issues for decision are here set out and will be considered in the light most favorable to the prevailing party. Harper v. Home Imp. Co. et al, Mo. Sup., 235 S.W.2d 558.
Claimant testified that on April 27, 1964, and for more than twelve years prior to that date, she was employed by Emery Bird Thayer Company as chief operator of its telephone switchboard. In that capacity *955 she supervised the switchboard and two other operators. On the day above named, at some time between 4:30 and 5:00 P.M., claimant relieved the operator who had previously been on duty. Working alone, claimant proceeded to operate two "positions"her own which directly faced her as she was seated upon a tall "operator's" chair, and the position next adjacent on her right which is identified as the "second position". Each position was a panel of connecting apparatus about two feet wide normally facing the operator to which it was assigned. While so working, claimant reached over to the "second position" to make some "disconnects" by pulling the connecting plugs out of the "jacks" they were in. As claimant "jerked" one of the plugs out, her feet slipped on a metal foot rail, she lost her balance, and she fell in a twisting position from her own operator's chair onto and against the chair next to her, knocking off her headset which fell to the floor. Within a few minutes she suffered pain in her neck, arm and shoulder. She quit work at five o'clock and went home. Her pain was severe that night and became progressively worse. Next morning her daughter called the employer by telephone and gave notice of the accident. At the employer's direction claimant consulted Dr. Flanders, who was the company physician. Dr. Flanders initially treated her on April 28th, 29th and 30th, and then made an appointment for May 5th for claimant to consult Dr. Barnard, an orthopedic doctor with the Dixon-Dively Clinic. Claimant was not consulted as to the selection of Dr. Barnard and had nothing to do with securing the appointment.
Dr. Barnard examined claimant and proceeded to treat her at the clinic. She was given traction and other therapy. Her condition did not improve and on June 29th she entered St. Luke's Hospital on the advice of and through arrangements made by Dr. Barnard. She was there placed in traction and otherwise treated under the care of Dr. Barnard, until the date of her release from the hospital on July 3, 1964. She continued to see Dr. Barnard at the Dixon-Dively Clinic until he released her on September 21, 1964. During this time she was still having pain and complained of trouble she was having in opening her jaws. This was a condition diagnosed as having resulted from the traction she had undergone in the course of her treatment. This jaw condition did not exist prior to her entry in the hospital. In dismissing claimant, Dr. Barnard informed her he could do nothing further for her jaw complaint.
Claimant further sought relief from the pain and disability of her jaw at K. U. Medical Center and from various other physicians, dentists and oral surgeons. She was advised by Dr. McCoy that she needed surgery to relieve the jaw injury. She was unable to avail herself of the recommended operation because she "didn't have any money to pay for it".
It appears by stipulation into the record that "the insurer cut off all medical treatment as of May 20, 1964". At some time, which is not clearly shown, appellants advised the Dixon-Dively Clinic that they would not pay the cost of claimant's medical services after the date above noted. Claimant testified that this fact did not become known to her until early in June, 1964. Notwithstanding, claimant continued to receive the services and treatment (including hospitalization) from doctors which had been selected by appellants, until her release by Dr. Barnard on September 21, 1964. In so doing, and by reason of the employer's refusal to pay for those medical services, she became obligated to pay medical bills totalling $596.50 for medical and hospital services received within the 90 day period and $128.50 for services received thereafter (for which no claim is made).
Claimant presently complains of pain in her back, neck, shoulder and arm, and that she still has the trouble with her jaw, accompanied by "terrible bad earache". She attributes her back pain and jaw condition to the traction she received. She has not *956 returned to work since she sustained her accident and injuries.
Dr. Duncan examined claimant twice and testified on her behalf. He stated that she was suffering from subacute sprain of the neck, upper back region and upper extremity, ("which patient states is due to her occupation in performing her regular work"), aggravated by the contusion and sprain received April 27, 1964 when she slipped and fell against the adjoining chair. It was Dr. Duncan's opinion that claimant's back condition and the injury to the temporomandibular joint (her jaw condition) could have been caused by the traction she received in treatment following her fall and injuries received April 27, 1964. Dr. Duncan testified that as of April 5, 1964 (the date of the hearing before the referee) claimant had a 15 per cent permanent partial disability of the body as a whole.
Dr. Pipkin examined claimant once and testified on behalf of the employer and insurer. He stated that in his opinion claimant had limitation of shoulder motion amounting to 25 per cent arising from an arthritic condition. The fall she had on April 27, 1964 could have aggravated that condition. Dr. Pipkin additionally found some limitation of motion in claimant's cervical spine, disability in her shoulder and arm, and some limitation of motion in her right leg. He did not X-ray claimant's temporomandibular joint because he understood "she was to see a specialist about her jaw".
The referee found that claimant had sustained an accident which arose out of and in the course of her employment with Emery-Bird-Thayer, and in which she received injuries resulting in 10 per cent permanent partial disability. The referee awarded compensation accordingly in the total sum of $1700 and an additional lump sum of $200 for facial disfigurement, but denied claimant an allowance for medical aid expenditures she had made and further denied compensation for a healing period during the 90 day period following the accident.
On final hearing the Industrial Commission made findings of fact and conclusions of law as follows:
"We find from all the credible evidence upon the whole record that Mildred L. Wilson, Employee, sustained injury to her arm, shoulder, upper back, temporomandibular joint and body as a whole as a direct result of an accident arising out of and in the course of her employment with Emery Bird Thayer Company on April 27, 1964.
"We further find from such evidence that Employer and Insurer had notice that Employee sustained a compensable accident on April 27, 1964 and that they refused to provide Employee with necessary medical and hospital treatment to cure and relieve her from the effects of her said injury within the first ninety days following said accident and injury on April 27, 1964, and the Employee was required and did procure such medical and hospital treatment at a cost of $596.50 to her within said ninety day period and the Employer and Insurer are hereby ordered to pay said sum to the Employee. Tr. 78, Slider v. Brown Shoe Company, 308 S.W.2d 306, l.c. 310; Tr. 88 and 89.
"We further find that Employee sustained temporary total disability as a direct result of the aforesaid accident for a period of twenty weeks and that the Employee is entitled to said twenty weeks temporary total disability as a healing period. Tr. 50, 57 and 59.
"We further find from such evidence that Employee sustained ten per cent permanent partial disability to her body as a whole as a direct result of said accident".
On the basis of the quoted findings and conclusions, the Industrial Commission made its final award allowing claimant the total sum of $1700 for permanent partial disability, $596.50 for the value of medical aid not furnished by the employer or insurer, and $950.00 as compensation for a healing period of 20 weeks.
*957 Appellants make no complaint of the findings of fact made by the Industrial Commission. Nor do they question the Commission's award to claimant totalling $1700 for permanent partial disability. In fact, the final statement in appellants' brief is that "the award of the referee should be reinstated". Appellants' brief contains only one point, which is presented in the form of a question, as follows: "Is the employer and insurer liable for costs of medical treatment and increased disability caused by that treatment when the employer refused to authorize it? The same arguments apply to the healing period which is in dispute". As developed in argument, appellants take the position they are not liable (1) for the cost of medical treatment received by claimant after May 20, 1964, (2) for aggravation of her accidental injury resulting from treatment received by her after that date, or (3) for an award for any additional healing period due to such increased disability. We consider these submissions in the order stated.
The right of an injured employee to receive medical, surgical and hospital treatment, and the incumbent duty upon the employer to provide those services, were defined by V.A.M.S., Section 287.140 in effect at the time in question, quoted in pertinent part as follows:
"In addition to all other compensation, the employee shall receive and the employer shall provide such medical, surgical and hospital treatment, including nursing, ambulance and medicines, as may reasonably be required for the first ninety days after the injury or disability, to cure and relieve from the effects of the injury, and thereafter such additional similar treatment as the commission by special order may determine to be necessary. If the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense".
The duty of the employer to provide treatments so required by statute is unqualified and absolute. See Johnson v. Kruckemeyer, Mo.App., 29 S.W.2d 730. In Slider v. Brown Shoe Co., Mo.App., 308 S.W.2d 306 (cited by the Commission in its findings) the court interpreted Section 287.140 as follows:
"Under Section 287.140 RSMo 1949, V. A.M.S. (as amended), an employer has the privilege in the first instance of designating and selecting the physician and hospital to render the care required by the statute. However, if an employer, with notice that an employee has sustained a compensable accident (Aldridge v. Reavis, Mo.App., 88 S.W.2d 265, 267(4)), refuses or neglects to provide or tender necessary medical or hospital treatment, the injured employee need not lie helpless or in pain; but, in such circumstances, the employee may procure necessary treatment (within the statutory limitations) and have an award against the employer for the reasonable cost thereof". (Emphasis supplied.)
Also see Hammett v. Nooter Corp. (App. 1954) 264 S.W.2d 915; Evans v. Chevrolet Motor Co. (1937) 232 Mo.App. 927, 105 S.W.2d 1081, transferred, Sup., 102 S.W.2d 594; Schutz v. Great American Ins. Co. (1937) 231 Mo.App. 640, 103 S.W.2d 904; and Klasing v. Fred Schmitt Contracting Co. (1934) 335 Mo. 721, 73 S.W.2d 1011.
Appellants cannot complain in this case that the employer was denied the right to select the physicians or other agencies of treatment for claimant. She cannot be charged with any refusal to accept the treatment offered by the employer. Nor at any time within the 90 day period did she seek the services of any physician other than those of her employer's choice. On the day following her injury she placed herself in the hands of Dr. Flanders, the employer's physician, at its direction, and in turn accepted the treatment of Dr. Barnard who was selected by Dr. Flanders. While she was under Dr. Barnard's care and prior to her release by him, the appellants arbitrarily, and without any justification *958 shown, "cut off all medical treatment as of May 20, 1964". Under these circumstances claimant was at liberty to procure her own necessary treatment "and have an award against the employer for the reasonable cost thereof". Slider v. Brown Shoe Co., supra. Notwithstanding she had the right to select other doctors and agencies of treatment, she chose to remain with the physicians the employer had originally chosen. Accordingly she continued to accept medical treatment from Dr. Barnard and received hospital treatment upon his advice and by his arrangement. Appellants have refused to pay for those services and claimant has obligated herself to do so. It is convincingly apparent from the record that the services were reasonably necessary. The amounts of charge therefor and their reasonableness have not been questioned. It is our view that these facts constitute competent and substantial evidence sufficient to support the Commission's finding that the employer "refused to provide the Employee with necessary medical and hospital treatment * * * within the first ninety days * * *", and to justify the Commission's award to claimant of a sum representing her expenditures to procure such treatment. The Commission has correctly interpreted and applied V.A.M.S., Section 287.140.
We next consider appellants' contention that the employer is not liable for "the increased disability" caused by the treatment of claimant's injuries, which consist principally of the "new condition in her jaw". The substance of appellants' argument on this question is as follows: "It is the appellants' contention here that the refusal to provide further treatment is an act of control of the medical situation and as such constitutes such an intervening event as to break the chain of causation giving rise to compensability for the new condition".
It is a well established rule in workmen's compensation law that "injuries which follow as legitimate consequences of the original accident are compensable, and such accident need not have been the sole or direct cause of the condition complained of, it being sufficient if it is an efficient, exciting, superinducing, concurring, or contributing cause". Manley v. American Packing Co., 363 Mo. 744, 253 S.W.2d 165. As stated in 1 Larson, Workmen's Compensation Law, Sec. 13.11, p. 192.59: "When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant's own intentional conduct". Thus, "Where, without the fault of the employee, his original compensable injury is aggravated by medical or surgical treatment, there is such a causal connection between the original injury and the resulting disability or death as to make them compensable * *." 99 C.J.S. Workmen's Compensation § 207, p. 670, citing Schumacher v. Leslie, Mo.Sup., 232 S.W.2d 913, (cited and relied upon by appellants).
Concededly, and as all well reasoned authority recognizes, there must be no intervening independent cause to break the chain of causation between the new injury or aggravation and the original injury in order that liability be imposed upon the employer for the consequential results. However, we do not accept appellants' theory that their "refusal to provide further treatment" constitutes the requisite "break" in the chain of causation necessary to relieve them from liability for claimant's additional injuries. The "refusal" relied upon has significance only as an attempted disclaimer of liability for the cost of additional treatment for claimant and relates only to the abstract matter of monetary obligation to pay for those services. Appellants' "refusal" had no impingement or effect whatsoever on the physical aspects of the causation here considered. The chain of causal events producing claimant's additional injuries was consecutive, uninterrupted and complete and did not include the employer's disclaimer of legal duty. According *959 to undisputed evidence the sequence of causation began with the accidental injury, progressed through medical treatment administered claimant by physicians of appellants' selection, and culminated in the aggravation of injury resulting from traction treatment while claimant was still under their careall without intervention of any other efficient, intervening, independent agency destroying the connection, and without fault on the part of claimant. We rule the instant question in accordance with these views. Appellants have cited no relevant authority to the contrary.
In view of our rulings above made, it is necessarily our further determination that appellants' refusal to provide claimant medical, surgical and hospital treatment within the first 90 days, as required by law, imposed no limitation on the Commission's statutory authority to award claimant twenty weeks' temporary total disability as a healing period.
It is our final conclusion that the findings, conclusions and award of the Commission, in all aspects, are adequately supported by competent and substantial evidence, are not contrary to the overwhelming weight of the evidence, and rest upon a sound interpretation and proper application of the law.
The judgment is affirmed.
All concur.
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403 S.W.2d 155 (1966)
William O. BEAN, Appellant,
v.
CITY OF MONAHANS, Texas, a municipal corporation, Appellee.
No. 5748.
Court of Civil Appeals of Texas, El Paso.
May 4, 1966.
Rehearing Denied May 25, 1966.
Calvin W. Wesch, Richard C. Milstead, Kermit, for appellant.
L. Holt Magee, Monahans, for appellee.
OPINION
FRASER, Chief Justice.
The appellee in this case is the City of Monahans, Texas, a home rule city organized and existing under and by virtue of Article 1175, Vernon's Ann.Civ.St. The appellant in this case is William O. Bean, a former employee of the City of Monahans, Texas. Appellant brought suit against the City of Monahans to recover for an injury incurred by the appellant. Appellant maintains that he was driving a Dempster Dumpster (which is a garbage truck) and that he had just returned an empty can or receptacle to a grocery store after having emptied it. In replacing the empty can at the grocery store, the rear of his truck was hung up or lodged over a guard around a gas meter. In attempting to remove the rear of the truck from this obstacle, the appellant claims that he injured his knee when the tool he was using as a lever slipped or came loose while he was trying to free the truck from the obstruction. It is unfortunate that at the time of the accident the City of Monahans did not have a workmen's compensation insurance policy in force to cover the appellant. Appellant further alleges that the injury incurred as described above finally resulted in the amputation of his leg. The trial court granted summary judgment for the City of Monahans, defendant-appellee, and from such judgment appellant appeals.
In Point 1, appellant alleges that the trial court committed error in holding, *156 as a matter of law, that appellant, as an employee of appellee, was engaged in a governmental function as distinguished from a proprietary function, when the accident occurred resulting in the above described injuries to appellant. We believe that this point must be overruled.
Appellant does not contend that the collection of garbage is not a governmental function, but bases his appeal on the position that when the empty garbage can had been disposed of, his governmental function ceased and his trip back to wherever he was supposed to return the truck was solely of a proprietary nature. In as much as the accident happened at 9:30 A.M., and in the absence of any proof to the contrary, it does not seem likely that appellant had ceased his labors for the day. We do not have any statement of facts illustrating what his further plans for the day were or would have been had he not been injured. However, we do not believe that he was engaged in any proprietary activity for the appellee at the time he was injured. It has often been decided that the collection of garbage is normally a governmental function. Here, appellant argues that appellee had failed to furnish him with the necessary tools and equipment to move the truck in case it should get stuck and that, in any event, he had ceased engaging in any governmental activity, and having deposited the empty can or receptacle was then engaged in a proprietary type of work for appellee.
There are many cases that have passed on this matter as, for example, in the case of City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259, the court says: "A municipal corporation is not liable for the negligence of its agents and employees in the performance of purely governmental matters solely for the public benefit." Also, in Robinson v. City of Hereford, Tex.Civ. App., 324 S.W.2d 313 (wr. ref., n. r. e.) the court says:
"The controlling questions to be determined are whether or not appellee is immune from damages because appellant was employed and working for appellee in the city sanitation department as a part of the city governmental function, helping to haul garbage and trash when his alleged injury occurred, and whether or not appellant failed to give 30 days written notice to appellee of his alleged injury and claims as required by the city charter."
It is worth noting, we think, that this, too, was a summary judgment case, and the court discusses this feature of the lawsuit in its opinion. The court in the cited case goes on to say:
"In the case of City of Ft. Worth v. George, Tex.Civ.App., 108 S.W.2d 929 (writ refused) the court held that the collection and disposition of garbage and refuse matter from the homes in the city constitutes a `governmental function,' and that a city is not liable for injuries received as a result of the exercise of such a function. In the case of City of Wichita Falls v. Robison, 121 Tex. 133, 46 S.W.2d 965, 966, the court said in part:
`It is well settled by the decisions of this court, as well as by those in other jurisdictions, that sanitation for the public health of a city is a governmental function, and that, when a city is exercising such power, it is not liable for injuries inflicted through the negligence of its officers and employees.'
Other authorities holding that such a city sanitation service is a governmental function service for the rendering of which the city is not liable in case of injury are: City of Midland v. Hamlin, Tex.Civ.App., 239 S.W.2d 159, 25 A.L.R. 2d 1048; Bowie v. City of Houston, Tex.Civ.App., 259 S.W.2d 765; City of Wichita Falls v. Kemp Hotel Operating Co., Tex.Civ.App., 162 S.W.2d 150, affirmed 141 Tex. 90, 170 S.W.2d 217; Ballard v. City of Ft. Worth, Tex.Civ.App., 62 S.W.2d 594."
We believe here that the nature and circumstances of the injury to appellant indicate *157 that he was performing a governmental act or function for the City; or, in other words, working for the City of Monahans in a governmental capacity at the time of his injury. We do not believe that his allegations that he was not provided with tools in case this particular circumstance should arise has any bearing on the case. Such a point is not independently made, nor do we find any authorities cited to that effect. It seems to us, rather, that it would be very difficult for the City to anticipate all possible difficulties that its driver might encounter during the period of his duties as a garbage or sanitation worker, and provide tools to be held in reserve on the truck for such exigency.
Also, we think it is clear that the appellant here was in the midst of his duties, and that to hold otherwise would be to hold, in effect, that his was an "off-again-on-again" type of work wherein as soon as he had deposited the empty receptacle, his governmental function ceased and he became a proprietary laborer. We think, on the contrary, it was as much his duty to bring the empty truck back, or to do whatever else was to be done with it according to his duties, as it was to pick up, haul and dump garbage and return the garbage receptacle to the place where it belonged. We do not see how any one function of this job, to-wit, picking up the containers, dumping them and returning them, and the moving the truck to some other location, could be singled out, separated and then designated as a proprietary act or function. Therefore, we think the trial court was correct in its holdings.
The appellant cites the cases of City of Houston v. Shilling, 150 Tex. 387, 240 S.W.2d 1010, 26 A.L.R. 2d 935, and City of Houston v. Wolverton, 154 Tex. 325, 277 S.W.2d 101 as holding that repair work on garbage trucks is not a governmental function. These cases have long been considered and cited, and it is a well-known fact that in the Shilling case the fault was laid to malpractice or negligence in a garage maintained by the City of Houston. It has been held that the maintenance of a garage for the repair of city equipment, such as garbage trucks, is a proprietary activity. We have no evidence here that such an activity had anything to do with appellant's injury. Also, in the Wolverton case it will be noted that the injured person there was driving his truck into Houston for the purpose of having it repaired at the city's garage. In each of these cases the injury was sustained by a third party, and the courts seemed to hold that such injuries were primarily caused by negligence of employees in the city-controlled and maintained garage. Also, in the case of City of Houston v. Allen, Tex.Civ.App., 380 S.W.2d 696 (wr. ref., n. r. e.), the court again points out that the City of Houston maintains its own garage and also dispatches employees to make necessary repairs on the various trucks. The case shows in its evidentiary features that the faulty brakes caused the collision; that such condition was reported to a city mechanic who is alleged to have made some repairs. However, the driver said that the accident happened because the brakes, although supposedly repaired by the city's own mechanic, failed, which was the cause of the collision. The plaintiff in this case was, of course, allowed to recover.
In conclusion, it seems clear that it has long been judicially decided that the disposal of garbage by a municipality is a governmental function and the municipality is, therefore, not liable for accidents resulting from the performance of this functionwith the exception of the various City of Houston cases, where the courts have held that the accidents resulted, not from the performance of a governmental function, but because of negligence in the activities of the city-maintained garage employees, the courts holding that such garages and the activities of its employees constituted a proprietary function rather than governmental. Such is not the case here. There is no evidence in this record that the appellant was in any way repairing the truck, or that the truck required any repair. *158 He was only freeing it so he could, presumably, continue his work. Appellant's first point is therefore overruled.
While we have considered and studied the other points presented by the appellant, we do not believe it necessary to discuss them here, as our disposition of the first point carries with it the disposition of the other points, which contend that a genuine issue of fact existed as to whether or not appellant gave the necessary written notice of his claim to appellee, and also as to whether or not the appellee is estopped from asserting any defense based on plaintiff's alleged failure to file his claim of injury. Believing as we do that appellant has no rightful claim because the type of work he was doing was a governmental function, the remainder of appellant's points are overruled without further discussion.
All of appellant's points having been overruled, the decision of the trial court is accordingly affirmed.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4968
MICHELANGELO CARROLL,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-96-7-PJM)
Submitted: July 22, 1997
Decided: November 6, 1997
Before HALL, MURNAGHAN, and WILKINS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Christopher M. Davis, Washington, D.C., for Appellant. Lynne A.
Battaglia, United States Attorney, Stephen S. Zimmermann, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Michelangelo Carroll appeals his conviction and sentence for
unlawful issuance of money orders on February 4 and 5, 1994, 18
U.S.C. § 500 (1994), during the course of his employment as a Rock-
ville, Maryland, post office window clerk. Carroll was acquitted on
three counts of conspiracy, theft of government monies, and misap-
propriation of government funds. He contends that the district court
abused its discretion in admitting evidence that an unexplained short-
age occurred in his personal cash drawer in November 1993. He also
maintains that the district court clearly erred in finding that he abused
a position of trust. United States Sentencing Commission Guidelines
Manual § 3B1.3 (1996). We affirm.
Afeni Berry Rucker worked part-time as a window clerk in the
same post office as Carroll between August 1993 and March 1994.
During that time, she was accepting checks stolen and forged by her
sister and various friends and using them as a cover for thefts from
her own cash drawer. Rucker was expected to testify at Carroll's trial
that he told her in late 1993 or early 1994 that he had previously
stolen money from his cash drawer and deflected blame for the short-
age by pretending that the duplicate key to his drawer had been
stolen, when in fact he possessed both keys. The government
expected Rucker to testify that, on the basis of this conversation,
Rucker invited Carroll to join her ongoing scheme. Before Rucker
testified, the district court held that the evidence was admissible under
Fed. R. Crim. P. 404(b) to show intent and plan.
In fact, Rucker testified that Carroll never discussed a shortage in
his drawer with her, but did tell her that he wanted to be involved in
her scheme. Later testimony concerning the November shortage by
the manager of the post office and a postal inspector who investigated
Carroll was also admitted. In addition, Rucker and her sister, Safonia
Williams, testified that in January and February 1994 Carroll accepted
seven checks stolen from Sonya Groover and either cashed them or
converted them to money orders, even though post office regulations
do not permit window clerks to accept checks for cash or as payment
for money orders.
2
Rule 404(b) permits evidence of other crimes, wrongs, or acts to
prove motive, opportunity, intent, preparation, plan, knowledge, iden-
tity, or absence of mistake or accident. It is treated as an inclusive rule
in this circuit, excluding only evidence which has no purpose except
to show criminal disposition. See United States v. Sanchez, 118 F.3d
192, 195 (4th Cir. 1997). Under the Rule, evidence which is relevant
(to any issue other than character), necessary, and reliable is admissi-
ble. Id. Such evidence may still be excluded if it is more prejudicial
than probative. Id. at 196.
The government contends that evidence of the November shortage
in Carroll's drawer and his scheme to deflect the blame for it were not
excludable under Rule 404(b) under any theory because the evidence
was intrinsic to the charged offenses. See United States v. Chin, 83
F.3d 83, 88 (4th Cir. 1996). Other criminal conduct is intrinsic to the
charged offense if it is "`inextricably intertwined or both acts are part
of a single criminal episode or the other acts were necessary pre-
liminaries to the crime charged.'" Id. (quoting United States v.
Lambert, 995 F.2d 1006, 1007 (10th Cir. 1993)). Although the gov-
ernment offered evidence of Carroll's November shortage as Rule
404(b) evidence, its proffer before Rucker's testimony indicates that
the government expected that her testimony would establish Carroll's
November shortage as a "necessary preliminary" in that Rucker
decided to invite Carroll into her scheme after he disclosed his to her.
But because she testified that Carroll never discussed the November
shortage with her, admission of other witnesses' testimony about it
cannot be justified on the ground that it was intrinsic evidence.
However, a plea of not guilty puts the defendant's intent at issue;
evidence of similar prior crimes then becomes relevant to prove crim-
inal intent. See Sanchez, 118 F.3d at 196; United States v. Brewer, 1
F.3d 1430, 1434 (4th Cir. 1993). Carroll testified that he accepted all
the Groover checks as payment for postage, which would have been
perfectly legal. Circumstantial evidence that Carroll had previously
stolen money from his drawer was thus relevant to prove that he
accepted the Groover checks with criminal intent. The evidence was
necessary because Carroll denied Rucker's and Williams' allegations
that he knowingly accepted the Groover checks with criminal intent.
The evidence, which consisted of testimony by the post office branch
manager and the investigator, as well as post office records, was reli-
3
able. The evidence was not the kind which would unfairly inflame the
jury against Carroll, as shown by the mixed verdict which resulted.
Therefore, the district court did not abuse its discretion in admitting
the evidence.
After Carroll's conviction, the probation officer recommended an
adjustment for abuse of a position of trust under USSG § 3B1.3. Car-
roll objected, arguing that his position was similar to a bank teller, a
position to which the guideline specifies that the adjustment does not
apply. USSG § 3B1.1, comment. (n.1). He further argued that his
offense was not difficult to detect. At sentencing, the district court
found that the adjustment applied, relying on United States v.
Milligan, 958 F.2d 345, 347 (4th Cir. 1992).
The guideline provides that a two-level adjustment be made if the
defendant "abused a position of public or private trust," which is
defined in the commentary as a position "characterized by profes-
sional or managerial discretion (i.e., substantial discretionary judg-
ment that is ordinarily given considerable deference)." USSG
§ 3B1.3, comment. (n.1). A person in such a position is "subject to
significantly less supervision than employees whose responsibilities
are primarily non-discretionary in nature." Id. The adjustment does
not apply to "an ordinary bank teller or hotel clerk" who embezzles
or steals because they do not fit this description. Id. The adjustment
does apply to postal service employees who engage in theft or
destruction of undelivered mail. Id.
The district court's decision is reviewed under the clearly errone-
ous standard. United States v. Helton, 953 F.2d 867, 869 (4th Cir.
1992). In Milligan, the Eleventh Circuit affirmed the adjustment for
a post office window clerk who was audited every four months and
who obtained (through pretense) a duplicate computer disk for record-
keeping because the combination of these factors showed that he
enjoyed significantly more trust than a bank teller. See Milligan, 958
F.2d at 347. Carroll argues that he lacked special access to a computer
system and that, as a result, his offense was not difficult to detect. He
points out that lax supervision cannot transform an ordinary job into
a position of trust. See Helton, 953 F.2d at 870.
Like Milligan, Carroll was audited only at four-month intervals.
Moreover, in his post office, the accounting records were such that
4
even an audit of his drawer could not enlighten his supervisors as to
exactly what he had been doing during that four-month period or on
any given day. There was no way to determine whether a shortage in
his drawer was caused by inadvertent mistakes on Carroll's part or by
theft. Therefore, we find that Carroll's position involved something
more than lax supervision, and the district court did not clearly err in
finding that Carroll had been placed in a position of trust and in mak-
ing the adjustment.
The conviction and sentence are accordingly affirmed. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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403 S.W.2d 75 (1966)
Billy GROSS, Appellant,
v.
STATE of Arkansas, Appellee.
No. 5201.
Supreme Court of Arkansas.
May 23, 1966.
*76 H. Allan Dishongh, Little Rock, for appellant.
Bruce Bennett, Atty. Gen., by Fletcher Jackson, Asst. Atty. Gen., Little Rock, for appellee.
COBB, Justice.
On November 4, 1958, appellant was convicted in the Pulaski Circuit Court of the offense of burglary and grand larceny and was given a five-year sentence which was suspended by the court for the term of said sentence in accordance with the provisions of Ark.Stat.Ann. § 43-2324 (Repl.1964), which reads as follows:
"Postponing pronouncement of sentence. Whenever, in criminal trials in all courts of record, a plea of guilty shall have been accepted or a verdict of guilty shall have been rendered, the Judge trying the case shall have authority, if he shall deem it best for the defendant and not harmful to society, to postpone the pronouncement of final sentence and judgment upon such conditions as he shall deem proper and reasonable as to probation of the person convicted, the restitution of the property involved, and the payment of the costs of the case. Such postponement shall be in the form of a suspended sentence for a definite number of years, running from the date of the plea or verdict of guilty and shall expire in like manner as if sentence had been pronounced; provided however, the Court having jurisdiction may at any time during the period of suspension revoke the same and order execution of the full sentence." (Italics ours.)
On September 29, 1963, appellant was present at a drinking party and fight in Conway County resulting in the killing of one of the participants. Appellant was thereafter charged with beating the deceased to death with malice aforethought, premeditation and intent to murder, i. e., murder in the first degree.
On October 16, 1963, the Pulaski Circuit Court, after hearing, entered an order revoking appellant's suspended sentence of November 4, 1958, and sentencing appellant to the penitentiary for a term of five years from October 16, 1963.
The record before us also reflects that appellant was subsequently brought to trial on the murder charge in Conway County and was found guilty by the jury on March 5, 1964, a sentence of life imprisonment being imposed.
*77 On November 5, 1965, appellant, while confined in the penitentiary, filed his petition with the Pulaski Circuit Court for a writ of habeas corpus expressly invoking procedures provided by Criminal Procedure Rule No. 1, set forth in our per curiam order of October 18, 1965, and appearing at 239 Ark. 850a and 850b.
Appellant's petition for writ of habeas corpus states that it is based upon the contention that the Pulaski Circuit Court had erroneously revoked appellant's suspended sentence by taking such action before appellant had been actually convicted of a new offense. Appellant's petition was reached for hearing on January 13, 1966, when appellant was brought before the court by prison authorities and was represented by counsel, H. Allen Dishongh. All evidence offered on behalf of appellant was duly received and made a part of the record. This included some 22 letters received by appellant from various parties, including his attorney, court officials and judges. The evidence reflected that appellant was convicted of the charge of first degree murder in the Conway Circuit Court.
The Pulaski Circuit Court dismissed appellant's petition for a writ of habeas corpus and appellant is here on appeal from that dismissal.
Appellant's contention that a subsequent conviction is a condition precedent to revocation of a suspended sentence.
We have examined this contention and find that it is untenable for many reasons, including the following:
1. Ark.Stat.Ann. § 43-2324 (Repl.1964), which is the statutory authority for revocation of suspended sentences, contains no language so limiting the power and discretion of the trial court in such matters.
2. Appellant has not cited to this court a single case of any jurisdiction holding that an actual conviction for a subsequent offense is necessary before a suspended sentence may be revoked.
3. Trial courts are authorized under the statute quoted to suspend sentences when they deem it best for the defendant and not harmful to society. Likewise, when the trial court is persuaded that it is for the best interests of the defendant and of society to revoke a suspended sentence, he has and may exercise such discretion following a hearing.
4. While conviction for a subsequent offense is evidence of great weight in support of a petition for revocation of a suspended sentence, such evidence is by no means decisive in such a proceeding. For example, a subsequent conviction for negligent homicide in a traffic accident, absent evidence of deliberate misconduct by the accused, might very well be given little or no weight by the trial court in such a proceeding.
5. A person convicted of a criminal offense, who is released upon probation or a suspended sentence, knows that the leniency extended is conditioned upon his good behavior. When such an individual embarks upon a course of misbehavior, he forfeits the leniency extended him.
6. It is obvious that to leave a person convicted of a crime at large on a suspended sentence while known to be engaging in flagrant misconduct involving criminal and homicidal tendencies is against the best interests of the accused and the public; and for us to adopt the rule that under such threatening circumstances the accused should be left at large to pursue his course of misconduct, to the jeopardy of the general public, until such time as actually tried and convicted for a subsequent crime, would effectively abort all of the desired benefits and protection contemplated by the statute authorizing suspended sentences.
7. It is clearly in the public interest that our trial courts have and exercise the statutory discretion reposed in them with reference *78 to the suspension of sentences in appropriate cases; and it likewise follows that trial courts should have and exercise their sound discretion in the revocation of such suspended sentences in appropriate cases. Any unreasonable limitations placed upon the trial courts in the exercise of their discretion in revoking suspended sentences could well serve to deny to some defendants suspension of sentences in the first instance. We have many times affirmed the actions of the trial courts in revoking suspended sentences because of the subsequent misconduct of the accused during the terms of the suspended sentences. Spears v. State, 194 Ark. 836, 109 S.W.2d 926 (1937); Calloway v. State, 201 Ark. 542, 145 S.W.2d 353 (1940); Bodner v. State, 221 Ark. 545, 254 S.W.2d 463 (1953).
We conclude that the contention of appellant that his trial and conviction for a subsequent offense was a condition precedent to the revocation of his suspended sentence is without merit.
Did the trial court grossly abuse its discretion in revoking suspended sentence of appellant?
We have previously laid down the rule that the action of a circuit court in revoking a suspended sentence will not be disturbed except upon a showing of gross abuse of the discretion of the court in such a proceeding. Calloway v. State, supra.
We have concluded from this record and many case authorities reviewed that the trial court did not abuse its discretion in revoking appellant's suspended sentence. We set forth some of our reasons for this conclusion.
Of course, one charged with acts or a course of behavior which could result in a revocation of his suspended sentence is entitled to put on his defense to such charges at the hearing. Furthermore, since the action of the court upon such proceedings is reviewable here, such hearings should be conducted with a court reporter present so that a full record may be available as to such proceedings. Gerard v. State, 235 Ark. 1015, 363 S.W.2d 916 (1963). In this case, appellant was given the fullest opportunity to present his defense. In Spears v. State, supra, cited with approval in Bodner v. State, supra, we stated with reference to the sufficiency of evidence to sustain an order of revocation of suspended sentence as follows:
"This is a matter coming within the sound discretion of the trial court * * *. Of course, such discretion could not be arbitrarily exercised without any basis of fact, but the statute itself confers the authority to revoke the suspension of sentence `whenever that course shall be deemed for the best interest of society and such convicted person'."
In this case it was shown to the trial court that accused had engaged in a course of conduct and behavior which had resulted in his being charged with the offense of murder in the first degree in Conway County. Furthermore, the record reflects that local authorities in Conway County were apprehensive as to confinement of the accused in the local jail, in view of appellant's known acts of violence and homicidal tendencies. At the hearing for revocation of the suspended sentence, the details of the alleged murder, for which appellant was subsequently convicted, were brought to the attention of the trial court.
Since the principal test in revocation proceedings is the interests of society generally along with the interests of the accused, the action of the trial court in revoking appellant's suspended sentence upon the information before the court was not inconsistent with the best interests of society or of appellant. We conclude, therefore, that the trial court did not abuse its discretion in dismissing appellant's petition for a writ of habeas corpus.
Finding no merit in any of the contentions of appellant, the judgment of the trial court is affirmed.
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403 S.W.2d 17 (1966)
Ruby HOVIOUS, Appellant,
v.
H. B. RILEY, as Administrator, etc., et al., Appellee.
Court of Appeals of Kentucky.
May 20, 1966.
James G. Sheehan, Jr., Danville, for appellant.
Jackson D. Guerrant, John L. Ward, Danville, for appellee.
MOREMEN, Chief Justice.
Appellant, Ruby Hovious, was involved in an automobile accident and civil action for damages was filed. At the trial, counsel for the opposing side attempted to show that she was under the influence of intoxicating liquor at the time of the accident. A state trooper was introduced who described her physical appearance at the time from which it might be deduced that she was under the influence of intoxicants. In addition, the state trooper was permitted to testify over objection of appellant that she had refused to submit to a blood test after she was taken to a hospital. The question presented here is whether the court erred in admitting testimony concerning her refusal.
*18 KRS 189.520 prohibits the operation of a vehicle on a highway by a person under the influence of intoxicating liquors or narcotic drugs. (KRS 189.990 fixes the penalty.) It also provides for tests of a defendant's blood and fixes standards and suggests presumptions which might arise from various percentages of alcohol found in the bloodstream.
Section (6) of this section reads: "No person may be compelled to submit to any test specified in subsection (4) of this section, but his refusal to submit to such test may be commented upon by the prosecution in the trial against any person charged with operating any vehicle while under the influence of alcohol." (Acts 1958, Chap. 126, effective 6-19-58.) The foregoing subsection was a departure from what had long been the law in this State. See Kentucky Statutes, Section 1645, and Criminal Code of Practice, Section 223.
KRS 421.225, re-compiled from KRS 455.090, 1962 Acts, Chapter 234, Section 62, which became effective January 1, 1963, reads in part:
"(1) In any criminal or penal prosecution the defendant, on his own request, shall be allowed to testify in his own behalf, but his failure to do so shall not be commented upon or create any presumption against him."
The foregoing subsection which refuses to permit anyone to comment upon a person's failure to testify has given force to that portion of Section 11 of the Constitution which simply states "He cannot be compelled to give evidence against himself," and supports that section of the fifth amendment of the Constitution of the United States which deals with self-incrimination.
We have extended the immunity rule to civil as well as criminal cases. In Kindt v. Murphy, Judge, 312 Ky. 395, 227 S.W.2d 895, this rule was quoted with approval from Jones on Evidence:
"Accordingly, it was early declared, and has since been universally held, that the privilege against self-incrimination may be asserted as of right in any ordinary civil case. Further, that to bring a person within the exemption it is not necessary that his examination as a witness should be had in the course of a penal or criminal prosecution or that such should have been commenced and be actually pending. It is sufficient if there is a law creating the offense under which the witness may be prosecuted. Wigmore, Sec. 2252, points out that this constitutional sanction is a recognition of a principle and not a new creation; that the clauses, `the accused' and `in criminal cases,' protect equally a mere witness in a civil case when the fact asked for is a criminal one, and that the privilege extends to all manner of proceedings in which testimony is to be taken."
That principle was re-affirmed in Akers v. Fuller, 312 Ky. 502, 228 S.W.2d 29.
It was noted above that § 11 of the state and Amendment 5 of the federal constitution provide that no one can be compelled to give evidence against himself, and, in order that the amendment not be denied its effectiveness, legislative action and judicial fiat have imposed the additional safeguard that no one should be permitted to comment on such a person's failure to testify. It was pointed out in a footnote to Griffin v. State of California, 380 U.S. 609, at page 611, 85 S. Ct. 1229, 14 L. Ed. 2d 106, that: "The legislatures or courts of 44 States have recognized that such comment is, in light of the privilege against self-incrimination, `an unwarrantable line of argument.'"
The Griffin case holds that the fifth amendment to the Constitution is made applicable to the states by the fourteenth amendment. The California Constitution provides in part: "* * * in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case *19 against him may be commented upon by the court and by counsel, and may be considered by the court or the jury."
Griffin did not take the stand at the trial. The court instructed the jury, in short, that the jury could take into consideration such failure as tending to indicate the truth of evidence which had been given against him and which he could be reasonably expected to deny or explain because of facts within his knowledge. The Supreme Court noted in its opinion that comment on the refusal to testify is a remnant of the inquisitorial system of criminal justice which the fifth amendment outlaws, and cited Murphy v. Waterfront Commission, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 678. It was said that what the jury may infer, given no help from the court is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.
The decisive portion of the opinion reads:
"The question remains whether, statute or not, the comment rule, approved by California, violates the Fifth Amendment.
"We think it does. It is in substance a rule of evidence that allows the State the privilege of tendering to the jury for its consideration the failure of the accused to testify. No formal offer of proof is made as in other situations; but the prosecutor's comment and the court's acquiescence are the equivalent of an offer of evidence and its acceptance."
So here we have a situation where a state constitution permitted comment upon the refusal to testify and the Supreme Court of the United States held such a procedure was in violation of the fifth amendment.
When we return to the facts of the case under consideration, we find that the court admitted evidence of appellant's refusal to submit herself to a test which may have furnished proof that she had committed the crime of driving the motor vehicle while intoxicated. She had the right to refuse under the provisions of KRS 189.520, which conform to the mandate of § 11 of our Constitution. The section, however, attempts to render nugatory that part of our procedural safeguard which denies the right to any person to comment upon such a refusal.
Under the Constitution of this State and under the Constitution of the United States we are compelled to hold that subsection (6) of KRS 189.520 is unconstitutional and of no effect.
The judgment is therefore reversed.
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403 S.W.2d 354 (1966)
Ralph A. BICKLER, Petitioner,
v.
Max BICKLER et ux., Respondents.
No. A-10911.
Supreme Court of Texas.
May 18, 1966.
Rehearing Denied June 22, 1966.
*355 Sneed & Vine, J. P. Darrouzet, Austin, for petitioner.
Kuykendall & Kuykendall, Austin, for respondents.
CALVERT, Chief Justice.
The primary purposes of this litigation between Ralph and Max Bickler, brothers, *356 are to establish the common boundary line of their adjoining residential lots and to adjudicate a claim by Ralph to a driveway easement on and over Max's property.
Suit was filed by Ralph. He sought a mandatory injunction requiring Max to remove a fence erected across the driveway which prevented Ralph's use thereof for ingress and egress to and from his residence to a public street. He also sought to establish that the common property line between their respective properties was the western edge of a concrete walkway. In addition, he asked damages for interference by Max with his use of the driveway easement and for injury done by Max to the walkway. Max was permitted to file a trial amendment during the course of the trial and thereby to seek a mandatory injunction requiring Ralph to remove the portion of the concrete walkway which encroached on Max's property.
Trial was to the court without a jury. The trial court rendered judgment directing that Ralph take nothing by his suit, and that he remove that portion of the concrete walk which extended onto Max's property. The Court of Civil Appeals affirmed. 391 S.W.2d 106. The case is severed into two causes. We affirm the judgments of the courts below in one, and in the other we reverse the judgment and remand the cause to the trial court with instructions. The questions will be dealt with separately.
The Driveway Easement
Ralph has two bases for contending that the evidence establishes his right to an easement for a driveway on and over Max's lot. The first is that his right thereto arises out of an estoppel in pais an easement by estoppel. The second is that when Max conveyed to him the lot he now owns, the deed granted the easement by implicationan implied easement appurtenant. We agree that Ralph's right to the easement must be upheld on the latter ground; and there is, therefore, no need to consider his claim to an easement by estoppel. The facts which give rise to the implied easement appurtenant, follow.
In 1909 Max and Harry, another Bickler brother, owned a tract of land fronting North on West Sixteenth Street in the City of Austin. In that year Max and Harry executed a written partition agreement under the terms of which, as corrected by a subsequent writing in 1915, a lot out of the tract fronting 152 feet on Sixteenth Street and 276 feet in depth was set aside to Harry, and an adjoining lot on the East, fronting 104 feet on Sixteenth Street and 276 feet in depth, was set aside to Max. The remainder of the original tract lying East of Max's lot was continued in joint ownership.
In 1915 Max and Harry conveyed the most easterly part of the jointly owned remainder to Sam Sparks. The Sparks lot fronted 124 feet on Sixteenth Street and was 175 feet in depth. This conveyance left Max and Harry as joint owners of a strip between Max's lot and the Sparks lot 4 feet in width and a lot approximately 101 feet deep and from 124 to 135 feet in width lying South of the Sparks property and, except for the 4-foot strip, cut off from access to Sixteenth Street by that property. In 1915 the several children of Mrs. Martha Bickler, a widow, including Max, Harry and Ralph, entered into an oral agreement for the erection of a house on this remaining lot for use by Mrs. Bickler. The agreement was incorporated in a formal writing in 1916, after the completion of the house. Mrs. Bickler lived in the house until her death in 1937. Ralph was living in the house with the mother when the written agreement was executed in 1916 and has continued to live therein at all times since, having purchased the house and lot from Max and Harry in 1949.
The undisputed evidence establishes conclusively that a well-defined driveway from Sixteenth Street South across Max's lot to the lot purchased by Ralph was in *357 existence and use when the grant to Ralph was made, and that the same had been open and used continuously by the owners of the lot and those occupying the house and their guests and business invitees since at least as early as 1915. The use of the area as a driveway was continued by Ralph until Max erected a fence across it in 1963.
From this recitation of the undisputed facts, it is apparent that all of the use requirements of the driveway for the establishment of an implied easement appurtenant except that of necessity, existed when the grant to Ralph was made. See Drye v. Eagle Rock Ranch, Inc., Tex. Sup., 364 S.W.2d 196, 205-209 (1963); Howell v. Estes, 71 Tex. 690, 12 S.W. 62 (1888). In Drye we listed the use requirements as follows: "1. The use must be apparent, in existence at the time of the grant. * * * 2. Its use must have been continuousso that the parties must have intended that its use pass by the grant. * * * 3. Its use must be necessary to the use of the dominant estate. * * *[1] 364 S.W.2d 207-208. We also recognized in Drye that a use is "continuous" "if no further act of man is necessary to its continuous exercise * * *." 364 S.W.2d 208. The evidence in the record before us establishes that the use of the driveway was at all relevant times both apparent and continuous. The only question remaining is whether use of the driveway is necessary to use of the dominant estate.
It is admitted that use of the driveway was necessary to use of the lot until it was sold to Ralph in 1949. The Court of Civil Appeals held, however, that use of the driveway by Ralph was not necessary at the time of the conveyance to him in 1949, and is not now necessary because in 1944 Ralph acquired another easement which the Court concluded he had a right to use as a driveway between Sixteenth Street and his lot. We disagree with the conclusion, and hold that Ralph has no legal right to use the additional easement for ingress and egress to and from such lot.
The facts surrounding Ralph's acquisition of the additional easement follow. In 1921 Sam Sparks conveyed a part of his lot to N. A. Stedman. The part conveyed fronted 60 feet on Sixteenth Street, was 160 feet in depth, and adjoined the 4-foot strip easterly of Max's lot. In the same instrument Sparks dedicated an 8-foot strip over his remaining land, adjoining and for the full depth of the lot conveyed, in the following language:
"* * * for a passage way between the property conveyed to said Stedman and our property eastward thereof, such passage way to be used by ourselves, heirs and assigns and by said Stedman, his heirs and assigns in common; and the easement of said Stedman, his heirs and assigns in said passage way shall be perpetual, but the dedication of said passage way shall not have the effect of granting any rights to the general public therein."
The deed was corrected in 1930, but the dedication of the passageway easement was not changed. The Stedman lot and easement were conveyed to S. M. N. Marrs in 1930.
In 1922 Sparks conveyed a strip 15 feet in depth and 60 feet in width, lying just South of the Stedman lot, to Mrs. Jacob (Martha) Bickler. Ralph inherited an interest in this lot at the death of his mother in 1937, and thereafter purchased the interests of some of the other children.
In 1944 Ralph purchased a 20-foot strip off of the South end of the Marrs lot, together "with all the rights in respect to" the 8-foot passageway easement as had been conveyed by Sparks to Stedman. It is this easement which the Court of Civil Appeals has held Ralph has a right to use for *358 ingress and egress to and from the lot purchased by him from Max and Harry. The conveyances described and the areas in controversy are shown on the attached sketch.
*359 Our holding that Ralph has no legal right so to use the Sparks passageway easement rests on the rule of law stated in 2 Thompson on Real Property, 1961 Replacement Ed., 565-566, § 386, in this language:
"Rights of way granted or reserved are appurtenant to the dominant tenement, and can be used only for the purposes of that tenement. * * * One having a right of way appurtenant to specified land cannot lawfully use the way to reach another tract owned by him to which the way is not appurtenant. * * * The way is granted for the benefit of the particular land, and its use is limited to such land. Its use cannot be extended to other land, nor can the way be converted into a public way without the consent of the owner of the servient estate."
For another statement of the rule, see note, Ann.Cas.1917A, 1250-1251, where we find this language:
"Where, in connection with a transfer of property, an easement is granted for the benefit of that property over lands of the grantor, the easement is presumed to be appurtenant to the granted premises, and in the absence of words creating a more extended right the grantee or his successor in interest is not entitled to use the easement for the benefit of other premises owned by himself or another."
As further authority for the rule, see 3 Tiffany, Real Property 323-324, § 803; 25 Am.Jur.2d 482-484, § 77; Davenport v. Lameson, 21 Pick. (Mass.) 72 (1838); Stearns v. Mullen, 4 Gray 151 (1855); Ball v. Allen, 216 Mass. 469, 103 N.E. 928 (1914); Schmoele v. Betz, 212 Pa. 32, 61 A. 525, 108 Am. St. Rep. 845 (1905); Barbaresos v. Casaszar, 325 Mich. 1, 37 N.W.2d 689 (1949).
Inasmuch as the Sparks easement cannot legally be burdened with a use for the benefit of the lot purchased by Ralph from Max and Harry, use of the driveway easement over Max's lot is still necessary to the use of the dominant estate, and the trial court erred in failing to require Max to remove his fence insofar as the same prevents Ralph's use thereof. As stated in Drye, an easement appurtenant "* * * generally takes the form of a negative easement: the owner of the servient estate simply may not interfere with the right of the owner of the dominant estate to use the servient estate for the purpose of the easement." 364 S.W.2d 207.
Duff v. Matthews, 158 Tex. 333, 311 S.W.2d 637 (1958), and Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622 (1950), cited by Max, are not in conflict with our holding here. Our denial of a way of necessity in Duff v. Matthews was directly related to proof that there was another way to plaintiff's lot which he had a legal right to use. Denial of a way of necessity in Othen v. Rosier rested on failure of the plaintiff to discharge his burden of proving that he had no other way of access.
The Boundary Line
The boundary question arises out of the descriptive words, "more or less," used in a call for distance in the deed from Harry and Max to Ralph.
We have noted that when Harry and Max conveyed the easterly lot fronting 124 feet on Sixteenth Street and with a depth of 175 feet to Sparks, title to a narrow strip, 4 feet in width, between that lot and the lot partitioned to Max was left in Harry and Max. This strip was improved and used as a walkway from Sixteenth Street to the residence built for Mrs. Martha Bickler in 1915 on the lot purchased by Ralph in 1949.
The beginning point of the metes and bounds description of the property conveyed by Harry and Max to Ralph is the northwest corner of the lot conveyed to Sparks. The first call is as follows: "thence westerly with the north line of our tract a distance of three feet, more or less."[2] The second *360 call was along a southerly course for a distance of 276 feet. The last call is northerly from the southwest corner of the Sparks lot and along its western boundary to the place of beginning. It thus appears that although the strip owned by Harry and Max lying between the Sparks lot and Max's lot was 4 feet in width, their deed to Ralph conveyed a strip "three feet, more or less" in width.
In 1960 Ralph constructed a concrete walkway over the strip. The walkway was 4.8 feet in width at its northern end abutting on Sixteenth Street and 4.08 feet in width at its southern end. The evidence reflects that the concrete walkway is the same width as was the walkway which had been in actual use for many years. In view of this fact, Ralph argues that the descriptive call in his deed, "a distance of three feet, more or less," should be held to establish the western boundary of the strip and the eastern boundary of Max's lot at the western edge of the concrete walkway. He also argued in the courts below that the boundary for which he contends had been fixed by acquiescence. The trial court and Court of Civil Appeals rejected both arguments, held that the words "more or less" should be disregarded, and fixed the boundary at a distance of 3 feet from the western boundary of the lot conveyed by Harry and Max to Sparks. Ralph does not complain in this Court of the holding of the Court of Civil Appeals that the boundary was not fixed by acquiescence. He contends only that the court erred in holding that the words "more or less" have no legal significance in a call for distance and should be disregarded. We agree with Ralph that the words "more or less" may have legal significance in a call for distance, but we do not agree that the trial court was required to extend the distance of the first call to the western edge of the concrete walkway.
The words, "more or less," are frequently used in conveyances to qualify statements of quantity and descriptive calls for distance. In both situations they perform essentially the same function; they relieve exactness. In Wooten v. State, 142 Tex. 238, 177 S.W.2d 56, 58 (1944), we recognized that the words "more or less" when added to an estimate of the quantity of land conveyed do have legal significance, and that they "are taken as prima facie evidence that the parties intended to risk a not unreasonable gain or loss in the estimated quantity." See also Rich v. Ferguson, 45 Tex. 396 (1876). The Court of Civil Appeals recognized the rule of Wooten but held that it has no application to situations in which the words are used to qualify calls for distance. It cited Humble Oil & Refining Co. v. Luther, Tex.Civ.App., 40 S.W.2d 865 (1931), no writ history, in support of its holding. In that case the court held that the word "about" in a distance call"thence about 50 varas * * *" should be disregarded. We have no quarrel with the actual holding in that case, but we do not understand the rule to be that qualifying words such as "about," "approximately," and "more or less" in distance calls should always be disregarded.
In Ingelson v. Olson, 199 Minn. 422, 272 N.W. 270, 273, 110 A.L.R. 167 (1937), the Court said that words such as "about," "approximately," and "more or less" denote "estimate, not exact precision," and continued:
"Estimate is used in order that the intention of the parties shall not be defeated by attempted precision, which at the time is not possible. They are words of safety and precaution, intended to cover some slight or unimportant inaccuracy, for an adjustment, if necessary, of distance or quantity."
In that case the Court was dealing with field notes in which distance calls were qualified by the words "approximately" and "more or less." See also Russo v. Corideo, 102 Conn. 663, 129 A. 849 (1925); Salyer v. Poulos, 276 Ky. 143, 122 S.W.2d 996 (1939); 11 C.J.S. Boundaries § 4, p. 541; 6 Thompson on Real Property, 1962 Replacement Ed. 643, § 3056.
*361 Usually calls for distance which are qualified by words relieving exactness also call for a monument or adjoinder as a terminus. In such situations the general rule for construction of instruments of conveyance requiring that a call for distance yield to a call for a monument or adjoinder, 9 Tex.Jur.2d 500, Boundaries, § 22, will ordinarily relieve exactness in the entire distance call and render the qualifying words meaningless. But distance calls do not always call for a monument or adjoinder as a terminus. When they do not do so, qualifying words relieving exactness should be disregarded unless the evidence establishes that the intention of the parties to the instrument would thereby be defeated. As an example of a case in which qualifying words would not be disregarded, let us consider that A owns a residential lot fronting North 100 feet on Sixteenth Street with a depth of 150 feet, bounded on the East by a lot owned by B and on the West by a lot owned by C. A wishes to sell and D wishes to buy the lot. They go upon the ground where A correctly points out the corners and boundary lines. A believes the lot is only 99 feet in width. The metes and bounds description of the lot contained in the deed conveying the lot to D calls for the northwest corner of B's lot as the point of beginning and then continues as follows: "thence West along the south line of Sixteenth Street for a distance of 99 feet, more or less; thence south 150 feet; thence East 99 feet, more or less, to the southwest corner of B's lot; thence along the western line of B's lot to the place of beginning." With only the recited facts in evidence before a court, it is hardly thinkable that the court would hold that the words "more or less" should be disregarded as a matter of law, thus putting D to the task of prevailing in a reformation suit as the only alternative to limiting the width of the lot to 99 feet and leaving title to a useless strip, 1 × 150 feet, in A. Cf. Goodloe v. Wallace (Ky.), 269 S.W.2d 718 (1954).
In this case Ralph had the burden of establishing that by use of the words "more or less" the parties intended that the distance call for 3 feet be extended beyond that distance. Intention of the parties is ordinarily a fact question. The trial court made extensive fact findings, but did not find that the parties intended that the distance call for 3 feet should be extended or that the strip it bounded should be wider. On the contrary, the court found that the deed to Ralph "granted a strip of land three (3') feet wide extending from West 16th Street south to the main body of land described in said deed." There is no basis in the evidence for holding that the court was required to find otherwise. There is no evidence that a 3-foot walkway from Sixteenth Street to the main body of the property is not adequate for the purpose, and no evidence that all property west of that distance is not useful to Max. Establishment of the common boundary at the western edge of the concrete walkway would extend the 36-inch distance call on Sixteenth Street by 21.6 inches. We hold that the trial court did not err in rendering judgment requiring Ralph to remove in a workmanlike manner that part of his concrete walkway west of a line three feet distant from the Sparks property as established by the survey of Marlton O. Metcalfe. We agree with the holding of the Court of Civil Appeals that the trial court did not err in permitting Max to seek a mandatory injunction by trial amendment.
Damages
Ralph sought by his suit to recover damages because of interference by Max with his use of the driveway easement. The trial court's judgment denied him a recovery of damages. He had no point of error before the Court of Civil Appeals complaining of the denial of damages, and his claim therefor has been abandoned.
Judgment
The cause of action of Ralph Bickler for establishment of an easement on and over the lot owned by Max Bickler for a driveway is severed from the remainder of the *362 suit, and the judgment of the trial court and Court of Civil Appeals that Ralph Bickler take nothing in such severed cause is reversed, and the cause is remanded to the trial court with instructions to hear evidence therein, if necessary, and to render judgment establishing the boundaries of the easement and requiring Max Bickler to remove any and all obstructions to a reasonable use thereof. In all other respects the judgments of the courts below are affirmed. Costs in all courts are adjudged one-half to Ralph and one-half to Max.
STEAKLEY, J., not sitting.
NOTES
[1] Emphasis added in the Drye opinion.
[2] Emphasis ours throughout unless otherwise indicated.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4794
DARRELL HARRIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CR-92-61)
Submitted: July 29, 1997
Decided: November 5, 1997
Before WILKINS and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Robert H. Hale, Jr., Assistant Federal Public Defender, Raleigh,
North Carolina, for Appellant. Janice McKenzie Cole, United States
Attorney, Anne M. Hayes, Assistant United States Attorney, John S.
Bowler, Assistant United States Attorney, Raleigh, North Carolina,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Darrell Harris appeals the district court's order revoking his term
of supervised release and imposing a new period of imprisonment.
Harris was serving a three year term of supervised release subsequent
to completing a forty-one month sentence for armed bank robbery.
See 18 U.S.C. § 2113(d) (1994). After Harris admitted three viola-
tions of the conditions of his supervised release, the district court sen-
tenced Harris to three years in prison. In this appeal, Harris contends
that the district court erred by considering the sufficiency of the origi-
nal sentence imposed for his conviction, rather than the factors autho-
rized by 18 U.S.C. § 3583 (1994), in revoking his supervised release
and imposing the three-year sentence. Finding no abuse of discretion
on the part of the district court, we affirm.
This court reviews the district court's order imposing a term of
imprisonment for an abuse of discretion. See United States v. Davis,
53 F.3d 638, 642-43 (4th Cir. 1995). An abuse of the district court's
discretion occurs when the court fails or refuses to exercise its discre-
tion or when the court's exercise of discretion is flawed by an errone-
ous legal or factual premise. See James v. Jacobson, 6 F.3d 233, 239
(4th Cir. 1993). Harris contends that the district court's exercise of its
discretion was flawed by an erroneous legal premise in that the suffi-
ciency of the original sentence is not among the factors of 18 U.S.C.
§ 3553 (1994) enumerated in 18 U.S.C. § 3583 as appropriate for con-
sideration in the revocation of a term of supervised release.
Although the district court considered the sufficiency of the origi-
nal sentence at some length, the court also properly considered the
need "to afford adequate deterrence to criminal conduct" and "to pro-
tect the public from further crimes of the defendant." 18 U.S.C.
§ 3553(a). The district court specifically noted its concern regarding
Harris's status as a recidivist. As a result, we do not find that the dis-
2
trict court's discretion was flawed by an erroneous legal premise.
Consequently, there was no abuse of discretion.
Accordingly, we affirm the district court's order. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the Court and argument would not
aid the decisional process.
AFFIRMED
3
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IN THE COURT OF APPEALS OF IOWA
No. 14-1830
Filed August 19, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
GARY DUFFEL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Christine Dalton,
District Associate Judge.
Gary Duffel appeals from the judgment and sentence entered following his
conviction for public intoxication, third or subsequent offense. AFFIRMED.
Jack E. Dusthimer, Davenport, for appellant.
Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney
General, Michael J. Walton, County Attorney, and Joshua R. Sims, Assistant
County Attorney, for appellee.
Considered by Doyle, P.J., and Mullins, and Bower, JJ.
2
DOYLE, P.J.
Gary Duffel appeals from the judgment and sentence entered following his
conviction for public intoxication, third or subsequent offense. Duffel contends
the evidence was insufficient to support the jury’s finding of guilt and his trial
counsel was ineffective in failing to attempt to exclude certain evidence from trial.
I. Background Facts and Proceedings
On the evening of July 1, 2014, Le Claire Police Officer Mark Cottrell was
on routine patrol. At around 9:00 p.m., Officer Cottrell observed Gary Duffel and
a woman walking near an antique store. The officer had not seen them before,
so he “made a lap around.” He then saw Duffel standing in front of the antique
store, but the woman had “kind of disappeared.” Officer Cottrell approached and
realized the woman was relieving herself behind a large campaign sign. Officer
Cottrell noticed they both smelled of alcohol and they admitted to drinking.
However, because they did not appear “at that time to be out of control, or
without control of their faculties,” Officer Cottrell let them go with a warning.
At around 1:30 a.m., Officer Cottrell saw Duffel and the woman again, this
time sitting at a table on the sidewalk outside a closed convenience store just
across the street from the police station. Officer Cottrell observed they were
drinking beers and Duffel was dumping beer out on the ground. They were
“visibly intoxicated” with “slurred speech.”
Duffel was charged with public intoxication third or subsequent conviction,
in violation of Iowa Code sections 123.46 and 123.91(2) (2013). Duffel pled not
guilty, and the case proceeded to trial. At trial, the jury heard testimony from
Officer Cottrell detailing the facts set forth above, and viewed a video of the
3
second encounter between Officer Cottrell and Duffel taken from the officer’s
patrol car. The defense presented no evidence, but moved for judgment of
acquittal at the close of the State’s case, which the district court overruled.
The jury found Duffel guilty as charged. Duffel conceded he had two prior
convictions for public intoxication. The district court sentenced Duffel to 240
days in jail, subject to reconsideration following completion of in-jail substance
abuse treatment, as well as sixty-three hours of community service. Duffel
appeals.
II. Sufficiency of the Evidence
Duffel contends the evidence was insufficient to support the jury’s finding
of guilt.1 Insofar as his claim implicates trial counsel’s failure to challenge the
admission of evidence of a preliminary breath test, we address that claim
separately below.
We review challenges to the sufficiency of the evidence for correction of
errors at law. State v. Edouard, 854 N.W.2d 421, 431 (Iowa 2014). We
“consider all of the record evidence viewed in the light most favorable to the
State, including all reasonable inferences that may be fairly drawn from the
evidence.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012) (internal
quotation marks omitted). “We will uphold a verdict if it is supported by
substantial evidence.” State v. Jacobs, 607 N.W.2d 679, 682 (Iowa 2000).
1
The State agrees defense counsel’s motion for judgment of acquittal preserved this
claim for review. See State v. Truesdell, 679 N.W.2d 611, 615 (Iowa 2004) (“To
preserve error on a claim of insufficient evidence for appellate review in a criminal case,
the defendant must make a motion for judgment of acquittal at trial that identifies the
specific grounds raised on appeal.”).
4
The jury was instructed the State would have to prove the following
elements of public intoxication:
1. On or about the 2nd day of July 2014, in Scott County,
Iowa, the defendant was intoxicated.
2. At the time the defendant was intoxicated, he was in a
public place.
The jury was further instructed:
A person is “intoxicated” when, by drinking liquor and/or
beer, one or more of the following is true:
1. His reason or mental ability has been affected.
2. His judgment is impaired.
3. His emotions are visibly excited.
4. He has, to any extent, lost control of bodily actions or
motions.
Viewing the evidence in the light most favorable to the State, we conclude
substantial evidence supports the jury’s findings of guilt. The jury heard
testimony from the arresting officer describing his two encounters with Duffel and
the woman on the evening in question. Initially, the officer observed Duffel
smelling of alcohol. The officer allowed Duffel to go with a warning. Four hours
later, the officer found Duffel openly drinking beer on a sidewalk outside a closed
convenience store just across the street from the police station. The officer
observed Duffel pouring beer on the sidewalk, and the officer described him as
“visibly intoxicated” with “slurred speech.” The jury also viewed the patrol car
video of the second encounter, which showed Duffel pouring beer out, walking
around, and speaking in a slurred voice.
“[U]nless the record lacks substantial evidence, we are bound by the jury’s
verdict.” State v. Laffey, 600 N.W.2d 57, 59-60 (Iowa 1999). Considering the
record before the jury, we conclude substantial evidence existed upon which the
5
jury found beyond a reasonable doubt that Duffel was intoxicated in a public
place.2 We affirm on this issue.
III. Ineffective Assistance of Counsel
Duffel contends his trial counsel was ineffective in failing to file a motion to
suppress or object to the admission of evidence of the preliminary breath test 3 or
the “inconsistent” jury instruction referencing “alcohol concentration.”4
We review ineffective-assistance-of-counsel claims de novo. See
Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). To succeed on such a
claim, Duffel must prove both that (1) his counsel failed to perform an essential
duty, and (2) he suffered prejudice as a result of his counsel’s failure. See id.
Duffel must prove both the “essential duty” and “prejudice” prongs by a
preponderance of the evidence. See State v. Ross, 845 N.W.2d 692, 697-98
(Iowa 2014). “There is a presumption the attorney acted competently, and
prejudice will not be found unless there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012) (internal
quotation marks omitted).
“Even though these claims are generally preserved for postconviction
relief, when presented with a sufficient record this court will address such a
2
Although in determining the sufficiency of the evidence, all evidence admitted during
the trial—even erroneously admitted evidence—should be considered, see State v.
Dullard, 668 N.W.2d 585, 597 (Iowa 2003), we note that in reaching our conclusion on
this claim we have not considered evidence of Duffel’s preliminary breath test.
3
At trial, Officer Cottrell testified that Duffel’s preliminary breath test result was 0.177.
4
The jury instruction Duffel challenges is Instruction No. 8, which states: “The alcohol
concentration established by an analysis of a sample of a person’s breath withdrawn
within two hours of the person’s arrest is presumed to be the alcohol concentration at the
time he was arrested.”
6
claim.” State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). If we determine the
claim cannot be addressed on appeal, however, we must preserve it for a
postconviction relief proceeding, regardless of our view of the potential viability of
the claim. State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). We find the
record adequate to address Duffel’s claims at this juncture.
Without deciding the admissibility of the references to the preliminary
breath test in the officer’s testimony or alcohol concentration in the jury
instructions, we turn to the prejudice prong of Duffel’s claim of ineffective
assistance with respect to this evidence. As discussed above, the jury heard
ample other evidence upon which to rely to conclude Duffel was intoxicated. The
fact that Duffel was openly drinking beer in front of a closed store just across the
street from the police station hours after a police officer warned him not to drink
in public supports a finding that Duffel’s reasoning, judgment, or mental ability
was affected or impaired. The fact that Duffel poured beer out on the sidewalk in
front of the officer also indicates his judgment was impaired. The fact that Duffel
was “visibly intoxicated” and speaking with “slurred speech” supports a finding he
had to some extent lost control of his bodily actions. The jury also viewed the
video depicting Duffel’s demeanor and speech. The jury was properly instructed
on the elements of the crime and the definition of intoxication, neither of which
implicated alcohol concentration levels as a basis for conviction.
Under these circumstances, Duffel has not sustained his burden to
demonstrate a reasonable probability of a different result had the challenged
evidence been stricken. Duffel’s claim of ineffective assistance on these grounds
fails. See State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003) (noting failure to
7
prove either element by a preponderance of the evidence is fatal to the claim).
We affirm on this issue.
IV. Conclusion
Upon consideration of the issues raised on appeal, we affirm Duffel’s
judgment and sentence for public intoxication, third offense.
AFFIRMED.
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132 F. Supp. 2d 1212 (2001)
AFFYMETRIX, INC., Plaintiff and Counterdefendant,
v.
HYSEQ, INC., Defendant and Counterplaintiff.
Affymetrix, Inc., Plaintiff and Counterdefendant,
v.
Synteni, Inc. and Incyte Pharmaceuticals, Inc., Defendants and Counterplaintiffs.
No. C 99-21163 JF, C 99-21164 JF.
United States District Court, N.D. California, San Jose Division.
January 22, 2001.
*1213 *1214 *1215 *1216 Morgan Chu, Richard de Bodo, Jeffrey L. Arrington, Marc A. Fenster, Irell & Manella, LLP, Los Angeles, CA, for Plaintiff.
Anthony Nimmo, William K. Merkel, Kevin M. Flowers, Kim A. Jacklin, Anand P. Iyer, Marshall, O'Toole, Gerstein, Murray & Borun, Chicago, IL, Charles S. Crompton, III, Latham & Watkins, Menlo Park, CA, for Defendant.
ORDER[1] CONSTRUING CLAIMS OF U.S. PATENTS NOS. 5,445,934, 5,744,305, 5,800,992, AND 5,795,716
FOGEL, District Judge.
I. INTRODUCTION
Both of the cases captioned above are patent infringement suits. Affymetrix, plaintiff in both cases, asserts four separate patents against the named defendants. The cases were consolidated for the purpose, inter alia, of construing disputed patent claim terms. On November 29 and 30, 2000, the Court conducted a tutorial and hearing to assist it in construing the claims of United States Patents Nos. 5,445,934 (the '934 patent), 5,744,305 (the '305 patent), 5,800,992 (the '992 patent), and 5,795,716 (the '716 patent). After considering the arguments and evidence presented by all parties, the Court will construe the principal disputed terms as set forth below. Certain of the disputed terms have not been construed. If necessary, the parties may request the Court to construe the remaining terms at a later date. The Court will request supplemental briefing as to the term "substantially complementary."
II. BACKGROUND
Affymetrix's four patents relate to "DNA chip" or "array" technology. Two of the patents, the '934 and the '305 patents, claim "arrays" or "substrates," wherein a high density of different nucleic acids (RNA or DNA) is placed on a solid support, such that users may perform experiments on a large number of different nucleic acids at one time, in a single reaction. The '992 patent claims methods of detecting nucleic acid sequences in the arrays by using labeled complementary nucleic acids that hybridize to nucleic acid sequences in the arrays. The fourth patent, the '716 patent, concerns computer programs which translate the raw data from the experiments into genetic information about the sample.
In the two cases captioned above, Affymetrix asserts that Defendants Incyte Pharmaceuticals, Inc. and Synteni (collectively, "Incyte") infringe the '934, '305, and '992 patents; and that Defendant Hyseq, Inc. ("Hyseq") infringes the '305, '992, and '716 patents. A brief discussion of each of the patents in suit follows.
A. The '934 Patent, Entitled "Array of Oligonucleotides on a Solid Support."
The '934 patent claims a "substrate," which has a surface comprising at least 1,000 groups of oligonucleotides with different, known sequences covalently attached to the surface in discrete known regions. The 1,000 or more groups of oligonucleotides occupy a total area of less than one square centimeter. The '934 patent was filed on September 30, 1992 and issued on August 29, 1995.
*1217 Affymetrix accuses Incyte of infringing claims 1, 5, 6, and 7 of the '934 patent. Claims 1 and 7 are independent claims.
B. The '305 Patent, Entitled "Arrays of Materials Attached To A Substrate"
The '305 patent, like the '934 patent, claims a chip apparatus. In this case, the claims recite an "array of oligonucleotides" or an "array of polynucleotides." The apparatus is comprised of a solid support and oligonucleotides or polynucleotides attached to the solid support at a density of greater than 400 different oligonucleotides or polynucleotides per square centimeter. The oligonucleotides or polynucleotides are attached to the surface of the solid support in different predefined regions, and the different oligonucleotides have different determinable sequences. The '305 patent was filed on June 6, 1995 and issued on April 28, 1998.
Affymetrix accuses Hyseq of infringing claims 1, 2, 5, 8, 15, 17, and 20 of the '305 patent, and accuses Incyte of infringing claims 1, 3-13, and 15-25. Claims 1 and 15 are the only independent claims.
C. The '992 Patent, Entitled "Method of Detecting Nucleic Acids."
The '992 patent claims a method for detecting nucleic acid sequences that may be used in connection with an array of polynucleotides, where the polynucleotides are comprised of a determinable nucleic acid. The method utilizes the well-known ability of nucleic acid sequences to "hybridize" to complementary sequences. The '992 patent claims a method of simultaneously detecting the presence of two sets of specific nucleic acid sequences, where one collection of nucleic acids is labeled with one label, and another collection of nucleic acids is labeled with a different label, distinguishable from the first. The two collections of labeled nucleic acids are substantially complementary to a nucleic acid of the array. The collections of labeled nucleic acids are made to contact the arrays so as to detect hybridization of the labeled nucleic acids to complementary nucleic acids in the arrays.
The '992 patent further claims a method of detecting differential expression of each of a plurality of genes in one cell type compared to expression of the same genes in a second cell type. This method involves adding a mixture of labeled nucleic acid from the two cell types to an array of polynucleotides representing genes derived from the two cell types. The labels are distinct fluorescent labels, which are examined under fluorescence excitation conditions. The method is practiced under conditions that allow hybridization to complementary sequence polynucleotides in the array. The '992 patent was filed on June 25, 1996 and issued on September 1, 1998.
Affymetrix accuses Hyseq of infringing claims 1 and 3 of the '992 patent, and Incyte of infringing claims 1, 3, 4, and 5. Claims 1 and 4 are independent claims.
Although the specifications of the '934, '305, and '992 patents differ in many respects, the patents are related in that all three derive from the originally filed U.S. Patent Application No. 362,901 (the '901 Application). Each of the patents is based on separate continuation-in-part applications that are based, either directly or indirectly, on the '901 Application.[2]
D. '716 Patent, Entitled "Computer-Aided Visualization and Analysis System for Sequence Evaluation"
The '716 patent claims computer program products and systems that identify an unknown base in a sample nucleic acid sequence. The claimed products and systems determine the identity of a particular base by comparing the results from hybridizing a set of probes to a sample with the results from hybridizing the set of probes *1218 to a reference nucleic acid, which has a known sequence. Because generally, pairs of completely complementary nucleic acids hybridize more strongly than nucleic acid pairs that have a "mismatch," the identity of the unknown nucleotide can be determined by hybridizing with a set of nucleic acids, each having a different base at the critical complementary site, and comparing the strength of that hybridization with the hybridization to a reference nucleic acid. The '716 patent was filed on October 21, 1994 and issued on August 18, 1998.
Affymetrix accuses Hyseq of infringing claims 3, 4, 7, 8, 9, and 10. Claims 3, 4, 7, and 8 are independent claims.
III. LEGAL STANDARD
Claim construction is purely a matter of law, to be decided exclusively by the Court. Markman v. Westview Instruments, Inc., 517 U.S. 370, 387, 116 S. Ct. 1384, 134 L. Ed. 2d 577 (1996). Claims are construed from the perspective of a person of ordinary skill in the art at the time of the invention. Markman v. Westview Instruments, Inc., 52 F.3d 967, 986 (Fed.Cir. 1995). To determine the meaning of the claim terms, the Court initially must look to intrinsic evidence, that is, the claims, the specification, and, if in evidence, the prosecution history. Autogiro v. United States, 181 Ct. Cl. 55, 384 F.2d 391 (1967). The Court must look first to the words of the claims themselves. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). These words are to be given their ordinary and customary meaning unless it is clear from the specification and prosecution history that the inventor used the term with a different meaning. Id. The claims should be interpreted consistently with the specification. See Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1250 (Fed.Cir. 1998). Arguments and amendments made during prosecution of a patent application limit claim terms so as to exclude any interpretation that was disclaimed during prosecution. Southwall Tech., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed.Cir. 1995).
Where intrinsic evidence alone resolves any ambiguity in a disputed claim term, it is improper to rely on extrinsic evidence. Vitronics, 90 F.3d at 1583, 1585. However, extrinsic evidence may be considered in the rare instances where the intrinsic evidence is insufficient to enable the court to construe disputed claim terms. Id. at 1585.
IV. DISCUSSION
As a preliminary matter, the Court addresses a threshold argument that Incyte repeatedly offers concerning claim construction.[3] Incyte relies on the canon of claim construction which states that, "[w]hen claims are amenable to more than one construction, they should when reasonably possible be interpreted so as to preserve their validity." Modine Mfg. v. U.S. Int'l Trade Comm'n, 75 F.3d 1545, 1557 (Fed.Cir.1996). Arguing that the '934, '305, and '992 specifications do not enable Affymetrix's claim constructions under 35 U.S.C. § 112, ¶ 1, Incyte urges rejection of Affymetrix's proffered constructions.
Specifically, Incyte asserts that Affymetrix's true invention is the "Very Large Scale Immobilized Polymer Synthesis" or "VLSIPS" technology. This technology originally involved the use of light sensitive compounds in the stepwise formation, monomer-by-monomer, of polypeptides, not polynucleotides, such that the synthesis occurs on the solid support, or chip apparatus. Incyte argues that even if, arguendo, the specifications of the '934, '305, and '992 patents enable chips with polynucleotides, those chips are only enabled for polynucleotides synthesized monomer-by-monomer directly on the solid support. Accordingly, Incyte imposes the limitation requiring monomer-by-monomer *1219 synthesis on multiple disputed terms in the claims.
Although the Court acknowledges that it must attempt to interpret claims in a manner which will sustain their validity, courts do not have authority to redraft claims for this purpose. Process Control Corp. v. Hydreclaim Corp., 190 F.3d 1350, 1356-57 (Fed.Cir.1999) (refusing to adopt a construction that would avoid invalidity where there was only one reasonable interpretation of the claim term). Moreover, while the Court may use the specification to interpret words in the claim, it is improper to import extraneous limitations from the specification into the claim terms. E.I. du Pont de Nemours & Co. v. Phillips Petro., 849 F.2d 1430, 1433 (Fed.Cir.1988) (refusing to read limitations into a claim to avoid invalidity due to prior art). The du Pont court declined "extraneous limitation" as any limitation read into a claim from the specification wholly apart from any need to interpret what the patentee meant by particular words or phrases in the claim. Id.
In light of these various doctrines of claim construction, the Court rejects Incyte's arguments to the extent that they purport to limit the claims to only what Incyte asserts is enabled by the specification. Incyte has provided no authority to support its effort to transform claim construction analysis into a full non-enablement and written description analysis. While Incyte cites several cases which demonstrate the Federal Circuit's strict application of the enablement requirement to biotechnology inventions see Enzo Biochem v. Calgene, 188 F.3d 1362 (Fed. Cir.1999); Regents of the Univ. of California v. Eli Lilly, 119 F.3d 1559 (Fed.Cir. 1997); Amgen, Inc. v. Chugai Pharm. Co., 927 F.2d 1200 (Fed.Cir.1991) none of these cases dictate that the enablement analysis must be incorporated into claim construction.
None of the other cases relied upon by Incyte require limiting the meaning of claim terms solely on the basis of an invalidity analysis. Contrary to Incyte's interpretation, the Federal Circuit in Schering Corp. v. Amgen Inc., 222 F.3d 1347 (Fed. Cir.2000), limited the meaning of the term "Interferon alpha" because the patentee had explicitly limited that definition during prosecution. Id. at 1352-53. The Federal Circuit expressly disagreed with the district court's rationale that the term should be limited because a broader interpretation would render the claim invalid for improper introduction of new matter. Id. at 1352-54. Instead, the court based its claim construction on the established doctrine requiring a court to adopt a patentee's explicit definition of a term. Id. Likewise, in Cultor Corp. v. A.E. Staley Mfg. Co., 224 F.3d 1328 (Fed.Cir.2000), the court construed "water-soluble polydextrose" to be restricted to that prepared with a citric acid catalyst, because the specification explicitly had limited the term to polydextrose produced using a citric acid catalyst.[4]Id. at 1331.
Collectively, this Court interprets the cases cited above to instruct that the asserted non-enablement of a proffered claim construction alone is not a proper basis for rejecting that construction. Instead, the Court must conduct the traditional claim construction analysis, looking first to the claim language itself, then to the specification and prosecution history. If the Court concludes from this analysis that a claim term is susceptible to two or more meanings, the Court then must, where possible, adopt a meaning which renders the claim valid. Adopting this approach, the Court now proceeds to construe the disputed terms.
*1220 A. '934 Patent
Claim 1 of the '934 patent reads:
A substrate with a surface comprising 103 or more groups of oligonucleotides with different, known sequences covalently attached to the surface in discrete known regions, said 103 or more groups of oligonucleotides occupying a total area of less than 1 cm2 on said substrate, said groups of oligonucleotides having different nucleotide sequences.
Claim 7 of the '934 patent reads:
An array of more than 1,000 different groups of oligonucleotide molecules with known sequences covalently coupled to a surface of a substrate, said groups of oligonucleotide molecules each in discrete known regions and differing from other groups of oligonucleotide molecules in monomer sequence, each of said discrete known regions being an area of less than about 0.01 cm2 and each discrete known region comprising oligonucleotides of known sequence, said different groups occupying a total area of less than 1 cm2.
1. oligonucleotides is construed to mean polymers of nucleotides ranging in length from 2 to about 100 nucleotides.
Affymetrix contends that "oligonucleotides" means polymers, or small polymeric stretches, of nucleotides, ranging in length from 2 to about 100 nucleotides.
Incyte contends that "oligonucleotides" means single-stranded polymers of nucleotides synthesized monomer by monomer and less than about 20 nucleotides in length.[5]
The Court looks to the plain meaning of the term, which suggests small polymers of nucleotides. At the time of the hearing, the parties agreed that oligonucleotides range from 2 to 100 nucleotides in length. The Court rejects Affymetrix's assertion that the term also encompasses small polymeric stretches, given that such a definition would effectively expand "oligonucleotides" to include polynucleotides of unlimited length. A patentee may be his own lexicographer, provided the definition is clearly set forth in the specification. Beachcombers v. WildeWood Creative Prods., Inc., 31 F.3d 1154, 1158 (Fed.Cir.1994). However, Affymetrix fails to cite any intrinsic evidence to support its unconventional interpretation.
The Court rejects Incyte's argument that the term, "oligonucleotides," must be limited to single stranded synthetic nucleotides made monomer by monomer. Incyte has failed to cite any portion of the specification or prosecution history indicating that patentee intended the specific term, "oligonucleotide," to be limited in this manner.[6] Instead, Incyte relies exclusively on the argument that, without this limitation, the claim would be invalid for non-enablement. The Court rejects this argument for the reasons discussed above. Further, the Court finds that in this case, "oligonucleotide" is not reasonably amenable to a definition restricting it to single stranded synthetic nucleotides *1221 made monomer by monomer. In such a case, the Court cannot rewrite the claims, even if necessary to avoid a finding of invalidity. Process Control, 190 F.3d at 1357.
2. known sequences is construed to mean sequences of monomers identified prior to attachment to the surface.
Affymetrix contends that "known sequences" means sequences of identified or identifiable monomers.
Incyte contends that "known sequences" means a polymer synthesized monomer by monomer, and whose sequence is determined by the monomer by monomer synthesis process used to generate it.
The Court adopts the plain and ordinary meaning of the words, "known sequences," as there are no statements in the specification or prosecution history which indicate that the inventors intended the words to have a meaning inconsistent with the ordinary meaning. Accordingly, the Court finds that Affymetrix's assertion that unknown but identifiable sequences are encompassed by the ordinary meaning of "known sequences" is untenable, as this definition contradicts the ordinary meaning of "known."
Furthermore, for the reasons previously discussed, the Court finds that "known sequences" cannot be restricted only to those sequences which Incyte asserts are enabled by the specifications. "Known sequences" is not reasonably amenable to a definition restricting it to polymers synthesized monomer by monomer, whose sequence is determined by a monomer by monomer synthesis process, and the Court will not import this extraneous limitation into the claim.
3. covalently attached is construed to mean directly secured or joined to the solid surface such that every chemical bond between the oligonucleotide and the surface is a covalent bond. Affymetrix contends that "covalently attached" means secured to the solid surface through a covalent bond, either directly or indirectly. Affymetrix's definition requires that only the bond at the point of attachment to the surface, whether to the oligonucleotide or to the linker, be a covalent bond. (Markman hearing transcript at 413:9-415:26).
Incyte contends that "covalently attached" means the oligonucleotide is covalently bonded to the surface by the 3' end of the oligonucleotide. Incyte's definition requires that, if a linker molecule is used to covalently attach the oligonucleotide to the surface, every bond between the surface and the oligonucleotide must be a covalent bond. (Id. at 416:14-18).
The Court adopts the plain and ordinary meaning of the words, "covalently attached" to determine that the oligonucleotide is secured or joined to the solid surface by covalent bonding. The Court rejects Affymetrix's suggestion that the oligonucleotide may be "indirectly" covalently attached to the surface via a noncovalent bond between the oligonucleotide and a linker molecule, as long as a covalent bond exists between the linker and the surface. Such an interpretation contradicts the plain language of the claim, which requires covalent attachment between the oligonucleotide and the surface, not merely between a linker and the surface. Affymetrix has failed to point to any intrinsic evidence to suggest that it intended "covalent attachment" to have any meaning other than this conventional meaning.
4. discrete known regions are construed to mean identified localized areas on a surface which are, were, or are intended to be activated for formation of a polymer, where the activation is accomplished through exposure of the localized area to an energy source adapted to render a group active for synthesis of the polymer on the surface or for immobilization of a pre-existing polymer on a surface.
Affymetrix originally argued that "discrete known regions" are physically distinguishable *1222 and known regions. However, during its rebuttal argument, Affymetrix embraced the definition, provided in the specification, that "region" is a localized area on a surface which is, was, or is intended to be activated for formation of a polymer. (Markman hearing transcript at 374:22-23). Affymetrix then asserted that "formation" is not limited to synthesis of the polymer on the surface. Affymetrix argued that formation encompasses both synthesis on the surface and immobilization of preexisting polymers on a surface.
Incyte contends that a "discrete known region" is a localized area on a surface which is, was, or is intended to be activated for synthesis of a polymer, and which is also spatially addressable for activation of monomer by monomer synthesis.
Both parties accept the definition of "regions" that the patentee explicitly offers in the specification. In defining "predefined region," the '934 specification states:
A predefined region is a localized area on a surface which is, was, or is intended to be activated for formation of a polymer. The predefined region may have any convenient shape, e.g., circular, rectangular, elliptical, wedge-shaped, etc. For the sake of brevity herein, "predefined regions" are sometimes referred to simply as "regions."
('934 patent, col. 8:5-10). The remaining dispute thus concerns the meaning of "activated for formation of a polymer" within this definition.
After accepting the '934 patent's definition of "regions" and acknowledging that the parties' real dispute now is as to the meaning of the definition (Markman hearing transcript at 375:9-18), Affymetrix did not present any definition of "activated." Affymetrix noted simply that the disclosed embodiment which uses caged binding members ('934 patent at col. 30:6-col. 31:3), is a "clear example" of activation. (Markman hearing transcript at 376:12-18).
The '934 patent likewise does not provide an explicit definition of "activated." However, it does describe "radiation, electric fields, electric currents" as examples of "activators" which expose a functional group which has been provided with a protective group. ('934 patent at col. 8:65-col. 9:2). Based on this description in the specification, the Court interprets "activated" to mean exposed to an energy source adapted to render a group active for formation of the polymer. This definition is consistent with Affymetrix's observation that the caged binding member embodiment demonstrates an example of activation. In that case, the caged binding members (which are not active) are attached to the surface of a solid support. (Id. at col. 30:35-39). "Upon application of a suitable energy source, the caging groups labilize, thereby presenting the activated binding member." (Id. at col. 30:43-46). Neither party has provided any evidence to contradict this meaning of "activated."
The Court now turns to the meaning of "formation of a polymer." The plain and ordinary meaning of this term would appear to define formation as equivalent to synthesis of a polymer, in contrast to attachment of a preformed polymer onto the surface. However, Affymetrix argues persuasively that, if "predefined region" is limited to the localized area on a surface which is, was, or is intended to be activated for synthesis of a polymer only, the caged binding member embodiment and the discussion thereof is made nonsensical. The '934 patent states:
According to this alternative embodiment, the invention provides methods for forming predefined regions on a surface of a solid support, wherein the predefined regions are capable of immobilizing receptors. The methods make use of caged binding members attached to the surface to enable selective activation of the predefined regions.... The activated binding members are then used to immobilize specific molecules such *1223 as receptors on the predefined region of the surface.
(col.30:14-26). The specification therefore uses the term "predefined regions" to encompass a localized area on a surface which is, was, or is intended to be activated for attachment of a preformed polymer to the surface. In the caged binding member example, the polymer is a polypeptide receptor. In light of this disclosure, the Court finds that the specification uses "formation of a polymer" to mean both synthesis and immobilization of preformed polymers. However, the inquiry does not end with the specification. The Court must consider the prosecution history to determine whether the patentee relinquished any part of this definition to obtain allowance of the patent.
Incyte points to one statement in the prosecution history of the '934 patent to argue that "formation of polymer" should be limited to synthesis of the polymer on the surface, monomer by monomer, to the exclusion of attachment of a preformed polymer. In response to a rejection for obviousness based on prior art, Affymetrix stated:
Lowe et al. teaches directly away from the invention claimed herein. As recited herein, the present invention provides for the fabrication of many sites wherein different oligonucleotides are formed. Lowe et al. suggests the formation of a biochemical MOSFET, a commonplace device in the semiconductor industry. However, when those of skill in the art fabricate semiconductor devices such as those of Lowe et al., thousands or millions of the same thing are fabricated on a single substrate. Diversity is abhorred. Hence, the teachings of Lowe et al. would lead one directly away from combination with the admittedly non-enabling teachings of Southern et al.
(Livornese Decl., Exh. 57 (10/26/94 Amendment/Response) at 10). The Court does not agree that this statement limits the meaning of "formation of a polymer" or "predefined regions" in the manner Incyte suggests. The Amendment/Response characterizes the '934 invention as providing for "fabrication of many sites wherein different oligonucleotides are formed," but does not specify that formation is limited to synthesis of the oligonucleotide on the surface. Instead, the emphasis is on formation of different oligonucleotides by way of the invention. As explained in the specification, "formation" by immobilization of polymers also allows creation of many sites wherein different polymers are formed. ('934 patent, col. 30:26-34). Therefore, Affymetrix's characterization of the invention does not exclude formation of different polymers by immobilization.
Furthermore, the Court concludes that the '305 prosecution history does not limit "formation of a polymer" to synthesis, to the exclusion of immobilization of polymers.[7] Incyte cites an Amendment/Response during the prosecution of the '305 patent, in which Affymetrix stated:
Applicants respectfully point out that it is not the density of individual polymer sequences within a particular predefined region that is recited within the claim, but the density of "different polymer sequences" on the surface of the substrate, i.e. the number of different polymers that one can synthesize in a given area.
(Livornese Decl., Exh. 24 (9/23/96 Amendment/Response) at 6). The Court does not agree that this statement disclaims a definition of "predefined region" that encompasses a localized area on a surface which is, was, or is intended to be activated for immobilization of a polymer. Although Affymetrix mentions synthesis of polymers in this Response, it does so in the context *1224 of emphasizing the density of "different polymer sequences" on the surface, as distinguished from the density of individual polymer sequences. The question of immobilized polymer sequences is not at all at issue in this exchange with the PTO, and the Court declines to use this excerpt as a basis for narrowing the meaning of "formation of a polymer" which is clearly discernable from the specification, as discussed above.
Lastly, for the reasons previously discussed, the Court rejects Incyte's argument that the construction of "discrete known regions" should be limited to only those embodiments which Incyte asserts are enabled by the specification.
5. array is construed to mean a plurality of polymers arranged on a solid support.
Affymetrix contends that "array" is a plurality of polymers arranged on a substrate.
Incyte contends that "array" means single stranded polymers synthesized monomer by monomer on spatially addressable regions of a solid support.
The Court adopts the plain, ordinary meaning of the term "array." For the reasons previously discussed, the Court rejects Incyte's attempt to limit the term to arrays which Incyte argues are enabled by the specification. Incyte has failed to identify any intrinsic evidence suggesting that Affymetrix intended "array" to have any meaning other than the plain meaning of the term.
6. X% Pure is construed to mean that X percentage of polymers within a predefined region have identical sequences.
Affymetrix contends that this term means polymers within a localized region wherein a given percentage of said polymers exhibit characteristics which distinguish them from other localized regions. Typically, purity will be measured in terms of biological activity or functions as a result of uniform sequence. Such characteristics typically will be measured by way of binding with a selected ligand or receptor.
Incyte contends "pure" means polymers within a predefined region have uniform monomer sequence and length.
The '934 specification presents a definition of "substantially pure:"
A polymer is considered to be "substantially pure" within a predefined region of a substrate when it exhibits characteristics that distinguish it from other predefined regions. Typically, purity will be measured in terms of biological activity or functions as a result of uniform sequence. Such characteristics will typically be measured by way of binding with a selected ligand or receptor.
('934 patent at col. 8:12-19). Although the Court ordinarily would accept this express definition of "pure," the Examiner determined that this meaning was indefinite, unclear and confusing. (Livornese Decl., Exh. 41 (6/2/93 Office Action) at 4). In response, Affymetrix amended the claims to recite specific percentages of purity, and characterized the claims as "now refer[ring] to a purity (i.e., identical sequences) of greater than 50%." Given the clear prosecution history that modifies the definition presented in the specification, the Court adopts the modified definition as recited above.
7. covalently coupled is construed to mean directly joined to the solid surface such that every chemical bond between the oligonucleotide and the surface is a covalent bond.
Affymetrix contends that "covalently coupled" means covalently joined, directly or indirectly to the surface.
Incyte contends that "covalently coupled" means covalently bonded to the surface by the 3' end of the nucleotide or nucleotide polymer.
The Court adopts the plain meaning of "covalently coupled." Coupled means joined, and "covalently" indicates joining *1225 via covalent bonding. For the reasons stated above in the construction of "covalently attached," the Court finds that every chemical bond which effectuates coupling of the oligonucleotide sequence and the surface must be a covalent bond.
B. '305 Patent
Claim 1 of the '305 patent reads:
An array of oligonucleotides, the array comprising [(1)] a planar nonporous solid support having at least a first surface; and [(2)] a plurality of different oligonucleotides attached to the first surface of the solid support at a density exceeding 400 different oligonucleotides per square centimeter, [(3)] wherein each of the different oligonucleotides is attached to the surface of the solid support in a different predefined region, has a different determinable sequence, and is at least 4 nucleotides in length.
Claim 15 of the '305 patent is identical to claim 1, except that the word "oligonucleotides" is replaced throughout the claim with the word "polynucleotides."
1. array of oligonucleotides is construed to mean a plurality of polymers of nucleotides ranging in length from 2 to about 100 nucleotides, arranged on a solid support.
Affymetrix and Incyte assert that "array" and "oligonucleotide" as used in the '305 patent have the same meanings as respectively proffered by the parties for the '934 patent.
Hyseq contends that "array of oligonucleotides" means a two-dimensional arrangement of oligonucleotides covalently attached to a surface in positionally defined and distinguishable predefined regions, wherein each of the predefined regions includes a mixture of single stranded oligomers of nucleotides synthesized monomer by monomer on each predefined region by stepwise attachment of a nucleotide to a surface-bound growing oligomer, where the mixture includes synthesis failures and full-length synthesis products.
For essentially the same reasons discussed in its construction of the terms, "array" and "oligonucleotides" in the '934 patent, the Court adopts the construction recited above. Hyseq's proffered definition is unsupported by any portion of the '305 specification or prosecution history indicating that the patentee intended that the specific terms, "array" and "oligonucleotide" be limited in this manner. Hyseq's additional limitations thus would constitute impermissible importation of limitations from the specification to the claims.
2. attached is construed to mean secured or joined to the solid surface.
Affymetrix contends that "attached" means secured to the solid surface.
Incyte contends that "attached" means covalently bonded to the surface by the 3' end of the nucleotide or nucleotide polymer.
Hyseq contends that "attached" means synthesized at a predefined region on the first surface of the solid support by bonding of the 3' end of the first monomer in the oligonucleotide to the predefined region on the first surface of the solid support prior to monomer-by-monomer synthesis of the oligonucleotide at that predefined region.
The Court adopts the ordinary and customary meaning of the term, "attached." Incyte argues that, during prosecution of the '934 patent, the PTO indicated that the claims were only enabled for arrays in which the oligonucleotides are covalently coupled to the surface. (Livornese Decl. Exh. 19 (7/12/94 Office Action) at 3). Consequently, Affymetrix withdrew claims to noncovalently attached oligonucleotides in order to obtain allowance. (See Markman hearing transcript at 402: 21-25). Affymetrix concedes that there is no new teaching added to the '305 specification compared to the '934 specification to support a non-covalent attachment. (Id. at 403:11-14). *1226 Because the Examiner's comments suggest that claims to non-covalently attached oligonucleotides would not be enabled, Incyte argues that "attached" must be construed to exclude non-covalent attachment, to avoid a claim construction that renders the claims invalid.
In this case, however, "attached" is not reasonably susceptible to a definition that restricts it to covalent attachment. Process Control, 190 F.3d at 1357. The specification and prosecution history clearly show that Affymetrix used the term, "attached," to mean encompassing both covalent and non-covalent attachment. ('305 patent, col. 5:19-21 (stating, "Receptors may be attached, covalently or noncovalently, to a binding member, either directly or via a specific binding substance.")). The Court cannot rewrite the claims, even if necessary to avoid a finding of invalidity. Process Control, 190 F.3d at 1357. Thus, the Court rejects Incyte's importation of "covalently" to the definition of the term. Likewise, the Court declines to impose the monomer-by-monomer synthesis and 3' attachment limitations on the definition of attachment to avoid invalidity based on non-enablement.
3. at a density exceeding 400 different oligonucleotides per square centimeter is clear and does not require interpretation.
Affymetrix contends that "exceeding 400 different oligonucleotides per square centimeter" does not require interpretation.
Hyseq contends that "exceeding 400 different oligonucleotides per square centimeter" means that oligonucleotides must be attached to the solid support at more than 400 different predefined regions per square centimeter.
Incyte offered no proposed construction in the Joint Claims Construction Statement, but agreed with Hyseq's definition during the hearing.
The customary and ordinary meaning of this claim term does not require an absolute minimum number of nucleotides. To read it as such would ignore the meaning of the term "density," which denotes a concentration of nucleotides per unit area. Hyseq's definition would impose the unfounded limitation of an absolute minimum of 400 oligonucleotides and consequently would impose the limitation of a minimum surface area of one centimeter.[8] There is no basis for such limitation, and the Court therefore rejects Hyseq's and Incyte's interpretation.
4. predefined region is construed to mean a localized area on a surface which is, was, or is intended to be activated for formation of a polymer, where the activation is accomplished through exposure of the localized area to an energy source adapted to render a group active for synthesis of the polymer on the surface or for immobilization of a pre-existing polymer on a surface.
Affymetrix and Incyte assert that "predefined region" as used in the '305 patent has the same meaning as the parties respectively proffered for "discrete known regions" in the '934 patent.
Hyseq contends that "Predefined regions" is a localized area on a surface which is, was, or is intended to be activated for the formation of a polymer.
The Court notes that Hyseq's arguments parallel Incyte's arguments and accordingly adopts the same construction for "predefined regions" as it did for "discrete known regions" in the '934 patent.
*1227 5. determinable sequence is construed to mean a polymer of known sequence or of sequence that can be determined using conventional methods.
Affymetrix contends that "determinable sequence" means a nucleic acid polymer of known sequence or of sequence that can be determined using conventional methods.
Incyte contends that "determinable sequence" means a polymer synthesized monomer by monomer and whose sequence is determined by the monomer by monomer synthesis process used to generate it.
Hyseq contends that "determinable sequence" means a spatially addressable polymer synthesized monomer-by-monomer whose sequence is determined by the process of monomer-by-monomer synthesis used to generate it.
The Court adopts the plain and ordinary meaning of the term "determinable sequence," that is, a sequence that can be determined. Incyte and Hyseq attempt to limit this definition to the VLSIPS technology which they allege is the only enabled type of determinable sequence. For the reasons previously discussed, the Court will not limit the claim term based solely on putative non-enablement. Moreover, Incyte and Hyseq have failed to produce any intrinsic evidence to establish that Affymetrix intended the term to have any meaning other than its conventional meaning. "Determinable sequence" thus is not susceptible to the definitions proffered by Incyte and Hyseq. The Court cannot import extraneous limitations into a claim, even to avoid invalidity. The Court therefore rejects Incyte's and Hyseq's constructions.
6. polynucleotides is construed to mean a polymer of nucleotides of length two or more.
Affymetrix contends that "polynucleotides" means a polymer of nucleotides of length two or more.
Incyte contends that "polynucleotides" means a strand of DNA longer than an oligonucleotide, and often naturally occurring or cloned from naturally occurring DNA.
Hyseq contends that "polynucleotides" means a polymer of nucleotides that is longer than twelve nucleotides in length.
The Court adopts the plain and ordinary meaning of the term. As with its construction of "oligonucleotides," the Court rejects the attempts by Incyte and Hyseq to import limitations into the meaning of the term without citing any portion of the specification or prosecution history to indicate that Affymetrix intended to use "polynucleotide" in a way other than the conventional meaning. For the reasons previously discussed, the Court will not limit the claim term based solely on putative non-enablement.
C. '992 Patent
Claim 1 of the '992 patent reads:
"A method for detecting nucleic acid sequences in two or more collections of nucleic acid molecules, the method comprising: (a) providing an array of polynucleotides bound to a solid surface, each said polynucleotide comprising a determinable nucleic acid; (b) contacting the array of polynucleotides with: (i) a first collection of labelled nucleic acid comprising a sequence substantially complementary to a nucleic acid of said array, and (ii) at least a second collection of labelled nucleic acid comprising a sequence substantially complementary to a nucleic acid of said array; wherein the first and second labels are distinguishable from each other, and (c) detecting hybridization of the first and second labelled complementary nucleic acids to nucleic acids of said arrays."
Claim 4 of the '992 patent reads:
A method of detecting differential expression of each of a plurality of genes in a first cell type with respect to expression *1228 of the same genes in a second cell type, said method comprising:
[1] adding a mixture of labeled nucleic acid from the two cell types to an array of polynucleotides representing a plurality of known genes derived from the two cell types, under conditions that result in hybridization to complementary-sequence polynucleotides in the array; and
[2] examining the array by fluorescence under fluorescence excitation conditions in which polynucleotides in the array are hybridized to labeled nucleic acid derived from one of the cell types give a distinct fluorescence emission color and polynucleotides in the array that are hybridized to labeled nucleic acid derived from the other cell types give a different fluorescence emission color.
1. A method for detecting nucleic acid sequences is construed to mean a method for determining the presence or absence of two or more nucleic acid molecules.
Affymetrix and Hyseq contend that this term means determining the presence or absence of two or more nucleic acid molecules.
Incyte contends that this term means a method for determining the sequence of nucleic acids as opposed to fingerprinting and mapping applications.
The parties agree that the preamble is a limitation of the claim. Incyte argues that the preamble limits claims 1 and 3 to applications involving determining the nucleotide sequence of nucleic acids. The Court agrees with Affymetrix and Hyseq that the ordinary meaning of the term does not restrict the term to sequencing applications. "Detecting nucleic acid sequences" may be plainly interpreted to mean "detecting the presence or absence of nucleic acid sequences." This meaning is fully supported by the specification, which is entitled "Method of Detecting Nucleic Acids" and expressly characterizes the invention as encompassing more than sequencing:
The present invention provides improved methods useful for de novo sequencing of an unknown polymer sequence, for verification if known sequences, for fingerprinting polymers, and for mapping homologous segments within a sequence.
('992 patent, col. 2:26-29). Incyte fails to provide persuasive evidence that Affymetrix intended to use the term "detecting nucleic acid sequences" in a manner that excludes all applications other than sequencing. Finally, for the reasons previously discussed, the Court rejects Incyte's attempt to limit the claims to only those embodiments which Incyte asserts are enabled by the specification.
2. array of polynucleotides is construed to mean a plurality of polymers of nucleotides of length two or greater, arranged on a solid support.
See the discussion of the definitions of "array" in the '934 patent and "array of oligonucleotides" and "polynucleotides" in the '305 patent.
3. bound is construed to mean secured to the solid surface.
There is no dispute among the parties as to the meaning of "bound."
4. determinable nucleic acid is construed to mean a nucleic acid of known sequence or whose sequence can be determined using conventional methods.
There is no dispute among the parties as to the meaning of "determinable nucleic acid."
5. a first [or second] collection of labeled nucleic acid is construed to mean multiple nucleic acid molecules labeled with a first [or second] label.
Affymetrix contends that this term means multiple nucleic acid molecules labeled with a first [second] label.
*1229 Hyseq contends that this term means multiple non-identical nucleic acid molecules labeled with a first [second] label.
Incyte originally did not propose a construction of this term.
The Court finds that the plain and ordinary meaning of a "collection of labeled nucleic acid" is merely an aggregation or accumulation of nucleic acid and does not, as Hyseq suggests, require the labeled nucleic acids to be non-identical. Although the examples from the specification that are cited by Hyseq may reflect embodiments where "collection of labeled nucleic acid" refers to non-identical molecules, the Court finds that these usages do not in any way disclaim the conventional meaning of the word "collection." Hyseq's definition would impermissibly import an extraneous limitation from the specification into the plain meaning of "collection." For the reasons discussed above, the Court cannot rewrite the claims based on asserted non-enablement. The Court thus adopts the construction recited above.
6. a sequence substantially complementary is not construed at this time.
Affymetrix contends that this term means a sequence which includes regions that preferably have perfect or substantially perfect homology (i.e. capable of forming a Watson-Crick base pair) to a nucleic acid.
Hyseq and Incyte contend that complementary means two nucleic acid base sequences that can form a double-stranded structure by Watson-Crick matching of each base pair. Hyseq and Incyte further contend that "substantially complementary" is fatally vague and indefinite.
It is well settled law that terms of degree such as "about," "relatively," "partially," and "substantially" do not automatically brand a claim indefinite. See Andrew Corp. v. Gabriel Elecs., Inc., 847 F.2d 819, 821 (Fed.Cir.1988); Amgen, Inc. v. Chugai Pharmaceutical, Inc., 927 F.2d 1200 (Fed.Cir.1991). However, the degree term will be indefinite if the specification offers no guidance as to the scope of the term. Standard Oil Co. v. American Cyanamid Co., 585 F. Supp. 1481, 1490-91 (E.D.La.1984), aff'd, 774 F.2d 448 (Fed. Cir.1985). Affymetrix has provided no support from either the specification or prosecution history to elucidate the limits of the term, "substantially." Moreover, the definition Affymetrix provides merely incorporates "substantially" into the definition without defining the term. Based on the arguments and evidence presented to date, the Court is inclined to find the term "substantially complementary" indefinite under 35 U.S.C. § 112, ¶ 2. However, before taking the drastic step of finding this term too indefinite to construe, the Court will request that the parties provide further briefing as to the proper construction of "substantially complementary."
7. detecting differential expression is construed to mean the assessment of relative levels of gene activity.
Affymetrix contends that this term means the assessment of the relative levels of gene activity, where the concept of relative levels includes assessment of gene expression above and below the level of detection.
Incyte contends that this term means the assessment of the relative levels of gene activity, where differential gene expression analysis requires the simultaneous and competitive hybridization of samples derived from different cells to an appropriate array and the subsequent quantitation of the resulting relative levels of hybridization.
The Court adopts the plain and ordinary meaning of "differential expression." The Court declines to import further limitations on this preamble term. "A claim preamble has the import that the claim as a whole suggests for it." Bell Communications Research, Inc. v. Vitalink Communications Corp., 55 F.3d 615-20 (Fed.Cir.1995). "If the claim preamble, when read in the context of the entire *1230 claim, recites limitations of the claim, or, if the claim preamble is `necessary to give life, meaning, and vitality' to the claim, then the claim preamble should be construed as if in the balance of the claim." Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed.Cir.1999). In this case, the Court finds that the preamble merely states a description of the method that is more fully set forth in the body of claim 4. See IMS Technology, Inc. v. Haas Automation, Inc., 206 F.3d 1422, 1434 (Fed.Cir.2000). For example, steps [1] and [2] describe the sequence of steps that comprise the method. Because the body of the claim fully and intrinsically sets forth the complete invention, and the preamble merely states the purpose of the invention, the Court finds that "detecting differential expression" in the preamble cannot be construed as a limitation of the claim.
8. adding a mixture of labeled nucleic acid from the two cell types to an array is construed to mean adding a mixture of labeled nucleic acid from the two cell types to the array in a single step, wherein "labeled nucleic from the two cell types" means samples of mRNA, DNA, or cellular other nucleic acid obtained from the two cell types.
Affymetrix contends that this term means adding a mixture, either in a single step or sequentially, of labeled nucleic acid from the two cell types to the array. Affymetrix further states that "nucleic acid from the two cell types" means samples of mRNA, or nucleic acid derived from said mRNA, including, but not limited to cDNA, labeled either before or after isolation from the two cell types.
Incyte contends that this term means the simultaneous and competitive hybridization of samples from different cells to an appropriate array to allow the subsequent quantitation of the resulting relative levels of hybridization. Incyte further asserts that "labeled nucleic acid from the two cell types" means samples of mRNA obtained from the two cell types and then labeled.
The plain language of this claim term requires adding a mixture, or combined sample, to an array in a single step. The Court rejects Affymetrix's proposition that the mixture could be added sequentially, as it is unclear what Affymetrix means when it suggests that a sample containing a mixture of labeled nucleic acids from two cell types could be added sequentially to the array. The plain meaning of adding a mixture to the array at once is consistent with the Examiner's understanding that the invention suggests "simultaneous hybridization of mixed nucleic acids." (Livornese Decl., Exh. 30 (9/3/97 Office Action) at 8). Affymetrix presents no citation or evidence to contradict the plain meaning in this respect.
The term also requires that the mixture of labeled nucleic acid is "from the two cell types." The Court agrees with Incyte to the extent that this phrase must be limited to nucleic acid samples collected from the two cell types. That is, cDNA, because it is a nucleic acid made in a reaction outside the cell, is not covered by the plain words of the claim. Affymetrix fails to cite to any evidence, intrinsic or extrinsic, that supports its proposition that cDNA and other nucleic acids derived from a cell's mRNA, which are never components of a cell, are encompassed by this term. Plainly, cDNA is not obtained from any cell, but is synthesized based on nucleic acids obtained from the cell.
Finally, the Court rejects Incyte's restriction of the term to mRNA that is labeled after it is obtained from the cell. The term recites "nucleic acids" and plainly covers DNA as well as any other cellular nucleic acids. Moreover, the claim does not impose any time constraint on when the nucleic acid is to be labeled. Incyte has failed to present any intrinsic or extrinsic evidence to contradict this plain meaning.
9. conditions that result in hybridization to complementary-sequence polynucleotides is not construed at this time. *1231 The Court will construe this term following the parties' supplemental briefing with respect to the term, "substantially complementary," as used in claim 1.
10. hybridized to labeled nucleic acid is not construed at this time. The Court will construe this term following the parties' supplemental briefing with respect to the term, "substantially complementary," as used in claim 1.
D. '716 Patent
Claim 3 of the '716 patent is representative in pertinent part of all of the independent claims of the '716 patent at issue in this claims construction. Claim 3 reads:
A computer program product that identifies an unknown base in a sample nucleic acid sequence, comprising:
[1] computer code that receives a first set of signals corresponding to a first set of probe intensities, each probe intensity in said first set indicating an extent of hybridization of a nucleic acid probe with a reference nucleic acid sequence, and each nucleic acid probe differing from each other by at least a single base;
[2] computer code that receives a second set of signals corresponding to a second set of probe intensities, each probe intensity in said second set indicating an extent of hybridization of a nucleic acid probe with said sample sequence, and each nucleic acid probe differing from each other by at least a single base;
[3] computer code that performs a comparison of at least one of said probe intensities in said first set and at least one of said probe intensities in said second set;
[4] computer code that generates a base call identifying said unknown base according to results of said comparisons said sequence of said nucleic acid probe; and
[5] a computer readable medium that stores said computer codes.
The central issue with respect to construction of the '716 patent claims concerns whether or not the disputed terms should be interpreted as "means-plus-function" terms according to 35 U.S.C. § 112, ¶ 6. Although the disputed terms are not explicitly recited in "means-plus-function" language, Hyseq argues that claiming "computer code" followed by the function performed by the computer code still subjects these claim terms to 35 U.S.C. § 112, ¶ 6. If § 112, ¶ 6 is applied to the disputed terms, the terms would be limited to the specific structures or steps disclosed in the specification and their equivalents. Upon considering all of the arguments of both Hyseq and Affymetrix, the Court finds that § 112, ¶ 6 does not apply to the terms recited in the form, "computer code that [performs x function]."
Because the disputed claim terms are not expressly recited in "means for" language, there is a presumption that § 112, ¶ 6 does not apply. Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206, 1213 (Fed.Cir.1998). However, this presumption may be overcome if the terms are determined to be purely functional, without the additional recital of specific structure or material for performing the stated function. Id.; see also, Al-Site Corp. v. VSI Int'l, Inc., 174 F.3d 1308, 1318 (Fed.Cir.1999). Hyseq asserts that "a computer code that receives a first set of signals," "a computer code that receives a second set of signals," "a computer code that performs a comparison," and "a computer code that generates a base call" are all purely functional recitations of claim elements. Specifically, Hyseq argues that "computer code" does not recite any definite structure necessary to escape § 112, ¶ 6.
Although it is a close question, the Court disagrees with Hyseq. To overcome *1232 application of § 112, ¶ 6, a claim term must identify some specific structure that performs the stated function. Al-Site Corp., 174 F.3d at 1318. In Mas-Hamilton, for example, the Court held that "lever moving element" does not recite adequate structure, because a "moving element" could be any device that causes the lever to move. Mas-Hamilton, 156 F.3d at 1214. In contrast, the Federal Circuit has found that sufficient structure is recited to escape application of § 112, ¶ 6 when the claim terms identify a type of structure that performs the stated function. See Greenberg v. Ethicon Endo-Surgery, Inc., 91 F.3d 1580, 1583 (Fed.Cir.1996) (holding "detent mechanism" denotes a type of device with a generally understood meaning in the mechanical arts); Personalized Media Communications, LLC v. International Trade Commission, 161 F.3d 696, 704-05 (Fed.Cir.1998) (holding "digital detector" connotes structure and is not a generic structural term such as "means," "element," or "device," nor is it a coined term lacking a clear meaning, such as "widget" or "ram-a-fram").
The Court finds that "computer code" is not a generic term, but rather recites structure that is understood by those of skill in the art to be a type of device for accomplishing the stated functions. Hyseq's own expert, speaking during the tutorial that preceded the Markman hearing, clearly indicated that he understood that "computer code" is a type of device for programming a computer. (Markman hearing transcript at 89:3-24). In this way, "computer code" is more similar to terms like "detent mechanism" and "digital detector," than "element," "means," or "device." Hyseq has failed to provide any evidence or caselaw to support the proposition that "computer code" is a generic term. Rather, Hyseq has only identified cases in which application of § 112, ¶ 6 was presumed because the claims had been recited in means-plus-function format. See WMS Gaming, Inc. v. International Game Technology., 184 F.3d 1339, 1347 (Fed.Cir.1999); Nilssen v. Motorola, Inc., 80 F. Supp. 2d 921, 929 (N.D.Ill.2000).
Furthermore, the Court rejects Hyseq's argument that computer code lacks any structure because it consists of data with no physical dimensions. Hyseq has cited no cases to support this proposition. Moreover, Hyseq's proposition improperly would subject every software patent and many electronics patents to § 112, ¶ 6. When, as here, the "means for" language is absent from a claim, the accused infringer has the burden of overcoming the presumption against application of § 112, ¶ 6. Hyseq has failed to meet its burden. The Court therefore finds that "computer code" has sufficient structure to escape application of § 112, ¶ 6. Hyseq concedes that, if the Court finds that § 112, ¶ 6 does not apply to these terms, the terms should be construed according to their plain and ordinary meaning, and no further construction of these terms is required. Accordingly, the Court adopts the plain and ordinary meaning of these terms.
The final remaining dispute with respect to the '716 patent concerns the meaning of the term "set." Affymetrix contends that "set" means a collection or group. Hyseq contends that "set" has a particular meaning when used in reference to nucleic acid probes. Hyseq argues that "a set of probes" must include four probes which are coextensive. Consequently, Hyseq argues that "set of signals" indicating the extent of hybridization of the probes and reference nucleic acid sequence is the set of signals from the four probes. Hyseq further asserts that the probes used to obtain the "second set of signals" must be identical in length and sequence to the probes in the first set of signals.
The Court adopts the plain and ordinary meaning of the term, "set," as meaning a collection or group. Hyseq attempts to alter the plain meaning of this term by importing extraneous limitations from embodiments described in the specification. *1233 For the reasons already discussed, the Court rejects this approach.
ORDER
For the foregoing reasons, the Court construes the '934, '305, '992, and '716 patents as set forth above. The parties shall submit supplemental briefs regarding the term "substantially complementary." Affymetrix shall file its Opening Supplemental Brief within twenty-one (21) days of the date of this order. Incyte and Hyseq each may file an Opposition Brief fourteen (14) days thereafter. The briefs shall not exceed ten (10) pages in length.
NOTES
[1] This disposition is not designated for publication and may not be cited.
[2] A diagram of the complicated relationship among these patents is presented in the Arrington Declaration in Support of Affymetrix' Opening Brief, Exh. E.
[3] Hyseq joins Incyte in this line of argument.
[4] The patent specification defined "water-soluble polydextrose" as "the water-soluble polydextrose prepared by melting and heating dextrose ... preferably with about 5-15% by weight of sorbitol present, in the presence of a catalytic amount (about 0.5 to 3.0 mol%) of citric acid." Cultor, 224 F.3d at 1330.
[5] This is the construction originally proffered by Incyte and provided in the Joint Claim Construction Statement. Incyte later attempted to modify its construction in its Opening Brief in support of its claim construction. Affymetrix objected, and the Court granted Affymetrix's Ex Parte Request for an Order Prohibiting Defendants from Asserting Claim Construction Definitions not in the Parties' Joint Claim Construction Statements. (Order of November 9, 2000). The Court nevertheless notes that Incyte's attempted revised construction agrees with Affymetrix to the extent that oligonucleotides range in length from 2 to 100 nucleotides.
[6] The Court disagrees with Incyte's characterization of the 9/30/92 Information Disclosure Statement (Livornese Decl., Exh. 11 at 2-3) as limiting the meaning of "oligonucleotides." Although the cited portion of the IDS states that the prior art does not disclose light directed techniques of oligonucleotides and the resulting claimed arrays, the Court discerns no explicit limitation of the term "oligonucleotide" from this passage.
[7] Because the Court finds that the statements in the '305 prosecution history do not limit the meaning of "discrete known regions," the Court need not reach the question of whether statements made during prosecution of the '305 patent, which was filed after the issuance of the '934 patent, serve to limit the terms in the '934 patent.
[8] In arguing that this claim term must require a minimum of 400 different predefined regions per square centimeter, Incyte proposed a hypothetical situation where any array having as few as two different polymers would infringe if the polymers were placed closely enough together. (Markman hearing transcript at 227:6-18; 242:8-243:5). However, as Incyte itself recognized ultimately, even this extreme hypothetical example is not necessarily precluded by the prior art when this term is read in the context of the entire claim. (See id. at 247:15-248:4).
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132 F. Supp. 2d 215 (2001)
OTTAWA OFFICE INTEGRATION INC., Plaintiff,
v.
FTF BUSINESS SYSTEMS, INC. and Martin A. Burke, Defendants.
No. 99 CIV.11121(SHS).
United States District Court, S.D. New York.
February 21, 2001.
*216 Bud G. Holman, Kelley, Drye & Warren, L.L.P., New York City, for plaintiff.
OPINION & ORDER
STEIN, District Judge.
Ottawa Office Integration Inc. moves, pursuant to Fed.R.Civ.P. 81(a)(3) and 9 U.S.C. § 9 of the Federal Arbitration Act ("FAA"), to confirm two arbitration awards, and defendants FTF Business Systems, Inc. and Martin Burke move, pursuant to New York law and 9 U.S.C. § 10 of the FAA to vacate those awards. FTF and Burke contend that the arbitrator committed misconduct when he denied their request for an adjournment based on the ill health of their primary witness. The motion to confirm the arbitration awards is granted and the motion to vacate the awards is denied on the grounds that the arbitrator had a "reasonable basis" for denying the adjournment because defendants repeatedly failed to provide adequate evidence to support their witness's asserted unavailability.
BACKGROUND
In November of 1999, Ottawa filed this diversity action for breach of contract alleging that FTF and Burke did not pay Ottawa for computer equipment it had delivered pursuant to a contract and a guaranty agreement. The contract provides in part that "This Agreement shall be governed by, and construed and interpreted in *217 accordance with the laws of the State of New York. Both parties agree to submit disputes to a mutually agreed upon arbitration Mediator." (Steinberg Aff. Ex. A at 4b ¶ 4.) The guaranty agreement provides in part that "Any disagreement or enforcement of this Guaranty will be subject to the New York State Arbitration rules. Any decision rendered pursuant to their ruling shall be final and binding." (Id. at 5 ¶ E.)
After this action was commenced, FTF and Burke moved to dismiss the complaint in favor of arbitration. The action was referred to the court annexed mediation office for voluntary mediation. As a result of that process, the parties agreed in writing to "proceed to final and binding arbitration as promptly as possible of all claims and counterclaims arising out of the contract and guarant[y] in dispute here." (Steinberg Aff. Ex. B ¶ 1.) The stipulation that embodied that agreement and was "so ordered" by this Court on February 3, 2000, also provided that "This Court shall retain jurisdiction over this action for any future proceedings arising out of this arbitration." (Id. at ¶ 2.) Because the parties were unable to agree on an arbitrator, the Court, pursuant to the stipulation, appointed Ronald Meister, Esq. to arbitrate the dispute. (Steinberg Aff. Ex. C.)
On March 31, 2000, the parties "confirm[ed] their submission to binding arbitration" in a document entitled "Arbitration Agreement" and provided, in relevant part, that "[The arbitration] shall be governed by the United States Arbitration Act, 9 U.S.C. §§ 1-16." (Steinberg Aff. Ex. D.)[1]
The arbitrator scheduled a hearing for May 2 and 3. One week before it was to take place, FTF and Burke requested an adjournment because Burke a party and defendants' primary witness was ill. (Holman Aff. Ex. K.) They submitted a letter on a plain sheet of paper without letterhead from a Dr. Alexander Chen that Burke had been diagnosed in 1995 with Wegener's Granulomatosis, which means that "he has an overactive immune system." (Id.) The arbitrator granted the requested adjournment and rescheduled the hearing for June 6 and 7. (Holman Aff. Ex. Q.) He also ordered that any further requests for adjournments based on Burke's health be accompanied by "a physician's affidavit describing Mr. Burke's diagnosis, any reason(s) he cannot travel or testify, his prognosis, and a clear statement of the date by which it is anticipated he will be able to travel and testify," relevant medical records, and "a waiver of Burke's physician-patient privilege sufficient to permit complainant and the [arbitrator] to review and inquire into Mr. Burke's medical records, physical condition and ability to travel and testify." (Id.) In addition, FTF and Burke were directed to give notice on or before May 26 if they believed that Burke would be unable to participate in the June hearing. In that case, the arbitrator wrote that he would conduct "an evidentiary hearing" to determine Burke's competency to testify. (Id.)
A few days later, the arbitrator granted Ottawa's request for a further adjournment so that Ottawa's counsel could attend his daughter's college graduation. (Holman Aff. ¶ 26, Ex. R.) The hearing was moved, with the consent of the parties, to June 28 and 29.
The day before the hearing, FTF and Burke again requested an indefinite adjournment based on the stated fact that Burke's "medical condition has deteriorated" and "his doctors are attempting to stabilize his condition." (Holman Aff. Ex. X.) The request did not include any description of his condition or supporting information, despite the arbitrator's earlier ruling. Ottawa alleged that Burke was not as sick as he claimed and opposed any further adjournments on the grounds that *218 it was the day before the hearing was to take place and: (1) three of its witnesses had arrived in New York from Canada to testify, (2) Burke had submitted no substantiation for his "condition" and, (3) he, in fact, had been well enough to discuss settlement issues with a representative of Ottawa only four days earlier. (Holman Aff. Ex. Y.) The arbitrator denied the adjournment. (Holman Ex. AA.)
At the beginning of the hearing the next morning, FTF and Burke renewed their request for an open-ended adjournment and submitted two letters from Dr. Chen: the first had been previously submitted with the April 26 adjournment request, and the second was undated and again without letterhead. The letters stated that the doctor has advised Burke to "rest at home and avoid any stressful situations." (Holman Aff. Ex. K, BB.) Neither letter was in the form of a sworn affidavit as directed by the arbitrator. (Holman Aff. Ex. K, BB, CC at 5.) FTF and Burke objected to the arbitrator's requirement that Burke waive his physician-patient privilege and turn over his medical records. (Holman Aff. Ex. CC at 8-9.)
The arbitrator denied the renewed request for an adjournment on the grounds that: (1) FTF and Burke did not give proper notice as previously ordered, (2) they did not submit any credible medical evidence, and (3) the submitted letters were vague in describing Burke's asserted inability to testify. (Holman Aff. Ex. CC at 19, 20, DD at 343.) The arbitrator nonetheless ruled that he would leave the record open until August 11 to allow FTF and Burke to supplement the record with oral or written testimony from Burke, provided that they supplied a physician's affidavit and relevant medical records by July 12. (Holman Aff. CC at 20, DD at 334-35.)
FTF and Burke produced only one witness at the June 28 and 29 hearing. That witness testified that she spoke on the telephone to Burke about work-related matters "a few times" a day. (Holman Aff. Ex. DD at 311.) Indeed, she had spoken to him "four [or] five times" on the very day of the hearing. (Id. at 310.) She also testified that Burke had been in the office "a couple of weeks" before the hearing. (Id. at 311.) That witness finished testifying at 3 p.m. FTF and Burke then requested another adjournment because there was not enough time for them to put on the rest of their case. They stated that they had not brought additional witnesses to the hearing that day because they believed the completion of Ottawa's case was going to take more time than it did. Ottawa had represented on the first day of the hearing that it had two witnesses for the second day; however, one of those witnesses was called away on business and could not attend. (Id. at 344-45.) The arbitrator denied defendants' request for a further adjournment "for any purpose other than offering the testimony of Mr. Burke if [defendants] establish that he [was] physically incapable of testifying earlier." (Id. at 345-46.)
On July 12 the deadline the arbitrator had set for FTF and Burke to substantiate Burke's medical condition they failed to produce any such substantiation and instead filed a petition in New York Supreme Court to stay the arbitration proceedings and to disqualify the arbitrator on the grounds that the arbitrator had committed misconduct when he refused to grant an adjournment based on Burke's illness and when he requested that both parties pay the arbitrator's estimated fees and costs in advance of the hearing. (Holman Aff. Ex. EE ¶ 4.) Justice Carol E. Huff granted the stay. Ottawa then removed the petition to the United States District Court for the Southern District of New York and U.S. District Judge Richard Berman vacated the stay. (FTF Bus. Sys., Inc. & Martin Burke v. Ottawa Office Integration, Inc., 00 Civ. 5225(RMB), Memo Endorsement dated July 25, 2000.)
In September 2000, the arbitrator awarded Ottawa compensatory damages of $780,035.57 in Canadian dollars, plus interest *219 at the rate of 2% per month from April 1, 1999. One month later, he issued a supplemental award of $129,794.31 in U.S. dollars for attorneys' fees and costs. The parties subsequently made their respective motions.
DISCUSSION
Choice of Law
The parties disagree about what law applies to this case. Ottawa contends that the FAA applies while FTF and Burke believe that New York arbitration law applies. The Court will apply the FAA to this review because this is a diversity case that involves interstate commerce and because the Arbitration Agreement specifically provides for the FAA to govern the arbitration.
"The FAA applies when there is federal subject matter jurisdiction, i.e., diversity jurisdiction ... and when the contract calling for arbitration evidences a transaction involving interstate commerce." Barbier v. Shearson Lehman Hutton Inc., 948 F.2d 117, 120 (2d Cir.1991) (citing 9 U.S.C. § 2). In this case, federal jurisdiction is based on diversity of citizenship of the parties Ottawa is a Canadian corporation with its principal place of business in Canada and defendants are citizens of New York State. (Steinberg Aff. Ex. E ¶¶ 4-6.) In addition, the contract involves a transaction between a Canadian company and New York company. The computer equipment was delivered from Canada to several different states. Clearly this contract "evidences a transaction involving interstate commerce."
"Parties are generally free to structure their arbitration agreements as they see fit." Barbier, 948 F.2d at 122. Here, the parties specifically agreed in the Arbitration Agreement dated March 31, 2000, that "[The arbitration] shall be governed by the United States Arbitration Act, 9 U.S.C. §§ 1-16." This Arbitration Agreement was executed after the signing of the original contract and guaranty. It is a well settled principle of contract law that a new agreement between the same parties on the same subject matter supercedes the old agreement. See NLRB v. International Union of Operating Eng'rs, 323 F.2d 545, 548 (9th Cir.1963) ("Since the contracts were entered into by the same parties and cover the same subject matter, it is a well settled principle of law that the later contract supercedes the former contract as to inconsistent provisions.") (citing Restatement, Contracts § 408 (1932)); Marine Transport Lines, Inc., v. International Organization of Masters, Mates, & Pilots, 696 F. Supp. 1, 17.
Furthermore, the Arbitration Agreement was signed by defendants' counsel and relied upon by the defendants in their petition in New York Supreme Court for an order disqualifying the arbitrator and staying the arbitration. (Holman Aff. Ex. EE ¶¶ 8, 27.) FTF and Burke cannot, on the one hand, argue that the agreement applies and then, on the other, ignore its existence. They also fail to offer any grounds for finding that the Arbitration Agreement is not valid. Thus, the Court finds that the provision in the Arbitration Agreement that the arbitration "shall be governed by the United States Arbitration Act, 9 U.S.C. §§ 1-16" requires the Court to apply the FAA in reviewing these motions. Cf. A/S Custodia v. Lessin Int'l, Inc., 503 F.2d 318, 320 (2d Cir.1974); Deloitte Noraudit A/S v. Deloitte Haskins & Sells, 9 F.3d 1060, 1064 (2d Cir.1993).
Standards of Review
Arbitration awards are subject to "very limited review" in order that "the twin goals of arbitration, namely, settling disputes efficiently and avoiding long and expensive litigation" are not undermined. Folkways Music Publishers, Inc. v. Weiss, 989 F.2d 108, 111 (2d Cir.1993). "The award may be vacated only if at least one of the grounds specified in 9 U.S.C. § 10 is found to exist." Barbier, 948 F.2d at 120. The party seeking vacatur of the award has the burden of proof. See Willemijn Houdstermaatschappij, B.V. v. Standard *220 Microsystems Corp., 103 F.3d 9, 12 (2d Cir.1997).
Section 10 of the FAA sets forth the limited grounds available to vacate an arbitration award, including "where the arbitrator[ ] [was] guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy." 9 U.S.C. § 10(a)(3). "Misconduct typically arises where there is proof of either bad faith or gross error on the part of the arbitrator." Agarwal v. Agrawal, 775 F. Supp. 588, 589 (S.D.N.Y. 1991) (citing United Paperworkers Int'l v. Misco, Inc., 484 U.S. 29, 40, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987)). If, however, there exists "a reasonable basis for the arbitrators' considered decision not to grant a postponement," a court should be reluctant to interfere with the award. Roche v. Local 32B-32J Service Employees Int'l Union, 755 F. Supp. 622, 625 (S.D.N.Y.1991); see also Storey v. Searle Blatt Ltd., 685 F. Supp. 80, 82 (S.D.N.Y. 1988).
Application of the "reasonable basis" test
Courts have found a "reasonable basis" for denying an adjournment of an arbitration hearing in circumstances similar to these. For example, in Storey, the respondent requested an adjournment on the morning of the hearing due to a death in the family of a primary witness. The arbitrators denied the request because the hearing had already been adjourned twice before, the matter had been pending for more than a year, one of the petitioner's witnesses had to travel from the Virgin Islands to attend the hearing, and the respondent had failed to explain why another representative of the company could not be present. The district court found that the arbitrators had a "reasonable basis" for denying an adjournment. Storey, 685 F.Supp. at 82. See also Roche, 755 F.Supp. at 624-25; C.T. Shipping, Ltd. v. DMI, Ltd., 774 F. Supp. 146, 149-50 (S.D.N.Y.1991) (finding arbitrators' denial of adjournment reasonable when panel had already granted a two-month adjournment for this particular witness and respondent's request was for an unspecified amount of time); Agarwal, 775 F.Supp. at 590-91.
In this case, the arbitrator had a "reasonable basis" for denying FTF and Burke's request to adjourn the hearing due to Burke's alleged, but unsubstantiated, ill health. As in Storey, the hearing had already been adjourned twice before and Ottawa's witnesses had to travel from Canada to attend the hearing in New York. The request was also for an unspecified amount of time, as in C.T. Shipping. In addition, the arbitrator had already granted an adjournment on account of Burke's purported ill health, even though Burke had been ill but presumably functioning in his business since 1995 and the initial request came just one week before the scheduled hearing.
The arbitrator had good reason to require credible medical evidence before granting another adjournment requested one day before the hearing because Ottawa had learned that Burke had been conducting business discussions over the telephone, which implied that Burke was not as sick as he claimed to be. It is well settled that a party waives his doctor-patient privilege when he puts his medical condition into issue. See In re Agent Orange Product Liability Litigation, 91 F.R.D. 616, 618 (E.D.N.Y.1981); Crawford v. Manion, 1997 WL 148066, at *3 (S.D.N.Y. March 31, 1997). An arbitrator can formulate such procedures as he sees fit as long as the proceedings are not "fundamentally unfair." See Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 19 (2d Cir.1997) ("Federal Courts do not superintend arbitration proceedings. Our review is restricted to determining whether the procedure was fundamentally unfair."); National Broadcasting Co., Inc. v. Bear Stearns & Co., Inc., 165 F.3d 184, 186.
*221 Moreover, the arbitrator was willing to accept post-hearing submissions from Burke and hold another day of live testimony, even after learning from defendants' own witness that Burke was able to go to the office just "a couple of weeks" before the hearing and that Burke had conducted business with the witness over the telephone on the very day of the hearing. Given the repeated refusal of defendants to comply with the arbitrator's directives, the arbitrator could reasonably conclude that defendants' request for an adjournment was not based on Burke's poor health but rather was an attempt to "to delay the hearings unnecessarily." C.T. Shipping, 774 F.Supp. at 149. The issue is not whether this Court would have acted in the same manner, but rather whether the arbitrator had a "reasonable basis" for denying the requested adjournment. He did.
FTF and Burke's reliance on Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16 (2d Cir.1997) for the proposition that the arbitrator did not have a "reasonable basis" to deny the adjournment is misplaced. In that case, the former president of the defendant's company suddenly become temporarily unavailable to testify because his wife had been diagnosed with cancer. The arbitration panel concluded the hearings without waiting for his testimony because they believed it would be cumulative. In its motion to vacate, the defendant included an affidavit stating what the witness would have testified to, if permitted. The Second Circuit found that "there was no reasonable basis for the arbitration panel to determine that [the witness's] omitted testimony would be cumulative." Id. at 20.
Here Burke's ill health was not an unexpected occurrence. After granting one adjournment, the arbitrator set out a procedure for Burke to follow in order to justify another adjournment. Burke failed to comply with any aspect of that procedure. The arbitrator specifically stated he would accept into the record an affidavit stating what Burke would have testified to, if Burke had only substantiated his alleged medical condition. Finally, the arbitrator did not deny the adjournment based on an erroneous conclusion concerning the significance of Burke's testimony, but rather for his failure to demonstrate the reason he could not attend the hearing.[2]
FTF and Burke's other claim for misconduct based on the denial of an adjournment for defendants to produce witnesses other than Burke is without merit. The parties had ample notice of the dates of the hearing, and FTF and Burke did not offer any reason why these other witnesses could not attend the hearing on those dates. The arbitrator had a reasonable basis for his decision. See, e.g., Dan River, Inc. v. Cal-Togs, Inc., 451 F. Supp. 497, 503 (S.D.N.Y.1978).
CONCLUSION
Because the arbitrator had a "reasonable basis" for denying FTF and Burke's requests for an additional adjournment, plaintiff's motion to confirm the arbitration award and supplemental award is granted and defendants' motion to vacate the awards is denied.
SO ORDERED.
NOTES
[1] Although that document is signed by counsel for FTF and Burke but not by counsel for Ottawa, FTF and Burke subsequently confirmed in a court submission that all parties had entered into the "Arbitration Agreement." (Holman Aff. Ex. EE ¶¶ 8, 27.)
[2] It is worth noting that even if New York arbitration rules applied to this case as FTF and Burke contend, their motion to vacate would still be denied because they "failed to carry [their] burden to establish misconduct on the arbitrator['s] part sufficient to vacate the award. Such a finding of misconduct would require a determination that the arbitrator[ ] had abused [his] discretion." Doris Trading Corp. v. Melody Knitting Mills, Inc., 172 A.D.2d 399, 400, 568 N.Y.S.2d 779, 780 (1st Dep't 1991) (finding no abuse of discretion when the arbitrators denied a request for an adjournment based on the attorney's ill health because the request was not supported with competent documentation).
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2456716/
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(2008)
AUBURN MEDICAL CENTER, INC., Plaintiff,
v.
Sue Bell COBB, in her official capacity as Chief Justice, et al., Defendants.
Civil Action No. 2:03cv1225-MHT.
United States District Court, M.D. Alabama, Northern Division.
March 21, 2008.
OPINION
MYRON H. THOMPSON, District Judge.
This case is a recent chapter in a long-standing dispute between plaintiff Auburn Medical Center, Inc., (AMC) and defendant East Alabama Health Care Authority, doing business as East Alabama Medical Center (EAMC), over which entity should receive a certificate of need (CON), which is defined under Alabama law as "A permit... before which no person, except as exempted by statute, shall ... construct... a new institutional health service or acquire major medical equipment." Rule 410-1-2-.19, Ala. Admin. Code. In addition to EAMC, AMC has named a host of additional defendants, most of whom are state officials. AMC brings claims under the First and Fourteenth Amendments to the United States Constitution (as enforced through 42 U.S.C. § 1983) and under Alabama state law. AMC has invoked the court's jurisdiction pursuant to 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1367 (supplemental).
This cause is now before the court on the defendants' motions to dismiss. For the reasons that follow, the motions will be granted.
I. MOTION-TO-DISMISS STANDARD
In considering a defendant's motion to dismiss, the court accepts the plaintiffs allegations as true, Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984), and construes the complaint in the plaintiffs favor. Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir.1993). "The 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). To survive a motion to dismiss, a complaint need not contain "detailed factual allegations," Bell Atl. Corp. v. Twombly, 550 U.S. ___, 127 S. Ct. 1955, 1964, 167 L. Ed. 2d 929 (2007), "only enough facts to state a claim to relief that is plausible on its face." Id. at 1974.
II. FACTUAL BACKGROUND
An exhaustive recitation of the background and past procedural history of the longstanding dispute between AMC and EAMC leading up to the current lawsuit can be found in the Alabama appellate decision of Auburn Medical Center v. East Alabama Health Care Authority, 847 So. 2d 942 (Ala.Civ.App.2001). This court here gives only an overview as background.
A. First Federal Lawsuit
In the 1980s, AMC and EAMC filed competing applications for a CON with the Alabama State Health Planning and Development Agency (SHPDA). AMC sought approval for the construction and operation a 64-bed hospital in Auburn, Alabama, while EAMC sought approval for a 54-bed extension to its existing facilities in Auburn. SHPDA approved AMC's application for a CON, then later reversed its decision; SHPDA also denied EAMC's application. AMC sued SHPDA in federal court for conspiring to deprive it of its CON. The federal court found in favor of AMC and ordered SHPDA to award the CON to AMC.
In the 1990s, AMC informed SHPDA that it had a contract for the construction of the hospital in compliance with SHPDA Rules and Regulations. SHPDA advised AMC that the construction contract met its requirements. EAMC, through one of its partners, applied for a CON to construct and operate an ambulatory surgery center in Auburn. SHPDA denied EAMC's application because AMC already had a CON to construct and operate.
B. State-Court Lawsuit
In 1997, EAMC filed suit in state court against SHPDA and AMC. The suit sought, among other things, a declaration that AMC's CON was invalid because AMC had not begun construction within the time required by law. The state court held that AMC's CON was invalid. AMC appealed, and the Alabama Court of Civil Appeals reversed and held that the AMC CON was valid. Auburn Med. Ctr. v. E. Alabama Health Care Auth., 847 So. 2d 942 (Ala.Civ.App.2001). EAMC then appealed, and the Alabama Supreme Court reversed and held that AMC's CON was invalid. Ex parte E. Alabama Health Care Auth., 847 So. 2d 951 (Ala.2002).
C. Current Federal Lawsuit
AMC then filed the instant federal lawsuit in 2003. AMC named a number of state justices and judges as defendants: the Chief Justice and all Associate Justices of the Alabama Supreme Court; several Alabama appellate court judges; and the Alabama trial-court judge that ruled against AMC. In addition to these judicial defendants, AMC named the following as defendants: EAMC and its Chief Executive Officer; the Alabama Secretary of State; the Alabama State Health Officer; the Director of SHPDA; and the Progress Political Action Committee (Progress PAC) and its Chair. All individual defendants, except the Chair of the Progress Political Action Committee and the Chief Executive Officer of EAMC, are sued in their official capacities only.
AMC charges that, over the course of the adjudication of its dispute with EAMC in the Alabama state courts, the defendants acted in concert to deprive AMC of its Fourteenth Amendment procedural and substantive-due-process rights as well as its rights under the Alabama Constitution. AMC also charges that, in violation`of its First Amendment rights to free expression and association,`the defendants retaliated against if for refraining or`abstaining from making political campaign contributions to the judges named as defendants. Finally, AMC seeks a declaration that the judges named as defendants failed to disclose campaign contributions in violation of state law.
AMC has stated these various claims in terms of five separate counts: Count I: AMC charges that, in granting summary judgment for EAMC and finding AMC's CON invalid, the state trial-court judge deprived AMC of its right to procedural due process under the Fourteenth Amendment and the Constitution of Alabama because she failed to provide AMC with adequate notice of her intention to rule on the issue of the validity of AMC's CON. Count II: AMC charges that, in violation of its Fourteenth Amendment right to procedural due process, the state justices and judges who considered the challenge to AMC's CON were improperly influenced and biased, or had the appearance of being so, because they had received large campaign contributions from EAMC and its Chief Executive Officer and Progress PAC and its Chair. AMC also charges that, by making campaign contributions, EAMC and its Chief Executive Officer and Progress PAC and its Chair acted in concert with these justices and judges to create the bias or the appearance of bias, in violation of AMC's right to procedural due process. Count III: AMC charges that the justices and judges, in violation of AMC's right to substantive due process of law, entered judgments, decisions, and decrees that departed so far from the established law regarding decisions of administrative agencies as to amount to actions that were arbitrary, capricious, and unreasonable. Count IV: AMC charges that, by receiving large campaign contributions from EAMC and its CEO, Progress PAC and its Chair, and others, the state justices and judges placed AMC in the position of needing to make similar contributions in order to receive unbiased judicial consideration and thus the justices and judges violated AMC's First Amendment right to refrain or abstain from making political contributions without retaliation. Count V: AMC charges that the justices and judges, with the exception of one Associate Justice, violated state law by failing to disclose their campaign contributions.
Although phrased in different ways, AMC proposes the following remedies for the claimed violations of federal law: This federal court should enter a declaration that the defendants violated federal law and that AMC's CON is valid and has remained valid throughout all of the prior state-court and administrative proceedings; this court should set aside all state-court decisions finding against AMC and enjoin all defendants from interfering with AMC's exercise of its rights under its CON and, in particular, its rights to construct and operate a hospital; and, finally, this court should award compensatory and punitive damages to AMC for the defendants' violation of its federal rights. Again although phrased in different ways, AMC proposes the following remedies for the claimed violations of state law: This court should enter a declaration that the defendants violated state law and should award the same relief requested for the violation of federal law, along with an injunction, based on the affirmative requirements of state law, directing all the sued state justices and judges, and their successors in office, to divulge to all litigants appearing before them, all political contributions to their respective election campaigns that may create an appearance of bias or impropriety as to the issues placed, or to be placed, before them.
III. DISCUSSION
A. Rooker-Feldman
The defendants contend that, under the Rooker-Feldman doctrine, this court lacks subject-matter jurisdiction over AMC's lawsuit. See Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149, 68 L. Ed. 362 (1923). "The Rooker-Feldman doctrine prevents the lower federal courts from exercising jurisdiction over cases brought by `state-court losers' challenging `state-court judgments rendered before the district court proceedings commenced.'" Lance v. Dennis, 546 U.S. 459, 460, 126 S. Ct. 1198, 163 L. Ed. 2d 1059 (2006) (quoting Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005)). The United States Supreme Court has explained that district courts "are empowered to exercise original, not appellate, jurisdiction" and that it is the United States Supreme Court that has exclusive appellate jurisdiction "to reverse or modify' a state-court judgment." Exxon Mobil Corp., 544 U.S. at 283, 125 S. Ct. 1517; see also 28 U.S.C. § 1257 ("Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari.").
In general, the Rooker-Feldman doctrine is applicable if (1) the federal action is brought by a state-court loser (2) complaining of an injury caused by a state-court judgment (3) rendered before the federal district court proceedings commenced and (4) inviting the district court to review and reject the state-court judgment. Exxon Mobil Corp., 544 U.S. at 284, 125 S. Ct. 1517; see also Hoblock v. Albany Cty. Bd. Of Elections, 422 F.3d 77, 85 (2d Cir.2005) (setting forth these four requirements for the application of Rooker-Feldman after Exxon Mobil).
These four requirements for the application of Rooker-Feldman are clearly met in this case as to all claims. AMC, the losing party in the state-court judgment, brought this federal action. The Alabama Supreme Court issued its final judgment in this case on June 14, 2002, approximately 18 months before AMC filed a complaint in this federal court.[1] And AMC is unabashed in its request that this court review the state-court decisions, that this court find that the decisions violated federal law, that this court reject the state-court decisions and set them aside, and that this court reinstate AMC's CON; in short, AMC is asking that this court do what Rooker-Feldman plainly prohibits, that is, AMC is asking that this court "overturn an injurious state-court judgment." Exxon Mobil Corp., 544 U.S. at 292, 125 S. Ct. 1517.
To be sure, while AMC was a party to the state-court proceeding, not all the defendants in the instant federal case were parties; indeed, the only defendant in the instant federal case who was also a named party to the state-court proceeding is EAMC. The question is therefore posed whether, in order for the Rooker-Feldman to be invoked, all parties in a later federal-court proceeding must have also been parties in the earlier court proceeding. The Rooker-Feldman doctrine requires that the party against whom the doctrine is being asserted in federal court must also have been a party in the prior court proceeding. Lance, 546 U.S. at 464, 126 S. Ct. 1198 ("we have held Rooker-Feldman inapplicable where the party against whom the doctrine is invoked was not a party to the underlying state-court proceedings"). In Rooker itself the United States Supreme Court applied the doctrine even though not all the parties in the federal-court proceeding had been parties to the earlier state-court proceeding. Rooker, 263 U.S. at 414, 44 S. Ct. 149 (applying the doctrine even though the federal-court proceeding had two defendants who were not parties to the prior state-court proceeding). The logic behind limiting the requirement to only the party against whom the doctrine is being asserted is obvious: A state-court loser should not be able to make an easy end-run around the Rooker-Feldman doctrine, and seek federal-court review of an earlier court judgment, by merely suing additional, or even different, parties in federal court.
In any event, here EAMC was a party to the state-court proceeding and is a party to the federal-court proceeding. In addition, while SHPDA was a party to the earlier state-court proceeding and is not a named party in this federal proceeding, SHPDA's Director is a party in his official capacity to this federal proceeding, and, under federal law, that means that SHPDA itself is a party. See Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985) ("an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity"). Finally, Feldman makes clear that the fact that AMC named as defendants the judicial officials who ruled against it does not bar the invocation of the Rooker-Feldman doctrine. In Feldman, the United States Supreme Court applied the doctrine where the losing party sued the judicial officials who had ruled against him. Feldman, 460 U.S. at 469 n. 2, 473 n. 8, 103 S. Ct. 1303.
The court is aware that AMC did not rely on the First and Fourteenth Amendments in the state-court proceeding but now does so in this federal-court proceeding. However, this failure does not preclude the application of the Rooker-Feldman doctrine in this federal-court proceeding. In Feldman, the United States Supreme Court observed that a plaintiff's
"failure to raise his constitutional claims in state court does not mean that a United States District Court should have jurisdiction over the claims. By failing to raise his claims in state court a plaintiff may forfeit his right to obtain review of the state court decision in any federal court. This result is eminently defensible on policy grounds. We have noted the competence of state courts to adjudicate federal constitutional claims."
Feldman, 460 U.S. at 483 n. 16, 103 S. Ct. 1303. And more to the point here, where AMC asserts in this federal proceeding that the state justices and judges that ruled against it in state court were biased, the United States Supreme Court in Rooker held that the fact that one of the claims asserted in the federal-court proceeding (and not necessarily asserted in the state-court proceeding) was that a state judge had a conflict and thus should have been disqualified was not enough to confer jurisdiction so as to allow the federal court to review the earlier state-court decision. Rooker, 263 U.S. at 417, 44 S. Ct. 149.[2]
B. Pennhurst and Rule 12(b)(1)
To the extent AMC claims that the defendants violated state law and asks that the defendants be compelled to comply with state law, its state-law claims are due to be dismissed for reasons in addition to the Rooker-Feldman doctrine. First, the state-law claims, to the extent they are against state officials and entities, must be dismissed because federal courts lack jurisdiction to order state officials to comply with state law. Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 106, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984) (there is no "greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law."). This federal court, therefore, cannot order the defendants who are state officials and entities to comply with state law.
Second, supplemental jurisdiction over the state-law claims is not appropriate because the federal claims are being dismissed for lack of subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1). As one federal appellate court has explained, a Rule 12(b)(1) "dismissal [of the federal claims] means that there never was a valid claim within the court's original jurisdiction to which the state claim may be supplemental." Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir.2001). In accord with this explanation, the unanimous view of other federal courts of appeals that have addressed the issue is that supplemental jurisdiction over state-law claims is improper when all the federal claims have been dismissed for lack of subject-matter jurisdiction. Rifkin v. Bear Stearns & Co., 248 F.3d 628, 631-633 (7th Cir.2001) (court could not exercise supplemental jurisdiction over state-law claims because it lacked subject-matter jurisdiction over the federal claims); Saksenasingh v. Secretary of Educ., 126 F.3d 347, 351 (D.C.Cir.1997) (if the district court "dismissed the underlying claim on jurisdictional ground, then it could not exercise supplemental jurisdiction."); Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1255 (6th Cir.1996) ("[a] 12(b)(1) dismissal postulates that there never was a valid federal claim."); Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir.1996) (explaining that a district court "cannot exercise supplemental jurisdiction unless there is first a proper basis for original federal jurisdiction.") (citation omitted). Therefore, this court lacks supplemental jurisdiction over AMC's state-law claims.
C. Additional Reasons for Dismissal
Finally, so as to provide a complete disposition of this case, this court notes that there are other compelling reasons (not necessarily jurisdictional) to dismiss all or some of AMC's federal and state claims and requests for relief: First, AMC's request for compensatory and punitive damages from the defendants, other than those who are private parties, is obviously barred by the Eleventh Amendment to the United States Constitution, for these defendants have been sued in their official capacities and thus any damages relief would have to come from the State of Alabama. Kentucky v. Graham, 473 U.S. 159, 169-170, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985); Edelman v. Jordan, 415 U.S. 651, 667-68, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974).
Second, to the extent that, by charging some broad, over-arching undetailed conspiracy, AMC seeks to implicate the private defendants (the Progress Political Action Committee and its Chair and EAMC and its Chief Executive Officer) in the actions of the state officials named as defendants and thus attempts to state claims against the private defendants under federal and state law, AMC's conspiracy allegations fall far short of being able to withstand a failure-to-state-a-claim challenge under Fed.R.Civ.P. 12(b)(6), as interpreted in Bell All. Corp. v. Twombly, 550 U.S. ___, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007) (to survive a motion to dismiss, a complaint must set forth "enough facts to state a claim to relief that is plausible on its face"). The private defendants are due to be dismissed for this reason alone. Indeed, all defendants are due to be dismissed to the extent AMC alleges an utterly undetailed conspiracy.
Finally, even if Rooker-Feldman and the other legal principles discussed above did not bar AMC's claims, the law of preclusion would. Because using precise legal terminology is critical when discussing the preclusive effects of former adjudication, this court adopts the Supreme Court's definitional framework set out in Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1, 104 S. Ct. 892, 79 L. Ed. 2d 56 (1984): "The preclusive effects of former adjudication ... are referred to collectively ... as the doctrine of res judicata. Res judicata is often analyzed further to consist of two preclusion concepts: issue preclusion and claim preclusion. Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided. This effect is also referred to as direct or collateral estoppel. Claim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit. Claim preclusion therefore encompasses the law of merger and bar." (Internal quotations omitted); see also Gjellum v. Birmingham, 829 F.2d 1056, 1059 (11th Cir.1987) (adopting Migra definitions of res judicata, issue preclusion, and claim preclusion). Because the prior judgment at issue was an Alabama-court judgment, this court must apply Alabama's law of preclusion. See McDonald v. Hillsborough County School Bd., 821 F.2d 1563, 1565 (11th Cir.1987); Kachler v. Taylor, 849 F. Supp. 1503, 1515-16 (M.D.Ala.1994) (Thompson, J.).
Under Alabama law, the essential elements of res judicata are: "`(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both suits.' Hughes v. Allenstein, 514 So. 2d 858 (Ala.1987).... If all of these elements are met, any claim that was or could have been adjudicated in the previous action is precluded." N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1560 (11th Cir.1990). Identity of parties concerns two sets of persons. The first set comprises "those persons who were actual parties in the original action." Id. The second set of persons to whom res judicata applies comprises "those persons who are or were in privity with the parties to the original suit." Id. Privity exists "where the nonparty's interests were represented adequately by the party in the original suit." Id. Privity also exists "where a party to the original suit is `so closely aligned to a nonparty's interest as to be his virtual representative.'" Id. at 1560-61 (quoting United Merchants & Mfrs. v. Sanders, 508 So. 2d 689, 692 (Ala.1987)). These requirements for what is essentially the type of res judicata called claim preclusion are met here.[3]
* * *
For the many and varied reasons given above, this court cannot entertain AMC's federal and state-law claims. An appropriate judgment will be entered.
JUDGMENT
In accordance with the memorandum opinion entered this date, it is the ORDER, JUDGMENT, and DECREE of the court as follows:
(1) The motions to dismiss (Doc. Nos. 91, 93, 94, 98 & 101) are granted.
(2) This lawsuit is dismissed in its entirety.
It is further ORDERED that costs are taxed against plaintiff Auburn Medical Center, Inc., for which execution may issue.
The clerk of the court is DIRECTED to enter this document on the civil docket as a final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.
NOTES
[1] So as to give the benefit of the doubt to AMC, this court has looked to the date of the decision of the Alabama Supreme Court rather than the date of the decision of the trial court. This court does not have to resolve which date is controlling.
[2] This court understands AMC's state-law claims to include a claim, separate from a challenge to the denial of its CON, that the sued state justices and judges, and their successors in office, are required by state law to divulge to all litigants appearing before them, all political contributions to their respective election campaigns that may create an appearance of bias or impropriety as to the issues placed, or to be placed, before them; however, while AMC ask that the court, as part of it broad discretion to fashion relief for any federal violation, require the justices and judges to make a similar disclosure, this court does not understand AMC's federal claims to include a claim, separate from a challenge to the denial of its CON, that federal law actually requires such disclosure. But if AMC's federal claims do include a disclosure claim, then AMC may have a federal claim that is not precluded by the Rooker-Feldman doctrine.
Feldman was later summarized by the United States Supreme Court in Exxon Mobil, as follows:
"The two plaintiffs Hickey and Feldman, neither of whom had graduated from an accredited law school, petitioned the District of Columbia Court of Appeals to waive a court Rule that required D.C. bar applicants to have graduated from a law school approved by the American Bar Association. After the D.C. court denied their waiver requests, Hickey and Feldman filed suits in the United States District Court for the District of Columbia.... The District Court and the Court of Appeals for the District of Columbia Circuit disagreed on the question whether the federal suit could be maintained, and we granted certiorari...."
"Recalling Rooker, this Court's opinion in Feldman observed first that the District Court lacked authority to review a final judicial determination of the D.C. high court...."
"In applying the accreditation Rule to the Hickey and Feldman waiver petitions, this Court determined, the D.C. court had acted judicially.... As to that adjudication, Feldman held, this Court alone among federal courts had review authority. Hence, `to the extent that Hickey and Feldman sought review in the District Court of the District of Columbia Court of Appeals' denial of their petitions for waiver, the District Court lacked subject-matter jurisdiction over their complaints.' ... But that determination did not dispose of the entire case, for in promulgating the bar admission rule, this Court said, the D.C. court had acted legislatively, not judicially.... `Challenges to the constitutionality of state bar rules,' the Court elaborated, `do not necessarily require, a United States district court to review a final state-court judgment in a judicial proceeding.' ... Thus, the Court reasoned, 28 U.S.C. § 1257 did not bar District Court proceedings addressed to the validity of the accreditation Rule itself.... The Rule could be contested in federal court, this Court held, so long as plaintiffs did not seek review of the Rule's application in a particular case."
544 U.S. at 285-86, 125 S. Ct. 1517 (quoting Feldman, 460 U.S. at 482, 486, 103 S. Ct. 1303).
Arguably, as in Feldman, a disclosure claim by AMC could be viewed as a federal challenge to a non-judicial decision (the state-court judges' financial disclosure practices), which might arguably not require a review of the state-court decision against AMC. If the court has misread AMC's federal claims not to include a disclosure claim, then AMC may want to ask for reconsideration in a timely manner. However, with these comments, the court emphasizes that it is not saying that, upon reconsideration the court would ultimately conclude, after full examination, that AMC's disclosure claim survives Rooker-Feldman or that the claim could survive a Rule 12(b)(6) failure-to-state-a-claim challenge.
[3] To invoke collateral estoppel or issue preclusion properly, a party must show three prerequisites: "(1) the issue at stake must be identical to the one alleged in the prior litigation; (2) the issue must have been actually litigated in the prior litigation; and (3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in that earlier action. In addition, the party against whom the earlier decision is asserted must have had a full and fair opportunity to litigate the issue in the earlier proceeding." Nobles v. Rural Cmty. Ins. Servs., 303 F. Supp. 2d 1292 (M.D.Ala. 2004) (Thompson, J.), aff'd, 116 Fed.Appx. 253 (11th Cir.2004) (table). These requirements would be met here as well if the issue in the earlier state-court proceeding and the issue in the current federal proceeding were viewed as one and the same: the validity of AMC's CON.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2456724/
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(2008)
RLI INSURANCE COMPANY, Plaintiff,
v.
John EOANOU, Ekaterine Eoanou a/k/a Kathy Eoanou, Mardie Lane Homes, LLC, Delta Group, LLC, and KNMSG Associates, LLC, Defendants.
No. 3:04CV328 (MRK).
United States District Court, D. Connecticut.
July 24, 2008.
RULING AND ORDER
MARK R. KRAVITZ, District Judge.
RLI Insurance Company ("RLI") moves for summary judgment in its favor on liability on Count Two of its Complaint [doc. # 1] against Defendants John Eoanou, Ekaterine Eoanou, and Delta Group LLC ("Delta"), which seeks damages for breach of a written Agreement of Indemnity among the parties. See Motion for Summary Judgment [doc. # 53].[1] John and Ekaterine Eoanou have appeared pro se in this action; Delta has never appeared. RLI provided Defendants with notice [doc. # 54] of the pendency of its summary judgment motion, but none of the Defendants has responded to the motion.
Under governing Second Circuit precedent, where the non-moving party "`chooses the perilous path of failing to submit a response to a summary judgment motion, the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial'" Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004) (quoting Amaker v. Foley, 274 F.3d 677, 681 (2d Cir.2001)). And if the evidence submitted in support of the summary judgment motion does not meet the movant's burden of production, then "summary judgment must be denied even if no opposing evidentiary matter is presented." Amaker, 274 F.3d at 681 (quotation marks omitted). "Moreover, in determining whether the moving party has met this burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts contained in the moving party's Rule 56.1 statement. It must be satisfied that the citation to evidence in the record supports the assertion." Vermont Teddy Bear, 373 F.3d at 244; see Giannullo v. City of N.Y., 322 F.3d 139, 143 n. 5 (2d Cir.2003). Thus, "even when a motion for summary judgment is unopposed, the district court is not relieved of its duty to decide whether the movant is entitled to judgment as a matter of law." One Cowdray Park LLC v. Marvin Lumber and Cedar Co., 371 F. Supp. 2d 167, 169 (D.Conn.2005) (quotation marks and alterations omitted).[2]
Having reviewed with care the Statement of Material Facts and supporting documentation provided by RLI and giving Defendants the benefit of all reasonable inferences in their favor, the Court is satisfied that there is no genuine issue of material fact and that RLI is entitled to judgment of liability on Count Two of its Complaint. The undisputed facts show that in connection with the approval of a subdivision known as the Grove Avenue Subdivision, which was proposed by Mardie Lane Homes, LLC ("MLH"), the Town of Groton required MLH to post a Subdivision Bond guaranteeing performance of the Town's Subdivision requirements. As a condition of the issuance of the Subdivision Bond, RLI required MLH, John and Ekaterine Eoanou and Delta to enter into an Agreement of Indemnity. Under the terms of the Agreement of Indemnity, the Defendants agreed to exonerate and indemnify RLI from and against any and all liability for losses or expenses (including costs and attorneys' fees) "as soon as liability exists or asserted against [RLI], whether or not [RLI] shall have made any payment therefor." See Motion for Summary Judgment [doc. # 53], Ex. B, ¶ Second.
The Subdivision Bond issued by RLI stated that if the improvement were successfully completed by October 27, 2003, the obligations under the bond would be null and void, but otherwise, they would remain in effect and RLI would be liable, jointly and severally with the principal, "for such amount as the Town of Groton may reasonably expend or contract to expend in completing such improvements...." Id., Ex. A. The Defendants have acknowledged that they did not complete the subdivision improvements and as a consequence, the Town of Groton has made demand upon RLI under the Subdivision Bond. In turn, RLI has made demand upon the Defendants to complete the improvements and hold RLI harmless but Defendants have not done so. RLI has incurred costs and attorneys' fees and also anticipates incurring a loss under the Subdivision Bond.
The Agreement of Indemnity among the parties is clear, unambiguous and enforceable. See Argus Research Group, Inc. v. Argus Media, Inc., 562 F. Supp. 2d 260, 2008 WL 2262482, at *5 (D.Conn.2008); PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 290, 838 A.2d 135 (2004). The contract requires payment to RLI as soon as liability exists whether or not RLI has made payment. It is undisputed that the promised improvements were not made, and as a consequence the Town of Groton has made demand upon RLI. Under the terms of the Agreement of Indemnity, Defendants' obligation to indemnify RLI has been triggered, and having ignored their obligations to RLI, Defendants have breached the Agreement of Indemnity.
Accordingly, the Court GRANTS RLI's Motion for Summary Judgment [doc. # 53] and grants judgment as to liability on Count Two only to RLI and against Defendants John Eoanou, Ekaterine Eoanou and Delta Group, LLC. In addition, RLI has until August 8, 2008 to move for summary judgment and/or default with respect to KNMSG Associates, LLC, or to voluntarily dismiss any claims against that Defendant.
IT IS SO ORDERED.
NOTES
[1] RLI does not seek summary judgment against Defendant Mardie Lane Homes, LLC, because a bankruptcy stay remains in effect. See In re Mardie Lane Homes, LLC, Case No. 06-50340 (Bankr.Conn.). The Court also notes that RLI has not sought summary judgment as to the final Defendant in this case, KNMSG Associates, LLC, and does not explain why in its Motion for Summary Judgment [doc. # 53].
[2] This Court has previously set forth the standard for assessing a motion for summary judgment and will not repeat that standard here. Suffice it to say that the Court has applied the standards set forth in its prior decisions. See, e.g., Rollins v. People's Bank Corp., NO. 3:05CV191(MRK), 2008 WL 2622769, at *3 (D.Conn., June 27, 2008).
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01-03-2023
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10-30-2013
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(2008)
Secured Party Charles HECKLER, Plaintiff,
v.
Dwayne MONTGOMERY, Defendant.
No. 07 CV 115(GBD)(MHD).
United States District Court, S.D. New York.
June 17, 2008.
ORDER
GEORGE B. DANIELS, District Judge.
Pro se plaintiff Charles Heckler commenced this action challenging the legality of his arrest, as an unlicensed vendor, and the seizure of his property. Plaintiff named the Deputy Inspector of the 28th Precinct as the sole defendant. Both plaintiff and defendant moved, pursuant to Fed.R.Civ.P. 56(e), for summary judgment. The matter was referred to Magistrate Judge Michael H. Dolinger for a Report and Recommendation ("Report.").
Magistrate Judge Dolinger recommended that plaintiff's motion be denied and defendant's motion be granted. The magistrate judge found that defendant had no personal involvement in plaintiff's arrest or the temporary detention of his property. He further found that "the record is devoid of any legal basis on which to hold defendant liable for the conduct of the officers who arrested plaintiff." (Report at 8). In his Report, Magistrate Judge Dolinger informed the parties of their right to submit objections to the Report, and he advised them that failure to file timely objections to the Report may constitute a waiver of those objections.
The Court may accept, reject or modify, in whole or in part, the findings and recommendations set forth within the Report. 28 U.S.C. § 636(b)(1). When there are objections to the Report, the Court must make a de novo determination of those portions of the Report to which objections are made. Id.; Rivera v. Barnhart, 423 F. Supp. 2d 271, 273 (S.D.N.Y.2006). The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. See, Fed. R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1). When no objections to a Report arc made, the Court may adopt the Report if there is no clear error on the face of the record. Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y.2005) (citation omitted).
Plaintiff filed objections. Since plaintiff is proceeding pro se, his objections, as well as his other pleadings, are to be liberally construed and interpreted to raise the strongest argument they suggest. See, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972). Plaintiff objects to the Report in its entirety. He argues that the violation of his rights should be considered a breach of contract. He claims that the magistrate judge failed to afford him the rights and protections guaranteed by the Uniform Commercial Code.
The Court has considered plaintiff's objections and find them to be without merit. The Court has examined the Report and finds the record is not facially erroneous. Magistrate Judge Dolinger's recommendation to grant defendant's motion for summary judgment is. therefore, adopted.
Accordingly, plaintiff's motion for summary judgment is denied. Defendant's motion for summary judgment is granted and the complaint is dismissed. Although plaintiff paid the requisite filing fee to bring this action, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. See, Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962). The Clerk of the Court is directed to close this case.
SO ORDERED.
REPORT & RECOMMENDATION
MICHAEL H. DOLINGER, United States Magistrate Judge.
TO THE HONORABLE GEORGE B. DANIELS, U.S.D.J.:
Pro se plaintiff Charles Hecker commenced this lawsuit, apparently under 42 U.S.C. § 1983, complaining about his 2006 arrest for peddling without a license and several other violations. Although he originally suggested that the arresting officers had used excessive force, he has since waived any claim for personal injury and on that basis avoided having to disclose his medical records during discovery. In his complaint, which is fairly obscurely worded, he names only one defendant, Dwayne Montgomery, who is the Deputy Inspector of the 28th Precinct in Manhattan. As for relief, plaintiff seeks only an award of damages.
At the conclusion of discovery, defendant has moved for summary judgment, which plaintiff opposes. Prior to the end of the discovery period, in June 2007, plaintiff also moved for summary judgment, and that motion too is pending before us.
A. The Evidentiary Record
The pertinent facts are not in meaningful dispute. Plaintiff has been engaged for three or four years in selling CDs on the sidewalk along 125th Street in Manhattan. (Pl.Dep.40-41). He has periodically been approached by law enforcement personnel asking him whether he has a vendor's license, and he twice received summonses because he did not have one. (Id. 61-64).
On November 26, 2006 he was standing on the sidewalk selling CDs of his own music. At the same time he had a large speaker, a CD player and a hand truck, and was playing music that was broadcast through the speaker to attract customers as well as, in plaintiff's view, to "give Jesus the glory for the day" and "to spread the word." (Id. at 57, 73, 78-79, 81-83). Two police officers witnessed his sale of CDs and his playing of music, and one of them then approached him and asked for his license and for identification. (Id. at 89-94). Plaintiff initially responded by telling the officer that he "did not want to do any business with him[,]" and then provided what he described as an "American National ID Card." (Id. at 92-97). According to plaintiff, one of the officers began writing him a summons. (Pl.Dep.99). Plaintiff then began writing down the officer's badge number, and the officer said, in substance, "`You're going to be a smart ass, we're going to take you through the system now.'" (Id.). The officers then sought to arrest him, and he initially resisted by crossing his arms over his chest, although the officers eventually subdued him. (Id. at 106-11).
The police charged plaintiff with peddling without a license, in violation of N.Y. Gen. Bus. Law § 34; failure to have a certificate of authority to collect sales tax, in violation of N.Y. Tax Law §§ 1817(d) & 1134; and resisting arrest, in violation of N.Y. Penal Law § 205.30. (See Declaration of Ass't Corp. Counsel Sumit Sud, executed January 18, 2008 ("Sud Decl."), Ex. H). He was transported to the 28th Precinct and remained in custody for approximately 17 hours. (PI. Dep. at 126-27). At the end of that time he was informed that the District Attorney was declining to prosecute, and he was released. (Id. at 126-27).
The District Attorney did in fact decline to prosecute plaintiff on November 27, 2006. (Sud Decl. Ex. I). As a result, plaintiff's property, which had been seized at the time of his arrest, was returned to him in undamaged condition, with the exception of a small antique knife he had been carrying in his pocket. (Id. Ex. M; PI. Dep. at 79-80, 160-61).
Defendant Montgomery serves in a supervisory capacity at the 28th Precinct. (Sud Decl. Ex. J, ¶ 2). He was not present at plaintiff's arrest and had no involvement in that arrest or the seizure of plaintiff's property. (Pl.Dep.119-20, 131, 156-57, 163-64). Indeed, plaintiff has never spoken to or otherwise interacted with Inspector Montgomery. (Id. at 155). It appears that he chose to sue defendant on the basis of an internet search that led him to discover that Inspector Montgomery held a senior position at the 28th Precinct. (Id. at 150-51). He testified that after this discovery he sent Inspector Montgomery a number of "Affidavit[s] of Intent", stating that he held defendant responsible for the actions of the arresting officers. (Id. at 50-54; Sud Aff. Ex. K).
B. Defendant's Motion
Inspector Montgomery has moved for summary judgment on a variety of grounds. Principally, he argues that plaintiff's claims against him must fail because he had no involvement in the arrest of plaintiff and the seizure of his property. He also asserts that the arrest was based on probable cause and hence not illegal, and that the seizure of property was permissible and in any event was followed by its return. He further invokes, as an alternative ground, a qualified immunity defense. Finally, he argues that the complaint should be dismissed with prejudice under Rule 12(b)(6) for failure to state a claim.
C. plaintiff's Motion
In the midst of discovery, plaintiff filed a motion styled as one for summary judgment. The best that we can say about it is that it is fairly incoherent and offers no evidence pertinent to any cognizable claim against the defendant. Despite its repeated references to contracts and plaintiff's desire not to enter into one with the police and his mention of the "UCC", the point that we can discern is that plaintiff views himself as not subject to the laws of the community and believes that unless he entered into a contract with the police, they had no authority to make any demands on him. (See "Dispositive Motion" at ¶¶ 1-5, 7; see also PI. Dep. at 99-106).
Plaintiff's later response to defendant's summary-judgment motion is quite similar. In addition, he again seems to ask that summary judgment be awarded in his favor, albeit without citing or proffering any evidence that would tend to establish his Claims.
ANALYSIS
The court may enter summary judgment only if it concludes that there is no genuine dispute as to the material facts and that, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir.2004). It is axiomatic that the role of the court on such a motion "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986); see, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Howley v. Town of Stratford, 217 F.3d 141, 150-51 (2d Cir.2000). In this case the material facts are undisputed and dictate the entry of summary judgment for defendant.
A. Lack of Allegations of Personal Involvement of Defendant
If a plaintiff seeks to impose damage liability on a government employee under section 1983, he cannot rely on the principle of respondeat superior. See, e.g., Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (citing cases); Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir.1989). Rather, the plaintiff must plead and prove that the defendant had some direct involvement in, or responsibility for, the misconduct. See Hendricks v. Coughlin, 114 F.3d 390, 394 (2d Cir.1997). A supervisory official may be held legally responsible for a constitutional violation if he: (1) directly participated in the infraction or ordered that the action be taken; (2) failed to remedy a wrong after learning of the. violation; (3) created or allowed the policy or custom under which the incident occurred; (4) was grossly negligent in managing subordinates who caused the incident; or (5) exhibited deliberate indifference to the rights of the plaintiff or others in a similar position by failing to act on information indicating that unconstitutional acts were occurring. See, e.g., Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir.2007); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986). Plaintiff fails to demonstrate any personal responsibility by Inspector Montgomery for the actions of the arresting officers.
As noted, defendant had no involvement in the plaintiff's arrest or the temporary detention of his property. Moreover, there is no evidence that he had any responsibility for any Department policy or practice (assuming there were one) that might even arguably have contributed to the alleged violation of plaintiff's constitutional rights. Although plaintiff, subsequent to his release from custody, apparently sent Inspector Montgomery several documents deeming him liable for plaintiff's arrest and purporting to demonstrate that plaintiff was not subject to the authority of the law or local police, that unilateral act by him cannot form a basis for liability of the Inspector for prior acts by the police. In sum, the record is devoid of any legal basis on which to hold defendant liable for the conduct of the officers who arrested plaintiff.
B. Legality of the Arrest
Defendant's principal alternative argument is that summary judgment should be awarded in his favor because the police officers had probable cause to arrest plaintiff. Because plaintiff cannot demonstrate any involvement by defendant in the alleged wrongful conduct, summary judgment is appropriate irrespective of whether the arresting officers or anyone else violated plaintiff's constitutional rights. Nonetheless, in view of plaintiff's pro se status and the fact that he testified that he has previously been served with summonses for selling his CDs without a peddler's license, we take note of a potential question about the legality of the arrest.[1]
A section 1983 claim for false arrest is based on an individual's Fourth Amendment right to be free from unreasonable searches and seizures. See, e.g., Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir.2006). In analyzing federal claims for false arrest, courts "have generally looked to the law of the state in which the arrest occurred." Id. (quoting Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir.2004)). Under New York law, for a plaintiff to prevail on a false-arrest claim, he must demonstrate that the defendant intentionally confined him, that the plaintiff was aware of being confined, that he did not consent to the confinement, and that the confinement was not justified or otherwise privileged. See, e.g., Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.2004) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996)); Savino v. City of New York, 331 F.3d 63, 75 (2d Cir.2003) (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir.1994)). The existence of probable cause for the arrest would justify the arrest, and thus is an absolute defense to a false-arrest claim under both federal and state law. See, e.g., Jaegly, 439 F.3d at 152; Savino, 331 F.3d at 76; Weyant, 101 F.3d at 852. Probable cause exists when an officer has "knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Jaegly, 439 F.3d at 152 (quoting Weyant, 101 F.3d at 852); see also Dunaway v. New York, 442 U.S. 200, 208 n. 9, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979).
1. Violation of N.Y. Gen. Bus. Law § 34
Section 34 of the General Business Law provides that "[a]ny citizen may arrest any person trading as a peddler who neglects or refuses to produce his license on demand" and bring him before a justice of the peace. N.Y. Gen. Bus. L. § 34. It further provides that "if the fact that the person so arrested has traded without a license be proved to the satisfaction of the justice, he shall convict such person of an offense against this article[.]" Id. This regulation allows the enforcement of legal requirements for procurement of a license under state law and municipal law. See N.Y. Gen. Bus. L. § 35 ("This article shall not affect the application of any ordinance... of a municipal corporation relating to hawkers and peddlers within the limits of such corporations, but the provisions of this article are to be complied with in addition to the requirements of any such ordinance[.]"). Selling goods on a New York City street triggers New York City's licensing requirement, which is embodied in N.Y.C. Admin. Code § 20-453. See, e.g., People v. Saul, 3 Misc. 3d 260, 261-62, 776 N.Y.S.2d 189, 190-91 (Crim.Ct. N.Y.Cty.); People v. Miller, 150 Misc. 2d 614, 615-17, 569 N.Y.S.2d 1005, 1006-07 (Crim.Ct.N.Y.Cty.1991).
Plaintiff admits that he was selling CDs when approached by the police and that he failed to produce a license when asked to do so by a police officer. Thus, upon first glance, there appears to have been probable cause for plaintiff's arrest pursuant to N.Y. Gen. Bus. Law § 34. However, because plaintiff was selling his own music and stated in his deposition that his primary purpose was to "spread the word" (See PI. Dep. at 82-83 ("My intention was if people could hear the word of Jesus and give Jesus the glory for the day[.]")), we infer that his dominant purpose was expressive rather than commercial. Because there is a substantial body of law addressing the constitutionality of various applications of New York City's licensing law, N.Y.C. Admin. Code § 20-453, and lack of compliance with that local law would be the grounds for arrest under N.Y. Gen. Bus. Law § 34,[2] there is at least a possibility that a court could deem plaintiff's arrest to have violated his constitutional rights. See Bery v. City of New York, 97 F.3d 689, 698-99 (2d Cir.1996) (granting a preliminary injunction prohibiting enforcement of section 20-453 against vendors of artwork); Baker v. Peddlers Task Force, 1996 WL 741616, at *1, 1996 U.S. Dist. LEXIS 19140 at *2, (S.D.N.Y. Dec. 30, 1996). (finding that Bery had overruled Turley v. New York City Police Dep't, 1996 WL 93726 (S.D.N.Y. Mar.5, 1996), a decision that had upheld the enforcement of § 20-453 against a street musician selling tapes of his own music); People v. Chen Lee, 19 Misc. 3d 791, 2008 WL 795756 (Crim.Ct.N.Y.Cty. Mar. 26, 2008) (holding that sale of small tiles bearing photographic images was constitutionally protected); People v. Fucile, N.Y.L.J. May 13, 2004 at 19, Col. 1 (Crim.Ct.N.Y.Cty.) (finding that the arrest of an independent filmmaker exhibiting and selling his work in Union Square Park without a license violated the First Amendment and the Equal Protection Clause); People v. Bissinger, 163 Misc. 2d 667, 675-76, 625 N.Y.S.2d 823, 827 (Crim.Ct.N.Y.Cty.1994) (finding section 20-453 unconstitutional as applied to plaintiff street photographer because the street itself was integral to his art and no alternative channels of communication were available to him). Thus, in declining to rest our award of summary judgment on a determination that plaintiff's false-arrest claim would be futile even if the arresting officers were joined as defendants, we briefly discuss the potential constitutional issues that would need to be addressed by a court making such a determination.
Section 20-453, New York City's licensing law, requires all non-food vendors to obtain licenses from the New York City Department of Consumer Affairs. In 1982, the New York City Council amended section 20-453 by enacting Local Law 33, which exempted vendors of newspapers, books, and other written matter from the licensing requirement in order to harmonize the requirement with the First Amendment. Bery, 97 F.3d at 692.
In 1996, a lawsuit filed by artists claimed that their arrests under section 20-453 for selling their artwork on the streets violated the First Amendment. That suit resulted in the granting of a preliminary injunction prohibiting the enforcement of section 20-453 against vendors of artwork. Bery, 97 F.3d at 698-99. New York City subsequently consented to a permanent injunction prohibiting the enforcement of its licensing requirement against "any person who hawks, peddles, sells, leases or offers to sell or lease, at retail, any paintings, photographs, prints and/or sculpture ... in a public space[.]" Permanent Injunction on Consent dated Oct. 21, 1997, Bery v. City of New York, 94 Civ. 4253(MGC) (S.D.N.Y. Oct. 30, 1997).
In 2006, the Second Circuit revisited the constitutional issues raised in Bery. Mastrovincenzo v. City of New York, 435 F.3d 78, 81-82, 103-105 (2006). The circuit court ultimately determined that the arrests of two vendors of hand-painted clothing items were neither unconstitutional nor violations of the Bery injunction. Id. Holding that section 20-453 is a content-neutral time, place, and manner regulation, the Court applied intermediate scrutiny to the application of that law to the plaintiffs, and concluded that their arrest was not unconstitutional. Id. at 100-02. In the course of holding that section 20-453 was constitutional as applied to the plaintiffs, the Mastrovincenzo court found that the licensing requirement serves the significant government interests of reducing sidewalk and street congestion. Mastrovincenzo, 435 F.3d at 100. However, the court specified that although it found section 20-453 to be narrowly-tailored in its application to the plaintiffs, whom it described as "vendors of regular merchandise with sufficient expressive content to qualify for First Amendment protection[,]" Id. at 102, its holding was not dispositive of the question of whether section 20-453 could be constitutionally applied to the "traditional art forms at issue in Bery."[3]Id..
Since music is a form of expression entitled to First Amendment protection, Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989), and plaintiff's dominant purpose in selling CDs of his music was arguably expressive rather than commercial, a court adjudicating the constitutionality of plaintiff's arrest under Mastrovincenzo would have to determine whether section 20-453 was constitutional as applied to plaintiff. Given the clear basis for disposing of plaintiff's claim on an alternative ground, as well as plaintiff's pro se status, the lack of briefing on the constitutional issues involved in Hecker's arrest, and the uncertainty of whether Mastrovincenzo could be distinguished in this case, we decline to recommend summary judgment in the defendant's favor on the basis of his probable-cause argument addressed to the peddler's-license charge.
2. Violation of N.Y. Tax Law § 1817(d)
New York Tax Law § 1817(d) provides in relevant part:
Any person required to obtain a certificate of authority under § 1134 of this chapter who, without possessing a valid certificate of authority, willfully (1) sells tangible personal property or services subject to tax ... and any person who fails to surrender a certificate of authority as required by such article is guilty of a misdemeanor.
N.Y. Tax L. § 1817(d). Plaintiff, as a seller of tangible personal property, see N.Y. Tax L. § 1101(6), was required by law to obtain a certificate of authority to collect sales tax. N.Y. Tax. L. §§ 1105(a), 1134(a)(1)(2). Although he admits that he did not have such a certificate on the date of his arrest (Pl.Dep.183), there is no evidence in the record that the arresting officers asked him to produce a certificate of authority before they arrested him. Thus, although plaintiff was in fact guilty of violating N.Y. Tax L. § 1817(d) in that he admittedly sold tangible personal property in the State of New York without having first obtained a certificate of authority to collect sales tax, the officers who arrested him did not have "knowledge or reasonably trustworthy information of facts and circumstances that [were] sufficient to warrant a person of reasonable caution in the belief that Mr. Hecker had violated § 1817(d). Jaegly, 439 F.3d at 152 (quoting Weyant, 101 F.3d at 852); see also Dunaway, 442 U.S. at 208 n. 9, 99 S. Ct. 2248.
3. Resisting-Arrest Charge
Plaintiff was also charged with resisting arrest. A person resists arrest when "he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person." N.Y. Penal Law § 205.30; see, e.g., People v. Stevenson, 31 N.Y.2d 108, 111-13, 335 N.Y.S.2d 52, 56-57, 286 N.E.2d 445 (1972). If the initial attempt to arrest was improper that is, not "authorized"the person cannot be charged with resisting the arrest. See, e.g., Curry v. City of Syracuse, 316 F.3d 324, 336 (2003); Stevenson, 31 N.Y.2d at 111, 335 N.Y.S.2d at 56, 286 N.E.2d 445. Plaintiff concedes his resistance to the efforts of the police to arrest him, but argues that the initial basis for his arrest was improper. Since the legality of the resisting-arrest charge turns on whether arresting him for violating N.Y. Gen. Bus. Law § 34 was constitutional, an issue that we decline to decide, we refrain from drawing a conclusion as to the propriety of the resisting-arrest charge.
CONCLUSION
For the reasons stated, we recommend that defendant's motion for summary judgment be granted.[4] By parity of reasoning, we recommend that plaintiff's motion for summary judgment be denied.
Pursuant to Rule 72 of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies to be delivered to the chambers of the Honorable Gerard E. Lynch, Room 910, and to the chambers of the undersigned, Room 1670, 500 Pearl Street, New York, New York 10007. Failure to file timely objections may constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e); Thomas v. Arn, 474 U.S. 140, 150-52, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989).
NOTES
[1] We note that the issue that we raise here was not addressed by defendant's counsel.
[2] Although plaintiff was arrested for violating N.Y. Gen. Bus. Law § 34, since he never served in the military (Pl.Dep.180), he would not have been eligible for a veteran's license. N.Y. Gen. Bus. Law § 32 (stating that every veteran of the armed forces of the United States can obtain a vendor's license from any county clerk upon presentation of his or her certificate of honorable discharge and completion of the requisite form). Since Article 4 of the General Business Law does not contain a parallel provision for the licensing of nonveteran vendors, and section 34 provides for the arrest and conviction of "any person trading as a peddler" without a license, N.Y. Gen. Bus. L. § 34 (emphasis added), we read section 34 as an enforcement mechanism for local licensing laws. Thus, we conclude that the constitutionality of New York City's licensing law as applied to plaintiff would be the dispositive issue for a court adjudicating the legality of Mr. Hecker's arrest.
[3] The court noted that the record in that case showed that both plaintiffs had ample alternative means of communicationplaintiff Christopher Mastrovincenzo had opportunities to sell his work at galleries and trade shows, and plaintiff Kevin Santos had exhibited his work in a number of New York City galleries as well as in other venues. Mastrovincenzo, 435 F.3d at 101-02.
[4] In view of this conclusion, we need not address the alternative grounds on which defendant seeks dismissal of the complaint.
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IN THE COURT OF APPEALS OF IOWA
No. 14-1734
Filed August 19, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MANDY LYNN LOGE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Joseph M.
Moothart, District Associate Judge.
Defendant appeals from the district court’s denial of her motion to
suppress. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
Les M. Blair III of Blair & Fitzsimmons, Dubuque, for appellant.
Thomas J. Miller, Attorney General, Katie Fiala, Assistant Attorney
General, Linda Fangman, County Attorney, and Charity Sullivan and Ryan
Decker, Assistant County Attorneys, for appellee.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
2
DANILSON, C.J.
Mandy Loge appeals from the district court order denying her motion to
suppress. She maintains the officer’s observations do not amount to reasonable
suspicion to justify the stop. Because we find the officer did not have reasonable
suspicion to initiate the stop of Loge’s vehicle, we reverse the denial of Loge’s
motion to suppress and remand for further proceedings.
I. Background Facts and Proceedings.
On May 15, 2014, Loge was charged by trial information for driving while
barred. The charge stemmed from a stop of Loge’s vehicle that occurred on
April 19, 2014.
On June 10, 2014, Loge filed a motion to suppress, arguing the officer did
not have reasonable suspicion to initiate the stop on the morning in question. A
hearing on the motion was held on July 7, 2014.
At the hearing, Officer David Hinz testified that at approximately 1:10 a.m.,
he observed a Chrysler 300 turn onto the road in front of him that “immediately
went to the right-hand side of the lane toward the fog line.” The car “went from
the fog line then back to the center of the lane” “on several occasions within the
first half mile or so . . . .” Although it was “not really a sudden jerking,” “it was
kind of a fast move.” He observed that the car was traveling at only forty-five
miles per hour at one point while the speed limit for the portion of road was fifty-
five miles per hour. The driver did change lanes twice, but only after signaling
and at a time when it was safe to do so. At no other point did the vehicle cross
either the center line or the fog line, although Officer Hinz believed it may have
touched the fog line once. Officer Hinz testified he believed the driver may have
3
been impaired and that was why, after observing the vehicle for two and a half or
three miles, he initiated the stop.
Following the hearing, the district court denied Loge’s motion to suppress.
The court held the stop was justified by the officer’s “specific and articulable
cause to reasonably believe that the defendant was operating while impaired.”
Loge waived her right to a jury trial and agreed to a stipulated trial on the
minutes of testimony. She was found guilty of driving while barred and
sentenced to a term of incarceration of 180 days with all but ten days suspended.
Loge appeals.
II. Standard of Review.
Loge contends her vehicle was stopped in violation of the federal and
state constitutions, although she has not proposed a different standard under the
search and seizure provisions under the Iowa Constitution. See State v. Tyler,
830 N.W.2d 288, 291 (Iowa 2013) (“Because [the defendant] has not proposed a
standard for interpreting our search and seizure provisions under the Iowa
Constitution differently from its federal counterpart, we will apply the general
standards as outlined by the United States Supreme Court for addressing a
search and seizure challenge under the Iowa Constitution.”). We review claims
regarding constitutional rights de novo. Id. We make “an independent evaluation
of the totality of the circumstances as shown by the entire record.” State v.
Kinkead, 570 N.W.2d 97, 99 (Iowa 1997).
III. Discussion.
The Fourth Amendment of the United States Constitution and article I,
section 8 of the Iowa Constitution prohibit unreasonable search and seizures.
4
“[S]topping an automobile and detaining its occupants constitute a ‘seizure’ . . .
even though the purpose of the stop is limited and the resulting detention quite
brief.” Delaware v. Prous, 440 U.S. 648, 653 (1979). Stopping a vehicle and
detaining the occupant is not an unreasonable seizure when the officer has either
(1) probable cause due to observation of a traffic violation or (2) reasonable
suspicion, supported by articulable facts, that a criminal act has occurred or is
occurring. State v. Tague, 676 N.W.2d 197, 201–04 (Iowa 2004). If we find the
officer had reasonable suspicion to initiate the stop, we will affirm the ruling of the
district court.
To determine whether a stop is appropriate based on reasonable
suspicion, “a court must engage in a balancing test—balancing the governmental
interest advanced by the seizure against the ‘intrusion upon the constitutionally
protected interests of the private citizen’ to be free from unnecessary seizure.”
Tyler, 830 N.W.2d at 297.
In State v. Tompkins, 507 N.W.2d 736, 737, 740 (Iowa Ct. App. 1993), our
court held that reasonable suspicion supported the stop of a vehicle after the
officer observed the driver weaving within his own lane “several times” even
though the car never crossed a boundary line. However, in a later ruling, our
supreme court expressed its reservations about the wide applicability of the
Tompkins holding:
We do not believe Tompkins should be read to hold that
observation of a vehicle weaving within one’s own lane of traffic will
always give rise to reasonable suspicion for police to execute a
stop of the vehicle. Rather, the facts and circumstances of each
case dictate whether or not probable cause exists to justify stopping
a vehicle for investigation.
5
State v. Otto, 566 N.W.2d 509, 511 (Iowa 1997).
In Otto, the court held an officer did have reasonable suspicion to stop the
defendant who was changing speed erratically, weaving “constantly down the
road,” turning “sharp, like a jerk of the driver,” and veering “left and right at a
sharp angle.” Id. at 510.
A review of the video from the officer’s car reflects that Loge did not drive
in a perfectly straight line within her lane. As Officer Hinz testified, Loge initially
turned into the lane toward the right side of the lane. Loge appears to drift within
her lane four times during the officer’s recording, but this occurred over about a
two-and-a-half-mile stretch of road. Two of the instances occurred while Loge
was driving on a two-lane highway with traffic driving the opposite direction in the
lane to the left. She appeared to move toward the right side of the lane both
times another car drove past her going the opposite direction on the left side. A
third instance occurred as she drove around a curve. At one point, Officer Hinz
can be heard stating that the car is traveling at “about forty-five” miles per hour.
At the suppression hearing, Officer Hinz testified that the speed limit for that
portion of road was fifty-five miles per hour. Officer Hinz also testified that he
considered the time of the observations—approximately 1:10 a.m.
We do not believe these actions give rise to the requisite reasonable
suspicion. It is true that “reasonable cause may exist to investigate conduct
which is subject to a legitimate explanation and turns out to be wholly lawful.”
State v. Kreps, 650 N.W.2d 636, 642 (Iowa 2002). However, “[i]f failure to follow
a perfect vector down the highway or keeping one’s eyes on the road was
sufficient reason to suspect a person of driving while impaired, a substantial
6
portion of the public would be subject each day to an invasion of its privacy.”
Tague, 676 N.W.2d at 205-06.
Here, there was no aggravated weaving or quick jerking motions of the
vehicle, and Loge only reduced her speed one time. There was no immediate
reason for the officer to follow Loge except her travel near the fog line. Rather,
Loge simply turned in front of the officer upon the same highway the officer was
traversing. Loge’s vehicle did drift to the right side of the lane four times, but two
of the movements coincided with vehicles approaching in the left lane. She
made two proper lane changes—one when the roadway briefly changed to four
lanes—and traversed a bridge upon a less than smooth road surface. Upon our
review of the dash-cam video, we would agree with the officer that Loge traveled
near the fog line and “maybe” touched the fog line once. However, there is no
requirement that a driver drive down the center of the roadway. Although Loge
did slow drive ten miles per hour below the speed limit at one point and this
occurred in the early hours of the morning, we believe the “constitutionally
protected interests of the private citizen” outweighs the “governmental interest
advanced by the seizure” in this case. See Tyler, 830 N.W.2d at 297; see also
State v. Rosensteil, 473 N.W.2d 59, 62 (Iowa 1991) reversed on other grounds
by State v. Cline, 617 N.W.2d 277 (Iowa 2000) (stating reasonable suspicion
requires more than officers’ reliance “just on circumstances which describe a
very broad category of predominantly innocent persons”). We find the officer did
not have the reasonable suspicion necessary to initiate the traffic stop of Loge’s
vehicle. Thus, we reverse the denial of Loge’s motion to suppress and remand.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
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308 S.W.2d 669 (1958)
Joseph COHEN, Margaret Cohen, Louis Cohen, Bella Cohen, Harry Sircus, Ann Sircus, Leo Pollock, Adele Pollock, E. R. Klein, Fay Klein, and Josephine M. Goldberg, and Commerce Trust Company, Cotrustees of Charles E. Milens Trust, Appellants,
v.
Hugh R. ENNIS, Thomas C. Bourke, David W. Childs, Clair H. Schroeder, and Luther Willis, members of and constituting the Board of Zoning Adjustment of Kansas City, Missouri, Kansas City, Missouri, a municipal corporation, and Continental Baking Company, Inc., Respondents.
No. 46087.
Supreme Court of Missouri, Division No. 2.
January 13, 1958.
*670 Philip L. Levi, Solbert M. Wasserstrom, Kansas City, for appellants.
Benj. M. Powers, City Counselor, Guy W. Rice, Asst. City Counselor, Kansas City, for respondents, Kansas City, Missouri, and Board of Zoning Adjustment.
Fred Bellemere, Sr., and Fred Bellemere, Jr., Kansas City, for respondent, Continental Baking Co., Inc.
STOCKARD, Commissioner.
This is an appeal from the judgment of the Circuit Court of Jackson County affirming the order of the Board of Zoning Adjustment of Kansas City, Missouri, hereafter referred to as the "Board," granting to Continental Baking Company, hereafter referred to as "Continental," a permit to construct and use an access driveway. The appellants are owners of neighboring property who claim to be adversely affected.
Continental operates a bakery on the corner of 30th and Troost streets in Kansas City in an area zoned as C-3. Immediately behind and to the east of its building it *671 owns two lots which front on Forest Avenue and are in an area zoned as R-4. On November 25, 1955, pursuant to Section 58-17 of the zoning ordinances of Kansas City, Continental filed an application with the Board for permission to establish and maintain a driveway over the two lots to obtain a means of access for delivery trucks to the rear of its building. Section 58-17 provides, in part, that a driveway to provide access to premises in a district zoned as C-3 shall not be permitted in a district zoned as R-4 "except upon approval by the Board of Zoning Adjustment after a public hearing, when an undue hardship can be shown and the driveway will not adversely affect the use of neighboring property."
A hearing was held on December 27, 1955, at which appellants appeared with counsel and opposed the application. The evidence presented by Continental was to the effect that the existing means of entry for trucks to its building was difficult and resulted in a traffic problem on 30th Street. During the course of the hearing several members of the Board indicated that in view of the traffic situation it would be better to have a "turn around" on the lots so that the necessary maneuvering of the trucks to enter the building could take place on the lots instead of in the street. The application was amended accordingly.
On January 10, 1956, the Board granted the application, as amended, and notice of this action was given to Continental but not to appellants. On March 21, 1956, appellants filed their petition in the Circuit Court of Jackson County to review the Board's decision. Continental and the Board each filed motions to dismiss the petition because it was not filed within thirty days as provided by Section 89.110 RSMo 1949, V.A.M.S., and by Section 58-27 of the zoning ordinances of Kansas City. These motions were overruled, and after a hearing in which written briefs were submitted and the issues were argued orally to the court, judgment was entered affirming the order of the Board. It is from that judgment that appellants have appealed after their motion for new trial was overruled.
If this court has jurisdiction of this appeal it is only for the reason that this is a case "involving the construction of the Constitution of the United States or of this state." V.A.M.S. Art. V, Sec. 3, Constitution of Missouri. Appellants' brief contains two points which purport to deal with constitutional questions.
Appellants contend that the procedure before the Board is governed by the Administrative Procedure Act, Chapter 536 RSMo 1949, V.A.M.S., and that their petition was timely because pursuant to Section 536.110 they had thirty days within which to file their petition for review in the circuit court after notice to them of the Board's decision. They then contend that the judgment of the circuit court cannot be upheld on the ground that their petition was not filed within the time prescribed by Section 89.110 RSMo 1949, V.A.M.S., and Section 58-27 of the zoning ordinances of Kansas City, because said sections are unconstitutional. The substance of these contentions is that if their petition had been dismissed by the circuit court and they had been denied the right to obtain review of the Board's decision because their petition was not filed within the time prescribed by said Section 89.110 and Section 58-27, their rights would have been violated because said sections are unconstitutional. But this is not what occurred. They filed their petition for review in the circuit court; that court refused to dismiss it for the asserted reason that it was not filed in time; and they were then afforded the review of the Board's decision by the circuit court to which they contend they were entitled. The circuit court then entered judgment that "the decision of the Board of Zoning Adjustment should be affirmed." The judgment of the circuit court was adverse to appellants' position on the merits, *672 but the action of the circuit court on their contention that they were entitled to have a review on the merits was favorable to them, and they obtained that review.
Before the jurisdiction of this court can be invoked upon the ground that a constitutional question is involved within the meaning of Art. V, Sec. 3, Constitution of Missouri, "the party who asserts such question must be able to show that he claimed, in the trial court, some constitutional right which was denied him, or that a constitutional question was ruled to his own disadvantage in his adversary's favor." Killian v. Brith Sholom Congregation, Mo. App., 154 S.W.2d 387, 393. See also Superior Press Brick Co. v. City of St. Louis, Mo.Sup., 152 S.W.2d 178; Nelson v. Watkinson, Mo.Sup., 260 S.W.2d 1; State ex rel. Town of Olivette v. American Telephone & Telegraph Co., Mo.Sup., 273 S.W.2d 286; Hanlon v. Pulitzer Publishing Co., 167 Mo. 121, 66 S.W. 940; Lux v. Milwaukee Mechanics' Insurance Co., Mo., 285 S.W. 424. It is not sufficient to say that although the circuit court refused to dismiss the petition for review, if it had been done so on the basis that it was not timely filed, it would have been error because said Section 89.110 and Section 58-27 are unconstitutional.
Appellants next contend that the "Board's order impaired their property without due process of law in violation of Article I, Section 10 of the Missouri Constitution and Amendment XIV to the Constitution of the United States." When we turn to the argument portion of their brief, we find that appellants make the following contentions: (1) The Board made its order when there was no evidence showing a lack of adverse effect on the neighboring properties; (2) the order is contradictory to all the evidence; (3) and the board made no finding on the issue of adverse effect on the neighboring property, but the trial court "acted as if there had been [such] a finding." It is then argued that "such a result is so shockingly unfair that it cannot constitute due process of law," and "such result upon such process of reasoning denies any effective court review in flat contradiction to the mandate of Article V, Section 22 of the Missouri Constitution, which provides that all administrative orders `shall be subject to direct review by the courts' and that such review `shall include the determination * * * whether the same are supported by competent and substantial evidence upon the whole record.'"
This does not raise a constitutional question in the sense necessary for our appellate jurisdiction. The mere assertion that a constitutional question is involved does not of itself raise such a question within the meaning of Art. V, Section 3, Constitution of Missouri. Nelson v. Watkinson, Mo.Sup., 260 S.W.2d 1. What appellants are actually contending is that the judgment of the circuit court is erroneous because it affirmed the decision of the Board which is not supported by competent and substantial evidence upon the whole record and is not supported by necessary findings of fact. If these contentions are correct, they are matters which are correctible on appeal to the proper court of appeals. See McClard v. Morrison, Mo. Sup., 273 S.W.2d 225; Nelson v. Watkinson, supra; Wolf v. Hartford Fire Ins. Co., 304 Mo. 459, 263 S.W. 846; Finley v. Finley, Mo.Sup., 165 S.W.2d 417.
No constitutional question within the meaning of Art. V, Section 3, Constitution of Missouri, is presented by this appeal. No other basis for invoking the jurisdiction of this court is urged, and we find none in our examination of the record. Therefore, this case is transferred to the Kansas City Court of Appeals.
BOHLING and BARRETT, CC., concur.
PER CURIAM.
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.
All concur.
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308 S.W.2d 512 (1958)
Lucky B. THOMPSON, Appellant,
v.
The STATE of Texas, Appellee.
No. 29191.
Court of Criminal Appeals of Texas.
January 8, 1958.
*513 James Pearson, Robert M. Favor, Sweetwater, for appellant.
Leon B. Douglas, State's Atty., Austin for the State.
WOODLEY, Judge.
Appellant was convicted and assessed a term of two years in the penitentiary and a fine of $1 for the offense of delivering a check in the sum of $50 with intent to defraud. Art. 567b, Vernon's Ann.P.C.
The undisputed evidence shows that appellant opened an account with The Farmers and Merchants National Bank of Merkel on January 7, 1957, with a deposit of $10, and made additional deposits of $150.28 on January 16th and $35 on February 2nd.
The check described in the indictment was drawn by appellant on said bank and delivered to A. H. Tudor on February 4, 1957, on which date he had a balance in said bank of $25.31. The following day such balance dropped to $2.81, and by February 9th five checks drawn by appellant on said account were returned unpaid for want of sufficient funds, including the $50 check delivered to A. H. Tudor. Four other checks were returned between February 13th and 21st.
The check in question was delivered to Mr. Tudor in payment of storage charges on household furniture and for delivering the furniture to the home of appellant's stepfather, where appellant also resided.
Six or seven days after the check was given it was returned to Mr. Tudor who filed a complaint the same day he first talked to appellant, no notice in writing such as provided for in Sections 2 and 3 of art. 567b, Vernon's Ann.P.C. having been given. Within ten days from the delivery of the check and of the furniture, Mr. Tudor received payment in full for the services for which the check was delivered to him, payment being made by appellant's stepfather who was present when it was given and to whose home the furniture was delivered.
The evidence further shows without dispute that appellant had resided in the county all of his life and was employed and had been an employee of the G C & S F Railroad for more than eleven years.
Appellant testified as a witness in his own behalf, and said that he did not know at the time he delivered the check to Mr. Tudor that the balance in his account was insufficient to pay it. He further testified, in answer to questions propounded by the district attorney, that he had been previously convicted in three misdemeanor cases of "swindling with a worthless check", but that in every instance it was a case similar to the case in which he was on trial and that all of the checks that had been returned unpaid for want of sufficient funds had been paid and restitution made.
*514 While we do not hold that the notice provided in Sections 2 and 3 of the statute under which this prosecution was brought (art. 567b, Vernon's Ann.P.C.) is essential in all cases, and do not entertain the view that prosecution cannot be had until the expiration of ten days after such a notice, the fact that the statute allows a period of ten days following notice of the non-payment of a check, draft or order for the maker to pay the holder the amount due in order for the delivery of the check and its non-payment to be prima facie evidence of intent to defraud and of knowledge of insufficient funds, is persuasive.
In the absence of the benefit of the presumption provided in the statute, we find the evidence insufficient to sustain the finding that appellant knew at the time he delivered the check that he did not have sufficient funds on deposit with the payee bank for its payment, and insufficient to show that the check was given with intent to defraud.
The judgment is reversed and the cause remanded.
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(2008)
In re NYFIX, INC. DERIVATIVE LITIGATION.
Master File No. 3:06cv01320 (AWT).
United States District Court, D. Connecticut.
July 25, 2008.
RULING ON MOTIONS TO DISMISS
ALVIN W. THOMPSON, District Judge.
The plaintiffs, Andrew Brock ("Brock") and James Cattelona ("Cattelona"), on behalf on nominal defendant NYFIX, Inc. ("NYFIX"), bring this shareholder derivative action against certain of NYFIX's current and former officers and directors. Defendants NYFIX, George Deehan, William Lynch, William Jennings, Peter Hansen, and Thomas Wajnert have moved to dismiss this action. For the reasons set forth below, their motions to dismiss are being granted.
I. BACKGROUND
On December 19, 2006, the plaintiffs filed a Consolidated Amended Verified Shareholder Derivative Complaint (the "First Amended Complaint"), alleging violations of federal and Connecticut law in connection with the defendants' backdating of stock option grants for the benefit of certain of NYFIX's directors and executive officers. The plaintiffs challenged nine specific stock option grants during the period of January 3, 1997 through March 21, 2003.
On January 22, 2007, NYFIX moved to dismiss the First Amended Complaint. After that motion had been fully briefed, the parties were notified that the plaintiffs had not submitted a verified complaint as required by Fed.R.Civ.P. 23.1 and had not specified whether they owned NYFIX stock at the time of the challenged transactions. The plaintiffs were given the option of submitting additional briefing on these issues or filing an amended complaint.
On June 27, 2007, the plaintiffs filed a Corrected First Amended Consolidated Verified Shareholder Derivative Complaint, followed by a supplement to that complaint (collectively, the "Second Amended Complaint"). In the Second Amended Complaint, the plaintiffs alleged, inter alia, that NYFIX filed a false and misleading Form 10-K on June 30, 2005, which diminished the overall impact of the defendants' backdating of stock option grants. The Second Amended Complaint alleges that Brock purchased 5,000 shares of NYFIX stock on February 18, 2005 and has held those shares continuously since then. It also alleges that Cattelona purchased 2,000 shares of NYFIX stock in July of 2005 and has held those shares continuously since then.[1]
On September 10, 2007, the court ordered the parties to brief the issue of whether the filing of the Second Amended Complaint triggered a new obligation on the part of the plaintiffs to make demand upon the directors of NYFIX pursuant to Fed.R.Civ.P. 23.1. On December 6, 2007, the court informed the parties that it had concluded that a new obligation to make demand was triggered by the filing of the Second Amended Complaint and directed the parties to brief the issue of whether the plaintiffs have sufficiently alleged that demand should be excused.
II. DISCUSSION
A. The Proper Board for Assessing Futility of Demand
The threshold issue presented by the instant motions to dismiss is whether the plaintiffs were required to make a new demand upon the NYFIX board of directors in connection with their filing of the Second Amended Complaint. In Braddock v. Zimmerman, 906 A.2d 776 (Del.2006), the Delaware Supreme Court held that "when an amended derivative complaint is filed, the existence of a new independent board of directors is relevant to a Rule 23.1 demand inquiry only as to the derivative claims in the amended complaint that are not already validly in litigation." Id. at 786. "[T]he term Validly in litigation' means a proceeding that can or has survived a motion to dismiss." Id. at 779. The court stated:
Three circumstances must exist to excuse a plaintiff from making demand under Rule 23.1 when a complaint is amended after a new board of directors is in place: first, the original complaint was well pleaded as a derivative action; second, the original complaint satisfied the legal test for demand excusal; and third, the act or transaction complained of in the amendment is essentially the same as the act or transaction challenged in the original complaint.
Id. at 786. A complaint that is dismissed, including one that is dismissed without prejudice with leave to amend, is not validly in litigation for purposes of a Rule 23.1 demand inquiry. Id.
Under the standard set forth in Braddock, the claims in the First Amended Complaint filed by the plaintiffs are not validly in litigation. The First Amended Complaint was not "well pleaded as a derivative action" because the plaintiffs lacked standing to bring the claims asserted. Rule 23.1. provides that, in a derivative action, brought by
[O]ne or more shareholders or members of a corporation or an unincorporated association ... to enforce a right that the corporation or association may properly assert but has failed to' enforce ... [t]he complaint must be verified and must ... allege that the plaintiff was a shareholder or member at the time of the transaction complained of, or that the plaintiffs share or membership later devolved on it by operation of law.
Fed.R.Civ.P. 23.1(a)-(b)(1). The plaintiffs did not become NYFIX shareholders until 2005, and therefore they were not NYFIX shareholders at the time of the alleged backdating of stock option grants challenged in the First Amended Complaint. Thus, dismissal of the First Amended Complaint would be required under Fed. R.Civ.P. 23.1, and the claims contained therein are not validly in litigation.[2]
The court finds unpersuasive the plaintiffs' arguments as to why the filing of the Second Amended Complaint did not trigger a new obligation to make demand upon the directors of NYFIX. First, the plaintiffs attempt to distinguish Braddock, a case in which the original complaint had already been dismissed without prejudice at the time the plaintiffs filed an amended complaint, from the instant case, in which the plaintiffs First Amended Complaint was never dismissed prior to the filing of the Second Amended Complaint. However, the court in Braddock explicitly stated that "for purposes of determining whether demand is required before filing an amended derivative complaint, the term `validly in litigation' means a proceeding that can or has survived a motion to dismiss." Id. at 779. Thus, the filing of an amended complaint may trigger a new requirement to make demand if the earlier complaint could not have survived a motion to dismiss, even if it had not actually been dismissed. Because the plaintiffs' First Amended Complaint failed to satisfy the requirements of Rule 23.1, the claims contained therein are not validly in litigation within the meaning of Braddock.
The plaintiffs also argue that the First Amended Complaint could have survived a motion to dismiss because the question of standing in options backdating cases is one on which the law is unsettled. In support of this argument, the plaintiffs point to the following statement from the Delaware Court of Chancery:
Where, as is alleged here, the plaintiff purchased shares before some of the allegedly backdated options grants and long before any suggestion of backdating emerged relating to earlier grants, does Delaware law prohibit the litigation of all related claims in an action brought by such a plaintiff? Given the large number of option backdating cases pending around the country, and the likelihood that many, if not most, of them raise similar issues, it is important for the Delaware courts to decide this, and all related issues, authoritatively. The presence of complicated issues of unsettled Delaware law, then, strongly favors denial of the [defendant's motion to stay the case].
Brandin v. Deason, 941 A.2d 1020, 1025 (Del.Ch.2007). Although the court in Brandin noted that all issues related to the issue of standing in options backdating cases had not yet been resolved authoritatively, it did not purport to eliminate or undermine the contemporaneous ownership requirement in such cases. In Brandin, the court noted that "the options granted on July 23, 2002 constitute 40% of the total number of options challenged in this case, and the defendants do not dispute Brandin's stock ownership as of that date." Brandin, 941 A.2d at 1025, n. 18. Here, the plaintiffs did not own any NYFIX stock at any point during the period in which they allege the defendants improperly backdated stock option grants, and it is well-settled that plaintiffs do not have standing to bring claims based on backdated options grants which predated their stock ownership. See Ryan v. Gifford, 918 A.2d 341, 359 (Del.Ch.2007) ("The law here is settled. Plaintiff may not assert claims arising before his ownership interest materialized on April 11, 2001."); Desimone v. Barrows, 924 A.2d 908, 925 (Del.Ch.2007) ("The fact that other wrongs may have later occurred does not afford a plaintiff standing to challenge earlier wrongs that pre-date his stock ownership, even though they may be similar or related.").
Because there were no claims validly in litigation at the time the Second Amended Complaint was filed, the proper board of directors for assessing the futility of demand with respect to the plaintiffs claims in the Second Amended Complaint is the board in place at the time that complaint was filed. "[T]he plaintiff must make a demand on the board of directors in place at the time the amended complaint is filed or demonstrate that demand is legally excused as to that board." Braddock, 906 A.2d at 786. Because the plaintiffs in this action did not make a demand on NYFIX's board of directors at the time they filed the Second Amended Complaint, the court must determine whether demand is excused as to that board.
B. Assessing the Futility of Demand
As the Delaware Supreme Court has noted, "the right of a stockholder to prosecute a derivative suit is limited to situations where the stockholder has demanded that the directors pursue the corporate claim and they have wrongfully refused to do so or where demand is excused because the directors are incapable of making an impartial decision regarding such litigation." Rales v. Blasband, 634 A.2d 927, 932 (Del.1993). The plaintiffs concede that they have not made a demand on the NYFIX board of directors before bringing this action, but they argue that making a demand would have been futile. The court finds this argument unpersuasive.
1. The Legal Standard
The plaintiffs argue that the court should apply the two-part test set forth by the Delaware Supreme Court in Aronson v. Lewis, 473 A.2d 805 (1984).[3] However, "a court should not apply the Aronson test for demand futility where the board that would be considering the demand did not make a business decision which is being challenged in the derivative suit." Rales, 634 A.2d at 934. This situation may arise "where a business decision was made by the board of a company, but a majority of the directors making the decision have been replaced." Id.
In this case, the court has determined that the proper board for assessing the futility of demand is the board that existed at the time the Second Amended Complaint was filed on June 27, 2007. The action challenged by the plaintiffs in the Second Amended Complaint is an allegedly false and misleading Form 10-K filed on June 30, 2005.[4] A majority of the directors on the board as of June 30, 2005 had been replaced by June 27, 2007, the date on which the plaintiffs filed the Second Amended Complaint. Therefore, the court applies the standard set forth in Rales for assessing the futility of demand.
Under Rales, the court must examine "whether the board that would be addressing the demand can impartially consider its merits without being influenced by improper considerations." Rales, 634 A.2d at 934.
Thus, a court must determine whether or not the particularized factual allegations of a derivative stockholder complaint create a reasonable doubt that, as of the time the complaint is filed, the board of directors could have properly exercised its independent and disinterested business judgment in responding to a demand. If the derivative plaintiff satisfies this burden, then demand will be excused as futile.
Id. A director is considered interested "where he or she will receive a personal financial benefit from a transaction that is not equally shared by the stockholders" or "where a corporate decision will have a materially detrimental impact on a director, but not on the corporation and the stockholders." Id. at 936. A director is also considered interested where he or she faces "a substantial likelihood" of personal liability for approving a challenged transaction. Id. A "mere threat" of personal liability is insufficient. Id. A director is considered "independent" where "a director's decision is based on the corporate merits of the subject before the board rather than extraneous considerations or influences." Id. (quoting Aronson, 473 A.2d at 816). A director is not considered independent where he or she is so under the influence of others that his or her discretion "would be sterilized." Id.
2. Application of the Rales Standard
On June 27, 2007, the date that the plaintiffs filed the Second Amended Complaint, NYFIX's Board of Directors consisted of the following nine members: George Deehan ("Deehan"), William Lynch ("Lynch"), William Jennings ("Jennings"), Thomas Wajnert ("Wajnert"), Lou Gorman ("Gorman"), Richard Roberts ("Roberts"), Howard Edelstein ("Edelstein"), Cary Davis ("Davis"), and William Janeway ("Janeway").[5] The plaintiffs do not contend that Edelstein, Davis, or Janeway would be unable to exercise independent and disinterested business judgment in responding to a demand. Edelstein, Davis, Janeway did not become members of the board until October 2006,[6] and they are not alleged to have participated in any wrongdoing.
The plaintiffs argue that the other six members of the board are not independent or disinterested because they either received backdated stock option grants, issued backdated stock option grants, or approved of false or misleading financial statements in connection with the backdating of stock option grants.[7] The plaintiffs allege that five of the directorsDeehan, Lynch, Jennings, Wajnert, and Gorman served on NYFIX's audit committee and reviewed the financial statements in connection with the backdating of stock option grants.[8] The plaintiffs contend in their opposition to the instant motions that a sixth directorRobertsworked as a partner in a law firm that provided legal services to NYFIX in 2004 and 2005 and signed off on a press release in June 2006 that failed to account for expenses associated with previously backdated stock option grants.[9] In addition, the plaintiffs allege that three of these directorsDeehan, Lynch and Jenningsreceived backdated stock option grants and approved of such grants during their service on NYFIX'S compensation committee.[10]
The court concludes that the plaintiffs' allegations do not create a reasonable doubt that, at the time the Second Amended Complaint was filed, a majority of NYFIX's board of directors could have exercised independent and disinterested business judgment in responding to a demand. See Rales, 634 A.2d at 937. In the Second Amended Complaint, the plaintiffs allege that NYFIX filed a false and misleading Form 10-K on June 30, 2005, which understated the effect of the backdating of stock option grants. The plaintiffs do not plead violations of the securities laws for any allegedly false or misleading financial statements issued by NYFIX after June 30, 2005.
At the time plaintiffs allege NYFIX filed a false and misleading Form 10-K, i.e. on June 30, 2005, five directorsGorman, Roberts, Edelstein, Davis, and Janeway were not members of the board, and they are not named as defendants in this case. Because a majority of the directors as of June 27, 2007 did not become members of the board of directors until after the date of the challenged action, and they are not named as defendants, they do not face a substantial threat of personal liability if they were to pursue the claims in the Second Amended Complaint. Although the plaintiffs correctly note that Delaware courts have held that a director who approves or receives backdated stock option grants faces a substantial likelihood of liability, see Ryan, 918 A.2d at 355-56, and the plaintiffs' claim relates to filing a Form 10-K that allegedly understated the impact of the backdating, only three of the directors on the board at the time the Second Amended Complaint was filed are alleged to have approved or received the backdated stock option grants.
The plaintiffs also argue that members of the audit committee who approved of filing false financial and proxy statements face a substantial threat of personal liability. See Ryan, 918 A.2d at 356 n. 38. However, only four of the directors on the June 27, 2007 board served on the audit committee prior to the June 30, 2005 filing. A fifth directorGormanserved on the audit committee from 2006 to October 2007. Although the plaintiffs now argue that the audit committee continued to approve false and misleading financial statements through 2006, the plaintiffs did not claim in the Second Amended Complaint that any financial statements issued after June 30, 2005 were false and misleading, and Gorman is not named as a defendant in that complaint. Along the same lines, the plaintiffs argue that six of the nine directors approved of false filings with the Securities and Exchange Commission ("SEC"), but the plaintiffs never allege in the Second Amended Complaint that any more than four of the members of the June 27, 2007 board approved of false or misleading filings with the SEC during the relevant time period.
The plaintiffs contend that two directors who are not named as defendants in this actionGorman and Robertsstill face a substantial likelihood of personal liability because they are named as defendants in a "parallel" state court action. However, the plaintiffs' allegations in the Second Amended Complaint do not support the conclusion that Gorman or Roberts would face a substantial threat of personal liability or criminal sanctions in any other action if they were to pursue the plaintiffs' claims here, nor is the parallel state court action even mentioned in the Second Amended Complaint. Thus, the allegations of the Second Amended Complaint do not establish that a majority of the board would face a substantial likelihood of personal liability.
The plaintiffs' allegations also do not establish that a majority of the board received any personal financial benefit from the transactions mentioned in the Second Amended Complaint. Only three of the directors on the board as of June 27, 2007 are alleged to have received backdated stock option grants, and it is unclear whether they personally profited from them. (See Second Am. Compl. ¶¶ 8, 197-98). In any event, it is clear that six of the nine directors received no personal financial benefit from any transaction that was not equally shared by shareholders.
Finally, the plaintiffs argue that they have created a reasonable doubt as to whether the defendants' backdating of stock option grants was the product of a valid exercise of business judgment. This argument, based on the second prong of the Aronson test, is inapposite. As noted above, the plaintiffs lack standing to assert claims related to the backdating of stock option grants. Moreover, a majority of the board of directors in existence at the time of the alleged backdating of stock option grants was replaced by the time the plaintiffs filed the Second Amended Complaint. Therefore, the business judgment rule has no application here. See Rales, 634 A.2d at 933.
Therefore, the court concludes that the plaintiffs have failed to assert particularized facts that would create a reasonable doubt that a majority of the board of directors would be independent and disinterested in evaluating a demand in this action. Because the plaintiffs have failed to make demand or to establish that demand was excused on the ground of futility, the defendants' motions to dismiss are being granted.
III. CONCLUSION
For the reasons set forth above, the Motion by Defendants George Deehan, William Lynch, and William Jennings to Dismiss the Corrected First Amended Consolidated Verified Shareholder Derivative Complaint (Doc. No. 81); Defendant Peter K. Hansen's Motion to Dismiss (Doc. No. 82); Thomas Wajnert's Omnibus Motion to Dismiss (Doc. No. 83); and Nominal Defendant NYFIX, Inc.'s Motion to Dismiss (Doc. No. 84) are hereby GRANTED.
The Clerk shall enter judgment in favor of the defendants and close this case.
It is so ordered.
NOTES
[1] In addition to alleging that the defendants filed a false and misleading Form 10-K on June 30, 2005, the plaintiffs allege that, from 1997 to 2003, the defendants engaged in a scheme to backdate stock option grants. However, the plaintiffs lack standing to assert these claims because they did not own NYFIX stock before 2005. See Part II.A., infra.
In connection with the Second Amended Complaint, the plaintiffs voluntarily dismissed defendants Richard Castillo, Robert Gasser, Lars Kragh, Richard Roberts, Lou Gorman, Carl Warden, Gene Stamos, Craig Shumate, and Mark Hahn, as well as claims asserting a violation of Section 14 of the Securities and Exchange Act of 1934 (the "Exchange Act") and common law causes of action for rescission and breach of contract. The Second Amended Complaint added a claim for violation of Section 20(a) of the Exchange Act.
[2] Because the First Amended Complaint could not have survived a motion to dismiss based on the plaintiffs' lack of standing alone, the court need not decide whether the other grounds raised by NYFIX would justify dismissal. Also, because a new demand is required unless all three circumstances set forth in Braddock are present, and the court has determined that the First Amended Complaint was not well-pleaded as a derivative action, the court need not decide whether the other two circumstances that must exist in order to excuse a plaintiff from making demand are present here.
[3] Under Aronson, the court examines "whether, under the particularized facts alleged, a reasonable doubt is created that: (1) the directors are disinterested and independent and (2) the challenged transaction was otherwise the product of a valid exercise of business judgment." Aronson, 473 A.2d at 814.
[4] Although the Second Amended Complaint makes reference to other transactions, the claims were narrowed to include only claims that the plaintiffs had standing to assert, i.e. claims where the plaintiffs owned stock at the time of the transaction. For this reason, the court disagrees with the plaintiffs' contention that it should apply the Aronson standard because a majority of the board of directors as of June 27, 2007 approved of either the backdating of stock option grants or the filing of false financial statements. The plaintiffs do not allege any transaction that took place after June 30, 2005 as a basis for the defendants' liability in the Second Amended Complaint, and they lack standing to base a claim on any transaction that took place prior to their ownership of NYFIX stock in 2005.
[5] The dates that the directors have served on the board are as follows: George Deehan (August 2000-present), William Lynch (June 2000-present), William Jennings (July 2003-present), Thomas Wajnert (October 2004-present), Lou Gorman (September 2005-present), Richard Roberts (September 2005-present), Howard Edelstein (October 2006-present), Cary Davis (October 2006-present), and William Janeway (October 2006-present). All members of the Board are outside directors except for Howard Edelstein, the Chief Executive Officer ("CEO") of NYFIX.
[6] Edelstein, Davis, and Janeway joined NYFIX's Board upon completion of a $75 million sale of NYFIX stock to Warburg Pincus, a private equity firm, in 2006.
[7] In their opposition to the instant motions, the plaintiffs contend that the defendants improperly backdated stock option grants from 1993 to 2004. They also contend that, from 1995 to 2006, the defendants approved of false or misleading financial statements that misrepresented the exercise price of the stock options and understated the amount of the restatement of their financial statements. Specifically, the plaintiffs contend that NYFIX understated the amount of the restatement in a Form 10-K issued on June 30, 2005, an announcement on October 19, 2005, and a press release issued on June 29, 2006. The plaintiffs also contend that the error was not corrected until the filing of the March 7, 2007 Form 10-K, which stated that the estimates in June 2005 and June 2006 were inaccurate. The plaintiffs also note that the March 7, 2007 Form 10-K stated that, as of December 31, 2005, NYFIX's management did not maintain effective internal control over financial reporting.
[8] The dates that the directors have served on the Audit Committee are as follows: Deehan (2001-2004), Lynch (2002-2004), Jennings (2004-present), Wajnert (2004-present), and Gorman (2006-October 2007).
[9] However, in the Second Amended Complaint, the plaintiffs allege that "NYFIX's June 29, 2006 Press Release expressly admits that based on the Company's documentation, NYFIX's prior practices regarding grant date and/or exercise prices may have been inappropriate...." (Second Am. Compl. ¶ 195).
[10] The dates that the directors have served on the Compensation Committee are as follows: Deehan (2001-present), Lynch (2002-present), and Jennings (2004-2005).
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985 S.W.2d 400 (1999)
STATE ex rel. COUNTY OF JACKSON, Missouri, Respondent,
v.
THE MISSOURI PUBLIC SERVICE COMMISSION, Appellant.
No. WD 55723.
Missouri Court of Appeals, Western District.
February 2, 1999.
*401 Cerlyn D. McGowan, Jefferson City, for appellant.
Jeremiah D. Finnegan, Kansas City, for respondent.
Before ULRICH, P.J.; SMART, J. and LAURA DENVIR STITH, J.
ULRICH, Presiding Judge.
The Missouri Public Service Commission (PSC) appeals from the declaratory judgment entered by the trial court in favor of Jackson County, Missouri (Jackson County), in a natural gas rate case. Jackson County sought to intervene in the case as a political subdivision and as a representative of the citizens and businesses of the county. The PSC granted Jackson County's request to intervene but limited the intervention to the county's representing its own interest and not that of the residents and businesses of the county. Jackson County filed a petition for writ of mandamus and writ of prohibition to compel the PSC to permit Jackson County's representation of residents and businesses within the county. The trial court issued its declaratory judgment permanently enjoining the PSC from limiting the intervention of Jackson County or any other person, firm, or corporation specified in section 386.390.1, RSMo 1994, in any proceeding before the PSC and from declaring any future order or decision in a controverted matter final on the date the order is entered by the PSC. The PSC raises several points on appeal. It claims that the trial court erred in entering the declaratory judgment because (1) the court lacked subject matter jurisdiction; (2) the issues decided in the declaratory judgment were not ripe for judicial review; (3) the issues addressed in the declaratory judgment were moot; (4) the declaratory judgment improperly addressed anticipated quasi-judicial errors; and (5) the declaratory judgment unlawfully enjoined the PSC from exercising its discretion to grant, deny, or limit intervention under section 386.420, RSMo 1994. The judgment of the trial court is ordered vacated.
On October 3, 1997, Missouri Gas Energy (MGE), a division of Southern Union Company, filed tariff sheets with the PSC, a state agency established by the Missouri legislature to regulate public utilities, requesting a $27,817,140 annual increase in revenues from its Missouri service area, which included Jackson County, effective November 2, 1997. The case was denominated case number GR-98-140. Jackson County filed a timely application to intervene on behalf of itself and its residents and businesses on October 23, 1997. On October 29, 1997, the PSC suspended the effective date of the tariff sheets from November 2, 1997, to November 2, 1998.
On October 31, 1997, MGE filed suggestions in opposition to Jackson County's application to intervene. MGE stated that while it had no opposition to Jackson County's intervention "as a political subdivision on its own behalf or as a purchaser of natural gas service," it did object to Jackson County's intervention "as a representative of the citizens and businesses of Jackson County on the basis that the Office of Public Counsel is specifically empowered to `represent and protect the public interest' pursuant to the provisions of § 386.710, RSMo1994." Jackson County responded to MGE's suggestions in opposition on November 1, 1997. It argued that it had a right to intervene in a proceeding before the PSC as a "representative of the public in the locality or territory affected" and that section 386.710.3, RSMo 1994, specifically provided that its right to intervene was not to be limited by the construction of any provisions of section 386.710, the statute empowering the Office of Public Counsel.
The PSC issued an order on December 9, 1997, granting Jackson County intervenor status. In issuing the order, however, the PSC determined that Jackson County's intervention should be limited to representing its own interest as a purchaser of natural gas service and its own interest in the welfare of the county. It further ruled that the general public interest of the citizens of the county is represented by the Office of Public Counsel pursuant to section 386.710, RSMo 1994. In the order, the PSC granted full intervention to the City of Kansas City, which also filed an application to intervene on behalf of itself and its citizens and businesses. The order *402 was made effective on the same date it was issued, December 9, 1997.
Jackson County filed its petition for writ of mandamus and writ of prohibition on December 23, 1997, requesting the circuit court to (1) direct the PSC to grant Jackson County full intervention in case number GR-98-140, (2) prohibit the PSC from precluding, in any proceeding before the PSC, the intervention of Jackson County or other county, city, town or village as a representative of the residents and businesses of the county, city, town or village, and (3) direct the PSC to, in the future, issue orders with an effective date that would provide sufficient opportunity for an aggrieved party to file an application for rehearing. The court issued a preliminary order in mandamus and prohibition the same day.
On January 7, 1998, the PSC issued a second order, effective January 21, 1998, granting Jackson County full intervention in the case as the county had sought. On January 20, 1998, the PSC filed its answer to Jackson County's petition for writ of mandamus and writ of prohibition. It also filed a motion to dismiss the petition and to quash the preliminary order in mandamus and prohibition contending, inter alia, that the issues raised in the Jackson County's petition were moot. In suggestions in support of its motion to dismiss, the PSC argued that because it subsequently granted Jackson County full intervention in case number GR-98-140, a decision on the petition for writ of mandamus and writ of prohibition would not have any practical effect on any then existing controversy and, thus, was unnecessary.
In Jackson County's suggestions in opposition to the PSC's motion to dismiss, it withdrew its prayers for relief in its petition acknowledging that the PSC had granted it full intervention after the filing of the petition. Nevertheless, Jackson County requested the trial court to exercise its discretion under an exception to the mootness doctrine and rule on the issues. It argued that the issues of the PSC limiting its intervention under section 386.710, RSMo 1994, and making its orders effective on the date thereof were of general public interest and importance, will evade appellate review, and will recur.
Following a hearing on the petition for writ of mandamus and writ of prohibition, the trial court entered its declaratory judgment on March 11, 1998. In the declaratory judgment, the court denied the PSC's motion to dismiss and to quash the preliminary order in mandamus and prohibition and made the following orders:
That Respondent Commission be, and hereby is, permanently restrained and enjoined from:
a. construing anything in Section 386.710 to limit the intervention of Relator [Jackson County] or of any other person, firm or corporation specified in subsection 1 of Section 386.390 in any proceeding or other matter before the Commission; and
b. making an order or decision, in which a controverted matter is decided, effective on the date thereof or on a date which does not allow a reasonably adequate time for an aggrieved party to file an application for rehearing before any such order or decision becomes effective.
From this judgment, the PSC appeals.
The PSC raises several points on appeal. It claims that the trial court erred in entering the declaratory judgment because (1) the court lacked subject matter jurisdiction; (2) the issues decided in the declaratory judgment were not ripe for judicial review; (3) the issues addressed in the declaratory judgment were moot; (4) the declaratory judgment improperly addressed anticipated quasi-judicial errors; and (5) the declaratory judgment unlawfully enjoined the PSC from exercising its discretion to grant, deny, or limit intervention under section 386.420, RSMo 1994.
The mootness issue is dispositive in this case. Jackson County's petition for writ of mandamus and writ of prohibition sought an order of the trial court directing the PSC to grant Jackson County intervention as a political subdivision and as a representative of citizens and businesses of the county in case number GR-98-140. Subsequent to the filing of the petition, the PSC granted Jackson County full intervention in this case. A *403 case is moot if a judgment rendered has no practical effect upon an existent controversy. State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo.App. W.D.1998); State ex rel. Missouri Cable Television Ass'n v. Missouri Public Serv. Comm'n, 917 S.W.2d 650, 652 (Mo.App. W.D.1996). When an event occurs that makes a court's decision unnecessary or makes it impossible for the court to grant effectual relief, the case is moot and generally should be dismissed. Chastain, 968 S.W.2d at 237. Where a respondent in a mandamus or prohibition case complies with the relator's demands prior to the court's determination of the case, no justiciable controversy remains and mandamus will not lie. State ex rel. St. Louis County v. Enright, 729 S.W.2d 537, 540 (Mo. App. E.D.1987). The PSC's granting of full intervention to Jackson County in case number GR-98-140 eliminated any justiciable controversy between Jackson County and the PSC and rendered this case moot.
Despite the mootness of this case, Jackson County asked the trial court, and this court on appeal, to exercise its discretion under an exception to the mootness doctrine and rule on the general issues of limitation of intervention based on section 386.710, RSMo 1994, and the PSC making its orders final and effective on the date they are filed. While courts should generally not decide moot issues, a court has discretion to review a moot case where the case presents a recurring unsettled legal issue of public interest and importance that will escape review unless the court exercises its discretionary jurisdiction. Chastain, 968 S.W.2d at 237. This exception is very narrow, however, and if an issue of public importance in a moot case is likely to be present in a future live controversy practically capable of review, the "public interest" exception does not apply. Id.
The issues in this case, whether the PSC may construe section 386.710 to limit the intervention of any person, firm, or corporation in a proceeding before the PSC and whether the PSC may make an order final and effective on the date it is filed, are likely to be present in future controversies practically capable of review. The issue of limitation of intervention based on section 386.710, RSMo 1994, may be reviewed at a later time in a case where a party's intervention is actually limited and not subsequently granted. Likewise, a PSC order denying intervention, or any other PSC order, made final and effective on the date of its entry, thereby precluding review through the judicial review procedure of section 386.510, RSMo 1994, may be reviewed at a later date by the filing of a petition for extraordinary relief. Thus, the issues involved in this case will not likely escape appellate review in future controversies. Jackson County's effort to cause this court to exercise its discretion to review the issues in terms of all future cases is effectively a request for an advisory opinion on hypothetical questions. Full intervention having been granted to Jackson County in this case, no controversy exists. Appellate courts neither render advisory opinions nor decide non-existent issues. Missouri Cable, 917 S.W.2d at 652. Furthermore, because of the numerous ancillary issues in this case that would require analysis and discussion before the issues for which comment is desired, this court elects not to exercise its discretion under the exception to the mootness doctrine in this case.
The judgment of the trial court is ordered vacated.
All concur.
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985 S.W.2d 588 (1999)
David E. FREEMAN, Appellant,
v.
The STATE of Texas, Appellee.
No. 09-97-479 CR
Court of Appeals of Texas, Beaumont.
Submitted on November 30, 1998.
Decided January 6, 1999.
Rehearing Overruled February 18, 1999.
*589 Bruce Hoffer, Beaumont, for appellant.
Charles Roach, District Attorney, Kountze, for state.
Before WALKER, C.J., BURGESS, and STOVER, JJ.
OPINION
DON BURGESS, Justice.
A jury convicted David Freeman of aggravated sexual assault and sentenced him to five years' confinement in the Texas Department of Criminal JusticeInstitutional Division. Freeman appeals raising nine points of error.
We will first address Freeman's third point of error as it is dispositive of this case. Freeman argues in his third point the trial court erred in overruling several of his objections to the State's closing argument. The first instance complained of is the one with which we are presently concerned.
In closing argument, in the guilt/innocence phase of the trial, the State informed the jury that the charge would contain an instruction on Indecency with a Child and explained the difference between that crime and Aggravated Sexual Assault in relation to the case before them. The State then proceeded to say, "And what that means is thatAggravated Sexual Assault of a Child, we talked about the range[1] from probation up to life. With Indecency With a Child, the punishment range would be from probation to 20 years." Defense counsel objected to the comment about punishment range and the trial court overruled his objection. Thus error was preserved. TEX. R. APP. P. 33.1(a); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim.App.1991).
"It is improper to discuss ranges of punishment during the guilt-innocence stage of a trial involving two or more offenses because it encourages the jury to convict on the basis of the amount of punishment, rather than the facts supporting guilt." Bruton v. State, 921 S.W.2d 531, 536 (Tex.App. Fort Worth 1996, pet. ref'd)(citing McClure v. State, 544 S.W.2d 390, 393 (Tex.Crim.App. 1976)). See also Atkins v. State, 919 S.W.2d 770, 776 (Tex.App.Houston [14th Dist.] 1996, no pet.); Hinkle v. State, 779 S.W.2d 504, 509 (Tex.App.Beaumont 1989, pet. ref'd). We therefore find the trial court erred in overruling defense counsel's objection.
Pursuant to TEX. R. APP. P. 44.2, we now decide whether that error is reversible. As the Bruton court noted "the harm from such remarks generally will be cured by an instruction to disregard...." Bruton, 921 S.W.2d at 536. Likewise, in Hinkle, this court found that although the comment on punishment range was improper, the error was sufficiently cured when the trial court sustained the objection and instructed the jury to disregard. Hinkle, 779 S.W.2d at 509. However, unlike those cases, here we have no instruction to disregard because the trial court erroneously overruled defense *590 counsel's objection. Although the State did not repeat or emphasize the improper comment, the trial court took no action "curing" the error. Instead, by overruling the objection, the trial court gave the jury the impression the punishment range was properly placed before them by the State.
We place particular importance upon the fact that in this case, as in McClure and Bruton, the jury was charged to consider a lesser included offense, carrying a lesser range of punishment. We in no way wish to promote, and in fact are obligated to discourage, the State from encouraging the jury to convict the defendant of the greater offense based on the amount of punishment. Considering the source of the error, the nature of the error, the collateral implications of the error, the weight a juror would probably place on the error, and our fear that declaring the error harmless would encourage the State to repeat the error, we are unable to find the error was harmless. See Atkins, 919 S.W.2d at 777. We find the error affected a substantial right of the appellant, namely to have guilt determined only on the facts supporting guilt, not on the potential punishment. Point of error three is sustained.
None of Freeman's remaining points of error, if sustained, would entitle him to any greater relief. It is therefore unnecessary to address them. The judgment of the trial court is reversed and the cause remanded for a new trial.
REVERSED AND REMANDED.
NOTES
[1] The State is referring to voir dire.
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2456946/
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985 S.W.2d 571 (1998)
Noel Allen McLENDON, Jr., Appellant,
v.
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
No. 10-97-367-CV
Court of Appeals of Texas, Waco.
December 31, 1998.
*572 David R. Sweat, Sweat & Cochran, L.L.P., Arlington, for appellant.
John C. West, Jr., Chief of Legal Services, Valerie Fulmer, Senior Assistant General Counsel, Rebecca Blewett, Hearing Attorney, Tim Curry, Criminal District Attorney, Phyllis Cranz, Assistant District Attorney by Deputization, Fort Worth, for appellee.
Before Chief Justice DAVIS, Justice CUMMINGS and Justice VANCE.
OPINION
REX D. DAVIS, Chief Justice.
Noel Allen McLendon, Jr. appeals the determination of the court below that he is ineligible for a concealed handgun license because he pleaded guilty to a felony offense and was placed on probation, even though he was subsequently discharged from the probation and the charges were dismissed. McLendon asserts in two points: (1) his prior felony probation does not disqualify him from receiving a handgun license because that charge was dismissed; and (2) the Department of Public Safety ("DPS") failed to prove by a preponderance of evidence that he was previously convicted of a felony.
FACTUAL BACKGROUND
A person named Noel Allen McLendon, Jr. pleaded guilty to a felony theft charge in Taylor County in 1969. The Taylor County district court placed the defendant on felony probation for a period of five years. On the defendant's motion, the court set aside the conviction and dismissed the indictment in 1974 pursuant to the provisions of the probation statute then in effect. See Act of May 27, 1965, 59th Leg., R.S., ch. 722, § 1, art. 42.12, § 7, 1965 Tex. Gen. Laws 317, 492 (amended 1983) (current version at TEX.CODE CRIM. PROC. ANN. art. 42.12, § 20 (Vernon Supp.1999)) (hereinafter, "TEX.CODE CRIM. PROC. ANN. art. 42.12, § 7").[1]
*573 On October 24, 1996, DPS denied McLendon's application for a handgun license. DPS denied the application because it determined he is the same person who had pleaded guilty to the felony offense discussed above. McLendon appealed the denial before a justice of the peace who determined the prior felony probation does not disqualify him from receiving a handgun license. DPS appealed to the county court at law which affirmed DPS's original determination that McLendon is not qualified for a license.
ARTICLE 4413(29ee)
The former article 4413(29ee) governs McLendon's application. See Act of May 16, 1995, 74th Leg., R.S., ch. 229, § 1, 1995 Tex. Gen. Laws 1998, 1998-2013 (repealed 1997) (current version at TEX. GOV'T CODE ANN. §§ 411.171-411.208 (Vernon 1998)) (hereinafter "TEX.REV.CIV. STAT. ANN. art. 4413(29ee)").[2] Under the terms of section 2(a)(3) of article 4413(29ee), a person is not eligible for a handgun license if he has been convicted of a felony. TEX.REV.CIV. STAT. ANN. art. 4413(29ee), § 2(a)(3). Article 4413(29ee) defines the term "convicted" as follows:
"Convicted" means an adjudication of guilt or an order of deferred adjudication entered against a person by a court of competent jurisdiction whether or not:
(A) the imposition of the sentence is subsequently probated and the person is discharged from community supervision; or
(B) the person is pardoned for the offense, unless the pardon is expressly granted for subsequent proof of innocence.
TEX.REV.CIV. STAT. ANN. art. 4413(29ee), § 1(4).
JURISDICTION
Neither party questions our jurisdiction over this case. Nevertheless, we must always examine our jurisdiction, even if sua sponte. Dallas County Appraisal Dist. v. Funds Recovery, Inc., 887 S.W.2d 465, 468 (Tex.App.Dallas 1994, writ denied). The Texas Constitution gives this Court jurisdiction over "all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law." TEX. CONST. art. V, § 6. In two statutes, the Legislature has provided that the jurisdiction of the intermediate appellate courts in civil cases is limited to causes where the amount in controversy exceeds $100. TEX. CIV. PRAC. & REM.CODE ANN. § 51.012 (Vernon 1997); TEX. GOV'T CODE ANN. § 22.220(a) (Vernon 1988).
The Fort Worth Court of Appeals has determined that appellate courts have jurisdiction over handgun license appeals under the general jurisdiction of article V, section 6 because the Legislature has imposed "no restrictions or regulations on [such appeals]." Texas Dep't of Pub. Safety v. Tune, 977 S.W.2d 650, 652 (Tex.App.Fort Worth 1998, pet. dism'd w.o.j.) (op. on reh'g). The San Antonio Court of Appeals has reached the opposite conclusion. See Texas Dep't of Pub. Safety v. Levinson, 981 S.W.2d 5, 8 (Tex.App.San Antonio, 1998, pet. filed). In Levinson, the court determined that the statutes cited above apply to all civil appeals which "arise from the county courts acting in their appellate capacity." Id. Because the parties represented to the court that no amount in controversy existed in their case, the court concluded it had no jurisdiction to consider that handgun license appeal. Id., at 6-8.
Even if the San Antonio court is correct in its assertion that the limiting statutory provisions cited above apply in handgun license cases, we conclude that the amount in controversy requirement is satisfied in this case. The Supreme Court has defined the amount in controversy to include "the sum of money or the value of the thing originally sued for." *574 Gulf, Col. & Santa Fe Ry. v. Cunnigan, 95 Tex. 439, 441, 67 S.W. 888, 890 (1902); accord Printing Ctr. of Tex., Inc. v. Supermind Pub. Co., 669 S.W.2d 779, 785 (Tex.App. Houston [14th Dist.] 1984, no writ); Williams v. Le Garage De La Paix, Inc., 562 S.W.2d 534, 535 (Tex.Civ.App.Houston [14th Dist.] 1978, writ ref'd n.r.e.). Under DPS regulations, a license applicant must tender a $140 nonrefundable fee with his application. 37 TEX. ADMIN. CODE § 6.15(8) (1997). Thus, the value of a license exceeds $100, and we have jurisdiction over this appeal.
SUFFICIENCY OF EVIDENCE
Before we construe the pertinent provisions of article 4413(29ee), we will address McLendon's second point which challenges the sufficiency of the evidence to establish that he was previously convicted of a felony. He argues that the proof is lacking because DPS failed to offer a properly authenticated judgment in evidence and failed to prove that he is the same person whose guilty plea is reflected by the documents offered in evidence by DPS.
When DPS appealed the justice court's determination that McLendon is eligible for a license, it had the burden to prove by a preponderance of evidence that McLendon is not qualified for a handgun license (i.e., that he has been previously convicted of a felony). See TEX.REV.CIV. STAT. ANN. art. 4413(29ee), § 7(c), (e). At the hearing, DPS offered a certified copy of what appears to be an abstract of judgment which reflects that a person with McLendon's name pleaded guilty to felony theft and was placed on five years' probation. This document is not signed by the judge of the convicting court, nor does it have a line for the judge's signature. However, the document is properly self-authenticated by the certification of the District Clerk of Taylor County. See TEX.R. CIV. EVID. 902(1), (4), 46 Tex. B.J. 212-13 (Tex. 1982, amended 1998).[3] McLendon objected to the document on the basis that it does not meet the requirements of a judgment in that it does not contain the judge's signature. See TEX.CODE CRIM. PROC. ANN. art. 42.01, § 1 (Vernon Supp.1999).
PROOF OF IDENTITY
McLendon argues that DPS offered no evidence that he is the person who pleaded guilty in the Taylor County case. Assuming without deciding that McLendon has properly preserved this issue for our review, we note the following excerpts contained in the record.[4] In McLendon's written pleading responsive to DPS's petition, he states, "[T]his record does not reflect that the respondent in this matter had an attorney to represent him in said felony cause[,]" and "The respondent takes the position that when the new trial is granted he was not convicted of any offense."
The reporter's record reflects the following comments of McLendon's counsel: "no place on that document is it reflected that my client even had an attorney at that particular proceeding"; "My client was granted a Motion for New Trial.... He has suffered no conviction"; "Whatever may have happened to him in Taylor County has been set aside by the Court's granting of a Motion for New Trial."
Factual allegations set forth in a party's live pleadings are considered judicial admissions. Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 769 (Tex.1983); Huff v. Harrell, 941 S.W.2d 230, 235 (Tex.App. Corpus Christi 1996, writ denied). Moreover, statements of counsel in a hearing can constitute judicial admissions. See Carroll Instr. Co. v. B.W.B. Controls, Inc., 677 S.W.2d 654, 659 (Tex.App.Houston [1st Dist.] 1984, no writ) (counsel's statement constituted judicial admission); see also Int'l *575 Piping Sys., Ltd. v. M.M. White & Assocs., Inc., 831 S.W.2d 444, 449 (Tex.App.Houston [14th Dist.] 1992, writ denied) (party may not challenge sufficiency of evidence on issue which counsel informed the jury was not disputed). Judicial admissions conclusively establish the facts stated and thus relieve the opposing party of the necessity of proving the admitted facts. Chilton Ins. Co. v. Pate & Pate Enters., Inc., 930 S.W.2d 877, 884 (Tex.App.San Antonio 1996, writ denied).
At the hearing, McLendon took the position that: (1) DPS did not offer a copy of the "judgment" reflecting his guilty plea in Taylor County (which we next address); (2) the records offered by DPS do not reflect that he had counsel representing him in the Taylor County proceedings; and (3) the Taylor County court's order setting aside his conviction and dismissing the indictment operated to set aside his conviction for purposes of the handgun statute. McLendon's pleadings and counsel's comments constitute judicial admissions that he is the same person placed on probation in Taylor County. See Musick, 650 S.W.2d at 769; Carroll Instr., 677 S.W.2d at 659. Accordingly, we reject his challenge to the sufficiency of the evidence to prove identity.
PROOF OF JUDGMENT
Section 7(h) of article 4413(29ee) provides that DPS "is specifically authorized to utilize and to introduce into evidence certified copies of governmental records to establish the existence of certain events which could result in the denial, revocation, or suspension of a license under this article, including but not limited to records regarding convictions." TEX.REV.CIV. STAT. ANN. art. 4413(29ee), § 7(h). Moreover, in proving up a prior conviction beyond a reasonable doubt in a criminal prosecution, the State can satisfy this burden even without a copy of a signed judgment if the State offers properly authenticated documents which reflect that the accused was convicted as alleged and the accused does not offer rebuttal evidence that he was not so convicted. See Jones v. State, 449 S.W.2d 277, 278-79 (Tex.Crim.App.1970) (prison records contained sentence but no judgment); Mitchell v. State, 848 S.W.2d 917, 918-19 (Tex.App.Texarkana 1993, pet. ref'd) (abstract of judgment); Tucker v. State, 751 S.W.2d 919, 925-26 (Tex.App. Fort Worth 1988, pet. ref'd) (op. on reh'g) (Georgia judgment which did not comply with requirements for Texas judgment).
McLendon does not contend that no judgment was entered in the case at issue. Rather, he claims DPS failed to prove a judgment was entered. The Court of Criminal Appeals was presented with an identical argument in Jones and summarily rejected it. See Jones, 449 S.W.2d at 278. We do likewise.
DPS offered an abstract of judgment which reflects that McLendon pleaded guilty to a felony offense; that he was placed on probation for the offense; and that he was subsequently discharged from that probation. Moreover, his pleadings and counsel's comments judicially admitted these facts. Thus, we conclude the evidence is sufficient to prove by a preponderance of evidence that McLendon served a prior felony probation as indicated in the documents admitted in evidence. See Jones, 449 S.W.2d at 278-79; Mitchell, 848 S.W.2d at 918-19; Tucker, 751 S.W.2d at 925-26. Accordingly, we overrule McLendon's second point.
DISCHARGE FROM PROBATION
DPS V. TUNE
In Tune, the Fort Worth court determined that an applicant was ineligible for a handgun license because of a prior felony probation which had been set aside and dismissed after the applicant had successfully completed his probation. Tune, 977 S.W.2d at 653. The court reached this result for two reasons: (1) its reading of the "plain meaning" of the statute; and (2) its prior opinion in R.R.E. v. Glenn that article 42.12, section 7 does not fully restore the rights of a convicted felon. 884 S.W.2d 189, 193 (Tex.App.Fort Worth 1994, writ denied).
PLAIN LANGUAGE
We agree with Tune's reading of the plain language of the statute. Article 4413(29ee) provides that a person has been convicted regardless of whether imposition of sentence was suspended and the person was *576 discharged from probation. TEX.REV.CIV. STAT. ANN. art. 4413(29ee), § 1(4)(A). The parties do not dispute that McLendon was discharged from his probation. Rather they dispute the effect of the Taylor County district court's subsequent action in setting aside his conviction and dismissing the underlying indictment.
Article 42.12, section 7 provides that when a court has set aside a verdict and dismissed the indictment, the accused is thereafter "released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty." TEX.CODE CRIM. PROC. ANN. art. 42.12, § 7. The question is whether this "clemency provision" controls over the provisions of article 4413(29ee), section 1(4). See Ex parte Giles, 502 S.W.2d 774, 785 (Tex. Crim.App.1973) (article 42.12, section 7 "enacted pursuant to the limited grant of authority of clemency to the courts encompassed in Article IV, Sec. 11A of the [Texas] Constitution").
ARTICLE 42.12, SECTION 7
The Fort Worth court essentially determined in Glenn that the clemency provision of article 42.12, section 7 is unconstitutional without declaring it so. See Glenn, 884 S.W.2d at 193 (noting that the Court of Criminal Appeals had held a similar statute unconstitutional in Snodgrass v. State, 67 Tex. Crim. 615, 150 S.W. 162, 167 (1912)). The Glenn court, however, failed to mention that in 1913 the Court of Criminal Appeals affirmed the constitutionality of a modified version of the same statute. See Baker v. State, 70 Tex. Crim. 618, 158 S.W. 998, 1003 (1913). Nor did the court reference Giles, in which the Court of Criminal Appeals observed that article 42.12, section 7 "was enacted pursuant to the limited grant of authority of clemency to the courts encompassed in Article IV, Sec. 11A of the [Texas] Constitution." 502 S.W.2d at 785. Article IV, section 11A provides:
The Courts of the State of Texas having original jurisdiction of criminal actions shall have the power, after conviction, to suspend the imposition or execution of sentence and to place the defendant upon probation and to reimpose such sentence, under such conditions as the Legislature may prescribe.
TEX. CONST. art. IV, § 11A.
This Court has expressly disagreed with the reasoning of Glenn. See Hoffman v. State, 922 S.W.2d 663, 669 (Tex.App.Waco 1996, pet. ref'd). We stated in Hoffman:
The facts that the district court (1) possesses the authority to dismiss the criminal charges against and (2) retains jurisdiction over a criminal defendant throughout the duration of his term of his probation or community supervision demonstrate that the district court does not exceed its constitutional and statutory powers when it dismisses the criminal charges against a defendant upon the successful completion of his probation or community supervision. We find this authority granted to the district court by article 42.12, section 20,[5] differs from the constitutional authority of the executive branch to pardon a criminal defendant after conviction. Therefore, we disagree with the Fort Worth Court in Glenn that article 42.12, section 20, attempts to grant to the judiciary and the legislature greater authority than the Texas Constitution allows.
Id.
We continue to disagree with Glenn, and thus we disagree in part with the reasoning of Tune.[6] Accordingly, we must construe article *577 42.12, section 7 and article 4413(29ee), section 1(4) to determine which controls in this instance.
IN PARI MATERIA
Because the pertinent provisions of both statutes address a similar subject matter, they are in pari materia and must be construed together. See Ex parte Smith, 849 S.W.2d 832, 834 (Tex.App.Amarillo 1992, no pet.); GMC Superior Trucks, Inc. v. Irving Bank & Trust Co., 463 S.W.2d 274, 276 (Tex.Civ.App.Waco 1971, no writ); TEX. GOV'T CODE ANN. § 311.026 (Vernon 1998).
The in para materia rule is a principle of statutory interpretation whose purpose is to carry out the full legislative intent by giving effect to all laws and provisions bearing on the same subject. It proceeds on the supposition that several statutes relating to one subject are governed by one spirit and policy, and are intended to be consistent and harmonious in their several parts and provisions. The rule applies where one statute deals with a subject in comprehensive terms and another deals with a portion of the same subject in a more definite way.
Smith, 849 S.W.2d at 834. When statutes are in pari materia and a general provision conflicts with a more specific provision, "the general provision is controlled or limited by the special provision." GMC Superior Trucks, 463 S.W.2d at 276; accord City of Dallas v. Mitchell, 870 S.W.2d 21, 23 (Tex. 1994); State v. Mancuso, 919 S.W.2d 86, 88 (Tex.Crim.App.1996); TEX. GOV'T CODE ANN. § 311.026(b).
SIMILAR LAWS
We may also consider other laws covering "the same or similar subjects" when construing a particular provision. TEX. GOV'T CODE ANN. § 311.023(4) (Vernon 1998).
All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. [Statutes] are therefore to be construed in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and the decisions of the courts.
State ex rel. White v. Bradley, 956 S.W.2d 725, 740 (Tex.App.Fort Worth 1997, writ granted) (quoting McBride v. Clayton, 140 Tex. 71, 76-77, 166 S.W.2d 125, 128 (1942)); accord Acker v. Texas Water Comm'n, 790 S.W.2d 299, 301 (Tex.1990); In re Garcia, 944 S.W.2d 725, 727 (Tex.App.Amarillo 1997, no writ). Any omissions in an enactment are presumed intentional. In re Ament, 890 S.W.2d 39, 41 (Tex.1994); Garcia, 944 S.W.2d at 727. Bearing all of these considerations in mind, we examine the pertinent statutory provisions.
*578 APPLICATION
1. In Pari Materia
Article 4413(29ee) provides in general terms that a person who has served a felony probation is not eligible for a handgun license regardless of whether he was discharged from the probation. However, the statute does not address the situation where a defendant has been discharged from probation, his conviction has been set aside, and the indictment dismissed under article 42.12, section 7. The courts have construed this specific provision in article 42.12, section 7 to mean that once the conviction has been set aside and the charges dismissed, the accused "is released from the disabilities attendant upon conviction." Day v. State, 784 S.W.2d 955, 956 (Tex.App.Fort Worth 1990, no pet.); accord Wolfe v. State, 917 S.W.2d 270, 277 (Tex.Crim.App.1996); Payton v. State, 572 S.W.2d 677, 678-79 (Tex.Crim.App.1978) (op. on reh'g); Hoffman, 922 S.W.2d at 668-69; Smith v. State, 859 S.W.2d 463, 464 (Tex. App.Fort Worth 1993, pet. ref'd); contra Tune, 977 S.W.2d at 653; Glenn, 884 S.W.2d at 193.
Having considered the broad definitional provision of article 4413(29ee), section 1(4) and the more specific clemency provision of article 42.12, section 7, the in pari materia rule suggests that the latter controls over the former. See Mitchell, 870 S.W.2d at 23; Mancuso, 919 S.W.2d at 88; GMC Superior Trucks, 463 S.W.2d at 276; TEX. GOV'T CODE ANN. § 311.026(b). This conclusion finds further support when we examine other statutory provisions addressing the "same or similar subjects." TEX. GOV'T CODE ANN. § 311.023(4).
2. Similar Laws
Our research has revealed two statutory provisions in which the Legislature has enacted a specific definition of the term "conviction" which addresses the clemency provisions of the current article 42.12 (article 42.12, sections 5(c) and 20).[7] In addition, these clemency provisions contain their own exceptions.
Section 17(c) of article 4512j of the Revised Civil Statutes (an act establishing the State Board of Examiners for Speech-Language Pathology and Audiology) permits the Board to suspend, revoke, or decline to issue a license issued under the act when a licensee has been convicted of a felony or other crime involving moral turpitude. TEX.REV. CIV. STAT. ANN. art. 4512j, § 17(c) (Vernon Supp.1999). The statute provides that the Board may take such action even though "an order granting probation is made suspending the imposition of sentence irrespective of a subsequent order allowing a person to withdraw his or her plea of guilty, or setting aside the verdict of guilty, or dismissing the information or indictment." Id. The Legislature enacted this provision in 1983. See Act of May 28, 1983, 68th Leg., R.S., ch. 381, § 17(c), 1983 Tex. Gen. Laws 2072, 2087.
Section 406.009 of the Government Code permits the Secretary of State to reject a notary public application or suspend or revoke a notary public's commission for good cause, including conviction of a crime involving moral turpitude or the violation of a law regulating the conduct of notaries public. TEX. GOV'T CODE ANN. § 406.009(a), (d)(1), (4) (Vernon 1998). The statute further provides:
The dismissal and discharge of proceedings under either the misdemeanor adult probation and supervision law or the adult probation, parole, and mandatory supervision law shall not be considered a conviction for the purposes of determining good cause.
Id. § 406.009(e). The Legislature enacted section 406.009(e) in 1995, the same session in which it adopted article 4413(29ee). See Act of May 24, 1995, 74th Leg., R.S., ch. 719, § 6, 1995 Tex. Gen. Laws 3807, 3808 (act adopting section 406.009(e)); Act of May 16, 1995, 74th Leg., R.S., ch. 229, 1995 Tex. Gen. Laws 1998 (act adopting article 4413(29ee)).
*579 In addition to these statutes in which the Legislature has made specific reference to the clemency provisions of article 42.12, these clemency provisions themselves contain several exceptions. The 75th Legislature created a mandatory life sentence for sex offenders previously convicted of a sex crime. See Act of May 23, 1997, 75th Leg., R.S., ch. 665, § 1, 1997 Tex. Gen. Laws 2247, 2247-48 (codified at TEX. PEN.CODE ANN. § 12.42(c)(2) (Vernon Supp.1999)). The Legislature adopted a specific definition of the term "previously convicted" for purposes of section 12.42(c)(2). That definition provides:
a defendant has been previously convicted of an offense listed under Subsection (d)(2)(B) if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision.
TEX. PEN.CODE ANN. § 12.42(g)(1) (Vernon Supp.1999).
At the same time the 75th Legislature amended the clemency provision of the deferred adjudication statute. See Act of May 31, 1997, 75th Leg., R.S., ch. 667, § 1, 1997 Tex. Gen. Laws 2250, 2250-51 (codified at TEX.CODE CRIM. PROC. ANN. art. 42.12, § 5(c) (Vernon Supp.1999)). As amended, article 42.12, section 5(c) provides in pertinent part, "Except as provided by Section 12.42(g), Penal Code, a dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense." TEX.CODE CRIM. PROC. ANN. art. 42.12, § 5(c).
The 75th Legislature's amendment of article 42.12, section 5(c) is particularly compelling because of the fact that the phrase "discharged from community supervision" employed in section 12.42(g) of the Penal Code is identical to the phraseology of article 4413(29ee), section 1(4). The Legislature's amendment of the deferred adjudication clemency provision strongly suggests its recognition that the "discharged from community supervision" phraseology does not account for the clemency provisions of article 42.12.[8]
The deferred adjudication clemency provision contains other exceptions as well:
(1) upon subsequent conviction, the fact that the defendant previously served an unadjudicated community supervision is admissible in the punishment phase of trial;
(2) the Department of Human Services ("DHS") may consider a prior unadjudicated *580 community supervision in issuing, renewing, denying, or revoking a license under Chapter 42 of the Human Resources Code; and
(3) the Interagency Council on Sex Offender Treatment may consider a prior unadjudicated community supervision in issuing, renewing, denying, or revoking a license or registration issued by that council.
TEX.CODE CRIM. PROC. ANN. art. 42.12, § 5(c).
In a similar fashion, the clemency provision of article 42.12, section 20 contains several exceptions:
(1) proof of a prior probation or community supervision shall be made known in the event of a subsequent conviction;
(2) DHS may consider a prior probation or community supervision in issuing, renewing, denying, or revoking a license under Chapter 42 of the Human Resources Code; and
(3) a defendant may not take advantage of this clemency provision if he is convicted of an intoxication-related offense or a state jail felony.
Id. art. 42.12, § 20.[9]
The Legislature has enacted two separate statutes which make express references to the clemency provisions of article 42.12. In addition, these clemency provisions contain their own exceptions as listed above. Conversely, article 4413(29ee), section 1(4) fails to reference these provisions. We must presume the Legislature intentionally omitted any reference to these clemency provisions. See Ament, 890 S.W.2d at 41; Garcia, 944 S.W.2d at 727. Thus, in construing article 4413(29ee), section 1(4) "in harmony with the existing law," we conclude the Legislature's omission of any reference to the clemency provisions of article 42.12 means that persons discharged under these clemency provisions are not considered to have prior convictions for purposes of article 4413(29ee).
3. Summary
The clemency provision of article 42.12, section 7 has been recognized by this Court and others as a constitutional enactment which removes any legal disabilities associated with a felony conviction, except as otherwise provided by law. Under the in pari materia rule, this specific provision controls over the broad statutory definition of the term "convicted" found in article 4413(29ee), section 1(4). Moreover, because the Legislature has made express reference to the clemency provisions of article 42.12 in other statutes and did not do so in article 4413(29ee), we must presume from this omission that persons discharged under article 42.12, section 7 are not considered to have prior convictions for purposes of article 4413(29ee).[10]
*581 CONCLUSION
DPS sustained its burden of proving by a preponderance of evidence that McLendon previously pleaded guilty to a felony offense, was placed on probation, and was discharged from that probation. DPS's evidence also reveals that after discharge, the convicting court set aside McLendon's conviction and dismissed the underlying indictment pursuant to the clemency provision found in article 42.12, section 7.
We have determined that this clemency provision controls over the definition of the term "convicted" found in article 4413(29ee), section 1(4). As a result, McLendon has not been previously convicted of a felony under the terms of article 4413(29ee). Because he does not have a prior felony conviction as that term is defined by article 4413(29ee), he is eligible for a concealed handgun license.
Accordingly, we reverse the judgment and render judgment that McLendon is not disqualified from obtaining a license to carry a concealed handgun because of his prior felony conviction which was set aside and dismissed.
Justice VANCE dissenting.
VANCE, Justice, dissenting.
When a statute is clear and unambiguous, courts need not resort to rules of construction or extrinsic aids to construe it, but should give the statute its common meaning. Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 133 (Tex.1994). The Supreme Court tells us:
It is a well-established principle of Texas law that when a statute is clear and unambiguous, and reasonably admits of only one construction, the courts will take the legislative intent from the words of the statute and apply that intent as written. Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex.1983); Ex parte Roloff, 510 S.W.2d 913, 915 (Tex.1974). When the statute's meaning is plain, this court will not explore its legislative history to contradict its express terms. Railroad Commission v. Miller, 434 S.W.2d 670, 672 (Tex.1968); City of Port Arthur v. Tillman, 398 S.W.2d 750, 752 (Tex.1965).
Stauffer v. Henderson, 801 S.W.2d 858, 868 (Tex.1990).
The language of the concealed handgun licensing statute is clear and unambiguous, in part because the term "convicted" is defined. The statute says:
In this subchapter:
. . .
(4) "Convicted" means an adjudication of guilt or an order of deferred adjudication entered against a person by a court of competent jurisdiction whether or not:
(A) the imposition of the sentence is subsequently probated and the person is discharged from community supervision; or
(B) the person is pardoned for the offense, unless the pardon is expressly granted for subsequent proof of innocence.
TEX. GOV'T CODE ANN. § 411.171 (Vernon 1998) (emphasis added). Thus, a person has been "convicted" for purposes of the licensing statute if he has been adjudicated guilty, even though he is placed on community supervision and later discharged.
The statute also provides:
(a) A person is eligible for a license to carry a concealed handgun if the person:
. . .
(3) has not been convicted of a felony;....
Id. § 411.172 (Vernon 1998) (emphasis added). Thus, to be eligible for a license, a person must not have been adjudicated guilty of a felony, even though he was placed on community supervision and later discharged.
McLendon was adjudicated guilty of the offense of felony theft on October 6, 1969, and was placed on probation for five years. When he was discharged from probation in 1974, he was granted a new trial and the cause was dismissed. McLendon is ineligible for a concealed handgun license. In my view *582 it simply does not matter whether the finding of guilt was set aside or whether a new trial was granted.
The majority seems to believe that the word "convicted" must have the same meaning throughout all statutes passed by the legislature. Because it ignores the plain meaning of the concealed handgun licensing statute, as adopted, in favor of a strained construction, I dissent.
NOTES
[1] This statute has been amended four times since 1974. These amendments have continued the former law in effect for persons sentenced under the former law or sentenced for offenses committed prior to the effective date of the amendments. See Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 28(c), 1983 Tex. Gen. Laws 1568, 1607; Act of May 23, 1989, 71st Leg., R.S., ch. 679, § 4(b), 1989 Tex. Gen. Laws 3166, 3167; Act of May 29, 1989, 71st Leg., R.S., ch. 785, § 9.01, 1989 Tex. Gen. Laws 3471, 3557; Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 4.02(a), 1993 Tex. Gen. Laws 3586, 3742. Thus, unless otherwise indicated we will cite the provisions in effect at the time of the felony probation in question.
[2] McLendon filed his application with DPS in 1996. The provisions of the current concealed handgun law found in the Government Code do not apply to his case because the current statute applies only to applications filed on or after September 1, 1997. See Act of June 1, 1997, 75th Leg., R.S., ch. 1261, § 33(a), 1997 Tex. Gen. Laws 4766, 4779.
[3] We cite the rules of evidence in effect at the time of the hearing in the court below. Nevertheless, the current rules have identical self-authentication provisions. See TEX.R. EVID. 902(1), (4).
[4] McLendon failed to challenge the sufficiency of the evidence before the court below under any of the methods traditionally required as a prerequisite to asserting a sufficiency challenge on appeal. See Crow v. Burnett, 951 S.W.2d 894, 899 (Tex.App.Waco 1997, pet. denied). However, DPS does not argue that McLendon failed to preserve this issue.
[5] Article 42.12, section 20 is the current version of article 42.12, section 7.
[6] The Supreme Court ordered the transfer of this cause from the Fort Worth Court of Appeals to this Court under the Supreme Court's plan for docket equalization. See TEX. GOV'T CODE ANN. § 73.001 (Vernon 1988); American Nat'l Ins. Co. v. IBM, 933 S.W.2d 685, 692 (Tex.App.San Antonio 1996, writ denied) (Duncan, J., concurring and dissenting). If the Supreme Court had not transferred this cause, the Fort Worth court presumably would have decided this case on the basis of its decision in Tune. However, we disagree with the reasoning of Tune and will decline to follow it notwithstanding the transfer status of this cause. Our disagreement with Tune creates what at least one appellate jurist has described as "a conflict of laws issue." American Nat'l Ins., 933 S.W.2d at 690 (Duncan, J., concurring and dissenting). We agree with the statement of the majority in American Nat'l Insurance Co. set forth below and will follow it in transfer cases.
The theory of our law is that the State of Texas has but one law on any given subject, and that the law is as proclaimed by the courts of appeals and finally, in civil cases, by the Texas Supreme Court.
This theory acknowledges that there may be differences of opinion among the courts of appeals as to what that law is. The remedy for such conflicts or errors is an appeal to the Texas Supreme Court.
Conflicts of law rules make sense when applied to separate sovereigns, whether nations or sovereign states, because in those instances there really can be conflicts in the law from one sovereign state or nation to the other. Where, however, there is only one sovereign, a court of appeals' duty is to decide and apply the law of that sovereign, not to ascertain the law as stated in a given district, whether its own or the district from which a case has been transferred. The State of Texas consists of only one sovereign state, not fourteen.
We acknowledge that there can be problems caused by the fact that Texas is such a large and diverse state, that we have fourteen courts of appeals districts, and that cases are transferred from one of those districts to other districts where the justices' views of what the law of Texas is may differ from the justices of the court from which the case arose. We believe, however, that the answer to those difficulties lies in an appeal to the Texas Supreme Court, in civil cases, or to the Texas Court of Criminal Appeals, in criminal cases, rather than in an effort on our part to be parochial in our application of the law to the facts presented us.
American Nat'l Ins., 933 S.W.2d at 688 (citation omitted).
[7] Article 42.12, section 5(c) is the clemency provision for deferred adjudication community supervision cases. It provides similarly to article 42.12, section 20 that "a dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense." TEX.CODE CRIM. PROC. ANN. art. 42.12, § 5(c) (Vernon Supp.1999).
[8] We note that the Texas Senate debated the application of the deferred adjudication clemency provision to the concealed handgun law during the 75th Legislative Session. Senator Patterson proposed an amendment to article 4413(29ee), section 1(4) to redefine the term "convicted." Under his amendment, the term would not include "an adjudication of guilt or an order of deferred adjudication which has been subsequently: (A) set aside or expunged, or (B) pardoned under the authority of a state or federal official." S.J. of Tex., 75th Leg., R.S. 3327 (1997). During the debate on the proposed amendment, Senator West questioned Patterson on whether the term "set aside" would include deferred adjudications set aside pursuant to the clemency provision of article 42.12, section 5(c). Audio tape of Debate on Tex. H.B. 2909 on the Floor of the Senate, 75th Leg., R.S., Tape 4 (May 27, 1997) (copy available from Senate Staff Services Office). Senator Patterson withdrew his amendment and offered a substitute without the term "set aside" which the Legislature adopted. See Act of June 1, 1997, 75th Leg., R.S., ch. 1261, § 1, 1997 Tex. Gen. Laws 4766, 4766-67.
Although this discussion suggests the Legislature did not intend for persons granted clemency under article 42.12 to qualify for handgun licenses, we must construe the language actually used by the Legislature "in connection and in harmony with the existing law." State ex rel White v. Bradley, 956 S.W.2d 725, 740 (Tex.App.Fort Worth 1997, writ granted) (quoting McBride v. Clayton, 140 Tex. 71, 76-77, 166 S.W.2d 125, 128 (1942)). Thus, the language employed by the Legislature necessarily controls in this instance. See Gilmore v. Waples, 108 Tex. 167, 171, 188 S.W. 1037, 1039 (1916) (In construing a statute, "the intent which is finally arrived at must be an intent consistent with, and fairly expressed by, the words of the statute themselves."); accord Citizens Nat'l Bank v. Calvert, 527 S.W.2d 175, 180 (Tex.1975); see also Cipollone v. Liggett Group, Inc., 505 U.S. 504, 520, 112 S. Ct. 2608, 2619, 120 L. Ed. 2d 407 (1992) ("[T]he views of a subsequent [legislature] form a hazardous basis for inferring the intent of an earlier one.").
[9] We express no opinion on the effect of the omission from article 42.12, section 20 of any reference to section 12.42(g) of the Penal Code. Cf. TEX.CODE CRIM. PROC. ANN. art. 42.12, § 5(c) (Vernon Supp.1999) (clemency provision of unadjudicated community supervision statute does not apply to section 12.42(g)).
[10] The clemency provisions of article 42.12 have existed in Texas in some form for 85 years. See Baker v. State, 70 Tex. Crim. 618, 158, S.W. 998, 1003 (1913) (affirming the constitutionality of the clemency provision of the 1913 probation statute). As evidenced by the dissent however, these provisions of late have created disagreement among the appellate courts of this State and sometimes of individual justices or panels of these courts attempting to construe these provisions together with other statutes. See and compare Wolfe v. State, 917 S.W.2d 270, 277 (Tex. Crim.App.1996), Payton v. State, 572 S.W.2d 677, 678-79 (Tex.Crim.App.1978) (op. on reh'g), Hoffman v. State, 922 S.W.2d 663, 668-69 (Tex. App.Waco 1996, pet. ref'd), Smith v. State, 859 S.W.2d 463, 464 (Tex.App.Fort Worth 1993, pet. ref'd), and Day v. State, 784 S.W.2d 955, 956 (Tex.App.Fort Worth 1990, no pet.) (all holding that petit juror whose felony indictment has been dismissed under these provisions is eligible to serve as a juror), with R.R.E. v. Glenn, 884 S.W.2d 189, 193 (Tex.App.Fort Worth 1994, writ denied) (holding to the contrary); see also Texas Dep't of Pub. Safety v. Tune, 977 S.W.2d 650, 653 (Tex.App.Fort Worth 1998, pet. dism'd w.o.j.) (op. on reh'g) (holding such a person is not eligible for a concealed handgun license).
The Legislature has adopted numerous specific exceptions to the application of the clemency provisions of article 42.12 in recent years. The Legislature has also provided for deferred adjudication community supervision which allows an accused to plead guilty and receive community supervision without being "convicted" (i.e., found guilty). In light of these developments, perhaps the clemency provisions are no longer necessary or viable. Regardless, this decision must be made by the Legislature. Thus, we call upon the Legislature to either repeal these provisions or clarify them so their application is clear and unambiguous in cases like this.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2456984/
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(2008)
In the matter of the Complaint of S.D.S. LUMBER CO. for and on behalf of the TUG BRUCE M., Barge SDS No. 2 and Barge SDS No. 6, for the exoneration from or limitation of liability.
Civil No. 06-1423-KI.
United States District Court, D. Oregon.
July 14, 2008.
FINDINGS AND CONCLUSIONS
KING, Judge.
Plaintiff S.D.S. Lumber Co. ("SDS") brought this admiralty and maritime claim under the Limitation of Liability Act, 46 U.S.C. §§ 30501-30512. American West Steamboat Company, LLC ("American West") filed a claim arising when its cruise ship, the Empress of the North, ("Empress") ran aground to avoid a collision with a tug boat, the Bruce M, and its tows, two empty chip barges, all owned by SDS. SDS seeks exoneration from or limitation of liability. The action was tried to the court. The following are my findings of facts and conclusions of law.
FACTS
SDS owns the Bruce M, a 65-foot pusher tug, and two chip barges, SDS 2 and SDS 6.
American West charters the Empress, a stern-wheel cruise ship that carries 200 passengers plus crew. It is equipped with twin Z Drives, a stern paddlewheel, and a jet bow thruster, making the Empress a highly maneuverable boat.
The Empress cruises the Columbia River in the spring and fall. The Columbia has a marked navigation channel that is 300-feet wide in the area in question. Some places outside the channel are deep enough for the Empress. In other places, there is shallow water or rocks immediately outside of the marked navigation channel.
Captain Kevin Bellus, the master of the Bruce M, had worked for SDS for 24 years, with the last 14 years working almost exclusively as a tug captain. He is properly licensed and, at the time of this incident, the U.S. Coast Guard had never taken any action against his license.
Second Mate James Nowlin was at the helm of the Empress at the time of the incident. Nowlin, who was about 40 years old, has a Bachelor of Science degree in marine transportation and has worked on ships since college. Much of his career has been in Alaska but he had worked over 40 weeks on the Columbia by the end of 2005. Before 2005, Nowlin received two letters of warning from the U.S. Coast Guard.
I. Cascades Grounding
I will describe the grounding of the Cascades because it is relevant to whether SDS had privity and knowledge of the negligence or conditions of unseaworthiness leading to the grounding of the Empress.
On November 21, 2005, Bellus was at the helm of the Bruce M, which was pushing two full chip barges arranged end-to-end in a long flotilla. This is a typical tow for the Bruce M. The Bruce M was down-bound on the Columbia. The Shaver tug boat Cascades was upbound with four empty barges. The Cascades proposed to meet the Bruce M port-to-port above the Washougal dolphin and the Bruce M agreed. The Bruce M drifted across the channel prior to reaching the dolphin. Bellus believed that he was positioned to pass on either the starboard or port side but he did not communicate any change in plans to the Cascades. When the Cascades came around the corner and saw the position of the Bruce M, the Cascades' skipper knew that the flotillas could not pass port-to-port. He also believed that if he kept going, the Cascades would have hit either the Bruce M or a dyke. The skipper of the Cascades elected to run aground to avoid collision.
Captain Gary Collins, the Marine Superintendent for SDS, talked to Bellus about the Cascades situation the next day. Collins also spoke to Shaver immediately after the incident but never spoke to the skipper of the Cascades to get his viewpoint and never tried to get the Shaver accident report or the U.S. Coast Guard report. Collins quickly decided that Bellus did nothing wrong and that the Cascades skipper must have been green and panicked. The Cascades captain had 14 years with Shaver, something Collins never determined. Collins sent a memo to all of his captains stating that captains must call all vessels to agree on the intention for passing. The memo also reminded the captains that the channel in that area would allow passing on the starboard side.
II. Empress Grounding
On the morning of March 24, 2006, the Empress was downbound on the Columbia River, approaching a series of turns in the Washougal Upper Range and Washougal Lower Range. Nowlin was at the helm. The Bruce M was upbound at Parker's Landing, pushing the two empty chip barges arranged end-to-end in a long flotilla. Bellus was at the helm.
Bellus radioed Nowlin and asked for a port-to-port passage. Nowlin agreed. Bellus did not ask Nowlin to hold up where the Columbia is wide and deep near Reed Island and Gary Island.
The Empress proceeded to the high side of the range, on the Washington side of the channel, to comply with the passing agreement. It did not significantly reduce speed. As the Bruce M turned onto the Washougal Upper Range, a south wind arose causing the flotilla to drift and block most of the channel. This left no room for the agreed-upon port-to-port passage and created the risk of an imminent collision. Although the flotilla was blocking the channel, Bellus did not call the Empress to warn it of the problem.
To avoid collision with the Bruce M, the Empress reduced speed somewhat and steered outside the channel, where it ran aground on the rocks on the Washington side. Nowlin was afraid that if he slowed the Empress too much he would have lost control.
It is normal for the Bruce M to take up most of the channel when coming between the Washougal Lower and Upper ranges. About three to four minutes passed from when the Bruce M first began getting "out of sorts" until the Empress was forced aground. Many tug boat captains testified that they considered the Washougal Lower Range to be a no-passing zone because of the shallow water immediately outside the channel, the currents, and the effect of the wind. The custom is for the downbound boat to stand off near Reed Island or Gary Island until the upbound boat passes safely.
DISCUSSION
I. Fault
The Limitation of Liability Act limits shipowner liability arising from the unseaworthiness of the shipowner's vessel or the negligence of the vessel's crew unless the condition of unseaworthiness or the act of negligence was within the shipowner's "privity or knowledge." The shipowner has the burden of proving that the act or condition was outside its privity or knowledge after the claimant first establishes what act or condition caused the loss.
In re BOWFIN M/V, 339 F.3d 1137, 1138 (9th Cir.2003) (footnotes containing citations omitted).
"The applicable standards of care in a collision case stem from the traditional concepts of prudent seamanship and reasonable care, statutory and regulatory, rules, and recognized customs and uses." Stolt Achievement, Ltd. v. Dredge B.E. LINDHOLM, 447 F.3d 360, 364 (5th Cir. 2006). Custom which does not completely contradict a statutory rule of navigation may be used to support a finding of negligence in collisions at sea. Stevens v. F/V Bonnie Doon, 655 F.2d 206, 208 (9th Cir. 1981). "But mere custom, without more, under the law, is not conclusive.... Negligence, if established, cannot be justified by custom." The Indien, 71 F.2d 752, 759 (9th Cir.1934) (internal quotation and citation omitted).
Under admiralty law, if a ship is in violation of an applicable statutory duty at the time of a collision, there is a presumption that the violation contributed to the accident. The Pennsylvania, 86 U.S. 125, 136, 19 Wall. 125, 22 L. Ed. 148 (1873), overruled on other grounds in United States v. Reliable Transfer Co., Inc., 421 U.S. 397, 411, 95 S. Ct. 1708, 44 L. Ed. 2d 251 (1975). This presumption may be rebutted by a showing that the statutory violation could not reasonably be held to have been a proximate cause of the collision.
Crowley Marine Services v. Maritrans, 447 F.3d 719, 724 (9th Cir.2006) (internal quotation and citation omitted).
I have not tried to sort out which master did or did not make security calls at the appropriate time because I do not think a lack of security calls led to the grounding. The boats were aware of each other and communicated by radio in plenty of time to avoid the grounding. The problem is lack of communication in other ways.
The reason that ship captains have radios, and the reason that passing agreements such as the one entered into by the Flora and Six are reached, is that it can be difficult and even impossible for a captain to telepathically glean the intentions of another ship on the windy, dark sea. Had Captain Gatsos bothered to radio the Six and inform it of his intention to abandon the passing agreement, he could have been certain that the Six had 1) heard his transmission and 2) was in accordance. Instead, he left the safety of his crew in the hands of fate and "assumed" that'"everybody knew" what he was doing by turning left, straight into the oncoming Formosa Six.
The Tokio Marine and Fire Ins. Co., Ltd. v. M/V Flora, 1999 A.M.C. 1569, 1574 (E.D.La.1999). `A vessel is entitled to rely on the announced intention of another vessel in regard to a passing, and on the presumption that the other vessel will govern herself accordingly." Id. at 1585.
Many tug boat captains explained the local custom of not passing in the Washougal Lower Range and of having the downbound boat hold up. There was no evidence, however, that this custom went beyond the tug boats even though there are, other types of commercial boats on the Columbia. If Bellus wanted the Empress to hold up, he should have specified where the passing was to take place. Likewise, once Bellus realized that he was going to get set across the channel, he should have communicated that information to the Empress. The Empress was maneuverable enough to hold to its side of the channel. The Bruce M often could not and Bellus knew this. Thus, he should have suggested a passing agreement with which the Bruce M could comply. Bellus was skippering the more limited boat.
Bellus is not entirely to blame, however. Based on the testimony of expert Captain Don Timmel, I find that Nowlin did not realize how maneuverable the Empress was due to the Z drives. Once Nowlin saw that the Bruce M was set across the channel, Nowlin could have slowed the Empress and remained stationary without losing control of the boat. This would have allowed the Bruce M to make the corner, opening up the channel for the Empress.
Based on this general analysis, I find that Bellus was negligent by failing to ask the Empress to hold up, by failing to specify the point of passing, and by failing to communicate to the Empress that the Bruce M was going to get set across the channel, once it became clear that was going to happen.
I also find that Nowlin was negligent by failing to take all available steps to maneuver the Empress so that it would avoid both a collision with the Bruce M and the grounding. I also find that Nowlin was negligent by proceeding at a speed which might have necessitated a hard stop, even though he should have known that the two boats would be passing in an area where there was little room outside the channel.
Several Inland Navigational Rules, 33 U.S.C. §§ 2001-2030, were also violated. Bellus violated Rule 7, Risk of Collision, and Rule 34, Maneuvering and Warning Signals. Nowlin violated Rule 6, Safe Speed, and Rule 8, Action to Avoid Collision. These violations are proximate causes of the grounding.
Liability for damages in a maritime collision is allocated among the parties proportionately to the comparative degree of their fault. United States v. Reliable Transfer Co., Inc., 421 U.S. 397, 411, 95 S. Ct. 1708, 44 L. Ed. 2d 251 (1975).
If Bellus had properly set up the pass, the Empress would not have run aground. I conclude that he is the more culpable party and assign 70 percent of the fault to SDS and 30 percent of the fault to American West.
II. Privity and Knowledge
I now turn to whether SDS had privity and knowledge of the negligence or conditions of unseaworthiness leading to the grounding.
Privity or knowledge "usually implies some degree of culpable participation or neglected duty on the shipowner's part: that, for example, it committed a negligent act, or knew of an unseaworthy condition but failed to remedy it, or through the exercise of reasonable diligence could have prevented the commission of the act or the onset of the condition." Carr v. PMS Fishing Corp., 191 F.3d 1, 4 (1st Cir.1999). A shipowner is not denied limitation of liability "for a master's navigational errors at sea when the owner has exercised reasonable care in selecting the master." Petition of Kristie Leigh Enterprises, Inc., 72 F.3d 479, 481 (5th Cir.1996) (master not incompetent when he was properly licensed with over 30 years of experience and one license suspension for allowing his tow to collide with floodgates because he thought they were open).
The Empress grounding did not occur because of a navigational error. The grounding occurred because Bellus did not use proper procedures to set up a pass that, without an agreement otherwise, would occur in the Washougal Lower Range, a known dangerous area. The Cascades grounding was only five months earlier. It was caused by Bellus not communicating his intent to change from an agreed-upon portside passage to taking a position in mid-channel which would allow passage on either the port or starboard. The problem here is not Bellus' reading of the conditions on the river at the time. The problem is Bellus' lack of communication.
Collins did not adequately investigate the Cascades grounding. He did not talk to the skipper of the Cascades, did not get that skipper's accident report, and did not get the U.S. Coast Guard report. SDS did not have a procedure in place specifying what type of investigation should take place after an accident. Because of the lack of investigation, SDS did not put any training or policy in place concerning how to communicate passing agreements so that all parties know what to expect. This led directly to the grounding of the Empress when Bellus again did not fully communicate everything he assumed the Empress would do.
For these reasons, I conclude that the negligence and unseaworthiness of the Bruce M that caused the grounding of the Empress were within the privity and knowledge of SDS. Thus, SDS is not entitled to limitation of liability.
III. Damages
Many of the items of damages are not in dispute. The parties both agree that repair costs were $1,935,807; salvage costs were $175,540, and out-of-pocket costs were $244,388. SDS objects to a public relations cost of $11,552 but I find that this was a necessary and reasonable out-of-pocket expense and include it in the damages. The total of these figures is $2,367,287.
The parties dispute how lost profits should be calculated for the cancelled cruises. I agree with American West's theory that rebooked passengers displace other passengers, even if the later cruise did not sail at 100 percent capacity. The cancelled cruises were during the most popular fall sailing season. Cruise passengers often cancel close to the date of the cruise and the room cannot be resold prior to sailing. Accordingly, I accept the calculations of American West's expert on the lost profits, with one exception.
American West's damages expert calculated lost profits to be $1,101,276. I do not understand either sides' expert, however, concerning the passenger airfare that was considered in the lost profits calculation. Consequently, I do not wish to include the airfare as a component of the lost profits but I do not understand how to adjust the $1,101,276 figure. As a result, I ask the parties to confer and attempt to submit a proposed form of Judgment.
As a general rule, "prejudgment interest should be awarded in maritime collision cases, subject to a limited exception for `peculiar' or `exceptional' circumstances." City of Milwaukee v. Cement Div., Nat. Gypsum Co., 515 U.S. 189, 195, 115 S. Ct. 2091, 132 L. Ed. 2d 148 (1995). `"[N]either a good faith dispute over liability nor the existence of mutual fault justifies the denial of prejudgment interest in an admiralty collision case." Id. at 199. SDS has not argued against an award of prejudgment interest. Accordingly, I award prejudgment interest from the date of the grounding, March 24, 2006, at the rate described in 28 U.S.C. § 1961.
CONCLUSION
Because SDS is not entitled to limitation of liability, it is liable for 70 percent of the damages, in the amounts as explained above, plus prejudgment interest. I ask the parties to confer concerning the airfare issue and attempt to submit jointly a proposed Judgment. If they are unable to do so, they should both send me a letter by August 11 explaining their positions.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2457401/
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562 S.W.2d 236 (1978)
Wayne Martin COWAN, Appellant,
v.
The STATE of Texas, Appellee.
No. 55191.
Court of Criminal Appeals of Texas, Panel No. 1.
February 8, 1978.
Rehearing Denied March 15, 1978.
*237 Lawrence E. Ackels, Lawrence E. Ackels, Jr. and Henry J. Ackels, Dallas, for appellant.
Henry Wade, Dist. Atty., Steve Wilensky and Tom F. Lillard, Asst. Dist. Attys., Dallas, for the State.
Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
Rehearing Denied En Banc March 15, 1978.
OPINION
TOM G. DAVIS, Judge.
Appeal is taken from a conviction for aggravated rape under V.T.C.A. Penal Code, Sec. 21.03(a)(2). After the jury returned a verdict of guilty, punishment, enhanced under V.T.C.A. Penal Code, Sec. 12.42(c), was assessed by the court at twenty years.
Appellant challenges the sufficiency of the evidence to prove penetration.
The record reflects that on the afternoon of October 30, 1975, the prosecutrix received a telephone call from the appellant, asking her to help him wrap a package. The testimony reflects that the prosecutrix and the appellant had known each other slightly for several years. The appellant picked up the prosecutrix at work several hours later and they proceeded to his apartment. The appellant then told the prosecutrix that his wife would be back in a short time to help them wrap the gift. He then asked her if she would like to come upstairs and see his water bed, which she agreed to do. After a brief conversation in the bedroom, appellant closed the door and put his hand over her mouth, telling her not to scream or he would kill her. The appellant then pushed her onto the bed. At this point the prosecutrix testified the appellant pulled a knife and threatened her with it. He then threw her to the floor and ordered her to remove her blouse. The prosecutrix testified that she attempted to pull the appellant's hair and that she scratched him or at least pulled at the neck of his T-shirt. Prosecutrix stated that they "fought and fought" and in the course of the fight that appellant took her pants off. With respect to the issue of penetration, the record reflects that prosecutrix testified as follows:
"Q. And then at that time, J____, didlet me ask you a question for the record. At that time did his male organ penetrate your female organ?
*238 "A. Yes."
In addition, Dr. James D. Strong, Jr., testified that in his medical opinion the bruising of the prosecutrix's labia majora "was made with a male sex organ."
In Sherbert v. State, Tex.Cr.App., 531 S.W.2d 636, we stated:
"The burden of proof upon the State in proving penetration is no greater under V.T.C.A. Penal Code, Sec. 21.01(3) than it was under Art. 1187, V.A.P.C. This Court has held that the requirement of Art. 1187, V.A.P.C. is satisfied by showing any penetration, no matter how slight. Rhynes v. State, Tex.Cr.App., 479 S.W.2d 70; Nilsson v. State, Tex.Cr.App., 477 S.W.2d 592; Johnson v. State, Tex.Cr. App., 449 S.W.2d 65. While proof of the slightest penetration is sufficient, this element of the offense must be proved beyond a reasonable doubt. Lynch v. State, 150 Tex. Crim. 57, 199 S.W.2d 780; Calhoun v. State, 134 Tex. Crim. 423, 115 S.W.2d 965. Penetration between the labia of the female's private parts by the male sexual organ of the defendant is sufficient although the vagina was not entered or an act of intercourse was ever completed. Rhynes v. State, supra." (footnote omitted)
We find the evidence is sufficient to prove the act of penetration and conclude that the evidence is sufficient to sustain the conviction.
Appellant contends that the trial court erred in admitting over objection three photographs of the appellant after an allegedly illegal arrest.
The appellant contends that because he was illegally arrested the photographs taken of him at the police station were tainted, and were admitted in violation of his Fourth Amendment rights. The appellant argues that they were prejudicial because they showed heavy fingernail scratches on his chest.
We need not reach the question of whether the photographs were tainted by the allegedly illegal arrest since on direct examination the appellant testified as follows:
"Q. What did she do then?
"A. She started scratching me and I hauled off and knocked the crap out of her and I told her to get up, I ain't going for this.
* * * * * *
"Q. Now, you have said that you hit her.
"A. Yes, I did.
"Q. I don't like your choice of words, but you said you knocked the crap out of her, is that correct?
"A. Yes.
"Q. Did you hit her in the face?
"A. I hit her one time.
"Q. That was because she pulled back on you and started saying, `Don't,' and `Stop'?
"A. Yes. She was scratching me.
"Q. Scratching your shirt or you?
"A. No. She was scratching me."
Where, as here, the appellant testifies on direct examination to the same facts proven by the photographs, error in their admission, if any, was harmless. Hill v. State, Tex.Cr.App., 504 S.W.2d 484; McComb v. State, Tex.Cr.App., 488 S.W.2d 105; Moulton v. State, Tex.Cr.App., 486 S.W.2d 334.[1]
Appellant contends that the trial court erred in refusing to strike the enhancement allegations from the third indictment returned against him.
Appellant argues that he was indicted as a recidivist on a second reindictment, and that since the prior indictments did not allege a prior conviction, he was as a matter *239 of law the victim of prosecutorial vindictiveness. He argues that under the teachings of North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), and Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974), his conviction should be reversed.
The argument made by the appellant was recently explicitly rejected by the United States Supreme Court in the case of Bordenkircher v. Hayes, ___ U.S. ___, 98 S. Ct. 663, 54 L. Ed. 2d 604 (decided January 18, 1978, after argument was made before this Court by appellant's counsel). No error is shown.
Appellant contends that the trial court erred in allowing the prosecutor to inquire repeatedly into inadmissible statements made by the appellant.
The record reflects that in six of the cited questions, the appellant's objection was sustained by the trial court. The appellant received all of the relief he sought. Bourg v. State, Tex.Cr.App., 484 S.W.2d 724; Haywood v. State, Tex.Cr.App., 482 S.W.2d 855; Gleffe v. State, Tex.Cr.App., 509 S.W.2d 323. There was no request to have the court instruct the jury to disregard the question as improper, nor was there a motion for a mistrial. Wockenfuss v. State, Tex.Cr.App., 521 S.W.2d 630.
Of the two questions to which objections were overruled, the first only inquires into whether the appellant was under arrest. Further, the objection made by appellant was a general objection and nothing is presented for review.[2]Williams v. State, Tex.Cr.App., 549 S.W.2d 183; Smith v. State, Tex.Cr.App., 513 S.W.2d 823; Wilson v. State, Tex.Cr.App., 541 S.W.2d 174.
The second question to which the appellant's objection was overruled was, "In fact when they asked you if you knew J____, you had not been told you were under arrest then?" This question does not inquire into what the appellant's response was to the officer's question. It is undisputed that appellant knew the prosecutrix J____ and no harmful inference could have resulted from the mere asking of the question. No error is shown.
Appellant contends that the trial court erred in overruling his objection to the court's charge. Appellant argues that it was error for the trial court to use the word "or" instead of the word "and" between the word "intentionally" and the word "knowingly" in the charge.
In Braxton v. State, Tex.Cr.App., 528 S.W.2d 844, this Court held that since the definition of rape contained in V.T.C.A. Penal Code, Sec. 21.02, does not plainly dispense with a mental element, by linking V.T.C.A. Penal Code, Sec. 21.02 with V.T. C.A. Penal Code, Sec. 6.02(c), intent, knowledge, or recklessness are the applicable mental states sufficient to establish criminal responsibility for the offense of rape. See and compare, Zachery v. State, Tex.Cr. App., 552 S.W.2d 136 (rape indictment which failed to allege any culpable mental state held fundamentally defective).
The indictment charged aggravated rape under V.T.C.A. Penal Code, Sec. 21.03, which invokes the elements of rape under Sec. 21.02. The indictment in the instant case alleges, in part, that the appellant on October 30, 1975, did "... unlawfully, intentionally and knowingly have sexual intercourse with J____, hereinafter styled complainant, a female not his wife, without the consent of the complainant and the Defendant did intentionally and knowingly compel the complainant to submit and participate in the said act of sexual intercourse by threat of death and serious bodily injury...." (Emphasis added.)
The complained of portion of the charge reads as follows:
"Now, if you find ... that the Defendant ... did intentionally or knowingly [commit the offense of aggravated rape] ... then you will find the Defendant guilty of aggravated rape, as charged in the indictment." [Emphasis added.]
*240 In a number of cases that have come before this Court since the enactment of the new Penal Code, the question has been presented whether a charge was fundamentally defective where, as here, the indictment alleged that the offense was committed "intentionally and knowingly" and the court charged the jury to find the defendant guilty if he acted "intentionally or knowingly." In Mott v. State, Tex.Cr.App., 543 S.W.2d 623, this Court held such charge not fundamentally defective and stated that since the defendant had not objected nothing was presented for review. A similarly worded charge was held not to require reversal in McElroy v. State, Tex.Cr.App., 528 S.W.2d 831. See also Moreno v. State, Tex.Cr.App., 541 S.W.2d 170; Garcia v. State, Tex.Cr.App., 537 S.W.2d 930.
Braxton v. State, supra, held that where the statute did not proscribe a culpable mental state, intent, knowledge, or recklessness suffice to establish criminal responsibility. See V.T.C.A. Penal Code, Sec. 6.02(c).
In the instant case, the State pled intent and knowledge as the culpable mental states establishing criminal responsibility. Proof of either mental state is sufficient to establish criminal responsibility for the offense of aggravated rape.
The appellant argues that it is error to plead conjunctively and to charge in the disjunctive. Under Arts. 1183 and 1389, the rape and burglary statutes of the former Penal Code, the indictment could allege the commission of the offense by force, threats and fraud, and proof of any would be sufficient. Lucero v. State, Tex.Cr.App., 502 S.W.2d 750. Nor was the State required to elect. 4 Branch's Ann.P.C., 2d Ed., Sec. 1397, p. 256. This reasoning has previously been applied to the question of culpable mental states. See Mott v. State, supra (concurring opinion).
We hold that the court in the instant case did not err in overruling appellant's objection to the submission in the charge of the culpable mental states in the disjunctive.
Appellant contends that the court erred in overruling his objection to the court's charge when the trial court inserted the word "or" instead of the word "and" between the words "submit" and "participate."
V.T.C.A. Penal Code, Sec. 21.02(b)(2), reads in part as follows:
"he compels her to submit or participate by any threat, communicated by actions, words or deeds, that would prevent resistance by a woman of ordinary resolution, under the same or similar circumstances, because of a reasonable fear of harm; ..." [Emphasis added.]
The indictment in the instant case, set forth in part above, alleged that the appellant compelled the "complainant to submit and participate ...." [Emphasis added.]
The trial court charged the jury in the language of the statute, substituting the word "or" for the word "and" found in the indictment. The reasoning set forth under appellant's last contention is equally applicable to this complaint. There was no error to plead in the conjunctive and charge in the disjunctive. No error is shown.
Appellant's sixth ground of error is overruled.
The judgment is affirmed.
NOTES
[1] We would note that the Supreme Court of Indiana in a similar situation held that photographs of a defendant charged with rape were admissible, as against a similar argument when they portrayed scratch marks on his face. The court stated that since the pictures only portrayed what had been described by the victim, they were admissible. Leaver v. State, 250 Ind. 523, 237 N.E.2d 368 (Ind.Sup.1968). In Dujay v. State, Tex.Cr.App., 368 S.W.2d 613, we stated in dicta that photos of a defendant's arm that showed needle tracks should have been suppressed as the result of an illegal arrest, where the only other testimony about the defendant's arms was based on observation by police officers after the illegal arrest.
[2] "Your Honor, he's trying indirectly to achieve what he's not been permitted to do by the Court directly. We object to this line of questioning."
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562 S.W.2d 279 (1978)
Joseph CHACON, Jr., Appellant,
v.
CITY OF SAN ANTONIO et al., Appellees.
No. 15861.
Court of Civil Appeals of Texas, San Antonio.
February 8, 1978.
Rehearing Denied March 1, 1978.
Earle Cobb, Jr., Cobb, Thurmond & Bain, Inc., San Antonio, for appellant.
James M. Parker, City Atty., Jackson C. Hubbard, Asst. City Atty., San Antonio, for appellees.
*280 KLINGEMAN, Justice.
This is a suit by Joseph Chacon, Jr., appellant, against the City of San Antonio, its City Manager, and its Mayor, appellees, in the nature of inverse condemnation for damages allegedly caused by the passage of an ordinance known as the Airport Overlay Ordinance. Appellees answered that there had been no appropriation of appellant's land and that the suit should be abated and dismissed. The trial court held that no cause of action existed until such time as the City passes a specific ordinance covering plaintiff's land, and ordered that plaintiff's suit be abated and dismissed. The property involved is in the City of San Antonio.
Appellant's sole point of error is that the trial court erred in dismissing or abating plaintiff's cause of action based upon the pleadings.
Appellant, in his brief, asserts that the questions to be decided on this appeal are: (1) Does official announcement of the plans for the Airport Overlay Ordinance constitute an appropriation of plaintiff's property? (2) Does the passing of the Airport Overlay Ordinance constitute an appropriation of plaintiff's property? We have concluded that the answer to each of such questions is, "it does not."
This controversy has been the subject of a previous lawsuit between the parties. We think the holding and language in Chacon v. Granata, 515 F.2d 922 (5th Cir. 1975), cert. denied, 423 U.S. 930, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975), is particularly applicable to the case herein.[1]
In such case, the Court said:
That the annexation itself inflicts no legal injury on these plaintiffs is clear, though it allegedly has caused a decline in the value of their property. Many kinds of legislative and administrative action affect property values, but, without some diminution in the owner's rights of use, do not constitute a taking within the purview of the Fourteenth Amendment. See, e. g., Sayre v. City of Cleveland, 6 Cir., 1974, 493 F.2d 64 (approval of urban renewal plan allegedly causing decline in value of plaintiff's property held not to constitute a taking of the property); Woodland Market Realty Company v. City of Cleveland, 6 Cir., 1970, 426 F.2d 955 (decline in property values caused by appropriation of adjacent land for urban renewal project held not a taking); 23 Tracts of Land, etc. v. United States, 6 Cir., 1949, 177 F.2d 967, 969-970. * *
It may develop that the City of San Antonio, in promulgating restrictions on the use of plaintiffs' land or otherwise assuring adequate approach clearances for aircraft using the runways at the Air Force Base, will cause a taking of the land, either through improper zoning or abuse of its eminent domain powers. At present, however, we discern no more than an allegedly ill-intentioned legislative action causing no cognizable injury.
Appellant asserts and City concedes that, in the absence of an evidentiary hearing on *281 a plea of abatement, the factual allegations of plaintiff's petition must be accepted as true. See Brazos Electric Power Cooperative v. Weatherford Ind. School Dist., 453 S.W.2d 185 (Tex.Civ.App.Fort Worth 1970, writ ref'd n. r. e.); Taylor v. United Assoc. of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, 337 S.W.2d 421 (Tex.Civ.App.Fort Worth 1960, writ ref'd n. r. e.); Pait v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, 322 S.W.2d 340 (Tex.Civ.App.Houston 1959, writ ref'd n. r. e.).
Appellant's petition alleges that a 23-acre tract owned by him was taken for public use without compensation in violation of the Texas Constitution, the U. S. Constitution, and the Charter and ordinances of the City of San Antonio; that such zoning is an unlawful exercise of the police power in that it benefits only Randolph Air Force Base, and not the safety or welfare of the community; and that it amounts to inverse condemnation. Plaintiff sought damages in the amount of $46,000.00, and punitive or exemplary damages of $46,000.00. A copy of the City's Ordinance No. 44845, authorizing Military Aircraft Overlay Districts, was attached to the original petition.
The Ordinance involved amended Chapter 42 (Zoning) of the City Code by creating two classifications of Military Aircraft Overlay Districts (MAOD-1 and MAOD-2). It sets forth generally the anticipated location of such districts and gives approximate dimensions to be encompassed in each. It does not create or designate any specific zones. It does require that all procedures and requirements for zoning and rezoning of property must be followed in designation of property as being within such an overlay district. It does not mention any future acquisitions of land.
The Supreme Court of Texas, in Ellis v. City of West University Place, 141 Tex. 608, 175 S.W.2d 396 (1943), said:
We think it is now settled in this state that, generally speaking, `municipal corporations have the right, under the police power, to safeguard the health, comfort, and general welfare of their citizens by such reasonable regulations as are necessary for that purpose.' 30 Tex.Jr. 120, Sec. 58. It is also equally well settled that zoning ordinances fall within the police power of municipalities and that such power, `may be exerted to regulate the use, and where appropriate or necessary prohibit the use, of property for certain purposes in aid of the public health, morals, safety, and general welfare, and that the constitutional limitations form no impediment to its exertion where the enactment is reasonable and bears a fair relationship to the object sought to be attained.' [Citation omitted]
The Supreme Court of the United States, in Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S. 226, 17 S. Ct. 581, 41 L. Ed. 979 (1896), said:
And as all property, whether owned by private persons or by corporations, is held subject to the authority of the state to regulate its use in such manner as not to unnecessarily endanger the lives and the personal safety of the people, it is not a condition of the exercise of that authority that the state shall indemnify the owners of property for the damage or injury resulting from its exercise. Property thus damaged or injured is not, within the meaning of the constitution, taken for public use, nor is the owner deprived of it without due process of law. The requirement that compensation be made for private property taken for public use imposes no restriction upon the inherent power of the state by reasonable regulations to protect the lives and secure the safety of the people.
In a case somewhat analogous to the one before us, Sayre v. City of Cleveland, 493 F.2d 64 (6th Cir. 1973), it was held that the approval of an Urban Renewal Plan allegedly causing a decline in the value of plaintiff's property did not constitute a taking of the property, the Court saying:
We are unable to find any judicial support for the broad proposition advanced *282 by appellee in his brief that there is an unconstitutional taking whenever a city in the conduct of its urban renewal program commits acts that lead to the devaluation of property. The converse of this proposition is particularly true where the city, as in this case, has neither initiated eminent domain proceedings, evidenced any intent to begin procedures, or physically invaded the property.
An examination of the ordinance reflects that plaintiff's property is nowhere mentioned nor is there anything in the record specifically describing such property or definitely placing its location within an overlay district. It is undisputed that no ordinance affecting such property has been passed subsequent to Ordinance 44845.
When and if a specific zoning district is created south of Randolph Air Force Base, appellant's property may well be included therein and it may develop that the restrictions under such designation will prove so burdensome as to constitute appropriation. Before such things can come to pass, the City's procedure and requirement for zoning and rezoning of property will have to be complied with. At this time, the City has neither initiated any eminent domain proceedings pertaining to plaintiff's property; evidenced any intent to commence any such proceedings; or physically invaded such property. There has been no taking or appropriation of appellant's property.
The trial court properly held that this suit was premature. The judgment is affirmed.
NOTES
[1] In Chacon v. Granata, plaintiffs were 20 landowners who sued the City after the City passed an ordinance annexing a large tract which included their lands. They asserted that the annexation was the first step in a scheme to deprive them of their property without just compensation, either by unlawful ordinance or eminent domain proceedings initiated after the annexation had driven down the property values. The City contended that the anticipated zoning or condemnation was to prevent uses of the subject land that would interfere with aircraft operations at Randolph AFB. The District Court held such annexation lawful and held that plaintiffs' challenge to anticipated zoning or condemnation proceedings by the City was premature and dismissed the suit. Plaintiffs appealed the dismissal of their cause of action and the appellate court held that: (1) the annexation was procedurally proper; (2) the annexation by itself is nothing more than an inchoate wrong that may never ripen; (3) the annexation itself inflicts no legal injury on the plaintiffs, though it allegedly caused a decline in the value of their property; (4) at the time of the dismissal of their complaint, the City had passed no zoning ordinances applying to plaintiffs' lands and under the circumstances the plaintiffs' fear about future zoning ordinances was not imminent; and (5) there had been no taking of the property within the purview of the Fourteenth Amendment.
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562 S.W.2d 685 (1977)
Richard Lee BUTLER, Respondent,
v.
Mary Kay BUTLER, Appellant.
No. 38228.
Missouri Court of Appeals, St. Louis District, Division Three.
December 27, 1977.
Motion for Rehearing and/or Transfer Denied February 14, 1978.
Application to Transfer Denied April 10, 1978.
*686 David G. Lupo, St. Louis, for appellant.
William Gartenberg, Clayton, for respondent.
GUNN, Presiding Judge.
The parties to this dissolution proceeding were in their seventh year of marriage when they agreed that the marriage was irretrievably broken. At the time of the proceedings in 1976 they had three minor childrena daughter two years of age and twin sons less than a year old. The husband, a 1970 medical school graduate, was participating in a cardiology fellowship at Jewish Hospital. His 1976 income was estimated to be $13,000 from the fellowship and approximately $20,000 from part time work in the emergency room at Christian Hospital Northwest. There was no evidence that the husband owned any stocks or bonds, nor was there any evidence of the value of insurance policies held by him. The family home, purchased in 1971, cost $16,000, and $12,900 was still owed on it. The estimated value of the house was $30,000. Other marital assets were a 1974 Chrysler stationwagon and household furnishings having an estimated value of $5,000-$6,000. Cash in checking and savings accounts had been dissipated, according to the husband, for payments on the house, back taxes, loans and other bills. The wife's attorney established that there was considerable activity in deposits and withdrawals from the checking and savings accounts, but the only evidence before us is that the funds in the accounts had been exhausted. At the time of the proceedings, the husband was borrowing money for his living expenses, because the wife had attached his wages by garnishment proceedings.
Although the husband had reported taxable income of $56,980 in 1974, he testified that due to ill health, primarily a back ailment incurred in an accident, he could no longer endure the rigors of general medical practice nor perform at more than one place of work. Consequently, the husband preferred to limit his work to academic medicine:
". . . I've considered practice at various times, but I've decided for my health and my interests that what I'm interested in is research and I want to go into academic medicine."
The tenor of the husband's testimony was that in the future he would be working less and at a reduced income.
The wife, prior to the marriage, completed three years of college, with a major in psychology. Her last work experience was in July, 1970 as a railway clerk at a salary of $600 per month. She terminated her employment when the husband completed his medical school studies. Her estimated monthly living expenses were $1,345 without regard to medical, dental or educational expenses for the children.
*687 There was testimony from the wife that she was both healthy and unhealthy.[1] The wife contends that one of the twin boys is afflicted with cerebral palsy, requiring extensive medical treatment and expenses. The husband's analysis of his son's illness was that it was not as debilitating as depicted by the wife. But the husband did acknowledge the need for treatment for the son.[2] The wife was also anxious for her daughter to attend a private Montessorial school costing $1,500 in yearly tuition.
Finding no unique issues regarding the dissolution, the trial court awarded the wife the automobile, the household furniture, $150 per month child support for each of the two healthy children and $225 per month for the son with the health problem. The wife was also awarded as maintenance $250 per month for 24 months through June 30, 1978. The husband and wife were ordered to each pay one half of the $152 monthly house payment. Possession of the house was awarded to the wife until the youngest child reached the age of 21 or until the wife remarried. On the happening of either event the house was to be sold with the proceeds divided equally between the parties.
The trial court noted that the wife's attorney had been paid $2,500 in attorney's fees and awarded an additional $1,000 in fees to be paid by the husband.
The wife's appeal from the judgment presents a number of convoluted points for our consideration, but when sifted through the legal colander, the points of appeal refine to the basic issue of whether the trial court was too parsimonious in its award, and, hence, was guilty of an abuse of discretion.
We agree with the trial court that this case offers no novel theory of law to be resurrected for future guidance. Consequently, a full inditement of the pertinent law to the simple issue here presented is not warranted nor would it provide a necessary coruscation of legal rubric for guidance for the legal community. However, it is apparent that the award is not overly munificent. There is no danger that it would provide a sybaritic life style for the wife or for the children, and in view of the husband's earning potential, it would be best to increase the award somewhat.[3] Even the husband conceded at trial that the wife should not be required to work until the children had reached school age. We are also concerned that a parent would shirk financial responsibilities by deliberately reducing his income from a substantial earning capacity to satisfy his own desires, albeit that there is an apparent need for the husband to reduce his working activities due to health problems. As said in Klinge v. Klinge, 554 S.W.2d 474, 476 (Mo.App.1977): "The husband may still practice medicine; he has not lost his ability to earn substantial income. He may not escape his responsibility to his family or stymie justified support for them by deliberately limiting his work to reduce his income." But we are also bound by the ligatures which bind our review to a determination or whether the trial court, cloaked with substantial discretion, has abused its discretion by issuing a decree unsupported by substantial evidence or against the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); Klinge v. Klinge, supra; Marriage of Schulte, 546 S.W.2d 41 (Mo.App.1977). Here, the husband has the potential for substantial earnings even though at a reduced working capacity. The wife is required to care for three young children, one of whom is handicapped *688 with health problems, and the husband concedes that the wife should not work with the young children at home. Consequently, we believe that the award of maintenance to the wife should be modified by removing the limitation of her maintenance to two years. We also believe that the husband should be required to make the entire monthly house payment of $152 for so long as the wife is living in the house under the terms of the trial court's award. In all other respects the award of maintenance and marital property is supported by substantial evidence, and no abuse of discretion appears in the award.
The wife complains of the award of attorney's fees, claiming that the wife's father had paid $1,500 of the fee. We read the order of the trial court as awarding the wife a total of $3,500 attorney's fees to be paid by the husband. The fact that the husband has not paid all the fee is not a matter for our consideration on this appeal. It is not our obligation to enforce the collection of the attorney's fees. The award of attorney's fees is a matter resting in the discretion of the trial court, and we find no abuse of that discretion regarding the amount of fees awarded here. Barnhill v. Barnhill, 547 S.W.2d 858 (Mo.App.1977); Beckman v. Beckman, 545 S.W.2d 300 (Mo. App.1976).
Finally, the wife complains that the trial court erred in failing to order the husband to comply with all previous court orders regarding payment of pendente lite awards. We do not view this matter as a proper subject for consideration on this appeal.
We have read the transcript, briefs and authorities cited by both parties and given effect to the relevant factors of § 452.330 RSMo Supp. 1975, and conclude that an extended opinion would have no precedential value. See Rule 84.16(b).
Judgment modified as follows: (1) two year limitation for maintenance payment to wife is removed; wife to receive $250 per month as maintenance until wife remarries or except as modified in subsequent proceedings; (2) husband to pay entire $152 monthly house payment. Judgment affirmed in all other respects.
KELLY and WEIER, JJ., concur.
NOTES
[1] In response to questions the wife stated she was in good health, but then she proceeded to detail a long list of current infirmities.
[2] "A. [Husband] Well, the consensus of opinion was that Danny [son] may or may not have a mild seizure disorder, but his electrocepholagrams [sic] have all been normal, and then some problems with increased muscle tone of the lower extremities and it may be that he's a little slow in developing neuro-muscular control and that he needs to take some medication three (3) or four (4) times a day and that he needs five (5) or ten (10) minutes of exercise which anyone can do about twice a day."
[3] There is evidence to the fact that the wife did indulge herself with certain extravagances.
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562 S.W.2d 260 (1978)
SAN PEDRO NORTH, LTD., Appellant,
v.
CITY OF SAN ANTONIO et al., Appellees.
No. 15828.
Court of Civil Appeals of Texas, San Antonio.
January 25, 1978.
Rehearing Denied March 1, 1978.
*261 Harvey L. Hardy, San Antonio, for appellant.
William H. Robison, George H. Spencer, Randolph P. Tower, Clemens, Spencer, Welmaker & Finck, San Antonio, for appellees.
CADENA, Chief Justice.
Plaintiff, San Pedro North, Ltd., a limited partnership, filed this suit seeking a declaration that an ordinance, initiated by petition of voters and adopted at an election, repealing an ordinance adopted by the City Council of the City of San Antonio permanently zoning land owned by plaintiff, was invalid. Defendants are the City of San Antonio and the members of its legislative body.
Plaintiff appeals from a judgment denying it the relief prayed for.
Plaintiff, engaged in the development of land, purchased the land in question in 1961. The land was annexed by the City in 1972, and under applicable ordinances the land immediately became zoned "Temporary R-1, One Family Residence District."
The City Code contemplates that after land has been annexed the City Planning Commission shall, on its own motion and as soon as practicable, assign appropriate "permanent" zoning classification to newly annexed land. The City Planning Commission did not see fit to initiate appropriate zoning proceedings for the land in question.
Plaintiff conveyed portions of the land in question and in 1975 the buyer successfully initiated proceedings to have the land purchased from plaintiff permanently zoned B-2 and B-3.
Subsequently, in the summer of 1975, plaintiff requested that his land be permanently zoned. The Planning Commission recommended that a portion of the land be permanently zoned B-2 and that the remainder be permanently zoned R-1.
On October 16, 1975, City's governing body adopted an ordinance assigning to plaintiff's land the permanent zoning classifications recommended by the City Planning Commission.
After the enactment of the October 16 ordinance, citizens' groups circulated petitions to repeal such ordinance and thus, in effect, to cause plaintiff's land to revert to its original temporary zoning.
On December 11, 1975, City's governing body certified the petitions as sufficient and, after a motion to repeal the October 16 ordinance was defeated, called an election for January 17, 1976, for the purpose of submitting the proposed repealing ordinance to the voters. At the election held on January 17, 1976, the vote was in favor of the repeal of the ordinance of October 16, 1975. The election results were canvassed by City's governing body and the result officially declared on January 19, 1976.
Article IV, § 35 of City's charter provides that the voters shall have the power to approve or reject at the polls "any ordinance passed by the council save one appropriating money, levying taxes, or fixing utility rates, or any ordinance submitted by the council of its own initiative to a vote of the electors." This section provides that "Within forty days after the enactment by the council of any ordinance which is subject to a referendum, a petition signed by qualified electors of a [sic] city equal in number to at least ten per cent of the electors qualified to vote at the last preceding regular election may be filed within the city clerk requesting that any such ordinance be either repealed or submitted to a vote of the electors."
Clearly, the above charter provision contains no language excluding zoning ordinances from its provisions.
Article I, § 3, Para. 9 of the Charter grants the power to the Council to regulate the zoning and use of land and expressly *262 adopts the State Zoning Enabling Act (Articles 1011a to 1011j, Tex.Rev.Civ.Stat.Ann. (1963)).
Plaintiff contends that a zoning ordinance is not subject to the initiative and referendum provisions of City's charter. We agree.
At all times pertinent to this litigation, the power of Texas cities to zone was governed by the provisions of Articles 1011a-1011m, Tex.Rev.Civ.Stat.Ann. Pertinent provisions require a public hearing, following notice of at least 15 days, before regulations may be adopted or amended. Articles 1011d, 1011e.
Article 1011f requires the appointment of a Planning Commission to recommend the boundaries of the various zoning districts, and provides that the municipal legislative body shall take no action until it has received the final report of the Commission. This statute also requires written notice of all hearings before the Zoning Commission "on proposed changes."
There are no constitutional or statutory provisions relating to initiative and referendum, except for isolated statutory provisions for referendum with respect to certain subjects not here relevant. The Zoning Enabling Act contains no such provisions.
In Hancock v. Rouse, 437 S.W.2d 1, 4 (Tex.Civ.App.Houston [1st Dist.] 1969, writ ref'd n.r.e.), the Court said:
A zoning ordinance enacted by the City Council without the notice and hearing required by statute would be invalid and the power of the people to legislate directly is subject to the same limitations.... Since notice and hearing are clearly required by the ... general law of the State, as a prerequisite to the enactment of Zoning Ordinances, and since notice and hearing have no place in the process of legislating through initiative and referendum, the power of the people ... to legislate directly does not extend to the subject of zoning.
In Bolton v. Sparks, 362 S.W.2d 946, 950 (Tex.1962), it was recognized that zoning ordinances and amendments to such ordinances are invalid where the mandatory provisions of the statutes concerning notice and hearing have been ignored, saying that the requirement of notice and hearing are intended for the protection of property owners against arbitrary action and that compliance with the mandatory provisions of the statutes is essential to the exercise of jurisdiction by municipal governing bodies and each act must be performed.
To give effect to the election in this case, assuming that the result of the election was not a repeal of the zoning ordinance previously passed by the municipal legislative body, would be to add a procedural step to zoning which is not required by the comprehensive provisions of the Enabling Act. A city can no more add a step to the procedures required by state law than it can omit one. City of San Antonio v. Lanier, 542 S.W.2d 232 (Tex.Civ.App. San Antonio 1976, writ ref'd n.r.e.).
Our conclusion finds support in decisions from other jurisdictions. Forman v. Eagle Thrifty Drugs and Markets, 89 Nev. 533, 516 P.2d 1234 (1973); Hurst v. City of Burlingame, 207 Cal. 134, 277 P. 308 (1929); cf. Township of Sparta v. Spillane, 125 N.J. Super. 519, 312 A.2d 154 (1973), where the decision that zoning ordinances are not subject to the initiative and referendum process was based on the necessity for continuity and expertise in zoning, rather than on the statutory requirements for notice and hearing. San Diego Building Contractors Ass'n v. City of San Diego, 13 Cal. 3d 205, 118 Cal. Rptr. 146, 529 P.2d 570 (1974), is not in conflict with the conclusion we have reached, since in that case there was not statutory requirement of notice and hearing and the court was merely considering whether the constitutional requirements of due process were in themselves sufficient to invalidate the adoption of zoning ordinances without notice and hearing. The same is true of City of Fort Collins v. Dooney, 178 Colo. 25, 496 P.2d 316 (1972), where the court concluded that the election campaign was sufficient notice and hearing insofar as the requirements of due process are concerned.
*263 The judgment of the trial court is reversed and judgment is here rendered declaring that the election held on January 17, 1976 did not affect the validity of Ordinance No. 45863 adopted by the City Council of the City of San Antonio on October, 16, 1975, and that such Ordinance No. 45863, assigning permanent zoning classification to plaintiff's land, is in full force and effect.
MURRAY, J., did not participate in the disposition of this case.
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562 S.W.2d 865 (1977)
Ex parte Lewis John PAPPAS, Relator.
No. 17060.
Court of Civil Appeals of Texas, Houston (1st Dist.).
December 29, 1977.
Rehearing Denied March 9, 1978.
*866 Boswell, O'Toole, Davis & Pickering, Martin J. Grimm, Houston, for appellant.
Keith A. Mullins, Houston, for appellee.
PEDEN, Justice.
Relator in this habeas corpus proceeding was found in contempt of court for failing to make child support payments. He asserts in his unsworn application that the support order in the divorce decree lacks specificity, that he was deprived of a statement of facts because the trial judge failed to provide a court reporter or obtain written waivers from the parties, and that after suspending the punishment for contempt, the court was required to afford him another hearing before committing him. The writ is denied.
Relator first complains of lack of specificity of the support order, relying on Ex parte Slavin, 412 S.W.2d 43 (Tex.1967). In that case the decree stated that support was ordered for "three minor children until said children attain the age of eighteen years ...." The Supreme Court held:
"It is an accepted rule of law that for a person to be held in contempt for disobeying a court decree, the decree must spell out the details of compliance in clear, specific and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him."
Relator in the case at bar asserts that the child support order does not inform him of how and where to make the payments. The order states:
"It is further ORDERED by the Court that the Respondent shall pay the sum of ONE HUNDRED AND NO/100 ($100.00) DOLLARS per month to the Petitioner for the support and maintenance of said child, with the first of said payments of $100.00 to be made on or before the 1st day of December, 1972, and a like sum to be paid on or before the 1st day of each month thereafter until further Order of the court, or until said minor child attains the age of eighteen (18) years."
We do not find this order ambiguous. It identifies the payee and states the amount to be paid. Any difficulties encountered by the relator in locating his ex-wife do not render the order void.
Relator next contends that the trial court erred in failing to provide a court reporter since it obtained no written waiver of the parties. Relator relies on Smith v. Smith, 544 S.W.2d 121 (Tex.1976), which held: "if an appealing party exercises due diligence and through no fault of his own is unable to obtain a proper record of the evidence introduced, this may require a new trial where his right to have the case reviewed on appeal can be presented in no other way." The Smith case involved a petitioner who was neither present nor represented at the hearing on the merits. He showed that he had used due diligence in his attempt to procure a statement of facts.
Mr. Pappas was present at the hearing. A case more directly in point with the issue presented in our case is Bledsoe v. Black, 535 S.W.2d 795 (Tex.Civ.App.1976, no writ). Mr. Bledsoe contended, as does Mr. Pappas, that the trial court erred in failing to require a court reporter under Section 11.14(d) of the Texas Family Code.
"§ 11.14(d) A record shall be made as in the civil cases generally unless waived by the parties with the consent of the court."
Article 2324 of Vernon's Texas Civil Statutes states the rule on court reporters in civil cases generally. It was amended, effective May 27, 1975, to provide for a court reporter only "upon request." The Bledsoe case held that this additional request requirement rendered the appellant's complaint invalid if he failed to show that he had objected or excepted to the absence of the court reporter or that a court reporter had been requested. Having failed to show *867 a request or an objection, Mr. Pappas has waived this point.
Relator's final point is that since his punishment under the original contempt order was suspended for a period of time, he should have been given an additional hearing before being immediately committed to the custody of the sheriff. The contempt order finds relator in contempt and assesses the punishment which is then suspended upon the following terms:
"1. That Respondent LEWIS JOHN PAPPAS pay the sum of $5,400.00 arrearage in child support on or before October 11, 1977.
2. That Respondent pay the costs of this proceeding, to-wit: $38.00 to the District Clerk of Harris County, Texas, and $250.00 to Keith A. Mullins, attorney for Movant, by 9:00 A.M. on the 11th day of October, 1977.
IT IS FURTHER ORDERED that this case is reset until October 11, 1977, at 9:30 A.M. in the courtroom of the Court of Domestic Relations Number Two, Harris County, Texas, and that unless Respondent has complied by that time with all of the above conditions to purge himself of contempt, he shall immediately be committed to the custody of the Sheriff of Harris County, Texas, to be confined in the county jail at Houston, Harris County, Texas, as herein ordered, and that all commitments, writs, attachments and other process necessary for the enforcement of this decree be issued at that time."
It has been held in two recent cases that an order finding one in contempt but suspending punishment on condition of compliance with the order provides no authority in itself for arrest and confinement; a subsequent hearing on the alleged breach of the condition and an unconditional commitment are necessary. Ex parte Sauser, 554 S.W.2d 239, 241 (Tex.Civ.App.1977, no writ); Ex parte Hart, 520 S.W.2d 952, 953 (Tex.Civ. App.1975, no writ).
The order of commitment in our case recites that this cause "came on to be heard" and that "the court after having heard all the evidence and arguments...." The relator has not filed either a statement of facts or a bill of exception in this collateral attack on the trial court's order. His unsworn allegation as to lack of a second hearing does not overcome the recital in the commitment order or the presumption of regularity.
Issuance of the writ is denied.
On Motion for Rehearing
Relator attended the contempt hearings. He complains that the trial judge "proceeded to trial on the motion for contempt without providing for the transcription of same by a court reporter or obtaining the written waivers of the parties of their respective rights to such transcription, as is required by Section 11.14(d), Texas Family Code..." (emphasis added). We find no requirement in Section 11.14(d) that the waiver of the record be in writing. Since habeas corpus proceedings constitute collateral attacks, the relator must demonstrate that the commitment is void. This he has been unable to do.
Mr. Pappas' principal contention seems to be that he is now unable to pay, but a relator's defense of inability to perform depends on his conclusively establishing that at the time of the contempt hearing he was unable to comply with the court's order. (emphasis added). Ex parte Rohleder, 424 S.W.2d 891 (Tex.1967). Again, he must show that the contempt order was void.
We overrule the motion for rehearing. However, since the relator has given an indication of his inability to pay at the time of the contempt hearing by spending seven days in jail, we believe that the trial court might well consider granting another hearing at which relator's ability to pay at the time of the contempt hearing and any other extenuating circumstances might be more fully developed and might be recorded. If unable to purge himself, he might remain in jail for the balance of his natural life. Ex parte DeWees, 146 Tex. 564, 210 S.W.2d 145 (Tex.1948).
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562 S.W.2d 784 (1978)
STATE of Missouri, Respondent,
v.
Roger J. ZINN, Appellant.
No. 10539.
Missouri Court of Appeals, Springfield District.
February 17, 1978.
*786 Robert W. Richart, Joplin, for appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
FLANIGAN, Judge.
Charged as a second offender, defendant Roger J. Zinn was found guilty by a jury of burglary in the second degree, § 560.070,[1] and received a sentence of 10 years' imprisonment. Defendant appeals.
Defendant's first "point relied on" is that the trial court erred in failing to sustain defendant's motion for judgment of acquittal at the close of the state's evidence and at the close of all the evidence because the evidence was insufficient to support the verdict.
This contention will be reviewed in light of the rules set forth in State v. Berry, 526 S.W.2d 92, 95[1-5] (Mo.App.1975). Having offered evidence at the close of the state's case, defendant waived any claim of error as to his motion of acquittal filed at the close of the state's case. State v. Benfield, 522 S.W.2d 830 (Mo.App.1975).
The evidence, viewed in the light most favorable to the state, showed that on Sunday, February 15, 1976, at 7:30 p. m., a silent burglar alarm, located in a building owned by Sutherland Building Materials, a *787 partnership, sounded at the Joplin police headquarters. Two officers responded to the call. The officers observed two men, one of them the defendant, inside the building. Forcible entry had been obtained through a rear door. Inside the building the officers found several power tools, property of the partnership, which had been placed in a "gunny sack." The manager of the building testified that he locked it when he had departed from the premises a few hours previously. He had given no one permission to enter. Defendant and his accomplice were taken into custody as they were leaving the building.
The foregoing evidence is sufficient to support the verdict. State v. Hawkins, 491 S.W.2d 342, 343[2] (Mo.1973); State v. Johnson, 533 S.W.2d 629, 631[2, 3] (Mo.App. 1976); State v. Williams, 521 S.W.2d 169, 170[1] (Mo.App.1975). Indeed defendant's brief does not attempt to state in what respect the evidence was allegedly insufficient.
Defendant's first point has no merit.
Defendant's second point is that the trial court erred in denying his motion for a change of venue "in that the pretrial publicity of defendant's unauthorized absence from the county jail and the widely publicized picture depicting him painting a political campaign poster for the incumbent sheriff, all of which became an integral part of a highly contested and controversial political campaign, created bias and prejudice against defendant in the minds of the inhabitants of Jasper County."
The application for change of venue, filed on July 12, 1976, alleged that the inhabitants of the county were prejudiced by reason of publicity accorded by television, radio, and other news media, to defendant's unauthorized absence from the county jail. A hearing on the application was held on October 7, 1976, the morning of the trial.
At the hearing on the application defendant produced the affidavits of ten people. The state made no objection to their production. The affidavits were identical and stated that the affiant was a resident of Jasper County, had no interest in the outcome of the case and it appeared to affiant that as result of pretrial publicity concerning the unauthorized absence of the defendant from the county jail the defendant could not have a fair trial in the county.
Defendant produced only one witness, an attorney who had practiced law a year and a half, doing primarily criminal defense work. This witness mentioned a photograph which appeared in the Carthage Press "showing a picture of a man painting a political sign for the incumbent sheriff." The witness said that the name of the defendant was given in the news summary which accompanied the picture. He said, however, that the photograph showed only the back of the head of the defendant and did not show his face. The photograph itself, which had not been mentioned in the application, was not introduced into evidence at the hearing on the application nor does it appear in the transcript.
The state produced the testimony of seven people, each a substantial citizen of Jasper County, most of whom lived in Joplin where the case was tried. One testified that he had seen the picture and read the caption but the picture did not cause him to form any opinion as to whether the defendant was guilty of burglary. None of the state's witnesses recognized the name of the defendant and their testimony, in essence, was that there was no general feeling of hatred or illwill toward the defendant in the county.
During voir dire examination the prospective jurors were asked if any one of them was acquainted with the defendant or had ever heard of him "in any way, shape or form" and there was no response. At no time during voir dire examination or the trial itself was there mention of defendant's week-long "unauthorized absence" from the county jail which occurred in April 1976, nor was there mention of the sheriff's campaign or the photograph in which defendant appeared.
Rule 30.04 and § 545.490 provide that, in a county such as Jasper County, the defendant seeking a change of venue must *788 prove the truth of his allegations of prejudice by competent evidence and the state is authorized to offer rebutting evidence. When that procedure is followed, the granting of a change of venue is a matter within the discretion of the trial court and its ruling is not to be disturbed on appeal unless an abuse of discretion is demonstrated. State v. Parcel, 546 S.W.2d 571, 574[11] (Mo.App.1977). See also State v. Odom, 369 S.W.2d 173 (Mo. banc 1963).
Defendant has failed to demonstrate that the trial court abused its discretion in denying the application.
Defendant's second point has no merit.
Defendant's third point is that the trial court erred in invoking the Second Offender Act, § 556.280, for the reason that the prior felony conviction, on which the invocation was based, was tainted. The prior conviction involved a plea of guilty to a charge of burglary and stealing. The plea was entered on August 19, 1964, in the Circuit Court of Jasper County and the records of that proceeding show that defendant was then represented by counsel.
Defendant challenges the validity of the prior conviction on two grounds: (a) ineffective assistance of counsel at the time the plea was entered, and (b) remoteness of the prior conviction.
The evidence with respect to the prior conviction was sufficient to support the finding of the trial court that the Second Offender Act was applicable. There was no duty on the part of the trial court to make an inquiry into the adequacy of the manner in which defendant was represented by counsel in connection with the prior conviction, or to make a specific finding thereon, the record of the proceeding being regular on its face. State v. Lasiter (No. 10477, Mo.App., Springfield District, filed February 3, 1978),___ S.W.2d ___ (Mo.App.1978), and authorities there cited.
The challenge of remoteness is also invalid. "The Second Offender Act places no time limit within which the previous conviction shall have occurred." State v. Phillips, 511 S.W.2d 841, 843[2] (Mo.1974).
Defendant's third point has no merit.
Defendant's fourth point is, in essence, that the trial court erred in permitting the prosecutor to cross-examine the defendant with respect to a court martial conviction of defendant, while he was in the armed forces, for the offense of murder. This was error, says defendant, because his counsel had informed the court and the prosecutor that defendant had been pardoned and defendant himself testified that he had been "exonerated."
On direct examination by his attorney defendant said that he served in the armed forces and "I received a letter of commendation until I was court martialed." On cross-examination by the prosecutor defendant admitted that while he was in the service he was convicted of the murder of six Chinese soldiers, received a sentence, and "I served nine yearsI served the sentence out." Defendant testified that in 1968 a lawyer in California had told his wife that he had been exonerated but that he had never been so informed.
Evidence of defendant's court martial conviction for murder was properly received, under § 491.050, for the purpose of impeaching the defendant. State v. Himmelmann, 399 S.W.2d 58, 61[3] (Mo.1966). Generally, in the absence of statute, a pardon does not preclude the use of the conviction for the purpose of impeaching the credibility of a witness. Gurleski v. United States, 405 F.2d 253, 266[25, 26] (5th Cir. 1968); U. S. v. Denton, 307 F.2d 336, 339[4] (6th Cir. 1962); 81 Am.Jur.2d 584 Witnesses § 579.
Rule 609(c) of the Federal Rules of Evidence (28 U.S.C.A.) provides, in pertinent part, that a conviction is not admissible for impeachment purposes if the pardon was based on a finding of innocence. However, the burden is on the party challenging the admissibility of the conviction to demonstrate to the court by appropriate evidence that the pardon was so based. Weinstein's Evidence, United States Rules, Vol. 3, § 609[04]. See also Gurleski, supra.
*789 The Supreme Court of California has ruled that evidence of a pardon is more available to a defendant than to the prosecution and that a mere statement by counsel, supported by sworn testimony of the defendant, that the defendant had been pardoned did not preclude the use of the conviction to impeach the defendant. The court pointed out that "the trial court was, of course, not required to believe [defendant's] testimony." In re Terry, 4 Cal. 3d 911, 921, 95 Cal. Rptr. 31, 39, 484 P.2d 1375, 1382[5-7] (Cal. banc 1971).
Defendant's fourth point has no merit.
Defendant's fifth point is that the trial court erred in sustaining the state's hearsay objection to portions of the deposition of a defense witness. The challenged portions have been reviewed by this court. They were hearsay and were not competent under any exception to the hearsay rule. The trial court's ruling was proper. Defendant's fifth point has no merit.
Defendant's sixth point is that the trial court erred in failing to sustain defendant's motion to produce, for his inspection, certain gloves found at the scene. The gloves were depicted in state's Exhibit 12, a photograph. The photograph was introduced into evidence but the gloves were not. When the whereabouts of the gloves were discussed between counsel, the prosecutor stated that he had no objection to "bringing in the gloves." Defense counsel stated, "I will waive the gloves. We have seen the picture." Defendant's sixth point has no merit.
Defendant's seventh point is that the prosecutor improperly introduced into evidence before the jury certain testimony of the defendant which he had given during the second offender hearing, the latter having been held earlier in the day and outside the presence of the jury. Neither the statement of facts portion nor the argument portion of defendant's brief sets forth what the challenged evidence was. The point has not been preserved for review. State v. Lewis, 532 S.W.2d 843, 844[2] (Mo.App. 1975); Rule 84.04(c).
Defendant's eighth point is that the trial court erred "in reading the names of the owners of the Sutherland Building Materials partnership to the jury in its verdict-directing instruction," thereby denying defendant a fair trial.
The amended information, on which the case was tried, described the burglarized premises as "a certain building located at 2800 Rangeline, Joplin, Missouri, known as Sutherland Lumber, the property of Sutherland Building Materials, Inc." During the presentation of the state's case, evidence was adduced to the effect that the building was owned by a partnership consisting of John, Herman, Bob, Tom, and Chris Sutherland, d/b/a Sutherland Building Materials. Outside the hearing of the jury and before the state had rested its case, the prosecutor obtained permission of the court to amend the information to show ownership by the partners rather than by the corporation. The only objection made by defense counsel to the amendment was, "it is too late" and "it is unfair."
"The court may permit an information to be amended . . . at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." Rule 24.02. Similar amendments of burglary informations, made during the trial, have received appellate approval. State v. Cobb, 444 S.W.2d 408, 415[15-16] (Mo. banc 1969) (change in name of corporate owner); State v. Roberts, 506 S.W.2d 817, 818[2, 3] (Mo. App.1974) (deletion of name of purported owner and insertion of name of true owner); State v. McLallen, 522 S.W.2d 1, 4[5] (Mo.App.1975) (adding the name of a co-owner of property taken and a technical change in the title of the burglarized store).
The trial court did not abuse its discretion in permitting the instant information to be amended. As stated in Cobb, supra, the offense charged remained the same after the amendment was made and there is no showing that any substantial right of the defendant was prejudiced in any respect.
*790 Although the argument under defendant's eighth point mentions the amendment, the point itself seems to complain that the trial court erred in correcting the state's principal instruction (Instruction No. 4). Instruction No. 4, as initially read to the jury, stated that the building was "owned by Sutherland Building Materials, Inc." The court realized the mistake and called it to the attention of counsel. Defendant's counsel objected to any correction of the mistake and asked for a mistrial which was denied. The court then amended Instruction No. 4 so as to read: "owned by John, Herman, Bob, Tom, and Chris Sutherland, d/b/a Sutherland Building Materials, a partnership," and read the amended version.
Defendant has demonstrated no prejudice by reason of the court's correction, during the reading of the instruction, of a mere clerical error. The same situation arose in State v. Sawyer, 367 S.W.2d 585, 588[6-8] (Mo.1963). A similar correction of an instruction was made during the reading of it to the jury. The offense was burglary and the instruction was corrected so as to state the name of the owner. The court said at p. 588: "Courts may withdraw or correct an instruction and it is the duty of the court to do so at any time during the trial, especially before the case has been submitted, if upon reflection the same is considered to have been erroneously given."
Defendant's eighth point has no merit.
Defendant's ninth point has not been preserved for review for the reason that it is a mere abstract statement of law and fails to state briefly and concisely what actions or rulings of the trial court are sought to be reviewed and wherein and why they are claimed to be erroneous. Rule 84.04(d); State v. Shumate, 516 S.W.2d 297, 300[8] (Mo.App.1974).
Defendant's tenth point is, in essence, that the trial court erred in refusing to give Instructions A, B, and C, offered by defendant.
Instruction A was MAI-3.42, a circumstantial evidence instruction. Because this was not a case where the evidence was wholly circumstantial, there being two eyewitness, there was no error in refusing to give Instruction A. State v. Gotthardt, 540 S.W.2d 62, 68[8] (Mo. banc 1976).
Instruction B was a definition of "specific intent." Instruction C was a definition of the word "willfully." Neither Instruction B nor Instruction C is found in MAI-CR. The instructions which were given, and their accuracy and completeness has not been challenged, did not use either of the terms defined by the refused instructions. The trial court did not err in refusing to give Instructions B and C. State v. Abram, 537 S.W.2d 408, 411[3, 4] (Mo. banc 1976).
Defendant's tenth point has no merit.
The judgment is affirmed.
All concur.
NOTES
[1] Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969, V.A.M.S.
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417 F. Supp. 2d 768 (2006)
Larry T. WALTRIP and Jean T. Waltrip, Plaintiffs,
v.
BROOKS AGENCY, INC., Defendant.
No. Civ.A. 2:05CV627.
United States District Court, E.D. Virginia, Norfolk Division.
February 1, 2006.
*769 Douglas E. Miller, Steven A. Meade, Patten Wornom Hatten & Diamonstein, LC, Newport News, VA, for plaintiffs.
Douglas M. Palais, Paul D. Anders, Tamara L. Tucker, LeClair Ryan, PC, Richmond, VA, for defendant.
OPINION AND ORDER
FRIEDMAN, District Judge.
Pending before the court are two dispositive motions, plaintiffs' Motion to Remand to the Circuit Court for Williamsburg/James City County, Virginia, and defendant's Motion to Dismiss. After examination of the record, the court determines that the facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. For the reasons set forth herein, plaintiffs' Motion to Remand is GRANTED. As granting this motion removes jurisdiction from this court, the court offers no opinion on defendant's motion to dismiss.
I. Factual and Procedural History
Plaintiffs, Larry T. Waltrip and Jean T. Waltrip, commenced this action against Brooks Agency, Inc. and American Bankers Insurance Company of Florida ("American Bankers") as a result of flood damage to plaintiffs' residence that occurred during Hurricane Isabel. Brooks Agency is a licenced insurance agency through which plaintiffs had previously obtained flood insurance on their home. Brooks Agency had, in turn, acquired the flood insurance on plaintiffs' residence from American Bankers. However, at some point prior to the hurricane, the flood insurance coverage lapsed, and it appears that American Bankers never received the premium payment for the period during which the hurricane and flood damage occurred. Plaintiffs contend that Brooks Agency is responsible for the lapsing of the flood insurance policy.
Plaintiffs commenced the instant action by filing a Motion for Judgment in the Circuit Court for Williamsburg/James City County against both Brooks Agency and American Bankers. On October 18, 2005, American Bankers filed a notice of removal in the United States District Court for the Eastern District of Virginia premised on federal question jurisdiction. On January 5, 2006, anticipating the dismissal of American Bankers, plaintiffs filed a motion to remand asserting that if American Bankers was dismissed there would no longer be a federal question. As anticipated, on January 17, 2006, the court entered a stipulated order dismissing American Bankers from the litigation. Brooks Agency filed its response in opposition to remand on January 18, 2006, and plaintiffs filed their reply on January 23, 2006; therefore, the matter is now ripe for review.
II. Discussion
The burden of establishing removal jurisdiction rests with the party seeking removal. Mulcahey v. Columbia Organic Chem. Co., 29 F.3d 148, 151 (4th Cir.1994). Any doubts as to the propriety of the removal are to be resolved in favor of remand to state court. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S. Ct. 868, 85 L. Ed. 1214 (1941); Mulcahey, 29 F.3d at 151 ("Because removal jurisdiction raises significant federalism concerns, [courts] must strictly construe removal jurisdiction."). Here, the underlying dispute relates to a Standard Flood Insurance Policy ("SFIP") issued pursuant to the National Flood Insurance Program ("NFIP"), a federal program in which the United States government clearly has a substantial interest in creating uniformity. However, plaintiffs' motion to remand asserts that dismissing American Bankers as a party eliminates federal question jurisdiction under such program. Defendant, Brooks Agency, contends both *770 that federal question jurisdiction still exists and that, even if the court finds to the contrary, the court should, in its discretion, continue to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
The court concludes that even though federal question jurisdiction under 28 U.S.C. § 1331 exists for SFIP interpretation, as well as challenges of the denial of SFIP claims brought against an insurance company, Studio Frames Ltd. v. Standard Fire Ins. Co., 369 F.3d 376, 379-80 (4th Cir.2004), such jurisdiction does not exist in a lawsuit bringing state law claims of negligence, breach of contract, or fraud relating to the procurement of flood insurance under the NFIP. Houck v. State Farm Fire & Casualty Co., 194 F. Supp. 2d 452 (D.S.C.2002); see Spence v. Omaha Indem. Ins. Co., 996 F.2d 793, 797 (5th Cir.1993) (finding that federal regulations "disclaiming any agency relationship with [private insurance] companies . . . indicate intent to leave those insurers responsible for their own tortious conduct").[1] Furthermore, the court declines to exercise supplemental jurisdiction over the remaining state law claims pursuant to 28 U.S.C. § 1367. Rather, because plaintiffs' claims all stem from the determination of whether plaintiffs' insurance agent was legally responsible under state law for failing to renew, i.e. to procure, plaintiffs' flood insurance, this case is properly remanded to the state court.
A. The National Flood Insurance Program
Congress established the National Flood Insurance Program through the National Flood Insurance. Act of 1968. See 42 U.S.C. §§ 4001, et seq. Under the NFIP, the director of the Federal Emergency Management Agency ("FEMA") has the authority to use private insurance companies, referred to as "Write-Your-Own" ("WYO") companies, to help administer the program. The WYO companies directly issue federally underwritten SFIPs to the public. See 42 U.S.C. §§ 4071-72. The SFIPs, are as their name suggests, standard, and WYO companies are not permitted to alter an SFIP's terms.
Valid insurance claims brought pursuant to an SFIP are essentially paid for by the federal government, as FEMA underwrites the risk. Thus, a significant federal interest exists in the uniform application of the NFIP as it directly impacts the federal coffers. Likewise, the Fourth Circuit has held that "the law is well settled that federal common law alone governs the interpretation of insurance policies issued pursuant to the NFIP." Battle v. Seibels Bruce Ins. Co., 288 F.3d 596, 607 (4th Cir.2002). Therefore, as federal common law controls SFIP interpretation, and the government has a substantial interest in monitoring the NFIP as federal funds are at stake, federal question jurisdiction exists under 28 U.S.C. § 1331 for disputes involving the interpretation of SFIPs. See Studio Frames Ltd. v. Standard Fire Ins. Co., 369 F.3d 376, 379-80 (4th Cir.2004). Furthermore, it remains an open question in the Fourth Circuit whether 42 U.S.C. § 4072 establishes exclusive federal jurisdiction for insurance claims filed under an SFIP against a WYO company. Id.
B. "Procurement" of a Standard Flood Insurance Policy
Although it is well established that federal jurisdiction exists for disputes relating *771 to unpaid or underpaid claims under the NFIP, as well as suits related to the interpretation of an SFIP the justification for such jurisdiction does not apply to cases alleging predominately state law claims related to the procurement of an SFIP. See Houck, 194 F. Supp. 2d 452; Spence, 996 F.2d at 797. In Studio Frames, a recent Fourth Circuit case finding that federal jurisdiction existed pursuant to 28 U.S.C. § 1331, the court focused on the fact that the plaintiff's claims for breach of contract "hinge on the court's interpretation of a standard form insurance policy issued pursuant to the NFIP and codified in federal regulations," and that such interpretation "necessarily depends on the resolution of a substantial question of federal law." Studio Frames, 369 F.3d at 380 (citations omitted). However, although SFIP interpretation or the resolution of a claim filed pursuant to an SFIP implicate a substantial question of federal law, conduct falling outside the scope of an SFIP's terms does not necessarily implicate such a substantial question. See Houck, 194 F.Supp.2d at 457-58 (finding that establishing jurisdiction pursuant to 28 U.S.C. § 1331 "requires more than the presence of a federal ingredient in the litigation"). Thus, even assuming that "some federal standards or duties" apply to plaintiffs' state law claims, such standards or duties must still be shown to be an "essential element" of plaintiffs' claims in order to establish federal question jurisdiction. Id. at 458. In considering the instant facts, the court recognizes that "[p]olicy procurement is an entirely different creature than claims handling," and that the NFIP program intends to "leave [WYO] insurers responsible for their own tortious conduct." Messa v. Omaha Property & Cas. Ins. Co., 122 F. Supp. 2d 513, 521 (D.N.J.2000); cf. 44 C.F.R. § 62, app. A (art. IX) ("Further, (i) if the claim against the Company is grounded in actions significantly outside the scope of this Arrangement or (ii) if there is negligence by the agent, FEMA will not reimburse any costs incurred due to that negligence.").
The difference between a dispute pursuant to an SFIP and a dispute relating to the procurement of an SFIP, as well as the jurisdictional consequence of the difference, is carefully outlined in Houck v. State Farm Fire & Casualty Co., 194 F. Supp. 2d 452 (D.S.C.2002). In Houck, the plaintiffs alleged breach of contract, breach of implied warranty of good faith and fair dealing, negligence, negligent misrepresentation, fraud, and civil conspiracy against a WYO insurance company in relation to the procurement of an SFIP. Id. at 456. Although the plaintiffs alleged breach of contract, they were not alleging that the defendants breached the SFIP. Instead, they were alleging that the WYO company "improperly steered them to purchase flood insurance coverage which was more expensive and in excess of their discernable needs." Id. at 454. After a lengthy analysis, the district court in Houck granted the plaintiffs' motion to remand the case to state court explaining that "the rules and regulations [of the NFIP] reflect no interest in uniformity of standards for policy procurement conduct outside of the Arrangement's scope" because, unlike lawsuits that "directly involve federal funds and the extensive regulatory regime" under the NFIP, procurement disputes present only a "slight risk that the federal funds or federal regime are implicated." Id. at 464-65. The court stated in its conclusion that "[w]hile the NFIP is central to this case factually, the legal issues in this case deal predominately with state law." Id. at 469.
Turning to the instant matter, plaintiffs' motion for judgment alleges professional negligence, breach of contract, fraud, and constructive fraud. Like in Houck, here, *772 plaintiffs are not alleging that defendant breached the SFIP even though plaintiffs allege breach of contract. Instead, plaintiffs are alleging that they "entered into a contract with Brooks Agency to advise upon, procure and maintain flood insurance for the Waltrip Residence," and that Brooks Agency breached this contract by failing to procure flood insurance. Similarly, the remainder of plaintiffs' claims focus on the procurement process, not the terms of the SFIP or the NFIP's rules or regulations.[2] Therefore, following the persuasive reasoning provided in Houck, the court determines that the legal issues in dispute implicate primarily state law because plaintiffs' allegations do not involve a claim under an SFIP, the interpretation of an SFIP, or a dispute related to the NFIP rules and regulations, but rather primarily focus on the procurement of an insurance policy and the alleged wrongful conduct of the agent. As a result, there is only a "slight risk" that federal funds or the NFIP are implicated; thus, there are not any "substantial federal questions warranting the exercise of jurisdiction pursuant to 28 U.S.C. § 1331." Houck, 194 F.Supp.2d at 469.[3]
III. Conclusion
Although the NFIP "is central to this case factually, the legal issues in this case deal predominately with state law." Houck, 194 F.Supp.2d at 469. Thus, as there is no substantial federal interest at stake, pursuant to 28 U.S.C. § 1447(c), plaintiffs' motion to remand to the Circuit Court for Williamsburg/James City County, Virginia is GRANTED.
The Clerk is REQUESTED to mail a certified copy of this Order to the Clerk of the Circuit Court for Williamsburg/James City County, Virginia, as well as copies to counsel for all parties.
IT IS SO ORDERED.
NOTES
[1] At the time Spence was decided, the pertinent regulation was 44 C.F.R. § 61.5(i); such regulation is now found at 44 C.F.R. § 61.5(e). The Spence court explained that the language of this regulation "plainly evinces an intent to prevent expansion of SFIP coverage through misrepresentations by private parties involved with the program, thereby protecting the government from expanded liability." Spence, 996 F.2d at 797.
[2] Defendant alleges that because the SFIP includes language stating when the coverage expires and that the insured must pay a premium to be covered that "[d]etermining the Waltrips' responsibility to renew their policy is governed solely by the terms of the SFIP." (Def. Opp'n to Remand at 4.) This argument is unavailing as it merely establishes that "some federal standards or duties" apply to plaintiffs' state law claims and does not establish that a substantial federal question is implicated.
[3] Defendant also argues that jurisdiction should be retained in federal court "[f]or purposes of judicial economy and fairness to Brooks" because a federal trial date has been set and because if the case was remanded, plaintiffs would have the ability to reinstitute their lawsuit against American Bankers. (Def. Opp'n to Remand at 5.) The court finds this argument without merit as the federal trial date is more than four and a half months after the date of this Order, and the parties can likely have a trial in state court within such period or within a reasonable time thereafter. Furthermore, plaintiffs stated in good faith before this court that they have agreed in writing not to proceed against American Bankers "unless evidence reveals that American Bankers' representations concerning the receipt of a premium payment were in fact proven false." (Pl. Reply at 4.) Based on plaintiffs' representations before this court, plaintiffs should be precluded on remand from seeking relief against American Bankers unless American Bankers received a premium payment, an event that Brooks Agency asserts never occurred.
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https://www.courtlistener.com/api/rest/v3/opinions/2458092/
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417 F. Supp. 2d 1279 (2006)
AVALON CARRIAGE SERVICE INC., Plaintiff,
v.
CITY OF ST. AUGUSTINE, FLORIDA, a municipal corporation organized under the laws of the State of Florida, Mark Litzinger, in his individual capacity, William Harriss, in his individual capacity, Stuart Gamsey, individually, Gamsey Carriage Company, Inc., a Florida Corporation, Gam San Enterprises, Inc., a Florida Corporation and Spirit of St. Augustine, Inc., a Florida Corporation, Defendants.
No. 3:04 CV 1126 J 16MCR.
United States District Court, M.D. Florida.
February 23, 2006.
*1280 *1281 *1282 Paul Michael Meredith, The Meredith Law Firm, St. Augustine, FL, for Plaintiff.
Sonya Harrell Hoener, Victor M. Halbach, Jr., Marks, Gray, P.A., J. Cameron Story, III, Akerman Senterfitt, PA, Jacksonville, FL, Tiffiny Douglas Safi, George E. Ridge, Cooper, Ridge & Lantinberg, P.A., Jacksonville, FL, for Defendants.
ORDER
JOHN H. MOORE, II, Senior District Judge.
Before the Court are Defendants Stuart Gamsey, Gamsey Carriage Company, Inc., Gam San Enterprises, Inc., and Spirit of St. Augustine, Inc. ("Gamsey Defendants") Motion for Summary Judgment and attached memorandum (Dkts. 101, 118), Defendants Mark Litzinger and William Harriss, in their individual capacity, Motion for Partial Summary Judgment and attached memorandum (Dkts. 104, 109) and Defendants City of St. Augustine, William Harriss and Mark Litzinger ("City Defendants") Motion for Summary Judgment and memorandum in support (Dkts. 114, 117). Multiple exhibits were attached by all parties and the Plaintiff filed Memoranda in Opposition (Dkts. 146-147, 149).
I. Procedural Posture
On October 20, 2004, Plaintiff Avalon Carriage Service, Inc. filed a Civil Action by Verified Complaint for Deprivation of Civil Rights and Antitrust Violations Seeking Injunctive Relief and Damages and Demand for Jury Trial (Dkt. 1). The Complaint alleges civil rights violations pursuant to 42 U.S.C. § 1983 (Count I), antitrust violations under 15 U.S.C. § 2 (Count II) and Florida antitrust violations of Chapter 542.19, Florida Statutes (Count III). The Plaintiff is also seeking at least $1.9 million in damages for the civil rights violations, $5.6 million for the antitrust violations as well as treble and punitive damages, injunctive relief, attorney's fees and costs.
In late November and early December 2004, Defendants filed Motions to Dismiss (Dkts. 16, 18). On January 13, 2005, the Court entered an Order denying these Motions (Dkt. 24). All Defendants now move for Summary Judgment and the Court will examine each Defendants arguments in turn.
II. Background
Plaintiff is a Florida corporation operating two horse drawn carriages ("HDC") within the city limits of St. Augustine, Florida. According to Defendant City of St. Augustine's code of ordinances, a permit is required to operate a HDC. See St. Augustine Code, Art. 5, § 27. The number of available permits, however, was capped at forty-six by the St. Augustine City Commission ("City Commission") in 1988. Id. § 27-159(a). Plaintiff currently holds or controls only two of the forty-six permits. Plaintiff provides that in July 1996, Defendant City of St. Augustine approved the transfer of thirty-seven horse *1283 carriage permits to the Gamsey Defendants. This transfer gave the Gamsey Defendants' control of forty-four out of forty-six permits.[1] Plaintiff therefore alleges the Gamsey Defendants control ninety-six percent of the carriage business in St. Augustine. Despite controlling forty-four permits, however, the Gamsey Defendants allegedly only operate sixteen carriages while annually renewing the other twenty-eight "unused" permits (Dkt. 1, ¶¶ 16-17). Plaintiff alleges this situation has prevented it from "expanding its business by acquiring additional permits and competing" in the HDC market (Dkt. 1, ¶ 6).
Plaintiff specifically alleges that over the past fifteen years it has applied to the City Commission for additional regular and special horse carriage permits, but that each application has been denied. Plaintiff contends its inability to obtain more permits is due to the forty-six permit cap set forth in the code of ordinances as well as the rules promulgated by Defendant Harriss, as the City Manager, and Defendant Litzinger, as Director of Financial Services. Indeed, Plaintiff alleges that from "at least 2000 to the present, the City Commission, under the color of law, by custom and practice, tacitly and expressly approved the adoption of arbitrary and capricious rules promulgated by [Defendant Harriss] and [Defendant Litzinger] governing the horse carriage trade that were in violation of its own code of ordinances and federal and state laws prohibiting monopolies." (Dkt. 1, ¶ 11). Plaintiff provides that while the permits are not considered property under the language in the ordinances, Defendant City of St. Augustine has suggested Gamsey Defendants sell some of the unused permits for as much as $40,000.00 each. Id. ¶ 19.
Accordingly, Plaintiff's Complaint alleges the Defendants violated the rights afforded to Plaintiff pursuant to the Equal Protection Clause of the Fourteenth Amendment (Count I-(a)) and the Commerce Clause (Count I-(b)) in the U.S. Constitution, monopolized and conspired to monopolize in violation of Section 2 of the Sherman Act (Count II) as well as violating Florida antitrust laws (Count III).
III. Standard of Review
The Court should grant a motion for summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact [such] 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, 91 L. Ed. 2d 265 (1986); Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir. 1987); Edwards v. Acadia Realty Trust, Inc., 141 F. Supp. 2d 1340, 1344-45 (M.D.Fla.2001). The Court will construe the record and all inferences that can be drawn from it in the light most favorable to the nonmoving party, and the moving party bears the initial burden of establishing the absence of a genuine material fact. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962); Samples on Behalf of Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir.1988). Once this burden is met, however, the opposing party must "go beyond the pleadings and by [his] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 322, 106 S. Ct. 2548. The Eleventh Circuit explained in Samples that the opposing *1284 party need only present evidence from which a jury might return a verdict in its favor in order to survive the moving party's motion for summary judgment. See Samples, 846 F.2d at 1330; see also Augusta Iron & Steel Works v. Employers Insurance of Wausau, 835 F.2d 855, 856 (11th Cir.1988).
Notably, the Supreme Court pointed out in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), that the moving party's burden only extends to facts that might affect the outcome of the lawsuit under the governing law, as "[f]actual disputes that are irrelevant or unnecessary will not be counted." Summary judgment will only be granted if all facts and inferences point overwhelmingly in favor of the moving party, such that a responsible jury could not find in favor of the opposing party. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). If there is conflicting evidence that will permit differing reasonable inferences, the case will be submitted to the jury. See Augusta Iron & Steel, 835 F.2d at 856.
IV. Discussion
A. The City Defendants' Arguments
The City Defendants argue summary judgment is appropriate as to the Equal Protection and Commerce Clause claims (Count I(a)(b)) under 42 U.S.C. § 1983 as the Plaintiff is unable to prove a deprivation of its constitutional rights. The City Defendants subsequently address the antitrust claims (Counts II-III).
i. Equal Protection Claims
The City Defendants contend to the extent Plaintiff is alleging an equal protection claim that the City Defendants promulgated and adopted arbitrary and capricious rules regarding the hack stands or the renewal of permits, the record does not support such an allegation. Moreover, that if the equal protection claim is based on the ordinance regulating horse-drawn carriages ("HDC") and the hack stand, and not the allegedly promulgated "imaginary rules" referenced in the Complaint, the ordinance on its face is not discriminatory as it "provides the same opportunity to all HDCs to compete for the limited number of permits on the open market." (Dkt. 117 at 5-6). City Defendants further argue that if Plaintiff is claiming the facially neutral ordinance governing HDCs was unequally applied, Plaintiff must show intentional discrimination. See E&T Realty v. Strickland, 830 F.2d 1107, 1112-1114 (11th Cir.1987); Baggs v. City of South Pasadena, 947 F. Supp. 1580, 1584 (M.D.Fla.1996). As there is no evidence City Defendants acted with discriminatory intent, City Defendants assert summary judgment is proper.
Plaintiff responds that its equal protection claim is not a facial challenge to a St. Augustine City ordinance, but is instead a challenge to the constitutionality "of the unwritten long standing municipal practice and custom by the City Defendants in the application of City ordinances wherein the City has assisted Gamsey in the renewal of unused permits not for the purpose of Gamsey using them by placing more horse drawn carriages into service as contemplated by City ordinance, but for the illegitimate purpose of denying other similarly situated persons such as Avalon from the same privileges under the City ordinance and to allow Gamsey to deal in a black market of the sale of those permits." (Dkt. 149 at 6-7). Plaintiff argues that such a practice and custom is wholly arbitrary and irrational as it has no relationship to safety or health and is thus outside of the City of St. Augustine's police powers. Moreover, that the application of the practice and custom has violated the City *1285 of St. Augustine's code of ordinances (Dkt. 149 at 12)(citing St. Augustine Code, Article 5 § 27). Plaintiff additionally asserts that the City Defendants targeted and harassed it on multiple occasions (Dkt. 149 at 14-15). Plaintiff argues that Defendant Harriss has refused to promulgate rules for the fair use of the hack stands as he has only made sixteen spaces available for the forty-six authorized permits. Plaintiff contends this "insubordination" by Defendant Harriss has been shielded by Defendant Litzinger with the tacit approval of the City of St. Augustine. The shielding has occurred because Defendant Litzinger has knowingly falsified public documents by "falsely claiming various health and welfare reasons" as to why additional permits were adverse to public interest unless they were bought from Defendant Gamsey (Dkt. 149 at 8)(citing Dkt. 143, Exhibits 4, 5).
ii. The Court's Analysis
As an initial matter, the Court finds the Plaintiff's statement that it "has essentially alleged both kinds of equal protection claims" problematic (Dkt. 149 at 12). The two kinds of claims Plaintiff appears to be articulating is that the ordinances, or the unlawful custom and practice, create a discriminatory classification and second, that a facially neutral ordinance is having a disparate impact. See (Dkt. 149 at 12). Under either challenge, the Court finds City Defendants are entitled to summary judgment.
The Equal Protection Clause of the Fourteenth Amendment requires that no State shall "deny to any person within its jurisdiction the equal protection of the laws." City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985). Accordingly, similarly situated people should be treated alike. See E&T Realty, 830 F.2d at 1109 ("Different treatment of dissimilarly situated persons does not violate the equal protection clause."), cert. denied, 485 U.S. 961, 108 S. Ct. 1225, 99 L. Ed. 2d 425 (1988). In cases where a plaintiff claims the defendant unequally applied a facially neutral statute, "`a plaintiff must show intentional discrimination.'" Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374, 1381 (11th Cir.1994)(quoting E&T Realty, 830 F.2d at 1112). The plaintiff must also show that the Defendant had no rational basis for treating the plaintiff differently. E&T Realty, 830 F.2d at 1113-114 ("`The unlawful administration by state officers of a state statute fair on its face, resulting in unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.'")(quoting Snowden v. Hughes, 321 U.S. 1, 8, 64 S. Ct. 397, 88 L. Ed. 497 (1944)). See Baggs, 947 F.Supp. at 1584.
As to Plaintiff's claim of a discriminatory classification, the Court finds no evidence in the record to support this claim. None of the ordinances addressing horse-drawn carriages create such classifications. See St. Augustine Code, Article 5, § 27. For the allegedly unwritten rules, the Court similarly fails to see evidence of a discriminatory classification. For Plaintiff's claim of the discriminatory application of a neutral ordinance, the Court notes Plaintiff is similarly situated to the Gamsey Defendants as both operate HDC businesses in the City of St. Augustine. The Court finds, however, that Plaintiff has not met the burden of demonstrating the City Defendants intentionally discriminated against it. E&T Realty, 830 F.2d at 1109.
The Court specifically notes that Section 27-128(b) of St. Augustine's Code provides the City Manager shall "formulate and promulgate reasonable rules and regulations for the use of such hack stands so as *1286 to insure equality of opportunity between operators, and to prevent discrimination between hacks or carriages, and to prevent unfair practices between owners, operators, and drivers of such horse-drawn vehicles for hire." Plaintiff contends the City Manager, Defendant Harriss, has failed to promulgate reasonable rules and regulations and instead allowed the Gamsey Defendants to maintain unused permits. The Court notes that Section 27-160 of the St. Augustine's code governs the renewal and revocation of permits and provides that for any person to whom a permit has been issued "shall be entitled to such permit from year to year; provided, however, that such person shall fully comply with the provisions of this article and such other ordinances, rules and regulations as shall be enacted or adopted . . . provided further," that the St. Augustine City Commission "for good cause shown, may at any time revoke such permit." The Court thus does not find evidence that City Defendants intentionally discriminated against Plaintiff. The City of St. Augustine has placed a cap on the number of available permits, Gamsey Defendants have apparently renewed its permits and have not given cause for their revocation. Nevertheless, assuming there was discrimination, the Court finds the City Defendants have a rational basis, safety and health, for their decision not to issue additional permits. Accordingly, Plaintiffs equal protection claims (Count I(a)) fail and summary judgment as to the City Defendants is proper
iii. Commerce Clause
City Defendants argue that Plaintiff's "sole claim under the Commerce Clause is that the City expressly and tacitly approved arbitrary and capricious rules promulgated by [Defendants] Harriss and Litzinger. . . ." (Dkt. 117 at 9). City Defendants contend because Plaintiff has not identified any rules promulgated by Defendants Harriss and Litzinger, Plaintiff's claim fails. City Defendants additionally assert if Plaintiff is relying upon the operation of the ordinance itself, Plaintiff's claim still fails. Specifically, that because the ordinance evenhandedly regulates instate and out-of-state businesses and serves a legitimate interest, there is no violation of the commerce clause (Dkt. 117 at 10)(citing Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S. Ct. 844, 25 L. Ed. 2d 174 (1970)).
Plaintiff responds that the basis of its commerce clause claim is that the unlawful practices and customs are placing an unreasonable burden on interstate commerce. Indeed, that the customs and practices have displaced "the City's officially promulgated ordinances and have barred both instate (Avalon) and out-of-state (Storey and Canaveri) would be competitors from providing competitive services. . . ." (Dkt. 149 at 17). The practice and customs are therefore placing a burden on interstate commerce causing a violation of the Commerce Clause.
Upon review of the record, the Court agrees with City Defendants. The Supreme Court outlined that "[w]here the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." Pike, 397 U.S. at 142, 90 S. Ct. 844. See General Motors Corp. v. Tracy, 519 U.S. 278, 287, 117 S. Ct. 811, 136 L. Ed. 2d 761 (1997)("The negative or dormant implication of the Commerce Clause prohibits state taxation, or regulation, that discriminates against or unduly burdens interstate commerce and thereby `imped[es] free private trade in the national marketplace. . . . ")(internal citations omitted); C&A Carbone, Inc. v. Town of *1287 Clarkstown, N.Y., 511 U.S. 383, 390, 114 S. Ct. 1677, 128 L. Ed. 2d 399 (noting "[t]he central rationale for the rule against discrimination is to prohibit state or municipal laws whose object is local economic protectionism, laws that would excite those jealousies and retaliatory measures the Constitution was designed to prevent.")(internal citations omitted). In this instance, the Court does not see how either the ordinances or the allegedly unlawful customs and practices have placed an unreasonable burden on interstate commerce. Accordingly, summary judgment in favor of the City Defendants is warranted as to Count I (b).
iv. Injunctive Relief & Count I
Count I of the Complaint also seeks injunctive relief to enjoin the "City from enforcing these arbitrary and discriminatory rules that affect interstate commerce. . . ." (Dkt. 1, 1132). The Court notes that Article III of the United States Constitution requires federal courts to decide only "cases" or "controversies." See Culinary Workers Union, Local 226 v. Del Papa, 200 F.3d 614, 617 (9th Cir.1999)(citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982)("The judicial power of the United States defined by Art. III is not an unconditioned authority to determine the constitutionality of legislative or executive acts.")). When a plaintiff seeks injunctive relief, the Eleventh Circuit provides that because injunctions regulate future conduct, "`a party has standing to seek injunctive relief only if the party alleges . . . a real and immediateas opposed to a merely conjectural or hypotheticalthreat of future injury.'" Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir.2001)(quoting Wooden v. Board of Regents of Univ. Sys. of Georgia, 247 F.3d 1262, 1284 (11th Cir.2001)).
Based upon the foregoing, the Court finds that Plaintiff is not entitled to injunctive relief as to Count I. See City of Los Angeles v. Lyons, 461 U.S. 95, 101-113, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983)(providing the plaintiff must demonstrate any "real or immediate threat" of a recurrence of the alleged misconduct). As the Court did not find the City Defendants were enforcing arbitrary and discriminatory rules, injunctive relief is not warranted.
v. Antitrust Claims
Counts II and III of the Complaint allege the Defendants have committed antitrust violations. Count II alleges the Defendants monopolized, and conspired to monopolize, in violation of Section 2 of the Sherman Act. Count II also seeks to enjoin the Defendants from continuing to engage in anticompetitive practices, dissolving the monopoly as well as requesting treble damages. Count III alleges similar claims under State antitrust statutes.
vi. State Action & Antitrust Claims
City Defendants argue that the "state action" doctrine bars Plaintiff from obtaining damages or injunctive relief as to St. Augustine's horse-drawn carriage regulatory system.[2] The Supreme Court first articulated the state action doctrine in Parker v. Brown, 317 U.S. 341, 350-51, 63 S. Ct. 307, 87 L. Ed. 315 (1943) when it decided not to construe the Sherman Act as applying to the anticompetitive conduct of a State acting through its legislature. In City of Lafayette, La. v. Louisiana Power & Light Company, 435 U.S. 389, 413, 98 S. Ct. 1123, 55 L. Ed. 2d 364 (1978), *1288 the Supreme Court provided the "Parker doctrine exempts only anticompetitive conduct engaged in as an act of government by the State as sovereign, or, by its subdivisions, pursuant to state policy to displace competition with regulation or monopoly public service." The Supreme Court noted, however, the difference involved if the governmental body sued is a city. Id. ("When cities, each of the same status under state law, are equally free to approach a policy decision in their own way, the anticompetitive restraints adopted as policy by any one of them, may express its own preference, rather than that of the State."). See Town of Hallie v. City of Eau Claire, 471 U.S. 34, 38, 105 S. Ct. 1713, 85 L. Ed. 2d 24 (1985)(noting that "[m]unicipalities . . . are not beyond the reach of the antitrust laws by virtue of their status because they are not themselves sovereign.")(internal citations omitted). Nevertheless, the Supreme Court outlined that a subordinate governmental unit's claim to such immunity exists when "it is found `from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of.'" City of Lafayette, 435 U.S. at 415, 98 S. Ct. 1123 (internal citations omitted). Accordingly, before a municipality "will be entitled to the protection of the state action exemption from the antitrust laws, it must demonstrate that it is engaging in the challenged activity pursuant to a clearly expressed state policy." Town of Hallie, 471 U.S. at 41, 105 S. Ct. 1713.
City Defendants argue the city derives authority from Florida Statute § 316.008, which provides legislatively-granted power to control traffic on its public streets and roadways. City Defendants also contend that municipalities in Florida have been found to have "`plenary power' to control the commercial use of the same." (Dkt. 117 at 12)(citing Jarrell v. Orlando Transit Co., 123 Fla. 776, 167 So. 664, 666 (1936)). Furthermore, City Defendants bring attention to an act of the territorial legislature in 1822, which incorporated the City of St. Augustine and granted the City "full power and authority . . . to provide for licensing and regulating . . . hackney carriages, waggons [sic], carts and drays. . . ." (Dkt. 117 at 13, Exhibit A). City Defendants note that Section 111 of Chapter 11148, 1925 Laws of Florida expressly delegated to the City the following powers:
The municipality is hereby authorized and empowered to license, control, tax and regulate all traffic and all sales upon the streets, sidewalks and public places within the city, and . . . to license and cause to be registered, and to control, tax and regulate all carriages, . . . wagons, drays, . . . and all other vehicles, and to license, tax, control, regulate and register the drivers thereof, and to fix the rate to be charged for the carriage of persons and property for hire within the limits of the municipality. . . .
(Dkt. 117 at 13, Exhibit B)(citing Chapter 13349, 1927 Laws of Florida, Section 20(b), and Chapter 14375, 1929 Laws of Florida, Section 28). These Defendants assert subsequent amendments have left intact the City's powers to regulate carriages (Dkt. 117 at 13)(citing Chapter 18873, 1937 Laws of Florida; Chapter 24860, 1947 Laws of Florida). Lastly, City Defendants note that following the ratification of the 1968 Florida Constitution, Florida's legislature reaffirmed all of its explicit grants of power to the City in providing that "All existing special acts pertaining exclusively to the power or jurisdictions of a particular municipality except as otherwise provided in Subsection (4) shall become an ordinance of that municipality on the effective date of this Act, subject to modification or repeal as other ordinances." Florida Statute § 166.021(5).
*1289 City Defendants therefore assert the state action exemption is applicable as it was authorized to regulate HDCs. This explicit authorization included the ability to restrict the total number of permits available as well as handling both the annual renewal and revocation of those permits (Dkt. 117 at 14)(citing Campbell v. City of Chicago, 639 F. Supp. 1501, 1503 (N.D. Ill.1986)).
Plaintiff responds that the ordinances upon which the City Defendants rely prohibits such conduct rather than authorizing it. Plaintiff argues the City Defendants "ignore the relevant fact that they were not authorized under state law to engage in state anticompetitive action involving horse driven carriages" and that the question of whether the City Defendants were authorized to displace competition is one of state law (Dkt. 149 at 18). Specifically, that binding Florida precedent requires it must be clear that the state law has delegated to the municipality " the express authority to take action that forseeably will result in anticompetitive effects' . . . [t]he fact that the state has made a general delegation of home rule power to the local government is not enough to authorize anticompetitive action." Duck Tours Seafari, Inc. v. City of Key West, 875 So. 2d 650, 653-55 (Fla.App. 3d Dist.2004), pet. for review denied, 890 So. 2d 1114, 2004 WL 2983360 (Fla.2004)(internal citations omitted). Plaintiff contends the suppression of competition is not a foreseeable result flowing from the general grants of authority in Florida Statute §§ 316, 166 or from the laws of 1822 and 1929. Lastly, Plaintiff argues the separation of powers doctrine prevents the Defendants from using an arbitrary custom to carry out facially neutral City ordinances regulating hack stands as the City's legislative body "would have no authority to delegate such unbridled authority in the first place." (Dkt. 149 at 20).
The Court initially notes the court in Duck Tours rejected the City of Key West's argument that Florida Statute § 316.008 provided them with authorization to articulate ordinances that displaced competition. 875 So. 2d at 654. The Duck Tours court also provided that the City of Key West had not cited any legislative enactment which would authorize the granting of an exclusive franchise. Id. at 655. Conversely, in this case, the Court finds there to be a legislative enactment given to the City of St. Augustine which authorizes the City to control, tax, regulate carriages, wagons and drays. See § 111 of Chapter 11148, 1925 Laws of Florida. This detailed legislative enactment specifically authorizes the City of St. Augustine to regulate carriages and wagons. The Court finds that this gave the City "express authority to take action that foreseeably will result in anticompetitive effects." Town of Hallie, 471 U.S. at 43, 105 S. Ct. 1713. Accordingly, the Court finds the City Defendants' actions to be exempt from the Sherman Act and summary judgment as to Count II in all respects is therefore warranted in the City Defendants favor. This conclusion necessitates that summary judgment is also proper for the City Defendants as to Count III. See Duck Tours, 875 So.2d at 653 (Under Florida law, "[a]ny activity or conduct . . . exempt from the provisions of the antitrust laws of the United States is exempt from the provisions of this chapter [542].")(quoting Florida Statute § 542.20).
B. Defendants Harriss and Litzinger, Individually
Defendants Harriss and Litzinger filed a separate memorandum arguing they are entitled to partial summary judgment in their individual capacities.
i. Qualified Immunity
Defendants Harriss and Litzinger assert they are entitled to qualified immunity *1290 against individual damages liability for the alleged violations of 42 U.S.C. § 1983 (Count I). Specifically, these Defendants contend that Plaintiff is attempting to partially blame them because they "(1) failed to issue [Plaintiff] new permits" beyond the forty-six authorized under the code (Dkt. 109 at 4). Second, that these Defendants "failed to revoke that portion of the forty-two (42) permits previously issued to the Gamsey Defendants which [Plaintiff] unilaterally . . . classifies as `unused' and issue them to [Plaintiff] instead; or (3) renewed Gamsey's . . . [p]ermits, rather than refusing to do so and reissuing them to Plaintiff." Id. at 4-5. Defendants Harriss and Litzinger contend the actions, or inactions, were either within the power of the City Commission or were dictated via the language in the City of St. Augustine's ordinances. Consequently, Defendants Harriss and Litzinger argue qualified immunity is appropriate.
Plaintiff responds that genuine issues of material fact continue to exist as to whether Defendants Harriss and Litzinger acted within the scope of their authority thus entitling them to qualified immunity. Plaintiff contends Defendant Harriss is charged by St. Augustine's ordinances "to promulgate rules and regulations to prevent unfair business practices and with [Defendant] Lizinger's assistance, acted as sales agents for Gamsey's black market dealing of public permits." (Dkt. 147 at 3). Indeed, that Defendant Harriss has refused to promulgate rules for equal opportunity and fair use of the City's hack stands as only sixteen hack spaces are available for the City's forty-six authorized permits (Dkt. 147 at 4). Plaintiff also alleges Defendant Litzinger knowingly falsified public documents Id. As a result, Plaintiff argues Defendants Harriss and Litzinger acted beyond the scope of their authority and have violated clearly established law and qualified immunity is not proper.
ii. The Court's Analysis
The defense of qualified immunity protects "government officials performing discretionary functions from suit in their individual capacities unless their conduct violates `clearly established statutory or constitutional rights of which a reasonable person would have known.'" Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir.2003) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). The Eleventh Circuit provides that the defense of qualified immunity protecting government officials is the "usual rule . [and] only in exceptional cases will government actors have no shield against claims made against them in their individual capacities." Lassiter v. Alabama A&M University, 28 F.3d 1146 (11th Cir.1994); See Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002); Gonzalez, 325 F.3d at 1233 (noting the purpose of the immunity is to protect "`from suit all but the plainly incompetent or one who is knowingly violating the federal law.'")(internal citation omitted).
In order to receive qualified immunity, the government official "must first prove he was acting within his discretionary authority." Gonzalez, 325 F.3d at 1234 (internal citations omitted). See Harbert Int'l Inc. v. James, 157 F.3d 1271, 1282 (11th Cir.1998)("`A court must ask whether the act complained of, if done for a proper purpose, would be within, or reasonably related to, the outer perimeter of an official's discretionary duties.'"). If the public official establishes this requirement, "the burden shifts to the plaintiff to show that qualified immunity is not appropriate." Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.2002)(internal citation and quotation marks omitted). To determine if the plaintiff met this burden, the Supreme Court has provided a two-part test for *1291 qualified immunity analysis: (1) " [t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right" and (2) "if a constitutional right would have been violated under the plaintiff's version of the facts, the court must then consider `whether the right was clearly established.'" Storck v. City of Coral Springs, 354 F.3d 1307, 1314 (11th Cir.2003)(internal citation omitted). If no constitutional violation is established, then the officer prevails and no further inquiry is required. Id. "On the other hand, if the facts establish a constitutional violation, we must determine whether, at the time of the violation, the right was clearly established, an inquiry that `must be undertaken in light of the specific context of the case [and] not as a broad general proposition. . . .'" Id. (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001)).
As to whether Defendant Harriss was acting within his discretionary authority, the Court has previously noted that Article V, Section 27-128(b) of St. Augustine's ordinance states the City Manager shall "formulate and promulgate reasonable rules and regulations for the use of such hack stands so as to insure equality of opportunity between operators, and to prevent discrimination between hacks or carriages, and to prevent unfair practices between owners, operators, and drivers of such horse-drawn vehicles for hire." Pursuant to this ordinance, according to Plaintiff, Defendant Harriss had the authority to make rules to prevent the hoarding of unused permits and that his failure to promulgate rules affording equal opportunities cannot be said to be within his discretionary authority (Dkt. 147 at 7). The Court disagrees and finds Defendant Harriss has not acted beyond his discretionary authority. The Court also notes, and has previously discussed, the various other ordinances concerning the issuance and revocation of permits. See St. Augustine Code, Article V §§ 27-156-157, 159-160.
Moreover, as to Plaintiff's allegations that Defendant Litzinger acted beyond the scope of his authority by knowingly falsifying public documents, the Court does not agree. Plaintiff takes issue with a 1999 memorandum in which Defendant Litzinger states "[s]ince becoming Financial Services Director, there has been no request from the general public, businesses or organizations to the Financial Services Department, or other departments within the City, for additional carriages to be placed into service to meet the current demand." (Dkt. 143, Exhibit 4 at 2-4). Plaintiff responds to this sentence by providing letters written to the City Manager and City Commissioners throughout February and March 1996 supporting Plaintiff's request for additional permits. At a minimum, Defendant Litzinger's statement appears to be inaccurate. Nevertheless, the remaining aspects of the memorandum addresses concerns with safety and these concerns are supported by the attached memoranda from the Police and Fire Chiefs. See (Dkt. 143, Exhibit 2). The Court therefore does not find this supportive of the allegation Defendant Litzinger was acting beyond the scope of his discretionary authority.
Lastly, to the extent Plaintiff argues Defendants Harriss and Litzinger's conduct pursuant to the allegedly unlawful custom and practice of the Defendants was outside the scope of their discretion, the Court disagrees. While Plaintiff alleges that these Defendants have promulgated unwritten rules "promoting and protecting the abuse of the permitting process pertaining to the maintenance and renewal of unused horse carriage licenses," the Court does not find the existence of any actions *1292 demonstrating these Defendants were acting beyond the scope of their authority.
The next step for the Court to consider is whether Defendant Harriss and Litzinger's conduct violated the Equal Protection Clause or the Commerce Clause as alleged in Count I. See Storck, 354 F.3d at 1314. As the Court set forth the alleged bases for these claims in Section IV-A(i)(iii), a complete recapitulation is unnecessary. Nevertheless, for the equal protection claims, Plaintiff challenges the alleged "discriminatory classification created by the unwritten custom and practice promulgated by [Defendants] Litzinger and Harriss," as well as asserting this unconstitutional custom and practice was intentionally applied to Plaintiff for the purpose of discriminating against it (Dkt. 147 at 12-13). Moreover, Plaintiff argues Commerce Clause violations may be maintained where local government places an unreasonable burden on interstate commerce pursuant to facially neutral regulation.
Taking these alleged facts in the light most favorable to the Plaintiff, however, the Court does not find that Defendants Harriss and Litzinger's conduct violated a constitutional right. Indeed, the record neither reflects a classification nor does it support intentional discrimination. The Court also fails to find any evidence supporting their violation of the Commerce Clause. Even assuming the existence of a constitutional violation, the Court does not find the right to be clearly established when it is viewed in light of the specific context of this case. See Storck, 354 F.3d at 1317. As a result, the Court therefore finds that qualified immunity applies. The Court also finds injunctive relief is not proper for the reasons discussed in Section IV-A(iv). Summary judgment in all respects as to Count I for Defendants Harriss and Litzinger is therefore warranted.
iii. Immunity from Antitrust Violations
Defendants Harriss and Litzinger contend because they were acting only in their official capacities, they are entitled to immunity from Count II pursuant to the Local Government Antitrust Act ("LGAA"). See 15 U.S.C. §§ 34-36. The act provides that "[n]o damages, interest on damages, costs, or attorney's fees may be recovered under section 4, 4A, or 4C of the Clayton Act . . . from any local government, or official or employee thereof acting in an official capacity." 15 U.S.C. § 35(a). See 15 U.S.C. § 36(a). Plaintiff conversely contends that because these Defendants' conduct was not undertaken in their official capacities, they are not entitled to immunity for allegedly engaging in a conspiracy to monopolize (Dkt. 147 at 17-18). Plaintiff specifically argues because criminal acts were involved in this case, the falsification of documents by public officials, immunity is inapplicable. Plaintiff also argues that the separation of powers doctrine under the Florida Constitution places constraints on local governments and prohibits them from delegating "unbridled power to their subordinate officials to enforce facially neutral regulations by whim, by showing favoritism, or by exercising unbridled discretion." (Dkt. 147 at 17)(citing Lewis v. Bank of Pasco County, 346 So. 2d 53, 55-56 (Fla.1976)).
Upon review of the record, the Court agrees with the Defendants. The LGAA was passed by Congress in response to "`an increasing number of antitrust suits, and threatened suits, that could undermine a local government's ability to govern in public interest.'" GF Gaming Corp. v. City of Black Hawk, Cola, 405 F.3d 876, 885 (10th Cir.2005)(internal citations omitted). The legislative history of the LGAA demonstrates that Congress intended the phrase "acting in an official capacity" to be given broad meaning encompassing all *1293 "lawful actions, undertaken in the course of a defendant's performance of his duties, that reasonably can be construed to be within the scope of his duties and consistent with the general responsibilities and objectives of his position." Sandcrest Outpatient Services, P.A. v. Cumberland County Hosp. Sys. Inc., 853 F.2d 1139, 1145 (4th Cir.1988). The Court also recognizes the "argument that allegations of a conspiracy convert otherwise authorized conduct into unauthorized conduct" has previously been rejected under the LGAA. Id. at 1145. See GF Gaming Corp., 405 F.3d at 885. Based upon the foregoing, the Court finds immunity to be applicable for Defendants Harriss and Litzinger and summary judgment as to Counts II and III is warranted. See Duck Tours, 875 So.2d at 653; Florida Statute § 542.30.
iv. Noerr-Pennington Doctrine
Defendants Harriss and Litzinger briefly provide that if Plaintiff is trying to assign individual liability to them under Section 2 of the Sherman Act for "counseling the [City] Commission not to issue" Plaintiff more permits, such liability is barred under the Noerr-Pennington doctrine (Dkt. 109 at 19, n. 11). Plaintiff responds that a "sham" exception exists where an individual uses the governmental process itself as an anticompetitive weapon and causes the process to be abused. Plaintiff argues the process of allowing the renewal of twenty-nine permits, not for the purpose of using them, but "as an instrument of oppression to prevent competition" is an abuse and precludes the application of immunity (Dkt. 147 at 18).
"The federal anittrust laws also do not regulate the conduct of private individuals in seeking anticompetitive action from the government." City of Columbia, 499 U.S. at 379-80, 111 S. Ct. 1344. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 140, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961). The Supreme Court outlined that "`Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose.'" City of Columbia, 499 U.S. at 380, 111 S. Ct. 1344 (quoting United Mine Workers v. Pennington, 381 U.S. 657, 670, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965)). An exception to this rule, however, exists. Known as the "sham" exception, it encompasses "situations in which persons use the governmental processas opposed to the outcome of that processas an anticompetitive weapon." City of Columbia, 499 U.S. at 380, 111 S. Ct. 1344.
The Court notes that both of these Defendants are members of the local government and are not private individuals. See City of Columbia, 499 U.S. at 380, 111 S. Ct. 1344 (noting "[t]hat a private party's political motives are selfish is irrelevant [under Noerr]. ."). Nevertheless, the Court finds that to the extent the Plaintiff is attempting to impose individual liability on Defendants Harriss and Litzinger for counseling the City Commission not to issue Plaintiff additional permits, immunity under the Noerr-Pennington doctrine is applicable.
C. Gamsey Defendants
For purposes of clarification, the Court notes that the Gamsey Defendants include Mr. Stuart Gamsey who is the owner and operator of the following corporations: Gamsey Carriage Co., Inc., Gam San Enterprises, Inc., and Spirit of St. Augustine, Inc.
i. Standing & 1983
Gamsey Defendants contend Plaintiff has failed to demonstrate it has standing to bring a civil rights claim. See Dillard v. Baldwin County Commissioners, 225 F.3d 1271, 1275 (11th Cir.2000)("[S]tanding is a threshold jurisdictional question which *1294 must be addressed prior to and independent of the merits of a party's claims."). Plaintiff responds that standing does exist as Plaintiff has shown the necessary prerequisites.
The Eleventh Circuit recently outlined that a plaintiff must make three showings to satisfy the constitutional requirements of standing. "First, the plaintiff must have suffered an `injury in fact' an invasion of a legally protected interest which is (a) concrete and particularized, and (b) `actual or imminent, not "conjectural" or "hypothetical."`" Bochese v. Town of Ponce Inlet, 405 F.3d 964, 980 (11th Cir.2005)(internal citations omitted). Next, "there must be a causal connection between the injury and the conduct complained ofthe injury has to be `fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.'" Id. Lastly, "it must be `likely,' as opposed to merely `speculative,' that the injury will be `redressed by a favorable decision.'" Id.
Upon review of the record, the Court finds that Plaintiff does have standing to bring a 42 U.S.C. § 1983 claim. Plaintiff alleges violations of the Equal Protection Clause and the Commerce Clause (Count I). Specifically, that because Gamsey Defendants are able to control the supply and price of horse drawn carriages, Plaintiff has been unable to expand his business. Plaintiff argues that Gamsey Defendants, acting in conjunction with the City Defendants, have caused Plaintiff to suffer money damages. These alleged violations would be "redressed by a favorable decision." Accordingly, the Court finds Plaintiff has met the constitutional requirements of standing.
The Court notes, however, that to recover under § 1983, Plaintiff must prove two elements. "First, the plaintiff must prove that the defendant has deprived him of a right secured by the `Constitution and laws' of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right `under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.'" Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). The Court will review these in turn.
ii. Equal Protection Claims
Because Section IV-A(i)(ii) discussed Plaintiff's equal protection claims and set forth the applicable analysis, the Court does not find it necessary to provide another summary. The Court does find, however, it useful to provide the Gamsey Defendants argument that "Plaintiff is apparently alleging two types of equal protection challenges: one focusing on the discriminatory application of a neutral law; and the other alleging that the ordinances on their face create a discriminatory classification." (Dkt. 118 at 11).
As an initial matter, the Court notes that "[a]n equal protection claim revolves around whether similarly situated persons are treated differently." Reserve. Ltd. v. Town of Longboat Key, 17 F.3d 1374, 1381 (11th Cir.1994). Despite Gamsey Defendants' arguments Plaintiff is not similarly situated due its financial status, the Court disagrees. See (Dkt. 44, Deposition of Defendant Gamsey at 175)(noting "[a] horse and a carriage is a horse and a carriage."). The Court does find, however, that Plaintiffs claims of equal protection violations are without merit and that summary judgment in favor of Gamsey Defendants as to Count I(a) is proper.
To the extent Plaintiff does raise a challenge that the ordinances, or unwritten ordinances, create a discriminatory classification, the Court finds such a claim to be without merit. As was noted above, none *1295 of the ordinances addressing horse-drawn carriages create such classifications. See St. Augustine Code, Article 5, § 27. As to the claim of the discriminatory application of a neutral law, Plaintiff must show intentional discrimination. E&T Realty, 830 F.2d at 1112 (11th Cir.1987). The Court finds that Plaintiff has failed to meet this burden. Instead, it appears to the Court that for over the last thirty years, despite receiving many applications, the City of St. Augustine issued permits only once in 1986. See (Dkt. 118, Exhibit 9A at 100-01; Dkt. 144, Exhibit 7). At that time, the City issued special permits, which ultimately became regular permits, to anyone who made the request (Dkt. 118, Exhibit 8 at 25-27; Dkt. 143 at 1). Since 1970, as noted by the Gamsey Defendants, the City has denied requests for new permits, including applications by Plaintiff and Defendant Gamsey (Dkt. 118 at 13). During this same period, the City has also approved applications regarding the transfer of permits. Moreover, on December 29, 2004 the City Commission held a special meeting and discussed the effects of more horse-drawn carriages. Due to concerns expressed by the Fire Chief, Police Chief and Director of Public works regarding public safety, traffic and sanitation, the City Commission denied all applications for additional permits as not being in the best interests of the City (Dkt. 118, Exhibit 14). Moreover, Plaintiff attempts to bolster this claim by raising arguments concerning property interest in the permits, or lack thereof, as well as the alleged harassment employed by City Defendants against any competitors of the Gamsey Defendants. For purposes of an equal protection claim, however, the Court finds Plaintiff has not demonstrated the requirements for a violation of its equal protection rights. As a result, the Court need not examine whether Gamsey Defendants acted under "color of law." Adickes, 398 U.S. at 150, 90 S. Ct. 1598 (noting the second element under § 1983 requires a plaintiff show the defendant acted "`under color of law.'"). See Focus on the Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1263, 1277 (11th Cir.2003)(listing the three tests the Supreme Court has used to determine whether state action exists). Summary judgment in favor of Gamsey Defendants is therefore warranted on the equal protection claims in Count I(a).
iii. Commerce Clause
Section Section IV-A(iii) discussed the analysis required when a facially neutral ordinance is alleged to have violated the Commerce Clause. See Pike, 397 U.S. at 142, 90 S. Ct. 844; Nat'l Bus. Aviation Assn, Inc. v. City of Naples Airport Auth., 162 F. Supp. 2d 1343, 1348-49 (M.D.Fla.2001). Gamsey Defendants contend they are "unclear" how they are liable for a Commerce Clause violation and assert Plaintiff's allegations "are especially confusing as no demonstrable facts tend to show any adverse effect on out-of-state interests versus in-state interests." (Dkt. 118 at 14). Plaintiff responds that both Gamsey and City Defendants' conduct "pursuant to a longstanding custom and practice in the application of a facially neutral ordinance" have prevented in state and out of state competitors the ability to provide competitive services and price to intra and interstate tourists (Dkt. 146 at 19).
Upon review of the record, it is clear to the Court that Plaintiff has failed to demonstrate how the Gamsey Defendants have violated the Commerce Clause. Plaintiff argues that because the City Defendants unlawful custom and practice would not exist "without Gamsey's joint participation in hoarding the 28 unused permits," Gamsey Defendants are liable. The Court finds this argument to be without merit. The Court also finds injunctive relief is not *1296 warranted for the reasons explained in Section IV-A(iv). Gamsey Defendants are therefore entitled to summary judgment as to Count I.
iv. Antitrust Violations
Gamsey Defendants contend summary judgment is appropriate for both the federal antitrust violations (Count II) and the Florida antitrust claim (Count III). Gamsey Defendants contend Florida law has adopted as precedent federal law developed under the Sherman Act and therefore treats both antitrust causes of action as one (Dkt. 188 at 16)(citing Levine v. Cent. Fla. Med. Affiliates, Inc., 72 F.3d 1538, 1556 n. 20 (11th Cir.1996)). Because Gamsey Defendants contend Plaintiff lacks standing to bring an antitrust claim as it has not demonstrated an antitrust injury, the Court will begin with a discussion of standing.
a. Standing for Federal Antitrust Claims
In an antitrust case, standing involves more than the "case or controversy" requirement that drives constitutional standing. Todorov v. DCH Healthcare Authority, 921 F.2d 1438, 1448 (11th Cir.1991)(internal citations omitted). Antitrust standing is therefore not "simply a search for an injury in fact; it involves an analysis of prudential considerations aimed at preserving the effective enforcement of the antitrust laws." Id. (citing Associated Gen. Contractors, Inc. v. California State Council of Carpenters, 459 U.S. 519, 535 n. 31, 103 S. Ct. 897, 74 L. Ed. 2d 723 (1983)). See Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 110 n. 5, 107 S. Ct. 484, 93 L. Ed. 2d 427 (1986). In cases where a plaintiff is seeking treble damages under Section 4 of the Clayton Act, 15 U.S.C. § 15(a), the Eleventh Circuit has provided a two-pronged approach to examine whether a plaintiff is a proper party and thus should be afforded antitrust standing. Todorov, 921 F.2d at 1449. "First, a court should determine whether the plaintiff suffered 'antitrust injury'; second, the court should determine whether the plaintiff is an efficient enforcer of the antitrust laws. . . ." Id.
The Supreme Court has defined an antitrust injury as "the type the antitrust laws were intended to prevent and that flows from that which makes the defendants' acts unlawful." Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S. Ct. 690, 50 L. Ed. 2d 701 (1977). The Eleventh Circuit notes this limitation is essential because "`it requires the private antitrust plaintiff to show that his own injury coincides with the public detriment tending to result from the alleged violation . . . increas[ing] the likelihood that public and private enforcement of the antitrust laws will further the same goal of increased competition.'" Todorov, 921 F.2d at 1449-50 (internal citations omitted). As for determining whether the plaintiff is an efficient enforcer of the antitrust laws, several factors need to be analyzed. Specifically, a court will examine the "`nature of the plaintiff[s'] alleged injury,'" "` the directness or indirectness of the asserted injury,'" "avoiding duplicative recoveries and the danger of complex apportionment of damages" and the danger "the plaintiff's damages will include some damages more properly attributed to a less remotely injured party. . . ." Todorov, 921 F.2d at 1451 (quoting Associated Gen. Contractors, 459 U.S. at 540, 103 S. Ct. 897).
Gamsey Defendants assert that antitrust laws are concerned with injuries to competition, not to individual competitors (Dkt. 118 at 17)(citing Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S. Ct. 1502, 8 L. Ed. 2d 510 (1962)). As a result, antitrust law does not protect a competitor, "but rather focuses upon the consumer's rights *1297 to purchase products and services in a competitive market." Id. at 17-18. Gamsey Defendants provide that if Plaintiff's allegations are taken as true, "then Plaintiff's damages equal the profits of a supra-competitive, or monopolized, market: the result of [Plaintiff] having 12 or 24 permits and Gamsey effectively having the rest." Id. at 18. Plaintiff responds that its own injury coincides with the public detriment as enforcement of the antitrust laws will foster competition. With increased competition, the "artificially high prices" currently maintained by the Gamsey Defendants will be eliminated (Dkt. 146 at 2).
Despite the Court's concern as to whether Plaintiff's injury "coincides with the public detriment tending to result from the alleged violation," the Court finds, albeit hesitantly, that Plaintiff has suffered an antitrust injury. See Austin v. Blue Cross and Blue Shield of Alabama, 903 F.2d 1385, 1389-90 (11th Cir.1990)(internal citations omitted). Moreover, the Court also hesitantly finds Plaintiff to be an efficient enforcer of the antitrust laws. Plaintiff argues it charges "significantly less" than the Gamsey Defendants and that an excess demand was demonstrated in 1994 and 1996 and that "the increased tourism would sustain its expansion well after the monopolistic price was defeated." (Dkt. 146 at 4). Accordingly, the Court finds Plaintiff does have standing to prosecute the alleged violations of Section 2 of the Sherman Act.
b. Monopolization Claim & § 2 of the Sherman Act
In order to state a claim for monopolization under Section 2 of the Sherman Act, a plaintiff must establish "(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as consequence of superior product, business, acumen, or historic accident." U.S v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S. Ct. 1698, 16 L. Ed. 2d 778 (1966). See Morris Communications Corp. v. PGA Tour, Inc., 364 F.3d 1288, 1295 (11th Cir. 2004). "The first element, monopoly power, is the power to control prices in or to exclude competition from the relevant market." Morris Communications Corp., 364 F.3d at 1294 (internal citations omitted). The second element requires "predatory or exclusionary acts or practices that have the effect of preventing or excluding competition within the relevant market." Id. See Consultants & Designers, Inc. v. Butler Sera Group, Inc., 720 F.2d 1553, 1562 (11th Cir.1983)("The relevant inquiry is not whether [a company's] present attempt to exclude adversely impacts competition but rather whether its acquisition of the power to exclude competitors had a sufficiently adverse impact on competition to constitute a [Sherman Act] violation.")
Gamsey Defendants contend Plaintiff's expert has failed to appropriately define the relevant market share. Gamsey Defendants also argue Plaintiff cannot prove that Gamsey Defendants have the power to raise prices to supra-competitive levels. Indeed, that while Plaintiff "charges $16.50 per adult and $6 per child, and Gamsey Defendants charge $20 per adult and $10 child," prices are primarily set by "haggling" with tourists (Dkt. 118 at 19). Lastly, Gamsey Defendants note that no participant in the carriage market is required to charge the maximum price that is set by the City of St. Augustine. Conversely, Plaintiff asserts the units it would add to the market at a reduced rate would defeat the monopoly price and that these additional units would generate profits which are being denied by this unlawful scheme. Plaintiff argues it has stated a claim for monopolization under Section 2 of the Sherman Act as direct evidence, as well as circumstantial evidence, exist of *1298 Defendant Gamsey's market power. See Toys "R" Us, Inc. v. FTC, 221 F.3d 928, 937 (7th Cir.2000) ("The Supreme Court has made it clear that there are two ways of proving market power. One is through direct evidence of anticompetitive effects . . . [t]he other, more conventional way, is by proving relevant product and geographic markets and by showing that the defendant's share" is greater than whatever threshold is important for the practice in the case.).
Plaintiff contends here that direct evidence is available as Defendant Gamsey "expressly admits" to manipulating price and output and this shows Defendant Gamsey maintained market power (Dkt. 146 at 5) (citing Dkt. 121, Ex. 1 at 27, 48-53). Plaintiff references the fact that Defendant Gamsey requested the City of St. Augustine to raise the maximum price from $55.00 to $85.00 and that the City complied (Dkt. 146 at 6)(citing Dkt. 121, Exhibit 1 at 47-49). Alternatively, Plaintiff argues practical indicia, such as the uniqueness of the industry, the existence of distinct prices as well as the industry and public perception demonstrate through circumstantial evidence Gamsey Defendants' market power.
Based upon the foregoing, the Court agrees with Plaintiff. Although it is notable that the price differences from what Plaintiff charges and that of the Gamsey Defendants is at most $4.00, it is nevertheless clear to the Court that based upon the number of available permits held by the Gamsey Defendants, there is evidence of monopoly power. See Pepsi-Co, Inc. v. Coca-Cola Co., 315 F.3d 101, 107 (2d Cir.2002)("The core element of a monopolization claim is market power, which is defined as the ability to raise price by restricting output.'")(internal citations omitted). Moreover, to the extent Gamsey Defendants contend Plaintiff's expert has not appropriately defined the relevant market, the Court disagrees. While upon first blush Plaintiff's expert does not appear to have defined the relevant market, the Court finds Plaintiff's expert has raised enough of a genuine issue of material fact.
For the second element of Plaintiff's monopolization claim, whether there have been exclusionary acts or practices that have excluded competition, the Court notes that for a practice to be exclusionary, "it must harm the competitive process and thereby harm consumers . [h]arm to one or more competitors will not suffice for a § 2 violation." See Morris Communications Corp. v. PGA Tour, Inc., 364 F.3d 1288, 1294 (11th Cir.2004)(quoting U.S. v. Microsoft, 253 F.3d 34, 58 (D.C.Cir.2001)). The Court finds enough evidence in the record to support the possibility that Plaintiff will be able to meet this element and summary judgment in favor of the Gamsey Defendants is therefore not appropriate as to Plaintiff's claims of monopolization.
c. Injunctive Relief
Count II also seeks to enjoin the Defendants from engaging in anticompetitive practices. It is unclear to the Court as to whether such relief is being sought pursuant to Section 16 of the Clayton Act, 15 U.S.0 § 26, or as a general matter of equity. As the Court is unable to locate an argument as to this issue, the Court will reserve providing an analysis.
d. Noerr-Pennington Doctrine
Gamsey Defendants contend if the City Defendants are immune from antitrust liability under the Parker doctrine, Gamsey Defendants are also entitled to immunity. Furthermore, to the extent Plaintiff is challenging the Gamsey Defendants' lobbying efforts, the Gamsey Defendants *1299 "are protected and immune" under the Noerr-Pennington doctrine.
Plaintiff contends that Noerr-Pennington does not apply in instances when the government process is being abused. Indeed, that Defendant Gamsey's use of the permit process in being able to renew twenty-eight permits with the intent of not using them demonstrates that both Defendant Gamsey's use of the process is a sham and the entire process itself has become a sham.
Initially, the Court does not agree that because Parker immunity applies to the City Defendants, ipso facto it applies to the Gamsey Defendants. See Town of Hallie, 471 U.S. at 45-46, n. 10, 105 S. Ct. 1713; FTC v. Ticor Title Ins. Co., 504 U.S. 621, 633, 112 S. Ct. 2169, 119 L. Ed. 2d 410 (1992). As to the Noerr-Pennington doctrine, the Court recognizes there is no distinction between petitioning government officials and conspiring with them. GF Gaming, 405 F.3d at 883 (internal citations omitted). Nevertheless, in this instance, the Court finds it possible that the sham exception is applicable. The process of renewing permits without any intent on utilizing them raises enough of a genuine issue of material fact as to preclude summary judgment. Id. at 884 ("The exception thus `involves a defendant whose activities are not genuinely aimed at procuring favorable government action at all'. . . . ")(internal citation omitted). Consequently, summary judgment as to the antitrust claims for the Gamsey Defendants is not proper. Accordingly, upon due consideration, it is hereby ORDERED and ADJUDGED:
1. City Defendants' Motion for Summary Judgment (Dkt. 114) is GRANTED.
2. Defendants Harriss and Liztinger's Partial Motion for Summary Judgment (Dkt. 104) is GRANTED.
3. Gamsey Defendants' Motion for Summary Judgment (Dkt. 101) is GRANTED in part. Summary Judgment as to Count I is GRANED in favor of the Gamsey Defendants. The antitrust claims against the Gamsey Defendants in Counts II and III remain viable.
DONE AND ORDERED.
NOTES
[1] Gamsey Defendants currently hold forty-two permits as two permits were purchased in 2004 by Country Carriages, Inc. (Dkt. 118 at 5).
[2] The Court respectively disagrees with the Magistrate Judge's dictum that the City Defendants failed to raise a defense based upon the state action doctrine. See (Dkt. 87 at 12). The City Defendants' Motion for Clarification (Dkt. 90) is thus rendered moot.
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417 F. Supp. 2d 573 (2006)
Robert E. BROWN and Shirley H. Brown, Plaintiffs,
v.
INTERBAY FUNDING, LLC, and Legreca & Quinn Real Estate Services, Inc., Defendants.
No. CIV. 04-617-SLR.
United States District Court, D. Delaware.
February 16, 2006.
*574 Robert E. Brown and Shirley H. Brown, Wilmington, DE, Pro Se.
David L. Finger, Esquire of Finger & Slanina, Wilmington, DE, Of Counsel: David M. Souders and Sandra L. Brickel of Weiner Brodsky Sidman Kider, Washington, D.C. Counsel for Defendant Interbay Funding, LLC.
Carol J. Antoff, Esquire of Reger & Rizzo, Wilmington, DE, Legreca & Quinn Real Estate Services, Inc., Counsel for Defendant.
AMENDED MEMORANDUM OPINION
SUE L. ROBINSON, Chief Judge.
I. INTRODUCTION
On June 28, 2004, plaintiffs Robert E. Brown and Shirley H. Brown filed this action against defendants Interbay Funding, LLC ("Interbay") and Legreca & Quinn Real Estate Services ("Legreca & Quinn")[1] alleging discrimination in violation of the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. §§ 1691 et seq., and the Fair Housing Act, 42 U.S.C. §§ 3601 et seq.; negligence; fraud; violations of the Federal Institutions Reform, Recovery, and Enforcement Act ("FIRREA"), 12 U.S.C. §§ 3331 et seq.; and violations of the Uniform Appraisal Standards of Professional Appraisal Practice. (D.I. 1) Pending before the court are cross motions for summary judgment (D.I. 74, 75, 78), *575 and Legreca & Quinn's motions to strike plaintiffs' affidavits. (D.I. 91, 92) For the reasons that follow, defendants' motions for summary judgment are granted and plaintiffs' motion for summary judgment is denied.
II. BACKGROUND
On March 11, 2004, plaintiffs[2] contracted to purchase three parcels of property located at XXXX-XXXX-XXXX Market Street, Wilmington, Delaware ("the property"). (D.I. 1) The properties had been on the market for approximately seven years and the sale price was $128,000.[3] (D.I. 76 at ex. 1, p. 3) One parcel contains a two-story, semi-detached commercial building; the other two are paved parking lots. (D.I. 11 at ex. A) The building is a dwelling, built in 1915, that has been converted into a beauty salon. Id. Plaintiffs intended to use the commercial property to expand their restaurant business.[4] (D.I. 9 at 4)
Plaintiffs applied for a mortgage loan through Janet Madrick, a broker for Sunset Mortgage Company. (Id.) A loan application was then submitted to Interbay, the mortgage lender. Interbay approved the loan application subject to an appraisal of the property, to assure that there was sufficient collateral for the loan. Id. Interbay contracted with Legreca & Quinn to perform the appraisal. (Id. at ex. A) The agreement required plaintiffs to pay $2,500 for the appraisal.
Based on other properties within the same zip code, plaintiffs expected the property to be valued "around the $200,000 range." (D.I. 1 at 3) Robert C. Lagreca, a Certified General Real Property Appraiser certified by the State of Delaware and the Commonwealth of Pennsylvania, performed the appraisal. (D.I. 87, 74) He describes his methodology as follows:
The subject property was appraised as one commercial unit consisting of the two-story dwelling converted into commercial use with on-site parking.
It is the usual, customary and accepted practice in the business of Real Estate Appraisal to appraise a single unit of commercial property located on several tax parcels as a whole.
It is not the usual, ordinary or accepted practice in the business of Real Estate Appraisal to appraise a single unit of commercial property located on several tax parcels by valuing each tax parcel separately.
The appraisal of the subject property as a commercial building with on-site parking conforms with the USPAP and the SPAP.
(D.I. 74, ex. A) As a result, Legreca & Quinn produced an appraisal report which valued the property at $140,000. (D.I. 26, ex. A) After the appraisal, Interbay adjusted plaintiffs' mortgage calculation, agreeing to finance 65% of the purchase price instead of 80% and requiring plaintiffs to make a down payment of 35% of the purchase price instead of 20%. (Id.)
After learning that the terms of the mortgage had changed, plaintiffs had their *576 bank rescind the $2,500 that had been transferred to Legreca & Quinn because they disputed the accuracy of the appraisal. (D.I. 1 at 4) Plaintiffs alleged that Legreca & Quinn only appraised one of the lots and compared the property to those outside the appropriate area. (D.I. 11 at 8; D.I. 9 at 5)
Initially, Interbay agreed to have all three parcels reappraised based on plaintiffs' arguments, but later informed plaintiffs that the original appraisal had taken the two paved lots into consideration. The appraisal considered paved parking lots as utility added to the parcel with the commercial building. (D.I. 9, ex. A at 18) Because none of the lots used for comparison had on-site parking, Legreca & Quinn assigned a higher value to the parcel with the commercial building, as opposed to valuing the two paved lots independently.[5] (Id.) Subsequently, plaintiffs were informed that the appraisal would remain the same because Legreca & Quinn had already made an adjustment for the remaining square footage. (D.I. 1 at 4-5)
Various attempts to "save the deal" with Interbay were unsuccessful. (D.I. 76, ex. 1 at 7) Although plaintiffs then received financing offers from two other lenders, they concluded the "lenders terms, rates and conditions were poor" and did not accept the offers. (Id. at 8) The agreement of sale for the property in issue was never consummated.
Plaintiffs instituted this action on June 28, 2004. (D.I. 1) Interbay moved to dismiss on July 19, 2004. (D.I. 9) On August 19, 2004, plaintiffs moved for sanctions against defendants. (D.I. 22) On November 8, 2004, the court denied plaintiffs' motion for sanctions and granted Interbay's motion to dismiss as to plaintiffs' claims that Interbay is liable for Legreca & Quinn's appraisal based on an agency relationship. (D.I. 32, 33) The motion was denied, however, with respect to plaintiffs' claim that Interbay relied on a discriminatory appraisal in violation of 12 C.F.R. § 528.2a. (Id.)
As a result, a scheduling order was entered directing the exchange of discovery and setting deadlines for the filing of dispositive motions. (D.I. 35) Interrogatories were exchanged (D.I. 41, 46, 49, 50, 51, 52, 55, 56, 73), documents propounded (D.I. 53, 58, 66, 71), and plaintiff Robert Brown was deposed. (D.I. 69, 72).
Cross motions for summary judgment and opposition thereto were subsequently filed. (D.I. 74, 75, 76, 78, 79, 80, 82, 83, 85, 86, 87) Legreca & Quinn also moved to strike affidavits filed by plaintiffs. (D.I. 89, 90, 91, 92)
III. STANDARD OF REVIEW
A court shall grant summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of proving that no genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). "Facts that could alter the outcome are `material,' and disputes are `genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Horowitz v. Fed. Kemper Life Assurance Co., 57 F.3d 300, 302 n. 1 (3d Cir.1995) (internal citations omitted). If *577 the moving party has demonstrated an absence of material fact, the nonmoving party then "must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S. Ct. 1348 (quoting Fed.R.Civ.P. 56(e)). The court will "view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion." Pa. Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir.1995). The mere existence of some evidence in support of the nonmoving party, however, will not be sufficient for denial of a motion for summary judgment; there must be enough evidence to enable a jury reasonably to find for the nonmoving party on that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
IV. DISCUSSION
A. Plaintiffs' Allegations
Plaintiffs assert that the record, as developed through discovery and their independent research, establishes that defendants were engaged in a conspiracy to defraud them through misrepresentation by using a false and "an erroneous [a]ppraisal [r]eport prepared by Legreca & Quinn at the request of Interbay." (D.I. 78 at 3; D.I. 93 at 2) Plaintiffs contend that Legreca & Quinn have violated UPAP and FIRREA regulations in the preparation of the appraisal and that Interbay knew or should have known of the deficiencies.
Specifically, plaintiffs challenge Robert Lagreca as unqualified to perform the appraisal because he holds a "General Appraisal License" and not a "SRPA or MIA (sic)" certification.[6] (D.I. 93 at 4) They contend that "[a]ccording to industry standards of commercial appraisals, three methods should have applied to the valuations of the subject property." (Id. at 8) Because Interbay engaged Legreca & Quinn to perform the appraisal and Interbay knew or should have known that the use of the commercial appraisal was erroneous and defective, plaintiffs argue that Interbay should be held responsible for plaintiffs' claimed damages. (D.I. 82) To buttress these arguments, plaintiffs attach copies of affidavits and letters they filed with Delaware and Pennsylvania regulatory agencies.[7] (D.I. 93 at ex. F) Plaintiffs *578 submit that the appraisal is so blatantly deficient that an expert witness is unnecessary to establish the standard of care. (D.I. 93)
Defendants assert that plaintiffs have failed to produce specific facts to support their bald allegations of discrimination. Even assuming that the appraiser lacked the highest credentials to perform commercial appraisals, defendants submit that this does not constitute discrimination. Further, absent expert testimony to establish the standard of care governing the appraisal profession, defendants assert that the negligence claims cannot stand.
Because plaintiffs have clearly identified some causes of action and implicated others only vaguely, the court has endeavored to consider as many issues as relevant to the conduct in question. To that end, the statutory claims are examined first.
B. Equal Credit Opportunity Act
The ECOA "is an anti-discrimination statute which prohibits creditors from discrimination in the extension of credit." Riethman v. Berry, 113 F. Supp. 2d 765, 766 (E.D.Pa.2000); 15 U.S.C. § 1691(a). It "was enacted to protect consumers from discrimination by financial institutions." Midlantic National Bank v. Hansen, 48 F.3d 693, 699 (3d Cir.1995). Under the ECOA, "any creditor who fails to comply with any requirement imposed under this sub-chapter shall be liable to the aggrieved applicant for any actual damages sustained by such applicant acting either in an individual capacity or as a member of a class." 15 U.S.C. § 1691e(a). To that end, lenders are prohibited from relying on an appraisal that they know, or should know, is discriminatory in violation of the ECOA. See 12 C.F.R. § 528.2a (2004).
To establish a prima facie case under the ECOA, plaintiffs must demonstrate that: (1) they were a member of a protected class; (2) they applied for credit from defendants; (3) plaintiffs were qualified for the credit; and (4) despite qualification, plaintiffs were denied credit. Chiang v. Veneman, 385 F.3d 256, 259 (3d Cir.2004).
Although plaintiffs assert that the record demonstrates discriminatory conduct in violation of the ECOA, they have not presented any evidence to substantiate their allegations. Specifically, there is nothing demonstrating that they were denied credit based on a discriminatory action. In fact, plaintiffs were not denied credit at all. Instead, Interbay changed the terms originally proposed after the appraisal was submitted. Plaintiffs, however, were still qualified for a loan from Interbay, as well as loans proposed by two other creditors, albeit at a less favorable rate. Therefore, plaintiffs have failed to carry their burden to prove a prima facie case under the ECOA.
To the extent that plaintiffs assert a discrimination claim outside of the scope of the ECOA, based on their argument that the appraisal was discriminatory, the record does not support this contention. Specifically, there is no evidence of record depicting different appraisal methodology being applied to Non-African American property by Legreca & Quinn or used by Interbay. Moreover, plaintiff Robert Brown testified that he has no evidence that Legreca & Quinn appraised properties for other potential buyers by using *579 different methods of appraisal when the property appraised was similar to the subject property. (D.I. 74) See e.g. Rizzitiello v. McDonald's Corp., 868 A.2d 825, 828-29 (Del.Supr.2005)(evidence of disparate treatment necessary for discrimination claim).
C. The Fair Housing Act
The FHA provides:
It shall be unlawful for any person or other entity whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin.
42 U.S.C. § 3605(a). The FHA was enacted to provide fair housing throughout the United States. 42 U.S.C. § 3601. The FHA defines "dwelling" as "any building, structure, or portion of which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof." 42 U.S.C. § 3602(b). The FHA covers residential real estate and not commercial transactions. See Weingarten Realty Investors v. Albertson's, Inc., 66 F. Supp. 2d 825, 849 (S.D.Tex.1999); Home Quest Mortgage LLC v. American Family Mutual Ins., 340 F. Supp. 2d 1177, 1184-1185 (D.Kan. 2004). Since it is undisputed that the property in issue was zoned commercial, and that plaintiffs intended to use it for a commercial purpose, plaintiffs' claims under the FHA must fail.
D. Negligence
To state a claim for negligence, plaintiffs must demonstrate that: (1) a defendant owed plaintiffs a duty of care; (2) the defendant breached that duty; and (3) the defendant's breach was the proximate cause of plaintiffs' injury. New Haverford Partnership v. Stroot, 772 A.2d 792, 798 (Del.2001).
By asserting that Legreca & Quinn deviated from the applicable standard of care required for real estate appraisers, a claim for professional negligence is implicated.[8] To state a claim for professional negligence, however, the standard of care applicable to a professional can only be established through expert testimony. Norfleet v. Mid-Atlantic Realty Company, Inc., 2001 WL 695547 (Del.Super.2001); Davis v. Maute, 770 A.2d 36, 40 n. 3 (Del.2001).
Plaintiffs have not presented a real estate appraisal expert to establish the standard of care owed by Legreca & Quinn. (D.I. 74 at 8-10, 19) Absent expert testimony, plaintiffs' claim for professional negligence against Legreca & Quinn fails.[9]
Relatedly, to the extent that plaintiffs contend Legreca & Quinn's conduct violates the professional standards for appraisers under FIRREA and USPAP, the court cannot assess these claims absent *580 expert testimony. Even with the assistance of expert testimony, however, it is unclear whether these claims are even actionable under federal law.
E. Fraud
To state a claim for common law fraud under Delaware law, plaintiffs must prove: "(1) a false representation made by defendants, usually one of fact; (2) defendants' knowledge or belief that the statement was false; (3) an intent to induce the plaintiffs to act; (4) plaintiffs' justifiable reliance upon the representation; and (5) damage to the plaintiffs as a result." In re: Student Finance Corporation v. Royal Indemnity Co., 2004 WL 609329 at *3 (D.Del.2004); (citing Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1074 (Del. 1983)).
Considering plaintiffs' allegations in light of this authority, the court finds there is nothing of record establishing a false representation by defendants. On that point, an expert report would be most helpful. Although plaintiffs suggest that Legreca & Quinn's failure to employ certain appraisal methodology and Interbay's reliance thereof is fraudulent, they simply have not presented any evidence in support of their allegations.
Nonetheless, even assuming that the appraisal was faulty, plaintiffs still have not demonstrated that they relied on the appraisal. Because the appraisal was prepared for the sole benefit of Interbay and was not to be distributed to plaintiffs, only Interbay could have reasonably been expected to rely on it. (D.I. 78 ex. B-D) Further, there is nothing of record demonstrating that Interbay misrepresented the appraisal to plaintiffs.
V. CONCLUSION
For the reasons stated, plaintiffs' motion for summary judgment is denied and defendants' motions for summary judgment are granted. An appropriate order shall issue.
ORDER
At Wilmington this 11th day of January, 2006, consistent with the memorandum opinion issued this same date;
IT IS ORDERED that:
1. Defendants' motions for summary judgment are granted. (D.I. 74, 75)
2. Plaintiffs' motion for summary judgment is denied. (D.I. 78)
3. Defendant Legreca & Quinn's motions to strike are denied. (D.I. 91, 92)
4. The Clerk of Court is directed to enter judgment in favor of defendants and against plaintiffs.
NOTES
[1] Although the parties and court documents reference "Legreca", letters from this defendant reflect the spelling as "Lagreca." (See e.g. D.I. 93 at ex. D) For purposes of this proceeding, the spelling is inconsequential and references are to the identical party.
[2] Plaintiffs own and operate the Walnut Street Deli ("Deli"). (D.I. 1 at 2) According to the complaint, plaintiffs attempted to purchase the property in issue to expand the Deli business to a location that provided customer parking and, in turn, had the potential to increase revenue. (Id. at 9)
[3] The agreement of sale lists the selling price as $128,000. (D.I. 52, 53, 1)
[4] In addition to contracting to purchase the property in issue, plaintiffs "had also contracted to purchase 2627 Market Street, to expand their operation into an Eat-In Restaurant and Banquet Room by adjoining the 2525 and 2627 first floors through previous entrances that existed in those two adjoining buildings." (D.I. 73, ex. 1 at 5)
[5] The result was a value based on 1,875 square feet, the size of the parcel with the building, as opposed to 6,980 square feet, the size of all three parcels.
[6] According to a document ostensibly authored by the Appraisal Institute and submitted by plaintiffs, "[l]icensed or [c]ertified appraisers are the minimum, while SRA or MAI designated appraisers are at the top of the appraiser hierarchy." (D.I. 93 at ex. B) The Appraisal Institute is a not-for-profit Illinois corporation "organized for general education, research and professional association purposes relating to appraisal services and is, inter alia, dedicated to educating and promoting the interests of real estate appraisers." (D.I. 17, ex. A) According to an attorney for the Appraisal Institute, plaintiff served a subpoena "to command deposition testimony from the Appraisal Institute on whether . . . [plaintiffs'] complaint alleged violations by the defendants of the Appraisal Institute's ethical canons." (D.I. 17, ex. C) The court granted the Appraisal Institute's motion to quash the subpoena. (D.I. 31)
[7] Specifically, plaintiffs filed complaints against Robert Lagreca, the author of the appraisal, with the Delaware Department of Administrative Services and the Pennsylvania Department of State, State Board of Certified Real Estate Appraisers. (D.I. 93, 89, 90) By letter dated April 26, 2005, the Legal Office of the Pennsylvania Department of State advised plaintiffs that its investigation of the charges revealed that Pennsylvania did not have jurisdiction over their complaint because the property in issue is located in Delaware. (Id. at ex. F) As a result, the Pennsylvania Department of State closed its investigation of the allegations. Legreca & Quinn have moved to strike these filings. (D.I. 91, 92). Because the court has construed and considered the submissions as plaintiffs' opposition to defendants' summary judgment motions, the motions to strike are denied.
[8] Inasmuch as plaintiffs seek to hold Interbay liable on an agency relationship with Legreca & Quinn, the court previously rejected this argument by concluding that Legreca & Quinn was acting as an independent contractor. (D.I. 32) To that end, having failed to present expert testimony depicting the appraisal as improper or discriminatory, plaintiffs' discrimination claims against Interbay for relying on the appraisal also fail.
[9] The affidavit of Robert Lagreca was submitted by Legreca & Quinn. As noted above in more detail, Lagreca averred that "[al analyses, opinions and conclusions in the appraisal report provided to Interbay were prepared in conformity with the USPAP, the SPAP and the Code of Professional Ethics." (D.I. 74 at ex. p. 3-4; infra at 575)
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417 F. Supp. 2d 725 (2006)
UNITED STATES of America
v.
Sammer Ahmad RAHMAN, and Nabeel Ahmad Rahman, Defendants.
No. 4:05-CR-63-1-D2, 4:05-CR-63-2-D2.
United States District Court, E.D. North Carolina, Eastern Division.
January 20, 2006.
John P. O'Hale, Narron, O'Hale & Whittington, Smithfield, NC, Larry J. McGlothlin, Fayetteville, NC, for Sammer Ahmad Abdel Rahman, Defendant.
Jerry Wayne Leonard, Law Office of Jerry Leonard, Joseph E. Zeszotarski, Jr., Poyner & Spruill, Raleigh, NC, for Nabeel Ahmad Rahman, Defendant.
John Bowler, U.S. Attorney's Office, Raleigh, NC, for USA, Plaintiff.
ORDER
DEVER, District Judge.
On October 24, 2005, defendant Nabeel Ahmad Rahman moved to dismiss Count 54 of the indictment on various grounds, including that it failed to allege an essential element of the crime as it was defined in 18 U.S.C. § 1960 during a portion of the time period charged in the count. Defendant Sammer Ahmad Abdel Rahman[1] filed a motion to dismiss Count 54 on November 18, 2005. On December 9, 2005, the government filed a response to a number of pre-trial motions, including the motions to dismiss Count 54.
Because Count 54 of the indictment fails to allege all of the essential elements of a violation of section 1960 as it was defined during a portion of the time period in which defendants allegedly violated the statute and deprives the defendants of a *726 defense available according to law at the time when the act was allegedly committed, it is dismissed.
I.
Defendants argue that Count 54 should be dismissed because:
(1) The count fails to allege all essential elements of the crime charged in that count for a portion of the time period in which the count alleges criminal activity took place;
(2) If 18 U.S.C. § 1960 creates strict liability without requiring proof that a defendant knew of a state licensing requirement, it is unconstitutional; and
(3) The count fails to allege that either defendant was not exempt under the North Carolina Money Transmitters Business Act.
Sammer Rahman Mot. 1.
Count 54 of the indictment charges:
Beginning on or about February 1, 2000, and continuing to on or about May 1, 2005, defendants SAMMER AHMAD ABDEL RAHMAN and NABEEL AMAD RAHMAN, did knowingly conduct, control, manage, supervise, direct, and own all or part of an unlicensed money transmitting business as defined in Title 18, United States Code, Section 1960(b), in and affecting interstate and foreign commerce, that is, defendants did operate "Wella Mena, Inc." doing business as "Reid's Mart" in Hubert, North Carolina, which during the charged time frame, regularly engaged in the cashing of checks in exchange for a fee without having obtained the required license from the State of North Carolina, and did aid and abet each other in doing so; in violation of Title 18, United States Code, Section 1960 and 2.
Indict. 8-9. Section 1960, as currently codified, reads, in part:
(a) Whoever knowingly conducts, controls, manages, supervises, directs, or owns all or part of an unlicensed money transmitting business, shall be fined in accordance with this title or imprisoned not more than 5 years, or both.
(b) As used in this section
(1) the term "unlicensed money transmitting business" means a money transmitting business which affects interstate or foreign commerce in any manner or degree and
(A) is operated without an appropriate money transmitting license in a State where such operation is punishable as a misdemeanor or a felony under State law, whether or not the defendant knew that the operation was required to be licensed or that the operation was so punishable;
(B) fails to comply with the money transmitting business registration requirements under section 5330 of title 31, United States Code, or regulations prescribed under such section;. . . .
18 U.S.C. § 1960 (2001) (emphasis added).
II.
The defendants contend that Count 54 must be dismissed because it fails to allege all essential elements of the crime charged for a portion of the time period in which the count alleges criminal activity took place. Count 54 alleges that the defendants violated section 1960 from February 2000 through May 2005. As part of the Patriot Act, section 1960 was amended. See USA PATRIOT Act, Pub.L. No. 107-56, § 373(a), 115 Stat. 272, 339 (2001). On October 26, 2001, the President signed the Patriot Act into law and the amendments *727 became effective. See United States Department of Justice, Report From The Field: The USA PATRIOT Act At Work, at 1 (July 2004), available at http://www.lifeandliberty.gov/docs/071304 report from the field.pdf (hereafter, "US DOJ Report"); President George W. Bush, Remarks by the President at Signing of the Patriot Act, available at http://www.wh itehouse.gov/news/ releases/2001/10/XXXXXXXX-X. html ("The changes, effective today, will help counter a threat like no other our nation has ever faced.") (Oct. 26, 2001).
An amended federal criminal statute cannot be applied retroactively if the amendment expands the range of conduct made illegal under that statute. See U.S. Const. art. 1, § 9, cl. 3 (no "ex post facto Law shall be passed"); Collins v. Youngblood, 497 U.S. 37, 43, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990) (explaining that Ex Post Facto Clause prohibits laws that "retroactively alter the definition of crimes"); cf. United States v. Talebnejad, 342 F. Supp. 2d 346, 356-57 (D.Md.2004) ("If that law was modified at any time during the indictment period, the Indictment would have to allege (and the Government would eventually have to prove) the elements of the offense for activities occurring before the change and the elements of activities occurring after."). Accordingly, if Count 54 fails to allege an essential element of the crime charged as the crime was defined at the time of the alleged criminal conduct, or if it deprives a defendant of an affirmative defense available according to law at the time the act was committed, it must be dismissed. See Collins, 497 U.S. at 52, 110 S. Ct. 2715 (a law that would "deprive one charged with [a] crime of any defense available according to law at the time when the act was committed" would violate the Ex Post Facto Clause); United States v. Daniels, 973 F.2d 272, 274-76 (4th Cir.1992) (reversing conviction of violation of 26 U.S.C. § 5861 because indictment failed to allege essential element of the offense).
Before the 2001 amendments, section 1960 read, in part:
(a) Whoever conducts, controls, manages, supervises, directs, or owns all or part of a business, knowing the business is an illegal money transmitting business, shall be fined in accordance with this title or imprisoned not more than 5 years, or both.
(b) As used in this section
(1) the term `illegal money transmitting business' means a money transmitting business which affects interstate or foreign commerce in any manner or degree and
(A) is intentionally operated without an appropriate money transmitting license in a State where such operation is punishable as a misdemeanor or a felony under State law; or
(B) fails to comply with the money transmitting business registration requirements under section 5330 of title 31, United States Code, or regulations prescribed under such section;
18 U.S.C. § 1960 (subsequently amended) (emphasis added).
The plain language of the statute supports the defendants' position. Cf. United States v. Morison, 844 F.2d 1057, 1064 (4th Cir.1988) (explaining that when the terms of a "statute are unambiguous on their face, or in light of ordinary principles of statutory interpretation, then judicial inquiry is complete") (quotations omitted). In the pre-Patriot Act version of section 1960, a defendant had to undertake conduct while "knowing [his] business is an illegal money transmitting business." 18 U.S.C. § 1960(a) (previous version). The *728 pre-Patriot Act version of section 1960 then defined "illegal money transmitting business" in section 1960(b)(1)(A) to include a business that is "intentionally operated without an appropriate money transmitting license in a State where such operation is punishable as a misdemeanor or felony under State law . ." 18 U.S.C. § 1960(b)(1)(A) (previous version) (emphasis added). Thus, the statute's plain language suggests that knowledge of state licensing requirements constituted an element of a section 1960 violation before that section was amended in 2001.
The legislative history of section 1960 confirms that Congress' purpose in amending section 1960 in 2001 was to clarify that section 1960 is a general intent crime and does not require a defendant to know that an illegal money transmitting business was required to be licensed under state law. See H.R.Rep. No. 107-250, at 54 (2001). Indeed, section 373(a) of the Patriot Act, which amended 18 U.S.C. § 1960, was entitled "Scienter Requirement for Section 1960 Violation." USA PATRIOT Act, Pub.L. No. 107-56, § 373(a), 115 Stat. 272, 339 (2001).
Other sources also buttress this interpretation of the pre-Patriot Act version of section 1960. The United States Department of Justice summarized the purpose of the amendment to section 1960:
The USA PATRIOT Act also strengthened the criminal laws against terrorism by making it easier to prosecute those responsible for funneling money to terrorists. Under previous federal law, 18 U.S.C. § 1960, those who operated unlicensed money, transmitting businesses were entitled to rely on the affirmative defense that they had no knowledge of the applicable state licensing requirements. Some of these businesses, called hawalas, have funneled extensive amounts of money to terrorist groups abroad. Section 373 of the USA PATRIOT Act amended federal law by eliminating this loophole requiring that the defendant know about state licensing requirements. . . .
US DOJ Report 10 (emphasis added) (quoted in Talebnejad, 342 F.Supp.2d. at 349).
The defendants chiefly rely on Talebnejad, 342 F. Supp. 2d 346. In that case, the court analyzed a superceding indictment in which the violations of section 1960 were alleged to have taken place beginning on October 26, 2001, the day in which the amendments to section 1960 became effective. Id. at 350.[2] Accordingly, Talebnejad dealt only with the new version of section 1960, rather than the version of section 1960 that governed the beginning of the time period alleged in Count 54. As such, Talebnejad is of little help in addressing the defendants' first argument. However, the Talebnejad court did conclude, albeit in dicta, that the pre-Patriot Act version required a defendant to know of state licensing requirements before he could be found in breach of the law. See id. at 353 ("There is no doubt that Congress attempted to exclude any mens rea requirement when it amended § [1960](b)(1)(A).").
In responding to these motions to dismiss, the government chiefly relies on United States v. Uddin, 365 F. Supp. 2d 825 (E.D.Mich.2005). In Uddin, the court analyzed conduct that took place entirely after the October 26, 2001 amendments became *729 effective and dealt only with the statute as currently worded. Id. The court analyzed only the definitional prong in section 1960(b)(1)(B) relating to the failure to abide by the requirements of 31 U.S.C. § 5330. Id. at 826. Unlike Uddin, the indictment in this case alleges only that the defendants were not in compliance with state licensing requirements as referenced in section 1960(b)(1)(A); therefore, section 1960(b)(1)(B) is not at issue. Moreover, in Uddin, the defendant argued that the government was required to allege that "he knew of the federal registration requirement and that he intentionally failed to register his business." Id. (emphasis in original). In rejecting this argument, the court in Uddin expressly disagreed with the Talebnejad court's holding that the federal registration prong in section 1960(b)(1)(B) also had a mens rea requirement. Id. at 828-29. In doing so, the court in Uddin contrasted subsection 1960(b)(1)(B) with the previous version's subsection 1960(b)(1)(A) regarding state law licensing. The Uddin court stated:
The Talebnejad court's reasoning with regard to subsection (b)(1)(B) is flawed because, as indicated above, there was no need to amend the federal registration subsection; the only "loophole" that existed in the prior version of the statute was in subsection [(b)(1)](A) which, before the Patriot Act amendments, required the government to show that the defendant knew that state law required a license to operate a money transmitting business and intentionally operated the business without an appropriate state license. The prior version of subsection (B) contained no such "loophole," and therefore, no amendment to subsection (B) was needed.
Uddin, 365 F.Supp.2d at 829 (emphasis added). Thus, Uddin supports the defendants' central contention that before the Patriot Act amendments, section 1960(b)(1)(A) required a scienter showing that is not alleged in Count 54 of the indictment.
Finally, the only circuit court that addressed this scienter issue in interpreting the pre-Patriot Act version of section 1960 stated that subsection 1960(b)(1)(A) required an individual to be aware of any state licensing requirements before he could violate the statute. See United States v. Velastegui, 199 F.3d 590, 595 n. 4 (2d Cir.1999) (analyzing case involving subsection 1960(b)(1)(A) and stating that section 1960 "requires that the defendant know the business was an `illegal money transmitting business.'"). Moreover, the government has not cited, and the court could not locate, a single decision interpreting the pre-Patriot Act version of subsection 1960(b)(1)(A) in the manner that the government now advocates. This fact further confirms Congress' intent in amending section 1960.
III.
Because Count 54 fails to allege that defendants knew of any state licensing requirements and intentionally operated their businesses without meeting these requirements between February 1, 2000 and October 26, 2001, it fails to allege an essential element of the crime as it was defined at the time of the alleged offense. Further, Count 54 deprives the defendants of a defense available according to law at the time when the act was allegedly committed. Accordingly, defendants' motions to dismiss Count 54 of the indictment are GRANTED, and Count 54 is DIMISSED. In light of this holding, the court need not and does not address defendants' other two challenges to Count 54.
NOTES
[1] Nabeel Rahman and Sammer Rahman are referred to collectively as "defendants."
[2] The government had originally alleged conduct in violation of section 1960 that took place before the amendments became effective. Talebnejad, 342 F.Supp.2d at 358. After the government responded to the defendants' motion to dismiss, the grand jury returned a second superceding indictment alleging violations of section 1960 that took place only after the amendments became effective. Id.
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https://www.courtlistener.com/api/rest/v3/opinions/2458131/
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417 F. Supp. 2d 310 (2006)
Gregory A. FRASER, Plaintiff,
v.
FIDUCIARY TRUST COMPANY ITERNATIONAL, Franklin Resources Inc., Michael Materasso, Jeremy H. Biggs, William Y. Yun, Charles B. Johnson, Anne M. Tatlock, Gregory E. Johnson and Martin L. Flanagan, Defendants.
No. 04 Civ. 6958(PAC).
United States District Court, S.D. New York.
February 15, 2006.
*311 *312 *313 Bruce A. Hubbard, Bruce A. Hubbard, P.C., New York City, for Plaintiff.
Christina L. Feege, Littler Mendelson, P.C., Littler Mendelson, P.C., New York City, for Defendants.
*314 DECISION AND ORDER
CROTTY, District Judge.
Plaintiff Gregory A. Fraser ("Fraser") filed a Second Amended Complaint ("Compl.") on August 12, 2005 against Fiduciary Trust Company International ("Fiduciary"), Franklin Resources Inc. ("Franklin"), Michael Materasso ("Materasso"), Jeremy H. Biggs ("Biggs"), William Y. Yun ("Yun"), Charles B. Johnson, Anne M. Tatlock, Gregory E. Johnson, and Michael L. Flanagan (collectively, "Defendants").[1] Before the Court is Defendants' motion to dismiss numerous claims in the Second Amended Complaint ("Compl."). Fraser amended the Amended Complaint following Judge Berman's June 23, 2005 decision, which granted in part and denied in part Defendants' first motion to dismiss.[2]
In the June 23, 2005 Decision, Judge Berman denied Defendants' motion to dismiss with regard to the following claims: a whistleblower claim under § 806 of the Sarbanes-Oxley Act of 2002 ("SOX"), 18 U.S.C. § 1514A (based on the Third Instance (out of four) alleged by Fraser); a discriminatory discharge claim under § 510 of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1140; and, race discrimination claims asserted pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., 42 U.S.C. § 1981, the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq., and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 et seq., arising out of Defendants' alleged discriminatory treatment of Fraser on the basis of his race.
Judge Berman dismissed without prejudice the following claims: securities law claims pursuant to §§ 10(b) and 20(a) of the Securities Exchange Act of 1934 ("Exchange Act"), 15 U.S.C. §§ 78j(b), 78t, Rule 10b-5, 17 C.F.R. § 240-10b-5, and California Corporations Code § 25402; SOX § 806 whistleblower claims based on Fraser's alleged First, Second, and Fourth Instances and all SOX § 806 claims against Individual Defendants; an ERISA § 510 whistleblower claim; an ERISA § 404 breach of fiduciary duty claim; and a common law breach of contract claim. Judge Berman dismissed with prejudice claims brought under § 15 of the Exchange Act and §§ 1102 and 1107 of SOX.
Fraser's Second Amended Complaint deleted the claims Judge Berman dismissed with prejudice and repleaded the securities law, ERISA, SOX, and breach of contract claims. Despite Judge Berman's direction that the Second Amended Complaint be more "streamline[d] and better organize[d]" than the 110-page Amended Complaint (June 23, 2005 Decision, at 26) (and the command of Rule 8, calling for a "short and plain statement of the claim," Fed.R.Civ.P. 8,) the Second Amended Complaint is 91 pages long and suffers many of the infirmities of the prior complaint.
The prolix, wandering style of the allegations of the Second Amended Complaint do not cure the deficiencies that Judge Berman found with the securities claims, §§ 10(b) and 20(a), Rule 10b-5, and California Corporate Codes §§ 25402 and 25502; with the §§ 510 and 404 ERISA claims; and with § 806 SOX claims based on the First and Fourth Instances. The Court dismisses those claims with prejudice. The Second Amended Complaint cures the deficiencies with regard to the SOX § 806 whistleblower claim based on *315 the Second Instance as well as the common law breach of contract claim.
INTRODUCTION
Judge Berman's June 23, 2005 Decision and Order provided a detailed accounting of the factual background to this case (June 23, 2005 Decision and Order, at 2-6). The Court, thus, will not recount detailed facts, which specifically relate to the claims that Judge Berman sustained in Defendants' first motion to dismiss (i.e., race discrimination claims, the § 510 ERISA discriminatory discharge claim, and the § 806 SOX whistleblower claim (Third Instance)).
I. Facts
A. The Parties
Plaintiff was a Vice President at Fiduciary Trust Company International ("Fiduciary"). Compl. ¶ 94. Fraser began employment with Fiduciary on October 2, 2000, id., and was terminated on March 7, 2003. Id. ¶ 70.
Defendant Fiduciary is an investment management company and chartered bank under New York laws with its principal offices located in New York. Id. ¶ 15. Fiduciary was acquired by defendant Franklin Resources Inc. ("Franklin") on April 10, 2001 and is now a wholly-owned subsidiary of Franklin. Id. Franklin is a Delaware corporation with principal offices located in California. Id. ¶ 16. Franklin is a global investment management and advisory services company. Id.
Defendant Michael Materasso was Head of Domestic Fixed Income Asset Management at Fiduciary. Id. ¶ 17. Materasso was Fraser's direct supervisor starting in October, 2000. Id. On November, 2001, Materasso became Head of Domestic and Global Fixed Income. Id. Materasso received the claimed whistleblowing notices and complaints. Id. Materasso also engaged in claimed racially discriminatory conduct and fabricated retaliatory allegations to terminate Fraser. Id.
Defendant Jeremy H. Biggs is the current Vice Chairman of Fiduciary and former Chief Investment Officer. Id. ¶ 18. Defendant William Y. Yun ("Yun") is the current President of Fiduciary and of Franklin Templeton Institutional. Id. ¶ 19. Defendant Charles B. Johnson is the former Chief Executive Officer of Franklin and served in that capacity from 1957 until 2004. Id. ¶ 20. Johnson also serves as the Chairman of the Board of Directors of Franklin. Id. Defendant Anne M. Tatlock is the Chief Executive Officer and Chair of the Board of Directors of Fiduciary. Id. ¶ 21. Defendant Gregory E. Johnson is a Co-Chief Executive Officer and Co-President of Franklin and member of the Board of Fiduciary. Id. ¶ 22. Finally, Defendant Martin L. Flanagan was also Co-Chief Executive Officer and Co-President of Franklin. Id. ¶ 23. Flanagan left the company on July 31, 2005. Id.
B. Claimed Corporate Wrongdoing
Fraser claims illegal conduct related to Franklin's acquisition of Fiduciary. Id. ¶ 33. Fraser claims that filings in connection with the acquisition contained "insufficient, not meaningful, materially false and misleading" statements. Id. Chief among these allegations is the improper inclusion of U.N. Pension Fund Account assets in Fiduciary's and Franklin's assets under management ("AUM") and improper low fees. Id. (cataloguing alleged wrongdoing). According to Fraser, this spawns a raft of further allegations of violations of GAAP standards, breach of Securities and Exchange Commission ("SEC") accounting and reporting requirements, and overvaluation of Fiduciary at the time of Franklin's acquisition. Id. ¶¶ 34-61.
*316 C. Claimed Whistleblowing Activities
Fraser alleges that he sent Materasso an e-mail on March 19, 2001, which put Materasso on notice that Fraser "suspect[ed] . . . accounting misconduct at Fiduciary and stressed that he was obligated to comply with the [Chartered Financial Analyst ("CFA")] Institute's Code and Standards." Id. lines 1990-91.[3] After this e-mail, Fraser contends that Materasso "embarked on a campaign of retaliation, denial of promotion and advancement opportunities and adverse employment actions toward [him] culminating in [his] March 7, 2003 unlawful and retaliatory discharge at Materasso's direction." Id. lines 1992-95.
1. First Claimed Instance
Fraser sent e-mails to Fiduciary's Chief Investment Officer, Biggs, in December, 2001, which claimed that a portfolio manager named Michael Rohwetter ("Rohwetter") was responsible for poor performance across ERISA and trust accounts (managed by Fraser's Department, Institutional Fixed Income) because Rohwetter had not followed Fraser's investment strategy advice. Id. ¶ 67. Fraser also alleged that Rohwetter wanted Fraser to conceal and falsify 2001 year-end performance results. Id. After these e-mails, Fraser alleges that "Rohwetter commenced retaliatory actions against him with a pattern of negative behavior (i.e., reduced his responsibilities, less opportunities for career advancement, unnecessary criticism of Plaintiff's work, less recognition and exposure to senior management, less sociable and less friendly)." Id. According to Fraser, Rohwetter engaged in conduct that violated a whole host of provisions under ERISA, the Investment Advisors Act of 1940 ("IAA"), the Uniform Prudent Investor Act of 1994, and the New York State Estates, Powers & Trusts Laws. Id.
2. Second Claimed Instance
In May, 2002, Plaintiff sent a notice to Fiduciary President Yun that the New York office's decision to sell WorldCom bonds from New York-based ERISA and trust management accounts was not equally disseminated to all accounts firm-wide. Id. ¶ 68. In February, 2002, Fraser wanted to communicate firm-wide that the Head Office had decided to sell its World-Com holdings. Rohwetter instructed him not to do so. Id. As a result, Fraser claims that the Los Angeles office continued to hold WorldCom bonds "because they were unaware that [the New York office] was exiting its WorldCom positions." Id. This decision, Fraser states, resulted eventually in "substantial losses in [Los Angeles]-ERISA and trust accounts holding WorldCom bonds." Id. Fraser characterized this conduct as a breach of fiduciary conduct and evidence of a conflict of interest. Id. Fraser states that after his report to Yun, Materasso and Rohwetter "commenced retaliatory actions against him"again with a pattern of negative behavior culminating in "less sociable" and "less friendly". Id. The conduct related to the WorldCom bonds, Fraser charges, constituted "clear violations" of a host of federal laws, including ERISA and the IAA, and was a fraud on investors. Id.
Fraser claims that in the Fall of 2002, "an anonymous e-mail was sent . . . to Franklin senior management, Franklin's legal department and the SEC informing them that an accounting fraud involving improperly classified U.N. Pension Fund *317 Accounts was taking place at Fiduciary." Id. ¶ 69.
3. Third Claimed Instance
Fraser claims that approximately one to two weeks before his wrongful termination on March 7, 2003, he became aware of a scheme on the part of Fiduciary senior officers to manipulate and falsify managed assets and defraud clients. Id. 70. This scheme was related to the reported AUM and the fact that Fiduciary only received a nominal consulting fee in connection with its activities with the U.N. Pension Fund. Id. Fraser confronted Materasso about his allegations and Materasso simply "brushed [him] off." Id. Judge Berman previously allowed this instance as a basis for Fraser's SOX § 806 claim (June 23, 2005 Decision and Order, at 26).
4. Fourth Claimed Instance
On March 6, 2003, one day prior to his discharge, Fraser sent an e-mail to Materasso, Yun and others "to inform senior management that investment performance had suffered because the New York office failed to implement a recommendation he proposed on November 1, 2002 to establish a long/short high-yield investment fund for Fiduciary clients." Id. ¶ 71. Fraser states that later that day, Fiduciary retaliated against him "with a discriminatory act by falsely charging him of violating company policy and asking him to submit his resignation or accept a discharge from the company." Id.
II. Legal Standard
"[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). On a motion to dismiss based on Rule 12(b)(6), "all factual allegations in the complaint must be taken as true and construed favorably to the plaintiff." LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir.1991) (citations omitted). "The issue is not whether a plaintiff is likely to prevail ultimately, `but whether the claimant is entitled to offer evidence to support the claims'." Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995) (citations omitted).
When deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents attached to the Complaint as exhibits or incorporated in it by reference. Brass v. American Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). Because Fraser refers to multiple documents crucial to his claims, these documents may properly be considered for the purposes of this motion. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002).
III. Analysis
A. Securities Claims
1. § 10(b) and Rule 10b-5 Claims
Fraser asserts claims under § 10(b) of the Securities and Exchange Act ("SEA"), 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240.10(b), in the First Cause of Action of the Second Amended Complaint. The critical issue here is whether any of Fraser's allegations demonstrate that claimed misconduct occurred.
a. No "In Connection with a Purchase or Sale" Shown
Under the Supreme Court's decision in Blue Chip Stamps v. Manor Drug Stores, only an actual purchaser or seller of securities has standing to assert claims under § 10(b) and Rule 10b-5. 421 U.S. 723, 749-55, 95 S. Ct. 1917, 44 L. Ed. 2d 539 (1975). Fraser pleads a number of facts *318 relating to his status as purported purchaser and seller of Franklin securities. Compl. lines 1630-90. The plain fact is that Fraser never purchased the Franklin securities. Id. lines 1630-31. He earned them as a part of his compensation and thus was not a purchaser. As to the other shares he acquired, they also suffer from fatal infirmities.
This Court adopts the analysis set out in Judge Berman's decision with regard to the grant of Franklin stock to Fraser through the Company's Restricted Stock Award Program en toto (see, June 23, 2005 Decision and Order, 7-10 (citing In re Cendant Corp. Sec. Litig., 81 F. Supp. 2d 550, 556 (D.N.J.2000) ("When an employee does not give anything of value for stock other than the continuation of employment nor independently bargains for . . . stock, there is no `purchase or sale' of securities." (citation omitted)))), and finds that Fraser does not satisfy the purchaser/seller requirement with regard to these shares.
With regard to the securities, which Fraser alleges he acquired under Incentive Plans by being induced to stay following the offer of employment from a competitor, Compl. lines 1643-90, this allegation is plagued by a number of fatal pleading deficiencies. First, Fraser fails to allege the number of Franklin stock that he acquired as part these Incentive Plans. Id. Second, whiles Fraser denominates these shares as ones acquired under the Incentive Plans (which are identified as the Fiduciary/Franklin Cash and Bonus Compensation Retention Plan and the Franklin Universal Stock Incentive Plan in the Second Amended Complaint, Compl. lines 1970-72), these shares were not identified as such in the "schedule" of stock purchased (Pl.'s Ex. E). Instead, the "schedule" includes information regarding the "acquisition" of Trio Plan Stock Fund, Bond Fund, and Special Equity Fund and specifies as the acquisition date "[January 1, 2002 to March 31, 2002]." Id. Further, Fraser fails to identify any number of shares "acquired" through any of the Incentive Plans in both the schedule and the Second Amended Complaint. As Judge Berman noted, in order to satisfy the pleading requirement of Rule 9(b), Fraser must allege the dates on which he acquired stock and the number of shares acquired (June 23, 2005 Decision and Order, at 8 (citing cases)). Because the Second Amended Complaint fails to cure these (and other) defects related to the retention plans, the securities claims can not stand.[4]
b. § 10(b) Claim is Untimely
"Section 10(b) of the Securities Exchange Act of 1934 provides that MR) action shall be maintained to enforce any liability created under this section, unless brought within one year after the discovery of the facts constituting the violation and within three years after such violation.'" *319 Lentell v. Merrill Lynch & Co., Inc., 396 F.3d 161, 167 (2d Cir.2005) (citing 15 U.S.C. § 78i(e)) (internal quotation marks and other citations omitted); see also Newman v. Warnaco Group, Inc., 335 F.3d 187, 193 (2d Cir.2003). Fraser's Second Amended Complaint tries to avoid the statute of limitations by walking a fine line between what he "suspected" and what he "knew". Fraser attempts to avoid the statute of limitations by claiming that he based the March 19, 2001 actions on "suspicions" and that he did not have direct knowledge or evidence of wrongdoing until "one or two weeks" prior to his termination on March 7, 2003. Id. lines 793-97. Fraser can't have it both wayshe cannot plead for purposes of his whistleblower claims that he "suspected"i.e., discovered wrongdoing in connection with the U.N. Pension Fund on March 19, 2001 but plead for purposes of his securities claims that he "knew"i.e., discoveredthat wrongdoing in early March, 2003. Compare Compl. lines 2002-03 ("After Plaintiffs March 19, 2001 e-mail, Materasso was motivated to deny Plaintiff promotion and portfolio management opportunities."), with id. lines 1994-96 ("Plaintiff's March 19, 2001 e-mail put Materasso on notice that [P]laintiff was aware of unlawful activity at Fiduciary although at that time Plaintiff had no direct evidence to support his suspicions.").
Where an employee asserts securities fraud claims against an employer, the "discovery" analysis for purposes of the statute of limitations differs somewhat from the typical investor case. The Second Circuit has stated that "where the facts needed for determination of when a reasonable investor of ordinary intelligence would have been aware of the existence of fraud can be gleaned from the complaint and papers . . . integral to the complaint,' we can readily resolve the issue on a motion to dismiss, and have done so in `a vast number of cases'." Lentell, 396 F.3d at 168 (citation omitted).
Fraser pled facts in which he claimed to have conducted an investigation relating to his "suspicions" about Defendants' improper AUMi.e., that he had conversations with several Fiduciary employees about the subject, that he reviewed Fiduciary's public financial reports, that he reviewed Fiduciary client presentation material, and, that he noted the fact that Fiduciary had a far smaller number of fixed income employees dedicated to managing its purported $20 billion in fixed income assets compared to other firms that disclosed a similar level of fixed income. Compl. lines 659-66, 670-76. This investigation and the knowledge he gained through it caused Fraser to communicate with higher-ups albeit in general termsregarding his suspicions. See id. lines 1994-96 ("Essentially, Plaintiffs March 19, 2001 e-mail put Materasso on notice that [P]laintiff was aware of unlawful activity at Fiduciary although at that time Plaintiff had no direct evidence to support his suspicions."). Having plead that he engaged in an investigation sufficient to raise "suspicions," which induced Fraser to act, Fraser has asserted on the face of the complaint that he had discovered the claimed wrongdoing as early as March, 2001 and, thus, is time-barred from asserting the § 10(b) claim. Accordingly, an alternate ground for dismissal of the § 10(b) claim is that it is time-barred.
2. California Securities Claims
Fraser asserts securities claims under California Corporate Code §§ 25402 and 25502. Section 25506 of the California Corporate Code provides that "[f] or proceedings commencing before January 1, 2005, no action shall be maintained to enforce any liability created under Section . . . 25502. . . . unless brought before the *320 expiration of four years after the act or transaction constituting the violation or the expiration of one year after the discovery by the plaintiff of the facts constituting the violation, whichever shall first expire." Cal. Corp.Code § 25506. Section 25502 provides for damages for violations of § 25402. Cal. Corp.Code § 25502. Thus, Fraser's California securities claims are time-barred for the reasons stated above in relation to the federal securities claims (i.e., Fraser pled facts showing discovery of the circumstances giving rise to the AUM-related fraud in March, 2001).[5]
3. Controlling Person Liability
Because the Court is dismissing Fraser's § 10(b) and Rule 10b-5 claim, the Court also dismisses Fraser's Second Cause of Action for controlling person liability under § 20(a) of the Exchange Act. 15 U.S.C. § 78t; see also June 23, 2005 Decision and Order, at 10 (citing Salinger v. Projectavision, Inc., 972 F. Supp. 222, 235 (S.D.N.Y.1997)).
B. ERISA Claims
In Fraser's Amended Complaint he asserted three claims under ERISA: a § 510 claim for discriminatory discharge; a § 510 whistleblower claim; and a § 404 breach of fiduciary duty claim. Judge Berman sustained the § 510 discriminatory discharge claim (June 23, 2005 Decision and Order, at 26) and dismissed the other two claims without prejudice. The Court next considers Defendants' motion to dismiss each of the two remaining ERISA claims.
1. ERISA § 510 Whistleblower Claim
In the Second Amended Complaint (Third Cause of Action), Fraser asserts a claim under § 510 of ERISA. Compl. line 1794. ERISA § 510 provides that "[i]t shall be unlawful for any person to discharge . . . or discriminate against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to this chapter. . . ." 29 U.S.C. § 1140 (emphasis added). As Judge Berman noted in his Decision and Order, in order for a plaintiff to assert a claim under this provision, he must allege "that he gave information in connection with an `inquiry'" (June 23, 2005 Decision and Order, at 19) (citing Nicolaou v. Horizon Media, Inc., 402 F.3d 325, 328-29 (2d Cir.2005)). The Second Amended Complaint did not cure Fraser's prior failure to plead facts that he provided information concerning ERISA violations in response to an "inquiry." Thus, this claim is dismissed with prejudice.
2. ERISA § 404 Breach of Fiduciary Duty Claims
In the Second Amended Complaint (Third Cause of Action), Fraser also asserts a claim under § 404 of ERISA against the Individual Defendants. Compl. lines 1788-92, 1877-80. This provision imposes a "prudent man standard of care" on fiduciaries under the Act. 29 U.S.C. § 1104(a). More specifically, this duty requires ERISA fiduciaries to "discharge [their] duties with respect to a plan solely in the interest of the participants and beneficiaries," § 1104(a)(1), "for the exclusive purpose of providing benefits to participants and their beneficiaries," § 1104(a)(1)(A)(I), and "by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so." § 1104(a)(1)(C). ERISA defines a *321 person to be "a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan." § 1002(21)(A).
Defendants contend that this claim should be dismissed because "the Second Amended Complaint lacks sufficient allegations to establish that any of the Individual Defendants are fiduciaries" (Defs.' Br. 13).
In the Second Amended Complaint, Fraser's allegations regarding the Individual Defendants identifies their role in the defendant companies (see Compl. lines 188-212). None of these allegations, however, contain facts regarding the Individual Defendants and their role as fiduciaries vis-avis the "Trio Plan," which is the basis of this ERISA claim. Id. The allegations with respect to the Individual Defendants and the ERISA § 404 breach of fiduciary claim is limited to the following:
"[t]he Individual Defendants owed and owe Fiduciary, Franklin and their respective Client Participants and Beneficiaries fiduciary obligations and duties," Compl. lines 1788-89;
"[t]he Individual Defendants, and each of them, respectively, violated their respective fiduciary obligations and breached their fiduciary duties as set forth in Sections 510 and 1104, respectively of [ERISA][;][t]hey made no reasonable inquiry[;][t]hey exercised no standard of due care; and they provided no oversight, supervision nor response to notices of wrongdoing." Id. lines 1793-97.
"Given that a defendant's role as an executive of an employing company is, standing alone, insufficient to confer fiduciary status, these allegations are inadequate." In re AOL Time Warner, Inc. Sec. and ERISA Litig., 02 Civ. 8853, 2005 WL 563166, at *4, 2005 U.S. Dist. LEXIS 3715, at *14 (S.D.N.Y. Mar. 10, 2005) (citing to regulations). The pleading requirements for an ERISA claim are not stringent: "an ERISA complaint need `do little more than track the statutory definition' to establish a defendant's fiduciary status in compliance with Rule 8." In re Polaroid ERISA Litig., 362 F. Supp. 2d 461, 470 (S.D.N.Y.2005) (citations omitted). A complaint "satisfies that standard by separately alleging that each Defendant was a Plan fiduciary who exercised discretionary authority regarding the Plan." Id. Because Fraser has failed to satisfy even this very liberal requirement, the ERISA § 404 breach of fiduciary claim is dismissed with prejudice.
C. SOX Claims
Fraser asserts SOX § 806 claims based on four purported instances of whistleblowing. As noted previously, Judge Berman sustained one claim based on the Third Instance and dismissed without prejudice other claims based on the First, Second, and Fourth Instances alleged in the Amended Complaint (June 23, 2005 Decision and Order, at 26).
Section 806 provides that "[n]o company with a class of securities registered under section 12 of the [Exchange Act], or that is required to file reports under section 15(d) of the [Exchange Act], or any officer, employee, contractor, subcontractor, or agent of such company, may discharge . . . or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee to provide information *322 . . . regarding any conduct which the employee reasonably believes constitutes a violation of . . . any rule or regulation of the [SEC], or any provision of Federal law relating to fraud against shareholders, when the information . . . is provided to . . . a person with supervisory authority over the employee." 18 U.S.C. § 1514A.
To assert a whistleblower claim under SOX, Fraser "must show by a preponderance of the evidence that (1)[he] engaged in protected activity; (2) the employer knew of the protected activity; (3)[he] suffered an unfavorable personnel action; and (4) circumstances exist to suggest that the protected activity was a contributing factor to the unfavorable action." Collins v. Beazer Homes USA, Inc., 334 F. Supp. 2d 1365, 1375 (N.D.Ga.2004) (citations omitted). SOX protects employees who provide information, which the employee "`reasonably believes constitutes a violation'" of any SEC rule or regulation or "`Federal law relating to fraud against shareholders'." Id. (citing 18 U.S.C. § 1514A(a)(1)). While a plaintiff need not show an actual violation of law, id, or cite a code section he believes was violated (June 23, 2005 Decision and Order, at 16), "`general inquiries . . . do not constitute protected activity'." Id. (citing cases); see also Lerbs v. Buca Di Beppo, Inc., 2004-SOX-8, 2004 DOLSOX LEXIS 65, at *33-34 (Dep't Labor June 15, 2004) ("[I]n order for the whistleblower to be protected by [SOX], the reported information must have a certain degree of specificity [and] must state particular concerns which, at the very least, reasonably identify a respondent's conduct that the complainant believes to be illegal.") (citation omitted). Thus, "[p]rotected activity must implicate the substantive law protected in Sarbanes-Oxley `definitively and specifically'" (June 23, 2005 Decision and Order, at 16 (citation omitted)).
1. First and Fourth Instances
Neither the First Instance nor the Fourth Instance constitute protected activity under SOX. With regard to the First Instance, Fraser contends that a confidential memo he prepared and sent to Fiduciary's Human Resources Department along with other e-mails to company official Biggs, the current Vice Chairman of Fiduciary and former Chief Investment Officer, contained whistleblowing information regarding illegal conduct. Compl. ¶ 67. Fraser alleges that the e-mails to Biggs "suggested the large losses sustained across accounts could have been avoided if Rohwetter had heeded [Fraser's] advice for investment strategy and not taken a cavalier attitude towards [Fraser's] credit research." Id. (lines 697-99) Further, the confidential memo "spoke of how Rohwetter wanted [Fraser] to conceal and falsify the actual 2001 year end performance results and characteristics for the high yield component of client portfolios in communication reports to clients." Id. (lines 707-10).
The Court has conducted a searching review of Fraser's original OSHA complaint and of the confidential memo (Pl.'s Ex. M). Fraser has failed to cure the pleading deficiency with regard to the First Instance, which Judge Berman previously found (June 23, 2005 Decision and Order, at 17). Fraser's documents complain that his advice was not followed, but they are barren of any allegations of conduct that would alert Defendants that Fraser believed the company was violating any federal rule or law related to fraud on shareholders. As such, any claim based on the First Instance is dismissed with prejudice.
With regard to the Fourth Instance, Fraser alleges that on March 6, 2003, one day before his termination, he sent an e-mail *323 to Materasso, Fiduciary President Yun, and General Counsel Edward Eisert "to inform senior management that investment performance had suffered because the New York office failed to implement a recommendation he proposed on November 1, 2002 to establish a long/short high-yield investment fund for Fiduciary clients." Compl. ¶ 71 (lines 837-42). Fraser further alleges that "[t]he highyield sector was experiencing strong market appreciation shortly after his November 1st proposal and Fiduciary clients were missing out." Id. (lines 842-43). Fraser contends that "[t]he far too conservative investment posture" violated the clients' investment policy statement guidelines and the Third Restatement of Trusts. Id. (lines 857-58). The Fourth Instance suffers from the same deficiency as the First Instance. Fraser's March 6, 2003 e-mail is more a complaint that his advice was not being followed but contains no communication from Fraser to any of the Defendants indicating that Fraser believed the company to be violating any provision related to fraud on shareholders. Accordingly, the claim based on the Fourth Instance is dismissed with prejudice.[6]
2. Second Instance
Fraser's claim based on the Second Instancealthough a close callfares better. As noted previously, this communication concerned WorldCom bonds. On February 6, 2002, Fraser prepared an email stating that the company's Fixed Income Group was "recommending a SELL on WorldCom bonds due to deteriorating industry conditions, continued pricing pressures and heightened competition" (Pl.'s Ex. M). The e-mail continued that "[a]lthough the debt is rated A3/Stable /BBB +/Stable, its credit ratios continue to worsen on a sequential quarterly basis." Id. The e-mail attached another e-mail prepared on December 21, 2001, which contained an analysis and recommendation to reduce holdings of WorldCom bonds among other investments. Id. On May 16, 2002, Fraser forwarded to company President Yun the February 6, 2002 and December 21, 2001 e-mails stating "I prepared this e-mail to distribute firmwide, but was told by one of the NY-based PMs not send [sic] this e-mail out (for whatever reason, I do not know)." Id.
While Fraser does not expressly state in this e-mail that Defendants are engaged in illegal conduct related to fraud on shareholders, given the context of the e-mail and the circumstances giving rise to the communicationi.e., clients of the New York office benefited from a prudent decision to timely sell WorldCom bonds, whereas the Los Angeles clients suffered losses related to this holdings, which losses they might have avoided had the New York office communicated the decision to sellthe e-mail is sufficient to satisfy the pleading requirement for a SOX whistleblowing claim.
With regard to this claimed Instance, "[t]he Court finds that Defendants cannot establish as a matter of law that Plaintiff did not engage in protected activity under Sarbanes-Oxley." Collins, 334 F.Supp.2d at 1377. Thus,
[t]hough this is a close case, . . . the Court finds that there is a genuine issue of material fact whether Plaintiff engaged in protected activity. It is evidence that Plaintiff's complaints do not rise to the level of complaints that were raised by Sherron Watkins at Enron. However, the mere fact that the severity *324 or specificity of her complaints does not rise to the level of action that would spur Congress to draft legislation does not mean that the legislation it did draft was not meant to protect [him]. In short, if Congress had intended to limit the protection of Sarbanes Oxley . . . or to have required complainants to specifically identify the code section that they believe was being violated, it could have done so. It did not. Congress instead protected "employees" and adopted the "reasonable belief' standard for those who "blow the whistle on fraud and protect investors."
Id. at 1377 (citations omitted).[7]
Judge Berman's June 23, 2005 Decision and Order previously found that Fraser satisfied the other prongs necessary to assert SOX whistleblower claimsthat is, employer awareness of protected activity; unfavorable personnel action; and contributing factor (June 23, 2005 Decision and Order, at 17-18).[8]
D. Race Discrimination Claims
Judge Berman denied Defendants' motion to dismiss Fraser's race discrimination claims. Accordingly, these claims survived and remain in the action.
E. Breach of Contract Claim
Generally the law in New York is that at-will employees, like Fraser, can be fired at any time, without reason. Horn v. New York Times, 100 N.Y.2d 85, 90-91, 760 N.Y.S.2d 378, 790 N.E.2d 753 (2003). There are certain well-defined and limited exceptions to this rule. Id. at 92, 760 N.Y.S.2d 378, 790 N.E.2d 753. Where an employer has a well-established, written practice that specifies procedures and grounds for termination, the "at-will" doctrine may be modified. Weiner v. McGraw-Hill, 57 N.Y.2d 458, 465-66, 457 N.Y.S.2d 193, 443 N.E.2d 441 (1982). "To establish that such policies are a part of the employment contract, an employee alleging a breach of implied contract must prove that (1) an express written policy limiting the employer's right of discharge exists, (2) the employer (or one of its authorized representatives) made the employee aware of this policy, and (3) the employee detrimentally relied on the policy in accepting or continuing employment." Baron v. Port Auth. of N.Y. and N.J., 271 F.3d 81, 85 (2d Cir.2001) (citation omitted).
Fraser satisfied the pleading requirement with regard to "express limitations." Id. Fraser cites passages from the manual, which states as follows: "[e]mployees are responsible for reporting to a Department Head if they have any knowledge of any illegal conduct by any employee, if that conduct relates to Company business . . . [;][n]o reprisals shall be made against the reporting employee." Compl. ¶ 157 (lines 2143-49). In addition, the manual states that "an employee who has disclosed in good faith [those personal circumstances that the Policy Manual addresses *325 [are] grounds for immediate dismissal and possible legal action] will be afforded a reasonable time to resolve conflicts or the appearance of conflict without prejudice." Id. ¶ 161 (lines 2192-99). "[D]efendants' . . . Manual advises employees to report misconduct and assures protection from any retaliation[;][u]nder New York law, such language appears sufficient to create a limitation on the at-will nature of [Plaintiff's] employment." Brady v. Calyon Securities (USA), 406 F. Supp. 2d 307, 316 (S.D.N.Y.2005). Fraser also satisfies the second prong of the pleading requirementi.e. employer notification of employeeas he contends that he signed statements indicating his receipt of the Fiduciary Company Policy Manual in 2000, 2001, 2002, and 2003. Compl. ¶ 156 (lines 2129-30).
Judge Berman dismissed the breach of contract claim in his June 23, 2005 Decision and Order, in part, because Fraser failed to plead reliance. Fraser's Second Amended Complaint alleges reliance and thus cures the prior pleading deficiency. See id. ¶¶ 156, 157, 162. The Court denies Defendants' motion to dismiss the breach of contract claim.
F. Jury Trial
"[T]here is no right to a jury trial under ERISA. . . ." Muller v. First Unum Life Ins. Co., 341 F.3d 119, 124 (2d Cir.2003) (citing Sullivan v. LTV Aerospace and Def. Co., 82 F.3d 1251, 1257-59 (2d Cir.1996)). Accordingly, Defendants' motion to strike Plaintiff's Demand for Jury Trial on the ERISA claims is granted.
"[T]he SOX Act is silent as to whether a plaintiff may demand a jury trial . ." Hanna v. WCI Communities, Inc., 348 F. Supp. 2d 1332, 1334 (S.D.Fla. 2004). This Court could find only one published decision, which considered whether a litigant may demand a jury trial for SOX claims. Murray v. TXU Corp., 03 Civ. 0888, 2005 U.S. Dist. LEXIS 10945 (N.D. Tex. June 7, 2005). In that case, the court struck plaintiff's demand for a jury trial. Id. at *16.
At this time, the Court denies Defendants' motion to strike a jury trial on the SOX claims without prejudice to bring this motion again prior to trial. At that later juncture, the Court might have the benefit of guidance from additional courts that have considered the issue. Hanna, 348 F.Supp.2d at 1334.
CONCLUSION
Judge Berman previously allowed the following claims: SOX § 806 based on the Third Instances; the discriminatory discharge § 510 ERISA claim; and all race discrimination complaints (June 23, 2005 Decision, at 26). Pursuant to this Order and Decision, the following claims are added: SOX § 806 claim based on the Second Instances and the common law breach of contract claim. In considering the contract claim, Fraser may assert the allegations arising out of the Second and Third Instances. The First and Fourth Instances do not rise to the level of whistleblowing and are more reflective of Fraser's complaints that Defendants did not follow his investment advice. They cannot be read as allegations of wrong-doing, the sine qua non of whistleblowing. Defendants should answer the surviving claims and discovery should proceed on the surviving claims.
Accordingly, the Court grants in part and denies in part Defendants' motion to dismiss.
SO ORDERED.
NOTES
[1] The individual defendants are referred to as the "Individual Defendants."
[2] This action was reassigned to this Court on August 5, 2005.
[3] The Second Amended Complaint contains both paragraphs and line numbers. Where the cited material is easily identified by paragraph, the Court so notes; when necessary, the Court cites to line numbers.
[4] Further, the Court doubts whether the second set of shares, in fact, even constitute bargained-for consideration as Fraser contends. Fraser relies on a company memorandum dated October 25, 2000 to show that Fraser was induced to stay at Franklin and forewent alternate, more lucrative compensation in exchange for the shares he received under the Incentive Plans (Pl.Ex. L). However, as Defendants point out, the memorandum in fact states that the company "ha[d] arranged for retention bonuses to be paid to all active salaried employees who have accepted positions with us through October 25, 2000." Id. (emphasis added). Elsewhere, Fraser alleges that he first received an offer of employment from Fiduciary in September, 2000, Compl. lines 1643, and that he started work at Fiduciary in October 2000. Id. lines 1646-47; see also id. lines 1997-99 (stating that Materasso included Fraser in the October 2000 Retention Plan although Fraser had been with the company for less than a month).
[5] Plaintiff's counsel conceded at Oral Argument that if the Court were to dismiss the federal securities claims, the California securities violations would also have to be dismissed.
[6] Because there is no way to construe the First or Fourth Instances as protected activity, the Court does not reach the issue of whether ERISA violations fall under SOX.
[7] For purposes of SOX applicability, at a minimum, Fraser contends that the Second Instance relates to violations of the Investment Advisers Act of 1940, 15 U.S.C. §§ 80-b et seg., which prohibits fraudulent conduct by investment advisers against shareholders. Compl. lines 757-58, 761-62; see also 15 U.S.C. § 80-b(6)(2) (Investment Advisers Act of 1940, proscribing conduct "which operates as a fraud or deceit upon any client or prospective client").
[8] Judge Berman suggested that the fact that the Second Instance occurred almost ten months prior to Fraser's termination did not provide sufficient temporal proximity to satisfy the "contributing factor" prong (June 23, 2005 Decision and Order, at 18). Nevertheless, the Court finds that Plaintiff has plead sufficient facts suggesting retaliation, such as for instance Materasso's moving Fraser's desk next to him. Compl. lines 762-63.
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417 F. Supp. 2d 661 (2005)
Luis AROCHO Sr., on behalf of Luis Arocho Jr., and Eaven Arocho, Petitioner
v.
CAMP HILL CORRECTIONAL FACILITIES, et al., Respondents
No. Civ.A. 1:05CV1107.
United States District Court, M.D. Pennsylvania.
June 16, 2005.
Luis Arocho, Sr., Lebanon, PA, Pro se.
MEMORANDUM
CONNER, District Judge.
Sixteen days ago Luis Arocho Sr. commenced this action, styled as a petition for writ of habeas corpus, to compel state authorities to release Luis Arocho Jr. from custody temporarily so that he could visit his terminally ill child. That relief has apparently been granted.[1] Nonetheless, this case remains pending, and the question that must now be answered is whether Luis Arocho Sr. may assert a right to habeas relief on behalf of Luis Arocho Jr. The court concludes that he may not.
An individual may assert the rights of another party only in limited circumstances: when the individual shares a "significant relationship" with the real party in interest and that party is "unable to litigate his [or her] own cause due to mental incapacity, lack of access to court, or other similar disability." See Whitmore *662 v. Arkansas, 495 U.S. 149, 163-65, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990). There is no question that Luis Arocho Sr. shares a "significant" familial relationship with his son, and wishes to act in his best interests. However, it has not been demonstrated that Luis Arocho Jr. is unable to prosecute this action. An affidavit prepared and executed by Luis Arocho Jr. demonstrates an ability to comprehend the nature of his custody and to respond coherently to requests for information from this court.[2] Notwithstanding his incarceration, Luis Arocho Jr. has access to prison legal resources and may petition the court himself for habeas relief. Nothing in the record establishes that Luis Arocho Jr. lacks capacity to pursue his own claims for relief; for this reason, his father lacks standing to proceed in this case.[3]
It is Luis Arocho Jr. who is in custody and whose rights will be affected by a petition for writ of habeas corpus. These rights, once lost, cannot be regained.[4] Luis Arocho Jr. is entitled to decide for himself whether to proceed on these claims or pursue other avenues to vindicate his constitutional rights. The petition filed by Luis Arocho Sr. will be dismissed without prejudice to the right of Luis Arocho Jr. to refile a petition for writ of habeas corpus on his own behalf.
An appropriate order will issue.
ORDER
AND NOW, this 16th day of June, 2005, upon consideration of the petition for writ of habeas corpus, and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:
1. The petition for writ of habeas corpus (Doc. 1) is DISMISSED without prejudice for lack of jurisdiction. See R. GOVERNING § 2254 CASES R. 4.
2. The motion to amend the petition for writ of habeas corpus (Doc. 5) is DENIED as moot.
3. A certificate of appealability is DENIED. See 28 U.S.C. § 2253(c).
4. The Clerk of Court is directed:
a. to forward a copy of this order to Luis Arocho Sr. and to Luis Arocho Jr., see R. GOVERNING § 2254 CASES R. 4,
b. to cause a copy of the petition for writ of habeas corpus (Doc. 1) and this order to be served upon respondents by certified mail, see R. GOVERNING § 2254 CASES R. 4, and
c. to forward a copy of the standard form for a petition for writ of habeas corpus for relief from a conviction or sentence by a person in state custody to Luis Arocho Jr., see R. GOVERNING § 2254 CASES R. 2(d); L.R. 83.32.1.
*663 5. The Clerk of Court is directed to this case.
NOTES
[1] (Doc. 5).
[2] (Doc. 4).
[3] See Whitmore, 495 U.S. at 163-65, 110 S. Ct. 1717; In re Heidnik, 112 F.3d 105, 111-12 (3d Cir.1997); see also Figueroa v. Rivera, 147 F.3d 77, 82 (1st Cir.1998); Franklin v. Francis, 144 F.3d 429, 432 (6th Cir.1998); Calderon v. U.S. District Court, 127 F.3d 782, 786 (9th Cir.1997); In re Zettlemoyer, 53 F.3d 24, 27 (3d Cir.1995); Lonchar v. Zant, 978 F.2d 637, 640-41 (11th Cir.1992); Wilson v. Lane, 870 F.2d 1250, 1253 (7th Cir.1989); Weber v. Garza, 570 F.2d 511, 513-14 (5th Cir.1978). See generally 13 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3531.9 (3d ed.1998); 1 JAMES S. LIEBMAN & RANDY HERTZ, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE § 8.3 (2d ed.1994).
[4] See, e.g., 28 U.S.C. § 2244 (limiting a petitioner from presenting a "second or successive" petition for writ of habeas corpus); Mason v. Myers, 208 F.3d 414, 417-18 (3d Cir. 2000) (noting that claims to relief may be irretrievably lost if not included in initial petition for writ of habeas corpus).
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253 Ga. 549 (1984)
322 S.E.2d 494
LANIER
v.
OCEAN POND FISHING CLUB, INC.
41211.
Supreme Court of Georgia.
Decided November 16, 1984.
Staats, Overstreet & White, R. Graham Clarke, Jr., for appellant.
J. Converse Bright, Richard J. Joseph, for appellee.
GREGORY, Justice.
This is an action to enjoin a trespass brought by appellee, the Ocean Pond Fishing Club, Inc. against appellant, James Lanier. Ocean Pond Fishing Club, Inc. is a private fishing club composed of approximately ninety-nine shareholders. Between 1902 and 1914 the club, by virtue of a series of warranty deeds, purchased almost all of the land in and around Ocean Pond, a natural lake of approximately 880 acres in Lowndes County. Throughout the years, the club has maintained the lands and waters of Ocean Pond for the exclusive use of its members and guests. The club goes to considerable expense to preserve the pond and its surroundings including, among other things, the harvesting of nongame fish, fertilization and the employment of a full time game warden. In 1977 the appellant purchased a lot on Ocean Pond. Appellant's lot extends approximately one-fourth acre below the high water mark of Ocean Pond. Two individuals other than appellant own property which extends below the high water mark of the pond. For five years repeatedly appellant boated and fished in the waters of the pond above land owned by appellee. When club officials requested that he refrain from doing so, appellant responded that he claimed the right to do so and intended to continue unless enjoined.
The trial court found that appellee has good record fee simple title to the land and waters designated as the property of Ocean Pond Fishing Club, Inc. on a certain plat prepared in 1974. The court further found that even if appellee did not have good record title, legal title had been established by prescription and by acquiescence in the boundary lines established by the 1974 plat. The trial court permanently enjoined appellant from fishing, swimming, boating or otherwise going upon the lands and waters of appellee. (The injunction, of course, did not preclude appellant from fishing, swimming, boating or otherwise using that portion of the pond above the property owned by him as depicted on the 1974 plat.) From this order appellant brings this appeal. We affirm.
1. In his first enumeration of error appellant contends the trial court erred in finding appellee has sufficient legal title or possession *550 of the pond to maintain an action to enjoin a trespass. Appellant argues the warranty deeds in appellee's chain of title contain vague and indefinite descriptions and no evidence was introduced at trial to locate these descriptions.
At trial William Branch, a registered surveyor with over 30 years experience, testified that in 1974 he took the deeds in appellee's chain of title which were admitted in evidence before the judge and was able to locate, mark and establish a boundary line which was agreed upon by all adjacent landowners, including appellant's predecessor in title. This was the same land around and under the lake as depicted on the 1974 plat. Two title attorneys, both members of the State Bar of Georgia testified. One was of the opinion that appellee had good legal title to the lands claimed by it and the other testified he would be unable to certify title because of what he considered to be vagueness of the descriptions in the deeds. We need not reach the questions of prescription or acquiescence as there is evidence to support the trial court's finding that appellee has good record title. We find no merit in this enumeration of error.
2. In his second enumeration of error appellant contends the trial court erred in enjoining him from boating, fishing, or otherwise going upon land and waters of appellee. Appellant argues that as the owner of property adjoining a natural lake he has rights of reasonable boating, fishing and swimming over the entire surface waters so long as he does not interfere with the similar rights of other adjoining landowners. This is the civil law rule. See 57 ALR2d 569, 592 (1958). But Georgia follows the common law rule. The common law rule is that the owner of a bed of a nonnavigable lake has the exclusive right to the use of the surface of the waters above and may exclude other bed owners and fence off his portion. State Hwy. Department v. Noble, 114 Ga. App. 3, 8 (150 SE2d 174) (1966). The owner of a nonnavigable lake also has exclusive boating rights and one who puts his boat in the lake of another without permission is a trespasser. Bosworth v. Nelson, 172 Ga. 612 (158 S.E. 306) (1931). A continuing trespass may be enjoined in equity. Daughtrey v. C & D Sportswear Corp., 239 Ga. 482 (238 SE2d 37) (1977).
The appellant contends the relative rights of the parties to this appeal are controlled by our recent decision in Stewart v. Bridges, 249 Ga. 626 (292 SE2d 702) (1982), but we find that case inapposite to the issue here. It did not involve trespass, but involved water rights, that is, the right to the use of the water itself. The trial court in this case did not determine water rights but rather enjoined appellant from trespassing upon portions of the lake surface owned by appellees. Appellant is free to use that portion of the lake surface which he owns. Water rights are not in issue.
Judgment affirmed. All the Justices concur, except Smith, J., *551 not participating.
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510 F. Supp. 2d 144 (2007)
Avigail Lewis BITON et al., Plaintiffs,
v.
PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY, et al., Defendants.
Civil Action No. 01-382 (RMC).
United States District Court, District of Columbia.
September 26, 2007.
*145 David J. Strachman, McIntyre, Tate, Lynch & Holt, Providence, RI, for Plaintiffs.
Maher H. Hanania, Falls Church, VA, Richard A. Hibey, Miller & Chevalier Chartered, Washington, DC, for Defendants.
MEMORANDUM
ROSEMARY M. COLLYER, District Judge.
Following the Clerk's entry of default as to Defendants Palestinian Interim Self-Government Authority ("PA") and the Palestinian Liberation Organization ("PLO"), Plaintiffs moved for default judgment on January 27, 2006. See Dkt. No. 51. In July 2006, the PA and PLO moved to file their answer out of time and to vacate the entry of default. See Dkt. No. 59. The Court denied that motion on September 29, 2006, and referred the matter to Magistrate Judge John M. Facciola for a report and recommendation after a hearing on damages. See Dkt. No. 63. Without further leave, Defendants filed an Opposition to Plaintiffs' Motion for Entry of Default Judgment on May 31, 2007. See Dkt. No. 84. Because that motion raised new arguments challenging the Court's jurisdiction, the Court ordered Plaintiffs to file a response. Plaintiffs filed their response on September 18, 2007. See Dkt. No. 94.
Default has been entered against these Defendants twice already in this lawsuit. See Dkt. Nos. 10-12 & 50. The Court denied their Motion to File Answer Out of Time and to Vacate Entry of Default last year because it was clear that their failure to file a timely answer "was not due to `excusable neglect' but to a selected strategy." Biton v. Palestinian Interim Self-Government Authority, 239 F.R.D. 1, 4 (D.D.C.2006). This time they argue that default judgment should not be entered with respect to claims under the Anti-Terrorism Act, 18 U.S.C. § 2333 (the "ATA"), because Plaintiffs are residents of Israel, the attack at issue occurred in Israeli-occupied territory, and Plaintiffs have a favorable forum in Israel; they argue that default judgment should not be entered with respect to Plaintiffs' supplemental claims because Israeli law applies; and they argue that default judgment should not be entered against the PA because it is entitled to immunity under the ATA as a "foreign state." Defs.' Opp. at 2-3. Defendants elaborate on their, final argument:
*146 We recognize that the court previously has held that [D]efendants are collaterally estopped from arguing that Palestine is a "foreign state" for purposes of the ATA. New developments, namely an Israeli court's recognition that the [PA] is entitled to immunity and the Israeli withdrawal from the Gaza Strip, provide a basis for revisiting the [PA's] immunity from suit. If the court concludes that the [PA] is not a "foreign state," then the [PA] should be treated as a political subdivision of Israel and found to have immunity on that basis.
Defs.' Opp. at 3.
After reviewing the parties' submissions, the Court concludes that it has jurisdiction in this matter. Defendants recent filing represents only an effort to derail conclusion of this hoary litigation. A brief explanation of the Court's reasoning follows.
1. Plaintiffs Avigail Biton and Rachel Asraf are citizens of the United States, and Defendants' argument that they should not be considered U.S. nationals for purposes of the ATA because they are domiciled abroad has no merit. Cf. Schneider v. Rusk, 377 U.S. 163, 168, 84 S. Ct. 1187, 12 L. Ed. 2d 218 (1964) ("Living abroad, whether the citizen be naturalized or native born, is no badge of lack of allegiance and in no way, evidences a voluntary renunciation of nationality and allegiance."). Indeed, the terrorism exception to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(7), which, like the ATA, requires the victim to be. a U.S. national, is frequently applied in cases involving American citizens living abroad. See, e.g., Kerr v. Islamic Republic of Iran, 245 F. Supp. 2d 59 (D.D.C.2003); Jenco v. Islamic Republic of Iran, 154 F. Supp. 2d 27 (D.D.C.2001); Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97 (D.D.C.2000); Cicippio v. Islamic Republic of Iran, 18 F. Supp. 2d 62 (D.D.C.1998).
2. Defendants argue that under the "passive personality" principle recognized in international law, this Court can exercise subject-matter jurisdiction only when a terrorist attack is specifically targeted at a U.S. citizen. However, this Court has exercised extraterritorial jurisdiction in state-sponsored terrorism cases, based in part on the passive personality principle, even though the victims were not targeted because of their U.S. citizenship. See Wyatt v. Syrian Arab Republic, 362 F. Supp. 2d 103, 115-116 (D.D.C.2005) (citing Flatow v. Islamic Republic or Iran, 999 F. Supp. 1, 15 n. 7 (D.D.C.1998));[1]cf. also United States v. Hill, 279 F.3d 731, 740 (9th Cir.2002) (finding that the passive personality theory permitted exercise of extraterritorial criminal jurisdiction where the victims of the crime were U.S. citizens despite the fact that they were not victimized or targeted because of their U.S. citizenship). Defendants cite United States v. Vasquez-Velasco, 15 F.3d 833 (9th Cir. 1994), without noting that the dictum on which they rely was expressly limited to the facts of that case. See United States v. Neil, 312 F.3d 419, 423 (9th Cir.2002).
3. Defendants argue that the lack of a commonly accepted definition of "terrorism" under international law necessarily means that universal jurisdiction does not exist here. This argument has no merit. The plain language of the ATA defines "international terrorism" for purposes of the Court's jurisdiction. See 18 U.S.C. § 2333 (defining the term to include acts that "occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of *147 the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum"). Thus, the statutory definition controls regardless of any ambiguities in international law. See, e.g., TMR Energy Ltd. v. State Property Fund of Ukraine, 411 F.3d 296, 302 (D.C.Cir.2005) ("Never does customary international law prevail over a contrary federal statute."). In any event, the conduct at issue here intentionally bombing a bus load of school children is "terrorism" by any measure, alleged ambiguities in international law notwithstanding. See, e.g., Estate of Klieman v. Palestinian Authority, 424 F. Supp. 2d 153, 166 (D.D.C.2006) (holding that an armed attack on a civilian bus violates "established norms of warfare and armed conflict under international law"); Almog v. Arab Bank, 471 F. Supp. 2d 257 (E.D.N.Y.2007) (concluding that Palestinian attacks on civilians were actionable as crimes against humanity despite the absence of an agreed-upon definition of "terrorism").
4. Defendants remain collaterally estopped from asserting a defense of sovereign immunity by the prior decisions in Ungar v. Palestine Liberation Organization, 402 F.3d 274 (1st Cir.2005) and Knox v. Palestine Liberation Organization, 306 F. Supp. 2d 424 (S.D.N.Y.2004). See Biton v. Palestinian Interim Self-Government Authority, 412 F. Supp. 2d 1, 4-5 (D.D.C. 2005). First, events subsequent to the filing of the complaint implementation of Israel's Disengagement Plan and a decision of an Israeli judge cannot change Defendants' status as of the time this action commenced. See Dole Food Co. v. Patrickson, 538 U.S. 468, 478, 123 S. Ct. 1655, 155 L. Ed. 2d 643 (2003) (noting the "`longstanding principle that the jurisdiction of the Court depends upon the state of things at the time of the action brought.'"). Second, while "changes in facts essential to a judgment will render collateral estoppel inapplicable in a subsequent action raising the same issues," Montana v. United States, 440 U.S. 147, 159, 99 S. Ct. 970, 59 L. Ed. 2d 210 (1979), this principle is of no assistance to the Defendants. The Disengagement Plan has not allowed the PA to exercise effective authority anywhere in the West Bank today. See Kuperwasser Aff. ¶¶ 27-33. And it has no governmental control at all over any territory or population in the Gaza Strip and has suffered only a continuing deterioration of its control from 2005 (when the Disengagement Plan was implemented) to the coup by Hamas in June 2007. See id. Third, the decision by an Israeli district court in Elon Moreh does not constitute a clear change in controlling law, which can in some circumstances negate the application of collateral estoppel. See generally North Georgia Elec. Membership Corp. v. City of Calhoun, Ga., 989 F.2d 429, 433-435 (11th Cir.1993) (collecting cases). Accordingly, Elon Moreh cannot derogate from the preclusive effect of Ungar and Knox.
5. Defendants' final claim, that the PA must be a political subdivision of the State of Israel if it is not a sovereign entity, is also without merit. The argument has been rejected by the Israeli government and the Israeli Supreme Court. See Reisner Aff. at ¶¶ 52-61.
Notwithstanding Defendants' new arguments, the Court has jurisdiction in this matter and will proceed to rule on Plaintiffs' motion for judgment by default. This matter remains referred to Magistrate Judge Facciola for a report and recommendation.
NOTES
[1] Although Wyatt and Flatow were brought under the FSIA's terrorism exception, 28 U.S.C. § 1605(a)(7), the analysis applies equally to cases brought under the ATA.
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274 S.W.2d 911 (1954)
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,
v.
Emaline Abdou AZAR, joined pro forma by her husband, Shibley Azar, Sr., Appellee.
No. 5076.
Court of Civil Appeals of Texas, El Paso.
December 29, 1954.
Rehearing Denied January 19, 1955.
John Ben Shepperd, Atty. Gen., Milton Richardson, W. Edmund Notestine, Asst. Attys. Gen., for appellant.
Fryer, Milstead & Luscomb, El Paso, for appellees.
HAMILTON, Justice.
Appellee Emaline Abdou Azar brought action in the County Court at Law of El Paso County, Texas, under Section 31 of Art. 6687-b, Vernon's Ann.Civ.St. Appellee's suit was an appeal from the Department of Public Safety's refusal to renew appellee's operator's license upon application timely filed with the Department. The Department refused to renew said license on the ground that to permit appellee to operate a motor vehicle upon the highways of Texas would be inimical to the public safety and welfare. Appellee's petition filed in the County Court at Law alleged among other things that the above mentioned action of the Department of Public Safety was arbitrary and capricious. Appellant filed a general denial, and affirmatively alleged that appellee was an habitual violator of the traffic laws of the State of Texas and was responsible for accidents through her negligent driving and should not be issued a license.
The cause was tried before the court without a jury, and judgment was rendered for appellee, declaring that she was *912 entitled to a Texas operator's license. No findings of fact and conclusions of law were requested and none were filed by the court. From said judgment the Department of Public Safety appeals to this court.
Appellee filed a motion to dismiss appellant's appeal on the ground that this court does not have jurisdiction. We overrule said motion on authority of Department of Public Safety v. Robertson, Tex.Civ.App., 203 S.W.2d 950, and the cases therein cited.
Appellant, the Department of Public Safety, presents one point upon appeal. It complains, in effect, that the court in rendering judgment finding that appellee is entitled to the issuance of an operator's license was in effect deciding a ministerial question on the facts when it only had the duty and power to determine whether or not the Department of Public Safety had substantial facts before it upon which to refuse the issuance of an operator's license to appellee, and whether or not it acted arbitrarily in so doing. Upon the trial of the case testimony was introduced before the trial court showing that appellee had been arrested four times for moving traffic violations within the period from April 1951 to November 1953. Three of the violations involved minor accidents where no personal injuries resulted and only minor property damages resulted. A final conviction was had in each case.
The expiration date of appellee's driver's license was May 28, 1954, and on May 7th she filed with the Department her application for renewal of her license, together with the required fee, as is provided in Section 18 of said Art. 6687-b, V.A.C.S. In reply the Department sent appellee the following letter:
"Mrs. Emaline Abdou Azar,
"3014 Pershing Street,
"El Paso, Texas.
"Dear Mrs. Azar:
"Issuance of the license for which you made application is being denied, since, in the opinion of the Director, your operation of a motor vehicle is inimical to public safety and welfare. Your fee of $1.00 is enclosed herewith.
"Operating a motor vehicle without having in your possession a valid drivers license is a violation of the law, and copies of this latter are being sent to enforcement personnel in your vicinity.
"Yours very truly,
"A. F. Temple, Chief
Driver's License Division
"By T. G. Ferguson, Captain
Driver Improvement Section."
Upon receipt of said letter appellee requested the Department to give her an examination to see if she could qualify for a license, but such request was refused by the Department.
We agree with the appellant that the only duty and power of the court in passing upon a ministerial act of the Department of Public Safety such as is involved in this case, is to determine whether or not the Department had substantial facts upon which to base its action, and whether or not it acted arbitrarily and capriciously in so doing. Department of Public Safety v. Robertson, 203 S.W.2d 950. Since no findings of fact or conclusions of law were filed we must assume that the court in rendering its judgment found either that the Department did not have substantial facts upon which to base its action in refusing the renewal of appellee's license, or it acted arbitrarily in the matter.
The Statute covering the matter of operator's license in Art. 6687-b is quite long and somewhat complicated, and in said statute the Department of Public Safety is given broad powers in administering the law. However, the Legislature set out specifically as to how the law is to be administered and the Department of Public Safety is bound to administer the law accordingly.
Section 18 of Art. 3 of 6687-b V.A.C.S. deals with the expiration of licenses, and we quote here the pertinent part:
*913 "Every operator's license * * * shall be renewable without examination (italics ours) upon application and payment of required fee unless the Department has reason to believe that the licencee is no longer qualified to receive a license."
It is noted in the above letter from the Department to appellee that the Department in the first line of said letter says:
"The issuance of the license for which you made application is being denied."
This appellee was not making an original application for a license, but was only applying for a renewal of her license, and we think that an applicant for renewal of license is in an entirely different position than an original applicant for a license. The only restriction that may be placed on the renewal of a license, according to the statute, is that the department may refuse to renew the license without an examination, if it has reason to believe that licensee is no longer qualified. It is our opinion that the Department acted arbitrarily and without sufficient facts in refusing to renew the license without giving the applicant an opportunity to be re-examined so the Department could determine from that examination whether or not the appellee was qualified to operate an automobile.
The Legislature provides ample means for cancellation, suspension or revocation of licenses under Section 22 of Art. 6687-b, supra. It is alleged by appellant that appellee was an habitual violator of the traffic laws of the State of Texas. That is one of the grounds set out in such Section 22 upon which an operator's license may be suspended, but only after the provisions of said law have been followed and a hearing has been had before a Mayor, a Justice of Peace or Judge of the Police Court. We do not think that the Legislature intended that the Department of Public Safety could arbitrarily refuse to renew a license regardless of whether applicant could qualify by passing the examination given by the Department, just because of previous violations of the traffic laws, when such violations were not such as would automatically suspend the license. We think, had the Legislature so intended, it would have put a limit on how long the Department could hold up the renewal of a license. Had appellee been given an examination and had she passed it she would have been entitled to have her license renewed. Said Section 22, which deals with suspension of licenses, places a definite limit of one year, beyond which period the Department cannot suspend the license, but in this Section 18 dealing with the renewal of licenses there is no such provision. It must be borne in mind that the Robertson case above was a case involving the renewal of a license. However, in that case the Department had given the applicant an examination and he failed to pass it. It had offered to give him a subsequent examination, which he refused to take. Furthermore, the trial court in that case specifically held that the Department of Public Safety did not act arbitrarily in failing to renew applicant's license, but we have no such finding in this case.
Appellant argues that since the Department has authority to suspend the license of an operator, who, after a proper hearing has been found to be an habitual violator of the traffic law, common reasoning dictates that it can likewise refuse to renew a license for the same reason. We cannot follow that line of reasoning. The appellant overlooks two very important facts in the latter situation. There is no proper hearing and no finding by a magistrate that the operator is an habitual violator of the traffic laws. There are provisions in the statute for automatic suspension or revocation of licenses, but only after some court of competent jurisdiction has found the relevant facts to exist. A careful reading of the applicable statute does not reveal any authority in the Department to assess a penalty on its own prerogative for past traffic violations. Its action in this case was an attempt to do that very thing. The appellee having properly filed her application *914 with the Department before the expiration date of her old license, the Department, not having requested an examination, had no other alternative than to grant a renewal of her license.
The judgment of the trial court is affirmed.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2458594/
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255 P.3d 721 (2011)
161 Wash.App. 532
STATE of Washington, Appellant,
v.
Marcus Alton CARTER, Respondent.
No. 39392-1-II.
Court of Appeals of Washington, Division 2.
April 27, 2011.
*722 Jeremy Aaron Morris, Kitsap County Prosecutor's Office, Port Orchard, WA, for Appellant.
Marcus Alton Carter, pro se.
JOHANSON, J.
¶ 1 The State appeals the trial court's dismissal of a machine gun possession charge against Marcus Alton Carter. It argues that the trial court erred when it (1) ruled that the RCW 9.41.190(2)(b) exemption to the possession of an unlawful weapons statute, RCW 9.41.190(1), is an element of the offense the State had the burden of disproving; (2) ruled that RCW 9.41.190(2)(b) allows gunsmiths licensed under 18 U.S.C. § 923 and who have *723 repaired machine guns for the military and local law enforcement agencies to possess personal machine guns without first showing that such possession is allowed under federal law; and (3) dismissed the case after finding that the State had not demonstrated that the exemption did not apply to Carter. We hold that (1) the RCW 9.41.190(2)(b) exemption is not an element of the offense but, rather, a defense that Carter had the burden of establishing; (2) the RCW 9.41.190(2)(b) exemption does not allow for private possession of a machine gun unless the defendant shows that such possession is authorized under federal law; and (3) Carter failed to establish that the RCW 9.41.190(2)(b) exemption applied. Accordingly, we reverse and remand for further proceedings.
FACTS
I. Background
¶ 2 On May 15, 1999, two off-duty criminal investigators attended a certified firearms instructor course in Kitsap County that Carter was teaching. State v. Carter, 151 Wash.2d 118, 121-22, 85 P.3d 887 (2004). During the course, they became aware that Carter had what appeared to be an illegally-modified automatic firearm. Carter, 151 Wash.2d at 121, 124, 129-30, 85 P.3d 887. The investigators confronted Carter, took the gun, and contacted law enforcement. Carter, 151 Wash.2d at 123-24, 85 P.3d 887.
¶ 3 The State charged Carter with possession of a machine gun in violation of RCW 9.41.190(1). Carter, 151 Wash.2d at 124, 85 P.3d 887. Carter successfully moved to suppress the weapon based on an unlawful warrantless search. Carter, 151 Wash.2d at 124, 85 P.3d 887. The State appealed, and our Supreme Court reversed and remanded the case for further proceedings. Carter, 151 Wash.2d at 121, 124, 129-30, 85 P.3d 887. On remand, the trial court granted Carter's Knapstad[1] motion and dismissed the case with prejudice. State v. Carter, 138 Wash. App. 350, 353, 157 P.3d 420 (2007). In May 2007, we affirmed the dismissal but "clarif[ied] that the order of dismissal [was] without prejudice." Carter, 138 Wash.App. at 368, 157 P.3d 420. In August 2007, the State re-charged Carter with possession of a machine gun.
II. Motion to Dismiss
¶ 4 On March 20, 2009, Carter moved to dismiss,[2] this time arguing that he was exempt from prosecution under RCW 9.41.190(2)(b)(i) and (ii) because he was a "federally licensed gunsmith, a firearms instructor and inventor," who had worked on machine guns for law enforcement agencies and the military.[3] Clerk's Papers (CP) at 55. RCW 9.41.190(2) provides:
(2) [The prohibition against owning or possessing a machine gun stated in RCW 9.41.190(1)] shall not apply to:
(a) Any peace officer in the discharge of official duty or traveling to or from official duty, or to any officer or member of the armed forces of the United States or the state of Washington in the discharge of official duty or traveling to or from official duty; or
(b) A person ... who or which is exempt from or licensed under federal law, and engaged in the production, manufacture, repair, or testing of machine guns...:
(i) To be used or purchased by the armed forces of the United States;
*724 (ii) To be used or purchased by federal, state, county, or municipal law enforcement agencies; or
(iii) For exportation in compliance with all applicable federal laws and regulations.
(Emphasis added.) In support of his motion, Carter submitted a personal declaration in which he claimed to have worked on machine guns for law enforcement agencies and the military; and a copy of a title 18 U.S.C. federal firearms dealer's license.
¶ 5 Characterizing Carter's motion as a Knapstad motion, the State argued that (1) the motion was improper because Carter was alleging an affirmative defense that required him to show that he had complied with federal law, which was a jury question; (2) Carter failed to show that he was in compliance with federal law; and (3) to be entitled to the exemption, Carter had to show that he was licensed under title 26 U.S.C.[4] rather than under title 18 U.S.C. CP at 69-71.
¶ 6 On April 7, the trial court heard Carter's motion. Although it concluded that the RCW 9.41.190(2)(b) exemption was an element of the offense and that Carter had demonstrated that he was "licensed under federal law" at the relevant time, it denied Carter's motion after finding that Carter had failed to show that he had worked on machine guns for the armed forces or law enforcement. Report of Proceedings (RP) (Apr. 7, 2009) at 45-46.
¶ 7 Two weeks later, Carter filed a supplemental motion to dismiss and provided the trial court with two affidavits stating that he had worked on machine guns for the Mason County Sheriff's Office and the military. In addition, these affidavits suggested that Carter sometimes used his "personal rifle" when training law enforcement officers and military personnel. CP at 137-38. The State responded that 18 U.S.C. § 922(o) prohibited personal possession of machine guns and continued to argue that Carter had to establish that he had authorization under title 26 U.S.C. to lawfully possess a machine gun.
¶ 8 The trial court held a second hearing on Carter's motion to dismiss. At this hearing, Carter argued that the RCW 9.41.190(2)(b) exemption applied to him because his affidavits demonstrated that military and local law enforcement personnel had "used" his "personal rifle" in trainings. RP (May 1, 2009) at 9-10. The State argued, as it had before, that 18 U.S.C. § 922(o) prohibited possession of a machine gun except under two specific circumstances that did not apply to Carter, that Carter's title 18 U.S.C. federal license did not authorize him to personally possess a machine gun, and that Carter could own a machine gun only under title 26 U.S.C.
¶ 9 The trial court granted Carter's motion to dismiss. Again characterizing the RCW 9.41.190(2)(b) exemption as an element of the offense, it concluded that the State had failed to show that Carter did not qualify for the exemption, that Carter's title 18 U.S.C. license was enough to establish the exemption regardless of whether that license allowed him to possess a machine gun under federal law, and that Carter had shown that he had repaired or tested machine guns used by the military or local law enforcement.[5] It noted that the State did not dispute the license's validity, whether the license had been valid in May 1999, or the affidavits' contents.
¶ 10 The State appeals.
*725 ANALYSIS
¶ 11 The State argues that (1) the RCW 9.41.190(2)(b) exemption is an affirmative defense rather than an element of the offense of unlawful possession of a machine gun that the State had to disprove, (2) RCW 9.41.190's plain language demonstrates a legislative intent to make it unlawful for a person to privately possess a machine gun unless such possession is allowed under federal law, and (3) Carter not did qualify for the exemption because he failed to show that he was "exempt from or licensed under federal law" to privately possess a machine gun. RCW 9.41.190(2)(b). We agree.
I. Standard of Review and Statutory Interpretation
¶ 12 The core issues in this case involve the interpretation of RCW 9.41.190(2). RCW 9.41.190 provides in relevant part:
(1) It is unlawful for any person to manufacture, own, buy, sell, loan, furnish, transport, or have in possession or under control, any machine gun ...; or any part designed and intended solely and exclusively for use in a machine gun ..., or in converting a weapon into a machine gun....
(2) This section shall not apply to:
(a) Any peace officer in the discharge of official duty or traveling to or from official duty, or to any officer or member of the armed forces of the United States or the state of Washington in the discharge of official duty or traveling to or from official duty; or
(b) A person ... who or which is exempt from or licensed under federal law, and engaged in the production, manufacture, repair, or testing of machine guns...:
(i) To be used or purchased by the armed forces of the United States;
(ii) To be used or purchased by federal, state, county, or municipal law enforcement agencies; or
(iii) For exportation in compliance with all applicable federal laws and regulations.
(3) It shall be an affirmative defense to a prosecution brought under this section that the machine gun ... was acquired prior to July 1, 1994, and is possessed in compliance with federal law.
¶ 13 "We review questions of statutory interpretation de novo and interpret statutes to give effect to the legislature's intentions." State v. Bunker, 169 Wash.2d 571, 577-78, 238 P.3d 487 (2010) (citing City of Spokane v. County of Spokane, 158 Wash.2d 661, 672-73, 146 P.3d 893 (2006)). We start our analysis by examining the statute's plain language as discerned "`from all that the Legislature has said in the statute and related statutes [that] disclose legislative intent about the provision in question.'" Bunker, 169 Wash.2d at 578, 238 P.3d 487 (quoting Chadwick Farms Owners Ass'n v. FHC, LLC, 166 Wash.2d 178, 186, 207 P.3d 1251 (2009)). "When interpreting a statute, we must avoid unlikely, absurd, or strained results." In re Det. of Coppin, 157 Wash. App. 537, 552, 238 P.3d 1192 (2010) (citing Morris v. Blaker, 118 Wash.2d 133, 143, 821 P.2d 482 (1992)).
¶ 14 But if a statute's plain language is ambiguous, "we look to principles of statutory construction and legislative history to discern the legislature's intent." State v. Wofford, 148 Wash.App. 870, 877, 201 P.3d 389 (2009) (citing State ex rel. Citizens Against Tolls v. Murphy, 151 Wash.2d 226, 242-43, 88 P.3d 375 (2004)), review denied, 170 Wash.2d 1010, 245 P.3d 773 (2010). "A statute is ambiguous if its language is susceptible to more than one reasonable interpretation." Wofford, 148 Wash.App. at 878, 201 P.3d 389 (citing State v. Bunker, 144 Wash.App. 407, 415, 183 P.3d 1086 (2008), aff'd, 169 Wash.2d 571, 238 P.3d 487 (2010)).
II. Defense or Element
¶ 15 The State argues that the trial court erred when it ruled that the RCW 9.41.190(2)(b) exemption was an element of the offense and that the State had the burden of disproving the exemption. We agree.
¶ 16 The trial court based its conclusion that the exemption was an element of the offense on a principle of statutory construction, stating that, when the legislature uses specific language in one part of a statute but *726 omits that same language in other parts of the statute, courts should assume that the legislature intentionally omitted the language. See State v. Roggenkamp, 153 Wash.2d 614, 625, 106 P.3d 196 (2005) ("Another fundamental rule of statutory construction is that the legislature is deemed to intend a different meaning when it uses different terms. State v. Beaver, 148 Wash.2d 338, 343, 60 P.3d 586 (2002); Simpson Inv. Co. v. Dep't of Revenue, 141 Wash.2d 139, 160, 3 P.3d 741 (2000)." (Parentheticals omitted)). The trial court correctly noted that subsection (3) expressly states that it is an "affirmative defense" but subsection (2) does not contain similar language and that this distinction may suggest a different legislative intent. RCW 9.41.190(2), (3). But we find that distinction alone is insufficient to support the trial court's conclusion here when there are competing statutory interpretation principles that dictate the contrary conclusion.
¶ 17 First, "[i]t is generally held in criminal cases that, if the facts of an affirmative defense lie immediately within the knowledge of the defendant, the onus probandi, under the principle of `balancing of convenience,' should be his." State v. Moses, 79 Wash.2d 104, 110, 483 P.2d 832 (1971) (citing United States v. Sisson, 399 U.S. 267, 90 S. Ct. 2117, 26 L. Ed. 2d 608 (1970), Morrison v. California, 291 U.S. 82, 54 S. Ct. 281, 78 L. Ed. 664 (1934); Rossi v. United States, 289 U.S. 89, 53 S. Ct. 532, 77 L. Ed. 1051 (1933); State v. Harding, 108 Wash. 606, 185 P. 579 (1919); State v. Shelton, 16 Wash. 590, 592, 48 P. 258, 49 P. 1064 (1897); 9 John Henry Wigmore, Evidence §§ 2486, 2512 (3d ed. 1940)), cert. denied, 406 U.S. 910, 92 S. Ct. 1612, 31 L. Ed. 2d 822 (1972); see also State v. Fry, 142 Wash.App. 456, 460-61, 174 P.3d 1258 (2008) (evidence of affirmative defense of medical use to charge of marijuana possession is more likely within defendant's knowledge), aff'd, 168 Wash.2d 1, 228 P.3d 1 (2010). Here, the existence of a federal license and the nature of the work Carter performed under that license were "immediately within" Carter's knowledge. Moses, 79 Wash.2d at 110, 483 P.2d 832.
¶ 18 Second, the legislature set out the subsection (2) exemption in a separate subsection rather than including it in the definition of the offense defined in subsection (1), clearly suggesting a legislative intent to create an affirmative defense rather than an element of the offense. See City of Spokane v. Karlsten, 137 Wash. 414, 416-17, 242 P. 389 (1926)[6]; see also United States v. Green, 962 F.2d 938, 941 (9th Cir.1992)[7]. And third, the exemption here does not negate an element of the charged crime, which also suggests that the exemption is not an element of the offense. See State v. McCullum, 98 Wash.2d 484, 490, 656 P.2d 1064 (1983).
¶ 19 Accordingly, we hold that the trial court erred when it ruled that the RCW 9.41.190(2)(b) exemption was an element of the offense of unlawful possession of a machine gun that the State had the burden of establishing. Instead, the exemption is a defense that Carter had the burden of establishing.
III. Nature of RCW 9.41.190(2)(b) Exemption
¶ 20 The State next argues that the trial court erred when it ruled that the RCW 9.41.190(2)(b) exemption allows those licensed under title 18 U.S.C. who have at some point repaired machine guns for or sold machine guns to the military or local law enforcement agencies to personally possess machine guns without first establishing that they are permitted to possess machine guns under federal law. Again, we agree.
A. Plain Language
¶ 21 The relevant portion of RCW 9.41.190 states:
*727 (2) This section shall not apply to:
...
(b) A person ... who or which is exempt from or licensed under federal law, and engaged in the production, manufacture, repair, or testing of machine guns...:
(i) To be used or purchased by the armed forces of the United States;
(ii) To be used or purchased by federal, state, county, or municipal law enforcement agencies.
(Emphasis added.)
¶ 22 Although RCW 9.41.190(2)(b) requires the person claiming the exemption to be "exempt from or licensed under federal law," it does not specify the federal law or the type of federal license it refers nor does it expressly state that a license holder must be acting in compliance with his federal license. But, reading the statute as a whole, the only reasonable way to read this section is as a reference to federal laws regarding when certain individuals may manufacture, own, buy, sell, lend, furnish, transport, or possess machine guns under very specific circumstances. Furthermore, interpreting this provision as merely requiring a person to show that he or she holds some kind of federal license, and not to also show that this license permits the conduct in question, would produce an absurd result by allowing an individual to engage in conduct that would be prohibited by the very license or exemption RCW 9.41.190(2) requires.[8]
¶ 23 Moreover, the restrictive exemption stated in subsection 2(a) supports this narrow reading. Although that exemption allows military and law enforcement personnel to possess machine guns, they may do so only when discharging their official duties or when traveling to or from official duty. This language strongly suggests that RCW 9.41.190(2)(b)'s reference to the defendant's being "engaged in" specific activities means that the exemptions apply only to those who are engaged in activities permitted under federal exemptions or licenses. Additionally, the phrase "and engaged in the production, manufacture, repair, or testing of machine guns"[9] "[t]o be used or purchased by" the military or law enforcement agencies further emphasizes that the purpose of the statute is not to allow personal ownership of machine guns but to ensure that possession of machine guns is limited to a narrow class of individuals, namely those already allowed possession or ownership under federal law and who are engaged in permitted activities.
¶ 24 We hold that the plain language of the statute does not support the trial court's conclusion that Carter was exempt from the prohibition against possessing a machine gun because he held a title 18 U.S.C. federal gun dealer's license without also having to demonstrate that he was entitled to own or possess a machine gun under federal law.[10] Furthermore, even if the statute *728 was ambiguous, the legislative history supports this conclusion.
B. Statutory History
¶ 25 Before 1982, Washington law provided that only law enforcement officers exercising their official duties or members of the armed forces could own or possesses machine guns:
That it shall be unlawful for any person to manufacture, own, buy, sell, loan, furnish, transport, or have in possession, or under control, any machine gun, or any part thereof capable of use or assembling or repairing any machine gun: Provided, however, That such limitation shall not apply to any peace officer in the discharge of official duty, or to any officer or member of the armed forces of the United States or the state of Washington.
Former RCW 9.41.190 (1933).
¶ 26 In 1982, the legislature recognized that although "[c]ertain defense contractors are allowed by federal law to possess machine guns," state law did not contain a similar provision. 1982 Final Legislative Report, 47th Wash. Leg., at 51. To address this issue, the legislature amended former RCW 9.41.190 (1933)[11] to read:
It is unlawful for any person to manufacture, own, buy, sell, loan, furnish, transport, or have in possession or under control, any machine gun, or any part thereof capable of use or assembling or repairing any machine gun: Provided, however, That such limitation shall not apply to any peace officer in the discharge of official duty, or to any officer or member of the armed forces of the United States or the state of Washington: Provided further, That this section does not apply to a person, including an employee of such person, who or which is exempt from or licensed under the National Firearms Act (26 U.S.C. section 5801 et seq.), and engaged in the production, manufacture, or testing of weapons or equipment to be used or purchased by the armed forces of the United States, and having a United States government industrial security clearance.
Former RCW 9.41.190 (1982) (emphasis added); Laws of 1982, 1st Ex. Sess., ch. 47, § 2. The final legislative report bill summary stated, "Persons exempt from or licensed under the National Firearms Act and engaged in defense contracts may possess machine guns." 1982 Final Legislative Report, 47th Wash. Leg., at 52.
¶ 27 In 1994, the legislature rewrote the statute to its current form. Laws of 1994, sp. sess., ch. 7, § 420. The 1994 Final Legislative Report explained:
Currently, firearms manufacturers in Washington State may produce machine guns for sale to the United States armed forces. Members of the armed forces may possess machine guns, even when not engaged in official duties. Manufacturers are not expressly authorized to repair such firearms or to sell them to domestic law enforcement agencies, although law enforcement officers engaged in official duties are allowed to possess machine guns. Neither are manufacturers authorized by state law to sell machine guns to foreign countries, even if the manufacturer complies with all federal regulations.
1994 Final Legislative Report, 53rd Wash. Leg., at 51 (emphasis added). And the 1994 Final Legislative Report Summary commented on the effect of the newly enacted amendments:
A person, other than a law enforcement officer or member of the military, may possess machine guns ... only if in compliance with federal law. Both law enforcement officers and members of the military must be engaged in official duties to possess lawfully such firearms. A grandfather *729 provision is included for law enforcement officers and members of the armed forces who acquired such firearms prior to the effective date of this restriction.
Washington firearm manufacturers may produce and repair machine guns.... Manufacturers also may sell such firearms to domestic governmental law enforcement agencies and, if in compliance with federal law, to foreign countries. Employees of the manufacturers must undergo fingerprinting and background checks.
1994 Final Legislative Report, 53rd Wash. Leg., at 59 (emphasis added).
¶ 28 The 1994 amendment shows that the legislature intended to allow gunsmiths and manufacturers licensed under federal law to repair lawfully-owned machine guns and to expand some manufacturers' ability to sell machine guns to domestic law enforcement agencies and foreign countries. Although the legislature's somewhat awkward deletion of the title 26 U.S.C. reference may have made this statute more difficult to interpret, nothing in the legislative history suggests that the legislature intended to allow a federally licensed gun dealer or gunsmith to personally own a machine gun unless such ownership was also allowed under the applicable federal law. Thus, the trial court erred when it concluded that Carter merely had to demonstrate that he held a federal license and had worked on machine guns for the military or local law enforcement.
IV. Application
¶ 29 Accordingly, for the RCW 9.41.190(2)(b) exemption to apply here, Carter had to show that he not only held a federal license but that this license, or some other federal exemption, permitted him to personally possess a machine gun. The record before us shows that Carter failed to carry this burden.
¶ 30 Carter produced a title 18 U.S.C. dealer's license, which he asserted gave him the authority to own or possess the gun in question. He did not claim that he was entitled to own or possess a machine gun under any other federal license or federal law. Accordingly, we limit our consideration to title 18 U.S.C.
¶ 31 18 U.S.C. § 922(o) provides:
(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.
(2) This subsection does not apply with respect to
(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or
(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.
18 U.S.C. § 922(o)(1) makes it unlawful for "any person" to possess a machine gun, and Carter failed to produce any evidence suggesting that he was exempt from that prohibition under 18 U.S.C. 922(o)(2). He did not present any evidence suggesting that his gun was transferred to him by a qualified entity or that his possession of the gun was under the authority of such an entity, nor did he claim that the gun was "lawfully possessed before the date [subsection (o) took] effect."
¶ 32 Furthermore, Carter did not show that the exemption in 18 U.S.C. § 925(a)(1) applied. 18 U.S.C. § 925(a)(1) provides:
The provisions of this chapter, except for [three specific subsections of § 922 that do not apply in this case], shall not apply with respect to the transportation, shipment, receipt, possession, or importation of any firearm or ammunition imported for, sold or shipped to, or issued for the use of, the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof.
(Emphasis added.) Carter did not present any evidence suggesting that his firearm had been "imported for, sold or shipped to, or issued for the use of" the military or any government department or agency. Instead, his evidence suggested that he altered his own personal firearm and sometimes used it in firearm training courses.
¶ 33 Nor did Carter show that his title 18 U.S.C. § 923 dealer's license, which allowed *730 him to work as a gunsmith,[12] permitted private possession of a machine gun. 18 U.S.C. 923(c) provides in part:
Upon the filing of a proper application and payment of the prescribed fee, the Attorney General shall issue to a qualified applicant the appropriate license which, subject to the provisions of this chapter and other applicable provisions of law, shall entitle the licensee to transport, ship, and receive firearms and ammunition covered by such license in interstate or foreign commerce during the period stated in the license.
(Emphasis added). Nothing in this provision suggests that 18 U.S.C. § 923 allows for private possession of a machine gun unless he could do so under some other provision of title 18 U.S.C., which, as we discussed above, Carter has failed to establish.
¶ 34 Because the RCW 9.41.190(2)(b) exemption is a defense and Carter failed to establish that the exemption applies, the trial court erred when it granted Carter's motion to dismiss. Accordingly, we reverse and remand for further proceedings.
We concur: QUINN-BRINTNALL, J., and PENOYAR, C.J.
NOTES
[1] State v. Knapstad, 107 Wash.2d 346, 356-57, 729 P.2d 48 (1986) (trial court must dismiss the case if the State cannot establish a prima facie case); see also CrR 8.3(c).
[2] Carter continued to claim that the gun in question was not a machine gun and that it did not contain any parts "that were made solely and exclusively for use in a machinegun [sic]," but he agreed to assume that the gun was a machine gun for purposes of his motion to dismiss. CP 55, 60.
[3] Carter characterized his motion as a motion challenging "the jurisdiction of the state to bring this action." CP at 54. He also argued that federal law "preempted" RCW 9.41.190(1), CP at 57, and that if the exemption was an affirmative defense rather than an element of the offense, the statute was unconstitutionally vague. The trial court never reached the preemption or vagueness issues.
[4] Chapter 53 of title 26 U.S.C. is known as the National Firearms Act. 26 U.S.C. § 5849.
[5] Specifically, the trial court stated that it did not have to examine "[t]he federal prerequisites for lawfully possessing a machine gun" because Carter was not being prosecuted for violating federal law. CP at 161. It compared this situation to a defendant asserting a medical use of marijuana defense to a marijuana possession charge, noting that although marijuana possession violated federal law, the federal violation did not also mean that the defendant had violated state law. The trial court also stated, "Therefore, the sole question in this case is whether Carter was `licensed' under federal law for the purposes of the statute." CP at 162. It ruled that
[t]he plain language of the statute indicates that Carter is exempted under subsection (2)(b).... Subsection (2)(b) allows individuals to have a machine gun in their possession and control if they are "licensed under federal law" and meet the remainder of the requirements under the subsection. Carter is licensed under federal law as a dealer in firearms. He also provided sufficient evidence that he repaired and/or tested machine guns for the pertinent law enforcement agencies."
CP at 162.
[6] Distinguishing exceptions or provisos based on the existence of a license or a defendant's status from clauses contained "within the definition of the crime itself." Karlsten, 137 Wash. at 416, 242 P. 389.
[7] (Stating: "`[t]he well-established rule is that a defendant who relies on an exception to a statute made by a proviso or distinct clause, whether in the same section of the statute or elsewhere, has the burden of establishing and showing that he comes within the exception,'" (quoting United States v. Guess, 629 F.2d 573, 576 (9th Cir. 1980)).)
[8] We acknowledge that the trial court recognized that the Medical Use of Marijuana Act, chapter 69.51A RCW, allows for marijuana possession under state law that would be unlawful under federal law. RCW 69.51A.900. But, unlike RCW 9.41.190(2), the Medical Use of Marijuana Act does not require the defendant to hold a federal license or to be exempt from prosecution under federal law in order to pursue that defense. See RCW 69.51A.040.
[9] We note that although Carter may have shown that military and law enforcement personnel sometimes used his personal weapon in firearm instructor trainings, the statute does not refer to training as one of the activities the person needed to be "engaged in" to qualify for the exemptionit refers only to being "engaged in the production, manufacture, repair, or testing of machine guns." RCW 9.41.190(2)(b).
[10] In his response, Carter also appears to argue that the defense is unconstitutionally vague. As argued here, a statute is void for vagueness if persons "`of common intelligence must necessarily guess at its meaning and differ as to its application.'" Haley v. Med. Disciplinary Bd., 117 Wash.2d 720, 739, 818 P.2d 1062 (1991) (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926)). When determining whether the statute provides fair warning of the proscribed conduct, we examine the context of the entire enactment, giving the language a "sensible, meaningful, and practical interpretation." City of Spokane v. Douglass, 115 Wash.2d 171, 180, 795 P.2d 693 (1990). But we do not require absolute specificity. Douglass, 115 Wash.2d at 179, 795 P.2d 693. "[A] statute is not unconstitutionally vague merely because a person cannot predict with complete certainty the exact point at which his actions would be classified as prohibited conduct." City of Seattle v. Eze, 111 Wash.2d 22, 27, 759 P.2d 366 (1988). Because we hold that the statutory defense's plain language requires that a defendant establish that he or she was entitled to own or possess a machine gun under federal law, Carter's vagueness argument also fails.
[11] This amendment may have been, at least in part, a response to United States v. Sher, 421 F.2d 784 (9th cir.1970), in which the Ninth Circuit reversed a conviction under former 26 U.S.C. § 5851 (1954), for receipt and possession of a machine gun transferred in violation of former 26 U.S.C. § 5814 (1954), because compliance with former § 5814 required the defendant to incriminate himself under the Washington law making possession of machine gun a crime (former RCW 9.41.190 (1933)).
[12] "The term `dealer' means (A) any person engaged in the business of selling firearms at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker. The term `licensed dealer' means any dealer who is licensed under the provisions of this chapter." 18 U.S.C. § 921(a)(11) (emphasis added).
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281 S.W.2d 453 (1955)
JAY-KAY PAINT MANUFACTURING COMPANY, Appellant,
v.
M. M. CARTER, Appellee.
No. 10328.
Court of Civil Appeals of Texas, Austin.
June 29, 1955.
Rehearing Denied July 27, 1955.
Orgain, Bell & Tucker, David J. Kreager, Beaumont, for appellant.
O'Neal Dendy, San Angelo, for appellee.
ARCHER, Chief Justice.
This suit was instituted by appellee to recover salary for labor performed during the last half of March, 1954, for $325 for the months of April and May, 1954, for breach of a contract of employment for these months, for attorney's fees, interest and costs.
Trial was had with the aid of a jury and judgment, based on findings favorable to plaintiff, was entered for plaintiff for $801.70 with 6% interest from date of judgment and for costs.
The appeal is before this Court on nine points assigned as error, and are to the effect that there was no evidence to support the jury's answer to Special Issue No. 1, or in the alternative, against the great weight of the credible testimony, and that the employment was terminable at the will of either party, and that the Special Issue as submitted was a comment on the weight of the evidence and advised the jury of the effect of their answer; that Special Issue No. 2 as submitted was a comment on the weight of the evidence in that it assumed plaintiff had a contract for a definite period, and could only be discharged for good cause.
That the definition of "good cause" submitted only tortious good cause as distinguished from contractual good cause, that the court erred in not submitting the correct definition of good cause as submitted by appellant and in giving judgment for attorney's fees.
Special Issue No. 1 reads as follows:
"Special Issue No. 1: Do you find from a preponderance of the evidence *454 that the contract between the Plaintiff, M. M. Carter, and the Defendant, Jay-Kay Paint Manufacturing Company, was that the Plaintiff was employed as a salesman for Defendant for at least three months' time, beginning March 1, 1954? Answer Yes or No."
The jury answered yes.
Special Issue No. 2 is as follows:
"Special Issue No. 2: Do you find from a preponderance of the evidence that Plaintiff was discharged by Defendant on March 27, 1954, without good cause, as hereinafter defined? Answer Yes or No."
The jury answered yes.
In connection with Special Issue No. 2 the court gave the following definition of good cause.
"By `good cause' for discharge, as used in this Charge, is meant a failure of the employee to perform those duties in the scope of his employment as a man of ordinary prudence in an industry would have done under the same or similar circumstances."
The plaintiff testified extensively and in part as follows:
"Q. State whatever it was that Mr. Kreager said that he would pay you, and how and when. A. Mr. Kreager agreed to pay me a salary of $325.00 a month to be paid semi-monthly.
"Q. What else was he to pay you? A. He was to pay for the gasoline that I used on company business, greasing the car and for the oil changes.
"Q. All right; and whose automobile were you to use, Mr. Carter? A. I used my own personal car.
"Q. You had to furnish your own automobile? A. Yes, sir.
"Q. Did he pay you anything for the monthly or yearly depreciation of your automobile? A. No, sir.
"Q. Now, did you have any discussion about the length of time that you would work for him? A. Yes, sir. Mr. Kreager agreed after 90 days, that if everything proved out satisfactorily that he would buy a car for the company that I would use on the road.
"Q. Well, now, after 90 days what was your and his agreement with reference to 90 days. A. Our agreement was that I was to try it for 90 days, and if I was happy and if he was happy with my work that we would then change the compensation other than $325.00 a month; he would change it to both our satisfaction.
"Q. All right; and did you agree to work for him for 90 days? A. I did.
* * * * * *
"Q. Then tell the jury what happened on the 27th day of March, 1954. A. After discussion with Mr. Kreager on March 27th, on Saturday afternoon, of my itinerary for each day's work that was turned in, we had a discussion that I wasn't getting the job done, and I told him that I didn't think that three weeks was enough for any man who had never had experience to start producing at a profit. He told me that he couldn't use me any more, that I was through; that was approximately, I'd say, 5:00, perhaps 5:30, on Saturday afternoon. He offered me a check then, which he had not made out. I told him no, that that was quite all right, would just wait until Monday, I'd pick it up Monday. I did not go back for the check, I think it was on the following Tuesday or Wednesday to pick up my check, at which time we had a little discussion over the figures of the check; I walked out of the plant and left the place, having nothing else to say.
"Q. Now then, he offered to pay you how much when you went back for your salary, Mr. Carter? A. He started to make out a check for *455 $107.48; the gross amount of that check, $121.92, with $2.44 social security, and the withholding tax $12.00, a net of $107.48.
"Q. Now, was that the amount of money that you were entitled to at that time? A. No, sir.
"Q. And did you refuse that check? A. I did."
D. J. Kreager, witness for defendant, testified fully concerning the employment of M. M. Carter, and in part as follows:
"Q. All right. Now, this next time, I believe on Tuesday you said; did you discuss salary with him then? A. Yes.
"Q. What was the conversation about salary then? A. I asked him how much money he thought he ought to earn, and he told me $350.00 a month, so I told him we wouldn't start a man at $350.00 a month and pay his expenses, especially not having had previous paint selling experience. He said what would we pay, and I told him $325.00 a month, and I said we wouldn't go beyond that for a period probably of three months.
"Q. And did you have any conversation as to whether or not it was on a trial basis or whether or not his services would be satisfactory? A. He understood well that it was on a trial basis, because he was begging for the job, and frankly that is why we hired him, was because we had a soft spot in our heart for a guy that claimed he couldn't get employment in San Angelo and would have to leave town to get employment and had to have a job the 1st of March.
"Q. Did he make those statements to you? A. He did make those statements; and I told him he had called and came by, and so I told him to please don't come by, I would let him know later that week, which I did call him. He came to see me.
"Q. What particularly was said in the conversation as to whether or not his services were to be satisfactory? A. I told him definitely, as I would hire any man, always have hired, that I would hire him on the basis, trial basis, and that if his work was all right, satisfactory, in my opinion, that he would have employment. I said, `On the other hand, you or I, neither of us know how you will be able to perform because it is not every man that can make a paint salesman, it may be selling cars or something else; you don't know and I don't know,' and I said, `Frankly, I don't know enough about you because we haven't got any definite information from you so far in your talk; so you say you can sell and we will try you out, and if you do not work out I will pull the cord on you,' in other words, stop his employment. I said, `On the other hand, you may not like us, you may not like the job, you might find you can't do it and you are welcome to quit any time and there will be no hard feelings.' That is the exact details of the contract, as he calls it, between us.
"Q. Did you at any time guarantee him any certain length of employment? A. I never guaranteed him anything, except I told him $325.00 a month and out of pocket expenses."
The testimony is in sharp conflict. The jury saw and heard the witness and resolved the fact issue as to an employment for at least three months in favor of plaintiff and we believe its action finds reasonable support in the record.
North British & Mercantile Ins. Co. v. Arnold, Tex.Civ.App., 171 S.W.2d 215.
The second special issue inquired of the jury if the discharge of plaintiff by defendant was without good cause, and the answer of the jury was yes.
The testimony concerning the discharge of plaintiff as given by the witness Kreager is that Carter appeared listless, not too *456 agressive and did not develop enough business, and especially
"A. I told Mr. Carter the first thing I asked him, I said to him, `Carter, have you been getting an early start on your jobs in the mornings, Mondays?' `Yes'. I said, `Well, your sales this past week are no good, and I just don't believe you are going to make it, and for certain reasons I am going to pull the cord on you now, I am going to terminate you today, the 13th of March;' and Mr. Carter seemed a little upset and a little bit high-tempered about it, I assume, seemed that way to me, and he said to me, `Mr. Kreager, I never judged you to be a man that would make a snap judgment.' I says to him, `My experience in working people leads me to believe that I have fair knowledge of a man's working ability, what to expect of him, and I just don't believe you will make the job;' and then he started talking to me about the fact that he didn't think he had a fair trial in one week, plus the previous week of training, of course. So we talked for a while and I said to him, `Well, I am going to let you try it again, try it another week, try it again and we will see.' I said, `I want to give you a fair chance because I want a salesman.'
"Q. Now, did you terminate his employment then or let him go ahead? A. I let him go ahead."
Carter's employment was terminated on March 27, 1954 and a check for $107.48 mailed to him.
Carter testified as to his efforts in connection with his employment to sell paint, and as to his conversations with Mr. Kreager on the occasion of his discharge.
Again the evidence as to good cause was heard by the jury which by its answers found did not exist, and we believe the jury was justified in its finding.
Complaint is made of the use of the word "contract" in the submission of the issues in this case but we do not believe such to be justified.
In appellant's requested definition of good cause the expression "* * * in accordance with his contract of employment * * *" was used.
Then, too, in objecting to the submission of Special Issue No. 1, appellant uses this statement: "* * * and said issue should inquire as to a contract of employment for a period of three months' time certain, beginning March 1, 1954."
We therefore do not believe that the issues submitted by the use of the word "contract" are such as would justify a reversal of this case in view of the pleadings and the objections pointed out by appellant.
We believe the charge of the court was a sufficient presentation of the controlling fact issues and the answers of the jury are reasonably supported by the evidence.
Southern Underwriters v. Boswell, 138 Tex. 255, 158 S.W.2d 280; Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651.
Since it does not appear that any attorney's fees or in any event only a very small sum, were allowed, we do not believe it necessary to discuss this issue further.
The judgment was for $801.70 and the gross salary for the two and one half months would be $812.50. The judgment is not itemized, but we assume that social security and withholding taxes will be deducted from the amount of the judgment and paid to the proper receiving authorities.
The judgment of the trial court is affirmed.
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281 S.W.2d 136 (1955)
H. P. ALLISON et al., Appellants,
v.
R. E. SMITH et al., Appellees.
No. 3177.
Court of Civil Appeals of Texas, Eastland.
June 17, 1955.
Rehearing Denied July 8, 1955.
Snodgrass & Smith, Neill & Lewis, San Angelo, for appellant.
Bryan, Suhr & Bering, Houston, Sentell, Rosser & Willbern, Snyder, Park & Hemphill, *137 Snyder, David W. Stephens, Fort Worth, for appellee.
GRISSOM, Chief Justice.
H. P. Allison and others sued R. E. Smith and others in trespass to try title to an undivided ¼th interest in the minerals in the Northeast ¼th of Section 124, Block 25, H. & T. C. Ry. Co. Survey in Scurry County and for an accounting for ¼th of the oil produced therefrom. Plaintiffs contend that a deed from Mrs. Clark to Mrs. Neely conveyed a half interest in the minerals in the Northeast ¼th of Section 124, although that quarter section was not specifically mentioned. See Allison v. Smith, Tex.Civ.App., 278 S.W.2d 940. In addition to a general denial and plea of not guilty, Smith answered that said deed conveyed an undivided ½ interest in the minerals in only the Southeast ¼th and Northwest ¼th of said section; that after the specific description of the land out of which a ½ interest in the minerals was conveyed, to-wit, the Northwest ¼th and Southeast ¼th, there was a general description which was intended to refer, and did refer, to the land specifically described and said deed did not convey any minerals in the Northeast ¼th of Section 124; that, if it should be held that said description did not as a matter of law limit said conveyance to the Southeast ¼th and the Northwest ¼th, it was ambiguous and Mrs. Clark intended to convey and Mrs. Neely knew she was purchasing a ½ interest in the minerals in only the Southeast and Northwest quarters and Mrs. Clark did not intend to convey and Mrs. Neely did not purchase any interest in the Northeast ¼th of said Section. Smith further alleged that Mrs. Neely paid Mrs. Clark an agreed consideration of $10 per mineral acre for a ½ interest in the minerals in the Southeast and Northwest quarters and that Mrs. Neely did not purchase and did not pay Mrs. Clark for any minerals in the Northeast ¼th of Section 124. The Keys answered to the same effect.
In answer to the only issue submitted, a jury found that Mrs. Clark did not intend to convey to Mrs. Neely an undivided ½ interest in the minerals in the Northeast ¼th of Section 124. The court rendered judgment for defendants and plaintiffs have appealed.
The judgment recites the court determined that the Clark-Neely deed was uncertain as to the land in which an undivided ½ interest in the minerals was intended to be conveyed; that its language was susceptible to more than one construction and the intention of the parties could not be obtained solely from the deed but must be determined from the language of the deed considered in the light of the facts and circumstances surrounding the transaction. The judgment recited said issue and answer. There followed a statement that the court, having considered the language of said deed, the facts and circumstances surrounding the transaction and the verdict of the jury, was of the opinion the law and facts were with defendants and it was, therefore, decreed that plaintiffs take nothing.
The judgment recites that Gulf Oil Corporation had paid into court $105,142.76, representing the sum accrued to said ¼th mineral interest from October 1, 1952 to July 31, 1954 and that it was discharged from all liability "as regard such sum" and that Smith recover $91,912.41 thereof, which represented the amount withheld during said period which had accrued to his part of the working interest in the ¼th mineral interest, title to which had been adjudged to be in Smith, and that all sums accruing to said mineral interest after August, 1954, should be paid to Smith. It was further ordered that the Keys recover $13,130.35, which represented the amount withheld during said period which had accrued to their 1/8th royalty interest in said ¼th mineral interest through July 31, 1954, title to which had been adjudged to be in the Keys, and that all sums accruing to such interests thereafter should be paid to the Keys.
The controlling question presented is whether said deed as a matter of law conveyed half the minerals in the Northeast *138 ¼th of said Section, only the Northwest ¼th and the Southeast ¼th being specifically described therein, and, if not, what the parties intended.
On March 27, 1941, Bertha B. Clark executed a deed which recited she had sold to Nedra Neely (1) "an undivided ½ interest in and to all of the oil, gas and other minerals of every kind and character in, or under that certain tract or parcel of land situated in the County of Scurry, State of Texas, and described as follows:
(2) "The Southeast one-fourth (SE 1/4) and the Northwest one-fourth (NW¼) of Section 124, Block 25, H. & T. C. Ry. Co. Surveys.
(3) "The Grantor, her heirs and assigns, hereby reserves the exclusive right to make and execute any and all future oil and gas leases covering the herein conveyed property, or any part thereof, without being joined therein by the Grantee, her heirs and assigns, but the Grantee, her heirs and assigns shall be entitled to participate in one-half of all bonuses, rentals, royalties and other benefits accruing or to accrue under any such future leases; and in the event the lease now covering said property shall become cancelled or forfeited, then in that event, the Grantee, her heirs and assigns shall have the prior right or option to lease said property for oil and gas, within a reasonable time after cancellation or forfeiture, at a price agreeable to the parties hereto, their heirs and assigns.
(4) "The parties however intend this deed to include and the same is hereby made to cover and include not only the above described land, but also any and all other land and interest in land owned or claimed by the Grantor in said survey or surveys in which the above described land is situated or in adjoining the above described land. Should the foregoing particular description for any reason prove incorrect or inadequate to cover the land intended to be conveyed as above specified grantor agrees to execute such instrument or instruments that may be necessary to correct such particular description.
(5) "To Have and To Hold the said undivided interest in all of the said oil, gas and other minerals in, on and under said land, together with all and singular the rights and appurtenances thereto in any wise belonging, with the right of ingress and egress * * * and grantor herein for himself and his heirs, executors and administrators, hereby agrees to warrant and forever defend all and singular the said interest in said minerals, unto the said grantee, his heirs, successors and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof.
(6) "This conveyance is made subject to any valid and subsisting oil, gas or other mineral lease or leases on said land, including also any mineral lease, if any, heretofore made or being contemporaneously made from grantor to grantee; but, for the same consideration hereinabove mentioned, grantor has sold, transferred, assigned and conveyed and by these presents does sell, transfer, assign and convey unto grantee, his heirs, successors and assigns, the same undivided interest (as the undivided interest herein above conveyed in the oil, gas and other minerals in said land) in all the rights, rentals, royalties and other benefits accruing or to accrue under said lease or leases from the above described land; to have and to hold unto grantee, his heirs, successors and assigns."
When Mrs. Clark executed said deed she owned the surface and minerals in the Northwest ¼th and Southeast ¼th and, also, in the Northeast ¼th of Section 124. She also owned Sections 123 and 145 in said Block 25. All said last three mentioned tracts adjoined the land specifically described. On the same day that Mrs. Clark executed said deed she executed two oil and *139 gas leases to Nedra Neely, one on the Northwest ¼th and one on the Southeast ¼th of Section 124. In each lease it was recited that for the purpose of calculating the rentals therein provided for each of said quarter sections was estimated to comprise 160 acres, "whether it actually comprises more or less." Said deed and two leases were executed, acknowledged before the same notary public and filed for record simultaneously.
In January, 1944, Mrs. Clark conveyed to Marvin Key the North ½ of Section 124 "subject to any outstanding oil, gas and mineral interest heretofore sold and conveyed and any such outstanding mineral interest is here reserved * * *."
On June 30, 1948, Key and wife executed an oil and gas lease to R. E. Smith on the North ½ of Section 124, which recited it contained "320 acres more or less." Said lease further provided that:
"In the event a re-survey of said lands shall reveal the existence of excess and/or vacant lands lying adjacent to the lands above described and the lessor, his heirs, or assigns, shall, by virtue of his ownership of the lands above described, have perference right to acquire said excess and/or vacant lands, then in that event this lease shall cover and include all such excess and/or vacant lands which the lessor, his heirs, or assigns, shall have the preference right to acquire by virtue of his ownership of the lands above described as and when acquired by the lessor; and the lessee shall pay the lessor for such excess and/or vacant lands at the same rate per acre as the cash consideration paid for the acreage hereinabove mentioned."
On June 2, 1941, Nedra Neely and husband executed a mineral deed to Ordovician Oil Company conveying an undivided ¼th interest in the minerals in land specifically described as the Southeast ¼th and Northwest ¼th of Section 124, subject to the terms and conditions in the Clark-Neely deed, to which reference was made. After said specific description there was a reference to the Clark-Neely deed and paragraphs 4 and 6 of said deed were substantially copied therein.
Appellants' principal contention is that when all the provisions of the Clark-Neely deed are considered an intention is clearly and unmistakably shown to convey one-half the minerals in the Northeast ¼th of Section 124, and, therefore, extrinsic evidence of the parties' intention was not admissible; that there was no occasion for application of rules of construction and the court should have instructed a verdict for appellants.
Appellees' principal contentions are stated in the first and seventh points to the effect that (1) the court did not err in refusing to instruct a verdict for appellants because the general description in the Clark-Neely deed cannot reasonably be construed to have been intended to embrace any land other than that particularly described and, if the meaning of the deed is doubtful and it is susceptible to more than one construction, the deed must be held to include not more than that particularly described when its language is considered in the light of the surrounding facts and circumstances and (7) that the court did not err in rendering judgment for defendants because Mrs. Neely did not acquire title to any minerals in the Northeast ¼th. In support of said points, appellees call attention to the fact that the specific description of the land out of which an interest in the minerals was conveyed was not followed immediately by the general description depended on by appellants, but by a provision reserving to Mrs. Clark and her assigns the exclusive right to execute leases on the "herein conveyed property" without the joinder of Mrs. Neely or her assigns and by a provision giving grantee an option to lease "said property"; that in the same paragraph with said general provision it was provided that if the "foregoing particular description" should prove inadequate to cover the land intended to be conveyed, "as above specified," Mrs. Clark would execute instruments necessary to correct such "particular" description; *140 that, following the habendum and warranty clauses, the deed provides it is subject to existing leases and those "being contemporaneously made from grantor to grantee."
As heretofore shown, Mrs. Clark executed and acknowledged two leases covering only the Southeast ¼th and the Northwest ¼th of Section 124 simultaneously with said deed which specifically described only the tracts leased and said leases and deed were filed for record at the same time. At the time Mrs. Clark executed said deed and two leases, in addition to the Northwest ¼th and the Southeast ¼th of Section 124, specifically described in said deed and two leases, she owned the Northeast ¼th of said section and all of sections 123 and 145, all in Block 25, H. & T. C. Ry. Co. Survey. All of said last three mentioned tracts adjoin the land particularly described in said deed. Mrs. Clark testified she received an agreed consideration of $10.00 per mineral acre, or $1,600.00, for ½ the minerals in the two quarter sections particularly described in the deed but that she received nothing for the Northeast ¼th of Section 124 or for Sections 123 and 145. She testified she sold and intended to convey ½ the minerals in the 320 acres specifically described; that she did not sell nor intend to convey any interest in the minerals in the Northeast ¼th; that she was not paid for any minerals in the Northeast ¼th and that prior to this suit no one had ever asserted to her any claim to any minerals therein and that no one had ever asked her to execute an instrument to correct the particular description in the deed.
Appellants rely chiefly on Sun Oil Co. v. Burns, Tex.Com.App., 125 Tex. 549, 84 S.W.2d 442, and Sun Oil Co. v. Bennett, Tex.Com.App., 125 Tex. 540, 84 S.W.2d 447, 452. The land not specifically described but held to have been conveyed in the Burns and Bennett cases consisted of narrow strips of land adjoining the land specifically described and contained 3.736 acres and 2.5 acres, respectively, which were added to tracts specifically described that contained 106.25 acres and 76 acres, respectively. In the Bennett case Judge Smedley, in holding there was no evidence that a mutual mistake caused the inclusion of a narrow strip adjoining the land specifically described by virtue of a "Mother Hubbard" clause, stated the proper purpose of such a clause to be as follows:
"Its apparent reasonable purpose is to prevent the leaving of small unleased pieces or strips of land, like the tract here in controversy, which may exist without the knowledge of one or both of the parties by reason of incorrect surveying, careless location of fences, or other mistake."
The Supreme Court applied the rule, clearly applicable to the facts of those cases, that "`A particular description does not override a more general description of the land conveyed where it is manifest that the property covered by the words of particular description is not the whole of the property conveyed, and that the words of general description are intended to have an enlarging effect.'" [125 Tex. 549, 84 S.W.2d 447.]
Appellees would distinguish this case from said cases as follows: (a) In the Burns case the specific description of 100 acres was immediately followed by the general description. Here it was not. (b) The deeds in said cases were susceptible to only one interpretation, and on their face, they clearly and unmistakably showed an intention to convey land in addition to that particularly described. In this case the description is ambiguous and susceptible to more than one interpretation and the general description does not clearly and unmistakably show an intention to convey additional land to that particularly described. (c) In the Burns case the plaintiffs were seeking to add a small triangular strip of 3.736 acres, difficult to describe, to a tract of 106.25 acres. Here appellants are seeking to add 160 acres, easily described, and they could urge with almost equal force the same right to two adjoining sections, which could have also been easily described. (d) In said cases there was no provision for correcting an inadequate description. In the present *141 case there is. (e) In the Burns case the small strip sought to be added was not a separate and distinct tract. In this case appellants are seeking to recover the Northeast ¼th, which is as separate and distinct as either quarter section specifically described. (f) In the Burns case there was a lease of the "`land hereinafter described'", being 100 acres particularly described followed by a general description not capable of more than one interpretation and clearly manifesting an intention to convey additional land, while in this case the deed conveyed an undivided ½ interest in the minerals in a certain tract described as "The Southeast ¼ (SE¼) and the Northwest ¼ (NW¼) of Section 124, Block 25, H. & T. C. Ry. Co.," which particular description was not followed immediately by a general description but by a reservation of the exclusive power to execute leases and an agreement that Mrs. Neely should have an option to lease "said property." The only land theretofore mentioned was the Northwest and Southeast quarters and that was the only land described in the leases to Mrs. Neely.
If appellants' contention that, as a matter of law, the deed conveyed the Northeast ¼th should be sustained the specific description, the granting clause, the habendum clause and the warranty clause would have to be construed not to mean what they say. The specific description conveys an undivided ½ interest in only the minerals in the Southeast ¼th and the Northwest ¼th of Section 124. The granting clause, the habendum clause and the warranty clause refer only to minerals. The general description depended on by appellants does not purport to limit the conveyance to minerals but to convey land. Appellants' interpretation gives no reasonable meaning to the provision in the same paragraph with the general description that if the "particular" description should prove inadequate to convey the land intended the grantor should execute instruments necessary to correct the "particular" description.
A reasonable explanation of the intention of the parties in using the general description is indicated by the action of Key and wife who provided in Key's lease to Smith that in the event a survey should reveal the existence of excess or vacant land adjoining that described the lease should include such excess or vacant land and lessee should pay therefor the same price per acre paid for the land specifically described. We recognize that their interpretation is not binding on the parties to this suit but it appears to us to be the most reasonable explanation of the ambiguous language of the deed. It is significant that when Mrs. Clark executed and delivered the deed to Mrs. Neely she executed and delivered separate leases on the Northwest ¼th and the Southeast ¼th of Section 124 and described the land as it was described in the specific description in the deed and in each of said leases it was agreed that "for the purpose of calculating the (rental) payments hereinafter provided for said land is estimated to comprise 160 acres, whether it actually comprises more or less. This is rendered more significant by the fact that the deed, after the specific description and before the general, provided that the grantee should have the option to lease "said property" and in her leases Mrs. Clark described the land exactly as it was described in the specific description in the deed. If Mrs. Neely and Mrs. Clark knew that each of the quarter sections specifically described in said deed contained no excess or vacant land but that each contained exactly 160 acres there would have been no reason for Mrs. Neely and Mrs. Clark inserting the provision in their leases provided for in said deed that in paying delary rentals each tract should be treated as containing 160 acres, regardless of whether it contained more or less. There is strong evidence of a construction by the parties of the ambiguous deed to mean that they intended to convey only the Northwest and Southeast quarters. It would be reasonable to conclude they thought the deed conveyed minerals out of only the Northwest and Southeast quarters and they were uncertain as to the number of acres therein, so, they provided that for the purpose of paying rentals each quarter would be considered as containing 160 acres. If the mineral deed is *142 ambigous, the execution of leases to Mrs. Neely on only the two quarter sections specifically described in the deed simultaneously with the execution of the deed, plus said quoted provision, fixing the number of acres on which rental was to be paid, at least tends to show the parties' interpretation of paragraph 4 of the Clark-Neely deed, the general description depended on by appellants, to mean exactly what the Keys put in their lease to Smith, that is, if the land particularly described as two quarter sections should be found to contain vacant or excess land that such was also intended to be conveyed. As so interpreted, there is a reasonable explanation for the insertion in the same paragraph with the general description of a provision for the execution of additional instruments to correct the "particular" description if it should prove inadequate. As interpreted by appellants, the general provision, in addition to including an additional 160 acres, purports to convey the land itself, not just an interest in the minerals, as the deed, when taken as a whole, manifests was the intention. So interpreted, the general provision is in conflict with, not only the granting clause, but also the habendum clause and to the warranty clause, the latter warranting only "said interest in said minerals."
Appellees say the Supreme Court in the Burns and Bennett cases simply stated the state policy announed in Cantley v. Gulf Production Co., 135 Tex. 339, 143 S.W.2d 912, 915 that:
"Where it appears that a grantor has conveyed all land owned by him adjoining a narrow strip of land that has ceased to be of any benefit or importance to him, the presumption is that the grantor intended to include such strip in such conveyance".
It is evident Mrs. Clark did not intend to convey all land owned by her adjoining the two quarter sections specifically described. The statement by Judge Garwood in Haines v. McLean, Tex., 276 S.W.2d 777, 786, is appropriate here.
"To say that the instant deed shall be taken not only to grant a fee, despite its attempted limitations, but also to convey a fee half again or more greater in adjoining property, simply shocks the conscience * * *."
The quarter section claimed by appellant is no narrow strip that has ceased to be of importance to the grantor. The facts that compelled the decisions in the Burns and Bennett cases do not exist here. In said cases there was no provision casting doubt on the intention clearly expressed in the general description in the deeds there considered to convey land in addition to that particularly described. In the Bennett case, Judge Smedley said with reference to the "Mother Hubbard" clause [125 Tex. 540, 84 S.W.2d 425]:
"Its apparent reasonable purpose is to prevent the leaving of small unleased pieces or strips of land, like the tract here in controversy, which may exist without the knowledge of one or both of the parties by reason of incorrect surveying, careless location of fences, or other mistake."
That was probably the purpose intended by the general description in controversy here. The 160 acres, more or less, in the Northeast ¼th of Section 124, in controversy here, could not have existed without the knowledge of the parties. It did not exist by reason of incorrect surveying or careless location by the ground or any other apparent mistake.
There has never been a change in the rule announced by our Supreme Court in Cullers v. Platt, 81 Tex. 258, 16 S.W. 1003, 1005. The general rule there announced was approved by Judge Hickman in Strong v. Garrett, 148 Tex. 265, 224 S.W.2d 471, 475, but not applied because "* * * the grantor's true intention to convey the land covered by the general description clearly and unmistakably appears from the language of the entire instrument." It cannot be said of the general description in the Clark-Neely deed that it clearly and *143 unmistakably shows an intention to convey the land claimed under the general description.
The deed is ambiguous. The court did not err in admitting evidence of facts and circumstances surrounding the execution of the deed, the simultaneous execution of leases, which were provided for in the deed, and parol evidence of the parties' intention. Colquitt v. Eureka Producing Co., Tex.Com.App., 63 S.W.2d 1018; Humble Oil & Refining Co. v. Ellison, 134 Tex. 140, 132 S.W.2d 395, 398; Thomas v. Texas Osage Co-op Royalty Pool, Inc., Tex.Civ. App., 248 S.W.2d 201, 205 (R.N.R.E.), Id., Tex.Civ.App., 270 S.W.2d 450; 14 Tex.Jur. 1054; Regan v. Hatch, 91 Tex. 616, 45 S.W. 386, 387; 16 Am.Jur. 675, 680; Ellisor v. Kennedy, Tex.Civ.App., 128 S.W.2d 842, 844 (W.R.).
Appellants contend the court erred in permitting Mrs. Sullinger, formerly Mrs. Clark, to testify as to how many acres she sold and intended to convey; that she owned adjoining land, and in permitting her to identify it on a map and show its location with reference to the land in controversy and to testify that Mrs. Neely did not pay her anything for the Northeast ¼th; that Mrs. Neely paid her $1,600 for a one-half interest in the minerals in 320 acres. We think this evidence was not subject to the objections made and that parol evidence was admissible to show the intention of the parties in executing the ambiguous deed. Colquitt v. Eureka Producing Co., Tex.Com. App., 63 S.W.2d 1018, 1020; Humble Oil & Refining Co. v. Ellison, 134 Tex. 140, 132 S.W.2d 395, 398; Ellington v. Pirtle, Tex.Civ.App., 102 S.W.2d 524, 528 (Writ dis.); Ellisor v. Kennedy, Tex.Civ.App., 128 S.W.2d 842, 844 (Writ Ref.).
Appellants contend the court erred in permitting introduction of two oil and gas leases executed, acknowledged and delivered by Mrs. Clark simultaneously with the deed in question. The deed provides for the execution by Mrs. Clark to Mrs. Neely of leases on "said property" particularly described in the deed when the existing lease terminated. The two leases did not include the Northeast ¼th, only the Northwest and Southeast quarters of said section. We think they were admissible as tending to prove a construction of the deed by the parties thereto and tending to establish the fact that they intended to convey a mineral interest in only the Northwest and Southeast quarters of said section. Lone Star Gas Co. v. X-Ray Gas Co., 139 Tex. 546, 164 S.W.2d 504, 508; 26 C.J.S., Deeds, § 100, p. 362; Gulf Coast Water Co. v. Hamman Exploration Co., Tex.Civ.App., 160 S.W.2d 92, 96 (Writ Ref.); Spell v. Hanes, Tex. Civ.App., 139 S.W.2d 229, 331; Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W.2d 1080, 1088, 85 A.L.R. 391; Gray v. Shaunfield, Tex.Civ.App., 212 S.W.2d 873, 875.
With the exception of the error next considered, we think reversible error is not shown and appellants' remaining points are overruled. The only issue submitted as a basis for the judgment inquired as to the intention of the grantor only. Appellants objected to said issue on the ground that a finding that Mrs. Clark did not intend to convey ½ of the minerals in the Northeast ¼th of Section 124 would not sustain a judgment for defendants and that said issue should also inquire as to the intention of Mrs. Neely. The objection was overruled. We think this was error for which the judgment must be reversed. Sun Oil Co. v. Bennett, 125 Tex. 540, 84 S.W.2d 447, 450; Superior Oil Co. v. Stanolind Oil & Gas Co., 150 Tex. 317, 240 S.W.2d 281, 284; St. Paul Fire & Marine Ins. Co. v. Culwell, Tex.Com.App., 62 S.W.2d 100, 101; Smulcer v. Rogers, Tex.Civ.App., 256 S.W.2d 120, 123 (R.N.R.E.); Clemmens v. Kennedy, Tex.Civ.App., 68 S.W.2d 321 (W.R.); 36 Tex.Jur. 747; 29 Tex.Jur. 704, 707; Kiggins v. Kennon, Tex.Civ.App., 197 S.W.2d 182, 183 (W.R.); 10 Tex.Jur. 93, 105, 106; Harrell v. De Normandie, 26 Tex. 121, 127; Humble Oil & Refining Co. v. Ellison, 134 Tex. 140, 132 S.W.2d 395, 398. (The italics in the opinion are those of the court.)
The judgment is reversed and the cause remanded.
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281 S.W.2d 353 (1955)
Gladys W. REESE and P. B. Bell, d/b/a Reese & Bell, Appellants,
v.
W. C. GRIFFIN, Jr., Appellee.
No. 6827.
Court of Civil Appeals of Texas, Texarkana.
June 23, 1955.
Rehearing Denied July 21, 1955.
Barnes & Barnes, Terrell, for appellant.
Gordon R. Wellborn, Rex Houston, Henderson, for appellee.
DAVIS, Justice.
This is an appeal from an order overruling the plea of privilege of appellants. Appellee-plaintiff, W. C. Griffin, Jr., a resident of Rusk County, sued appellants-defendants, Gladys W. Reese and P. B. Bell, residents of Kaufman County, in Rusk County on an oral contract for the purchase of turkeys. The parties will be referred to as in the trial court.
Plaintiff alleged in his first amended original petition that on or about the 16th day of November, 1954, plaintiff and defendants, through defendant P. B. Bell, made and entered into an agreement in Rusk County whereby defendants were to purchase from plaintiff all of his turkeys which the defendants picked up in Rusk County during the months of November and *354 December, 1954, and that defendants would pay plaintiff 31 cents per pound for all turkey hens and 25 cents per pound for all turkey toms that defendants picked up in Rusk County. Plaintiff further alleged that the defendants agreed to send trucks to plaintiff's farm in Rusk County, pick up said turkeys, cull them there and pay the aforesaid prices for all of such turkeys. He alleged that the defendant Bell knew at the time of making such representations and promise that the "defendants did not intend to pay such price but intended to carry all the turkeys to Kaufman, kill them, and then decide (italics ours) to re-grade them and pay a substantially lesser sum per pound for said turkeys." He further alleged that the representations of Bell were false, and Bell knew they were false but plaintiff believed and relied upon such representations. Plaintiff alleged that the representations were willfully and fraudulently made by Bell in Rusk County for the purpose of inducing plaintiff to rely thereupon.
Plaintiff alleged that he delivered to defendants 38,680 pounds of turkey hens of the value, at 31 cents per pound, of $12,990.80, of which $9,407.20 remains due and unpaid; and there was $168 still due and unpaid for turkey toms.
Plaintiff also alleged trespass by conversion in an alternative plea. There was no alternative prayer for relief.
Defendants filed their plea of privilege, jointly, to be sued in Kaufman County and specifically denied the allegations of fraud in such plea. Plaintiff filed his controverting plea and first amended original controverting plea to the plea of privilege setting up Sections 7 (Fraud) and 9 (Trespass) of Article 1995, R.C.S., Vernon's Ann.Civ.St., as exceptions to the general venue statute.
At the conclusion of the testimony, the court granted plaintiff leave to file his first trial amendment to his first amended original petition wherein he alleged that a trespass by conversion was committed by defendants in Rusk County. Such allegation was also made in the alternative plea in such amended petition as well as the allegation that defendants "carried them to Kaufman County and converted same to their own use and benefit." Such allegations are inconsistent and should have been stricken on motion had such motion been made. Petty v. First National Bank of Quitman, Tex.Civ.App., 278 S.W.2d 361. Plaintiff was then permitted to file trial amendment to his first amended original controverting affidavit in which he adopted in his "controverting affidavit" the trial amendment. He had already abandoned his controverting affidavit by filing this first amended controverting affidavit. The trial amendments were filed over the objections of defendants, but the trial amendment to the first amended controverting affidavit amounts to nothing because plaintiff could not adopt a pleading which had been supplanted by amended plea. Hunt v. Employers Reinsurance Corp., Tex.Civ.App., 219 S.W.2d 483, writ ref., n. r. e.; Hawkins v. Collier, Tex.Civ.App., 235 S.W.2d 528, no writ history.
The evidence shows that defendants were contacted by plaintiff by way of long distance telephone on Friday or Saturday prior to November 10, 1954, for the purpose of trying to sell defendants a large number of turkeys. In response to the call, defendant Bell went from Kaufman to Henderson in Rusk County on or about the 10th day of November, 1954, and there entered into an agreement to buy the turkeys. Plaintiff contends that the price agreed upon was as pleaded in his petition, 31 cents per pound for all hens and 25 cents per pound for all toms. He is supported in this contention by one witness, J. J. Cochran, a feed dealer, who was present and heard the trade. Bell admits that he agreed to buy all No. 1 hens at 31 cents per pound and all No. 1 toms at 25 cents per pound.
On the 16th of November, defendants sent a truck to plaintiff's farm, picked up 350 hens for which he paid 31 cents per pound and sent plaintiff a check for $1,785.60 on the following day; they picked up an additional 350 hens on the 17th for which they paid 31 cents per pound and sent a check for them in the sum of $1,798 on November 18th, and picked up an additional *355 350 hens. When defendant started to dress the third load, they discovered they were "blue-backs" or No. 2's and contracted plaintiff and told him about it, and further told plaintiff that they could not use the hens at the price of 31 cents. Plaintiff does not deny the conversation. Defendants contend that they agreed to take the "blue-backs" or No. 2 hens, process them and market them for plaintiff, or pay the No. 2 price for them, and that plaintiff agreed to such arrangement because, as plaintiff testified, the turkeys had to be fed and "everybody knows that is an expense."
Defendants did not pay for the load of hens of November 18th, and went back on December 1st and picked up another load; on the 2nd they picked up two loads; and on the 3rd they picked up another load, all hens. They did not pay for any of them. Then they started getting the toms on December 7th, at 240 a load until they were all taken, except 44 the last time which plaintiff delivered to defendants at Kaufman. Defendants paid for all the toms except $168 worth which they claim were dead upon arrival at their place of business.
There is a sharp conflict in the testimony as to where the turkeys were to be culled.
Plaintiff also sued for an attorney's fee of $2,000 as authorized by the provisions of Article 2226, R.C.S., Vernon's Ann.Civ.St., founded upon a sworn account.
We believe the foregoing fairly states the pleadings and the evidence in the case. Trial on the plea of privilege was before the court who overruled the plea, hence the appeal.
Defendants bring forward five points of error. By points 1, 2 and 3 they complain of the action of the trial court in overruling their plea of privilege, because: (1) Plaintiff's suit was for the recovery of an alleged balance due under an oral agreement; (2) plaintiff's suit being for the recovery of the balance alleged to be due him on an oral contract, his allegations of fraud, became immaterial; and (3) the allegations of fraud are unsupported by any evidence.
As we view the pleadings and evidence, we find it unnecessary to determine the question of whether actionable fraud is established by the record. Plaintiff declared upon a contract and sued for the balance due thereon according to his version of the same. He did not elect to cancel the contract and sue for damages, he sued upon an account and also sought attorney's fees thereunder. He would not be entitled to recover an attorney's fee in a suit for damages for fraud. Plaintiff testified that he was suing for the balance due him under the oral contract. Therefore, we find that the suit is one based upon a sworn account for the balance due upon the contract; and even though the contract may have been induced by fraud, where the innocent party elects to sue on the contract rather than for his damages for the fraud, he cannot rely on the fraud to fix the venue of his suit. Bunger v. Campbell, Tex.Civ. App., 183 S.W.2d 1001; Neal v. Barbee, Tex.Civ.App., 185 S.W. 1059; Dowell v. Long, Tex.Civ.App., 219 S.W. 560; Henson v. Henson, Tex.Civ.App., 181 S.W.2d 285; Powell v. Goldsmith, Tex.Civ.App., 164 S.W.2d 45; Hopcus v. Treadway, Tex. Civ.App., 244 S.W.2d 857; and Santa Maria Water Control & Improvement Dist. No. 4 v. Towerage Equipment Co., Tex.Civ.App., 241 S.W.2d 755.
We are unable to see any distinct difference in principle between this case and the foregoing authorities in so far as the question of venue is concerned. Therefore, it necessarily follows that points 1, 2 and 3 must be sustained.
By points 4 and 5 defendants complain of the action of the trial court in overruling his plea of privilege because plaintiff's suit being one to enforce an oral agreement, his alternative plea of conversion would not place venue in Rusk County, and the allegation of conversion is wholly unsupported by the evidence. With this contention we agree. And the authorities hereinabove cited support our conclusions on these points. Points 4 and 5 are sustained.
Plaintiff relies upon the case of Manziel v. Williams, Tex.Civ.App., 262 S.W.2d 437, *356 in support of his contention that actionable fraud was shown to have been committed in Rusk County. In that suit, plaintiff based his suit solely upon damages for the fraud and did not seek to enforce the contract. There is quite a difference in the principles involved in the two suits, and that case is not in point here.
For the errors hereinabove pointed out, the judgment of the trial court is reversed and judgment is here rendered sustaining the plea of privilege of said defendants.
Reversed and rendered.
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260 P.3d 705 (2011)
244 Or. App. 535
CONFEDERATED TRIBES OF SILETZ INDIANS OF OREGON, Petitioner,
v.
FISH AND WILDLIFE COMMISSION, an agency of the Department of Fish and Wildlife, Respondent.
A138947.
Court of Appeals of Oregon.
Argued and Submitted July 15, 2010.
Decided July 27, 2011.
*706 Craig J. Dorsay, Portland, argued the cause for petitioner. With him on the briefs was Dorsay & Easton, LLP.
Denise G. Fjordbeck, Attorney-in-Charge, Civil/Administrative Appeals, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Stephanie L. Striffler, Senior Assistant Attorney General.
Kimberly D'Aquila and Lisa Bluelake, Tribal Attorney's Office, filed the brief amicus curiae for The Confederated Tribes of the Grand Ronde Community of Oregon.
Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and DUNCAN, Judge.
SERCOMBE, J.
Pursuant to ORS 183.400, petitioner Confederated Tribes of Siletz Indians of Oregon challenges OAR 635-043-0120, a rule promulgated by the Fish and Wildlife Commission (FWC) authorizing the issuance of ceremonial hunting permits for the Confederated Tribes of the Grand Ronde Community of Oregon (Grand Ronde Tribes or "the tribe") and establishing requirements for the use of those permits.[1] Petitioner contends that the rule is invalid because it exceeds FWC's statutory authority and because its adoption violates "separation of powers provisions of the Oregon Constitution."[2] We *707 reject without discussion petitioner's constitutional challenge to the rule and write only to discuss its assertion that the rule exceeds the statutory authority of the agency. Based on our review of OAR 635-043-0120 and the pertinent statutes, we conclude that the rule is valid.
The issues in this case center around whether FWC has the authority to provide by rule for ceremonial hunting permits for the Grand Ronde Tribes in light of statutes governing FWC and an agreement between the Grand Ronde Tribes, the United States government, and the state on hunting and fishing (HF agreement). The HF agreement, which was entered into in 1986 and subsequently adopted by FWC, OAR 635-041-0600, permanently defines tribal hunting, fishing, trapping, and animal gathering rights. According to petitioner, the HF agreement defines the entirety of any tribal hunting right, and, because the state did not modify or amend the HF agreement when it authorized a Grand Ronde ceremonial hunt in OAR 635-043-0120, there is no legal authority for the challenged rule. FWC responds that, although the HF agreement defines the Grand Ronde Tribes' hunting rights, it does not prevent the state from authorizing additional hunting privileges for the Grand Ronde Tribes. Rather, FWC asserts that it has broad statutory authority to authorize hunting, and it was under that broad authority that the rule was adopted.
"In a rule challenge pursuant to ORS 183.400, `judicial review * * * is limited to the face of the rule and the law pertinent to it.'" Waterwatch v. Water Resources Commission, 199 Or.App. 598, 605, 112 P.3d 443 (2005) (quoting AFSCME Local 2623 v. Dept. of Corrections, 315 Or. 74, 79, 843 P.2d 409 (1992); omission in WaterWatch). In evaluating the validity of a rule pursuant to ORS 183.400, we may consider only the rule under review, the statutory provisions authorizing the rule, and copies of documents necessary to show compliance with applicable rulemaking procedures. ORS 183.400(3); LaForge v. Dept. of Human Services, 237 Or.App. 500, 502, 241 P.3d 313, adh'd to as modified, 238 Or.App. 747, 243 P.3d 137 (2010). We must declare the rule invalid only if, based on our review of those sources, we conclude that the rule violates constitutional provisions, exceeds the statutory authority of the agency, or was adopted without compliance with applicable rulemaking procedures. ORS 183.400(4).
We begin by generally describing the HF agreement. Pursuant to that agreement, during the fishing seasons prescribed for all citizens, tribal members may use a tribal fishing license in lieu of a state license within a defined geographic area. OAR 635-041-0600 Ex 2(4). During the regular hunting season, in "addition to those hunting rights or privileges accorded to citizens or licensees of the State under state law, the Tribe" will "have the opportunity to harvest a total of 395 deer and elk (which total shall not include more than 45 elk) and 5 bear per year" within the same geographic area defined for tribal fishing rights. OAR 635-041-0600 Ex 2(5)(a)(1)-(2).[3] The HF agreement "fully and completely define[s] the tribal hunting, fishing, trapping, and animal gathering rights, and no additional tribal rights * * * exist except those which are specifically set forth in [the] agreement." OAR 635-041-0600 *708 Ex 2(3)(a). Furthermore, "[a]ny hunting, fishing, trapping, and animal gathering, including method, time, and place, which is conducted by the Tribe or its members and which is not specifically permitted by [the] agreement shall be subject to regulation under applicable state laws." OAR 635-041-0600 Ex 2(3)(b). The agreement further provides that "[t]he taking of deer or elk or bear in excess of the number specified" therein is not "included within the Tribe's cultural hunting rights and [is] subject to regulation under applicable state or federal law." OAR 635-041-0600 Ex 2(5)(b)(4).
OAR 635-043-0120, the rule at issue in this case, was promulgated following a joint proclamation from the Governor, the FWC chairperson, and the Grand Ronde Tribes that called for the opportunity for the tribe to harvest additional big game animals for tribal ceremonial use. Like the HF agreement, the rule addresses the harvest of deer, elk, and bear by members of the Grand Ronde Tribes. OAR 635-043-0120(1). Specifically, pursuant to the rule, upon a written request from the Grand Ronde Tribes, the Department of Fish and Wildlife may issue permits to the tribe for the ceremonial harvest of up to 15 deer, nine elk, and three bears annually. OAR 635-043-0120(2), (3)(e). In contrast to tribal hunting under the HF agreement, which must take place during the regular hunting season, the rule provides for the following season dates: "for elk, April 1 through 3 days before the 1st day of general archery season (inclusive); for deer, January 1 through 3 days before the 1st day of general archery season (inclusive); for bear, January 1 through March 31 and June 1 through July 31 (inclusive) each year." OAR 635-043-0120(3)(e). "Tribal authorities may designate individuals to harvest animals using these ceremonial harvest permits." OAR 635-043-0120(3)(d). However, "[a]nimals harvested under an authorized ceremonial harvest permit may only be used by Tribal members for ceremonial and cultural purposes. Animals and parts thereof may not be bartered or sold." OAR 635-043-0120(5). The rule limits the area in which ceremonial harvest permits are valid, providing that they are valid in the same geographic area defined for hunting and fishing in the HF agreement, that is, "the area as described in section 4(a) 1 of the 1986 Agreement between the State of Oregon and the Tribes (See OAR 635-041-0600(4)(a)(1))."[4] OAR 635-043-0120(3)(g). The rule also states that "[a]uthorization of these ceremonial-hunting permits does not create, convey or imply any additional tribal legal or treaty entitlement, nor does it modify any existing agreement, treaty, or court decree." OAR 635-043-0120(6).
Petitioner contends that, because the HF agreement was not modified to provide for the ceremonial hunting permits allowed pursuant to OAR 635-043-0120, the rule is not valid under the statutes relied on by FWC. That is, according to petitioner, ORS 190.110 does not allow for the rule because it is not consistent with the HF agreement, and ORS 496.012, ORS 496.138, ORS 496.146, and ORS 496.162 "do not provide an independent state basis to grant special hunting rights to Grand Ronde tribal members[.]" FWC, in turn, asserts that the rule is authorized under its authority pursuant to ORS chapter 496. Based on the text and context of the relevant statutes, we agree with FWC. See State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009) (to interpret a statute, the court examines text and context and may consider pertinent legislative history offered by the parties to the extent the court considers it useful).
FWC is charged by statute with the responsibility to "implement the policies and programs of this state for the management of wildlife." ORS 496.138(1). Under that statute, FWC has broad authority to "adopt such rules and standards as it considers necessary and proper to implement the policy and objectives of ORS 496.012 and perform the functions vested by law in the commission." *709 ORS 496.138(2). The state's wildlife policy is set forth in ORS 496.012:
"It is the policy of the State of Oregon that wildlife shall be managed to prevent serious depletion of any indigenous species and to provide the optimum recreational and aesthetic benefits for present and future generations of the citizens of this state. In furtherance of this policy, the [FWC] shall represent the public interest of the State of Oregon and implement the following coequal goals of wildlife management:
"(1) To maintain all species of wildlife at optimum levels.
"(2) To develop and manage the lands and waters of this state in a manner that will enhance the production and public enjoyment of wildlife.
"(3) To permit an orderly and equitable utilization of available wildlife.
"(4) To develop and maintain public access to the lands and waters of the state and the wildlife resources thereon.
"(5) To regulate wildlife populations and the public enjoyment of wildlife in a manner that is compatible with primary uses of the lands and waters of the state.
"(6) To provide optimum recreational benefits.
"(7) To make decisions that affect wildlife resources of the state for the benefit of the wildlife resources and to make decisions that allow for the best social, economic and recreational utilization of wildlife resources by all user groups."
Those statutes, taken together, vest FWC with discretion to determine and implement rules it deems appropriate to allocate the state's wildlife resources. See Mark v. Dept. of Fish and Wildlife, 158 Or.App. 355, 367, 974 P.2d 716, rev. den., 329 Or. 479, 994 P.2d 127 (1999) (statutes give FWC "discretion in deciding what subjects to cover and what rules to adopt"). FWC may also, "by rule[,] authorize the issuance of such licenses, tags and permits for angling, taking, hunting and trapping and may prescribe such tagging and sealing procedures as the commission determines necessary to carry out the provisions of the wildlife laws or to obtain information for use in wildlife management." ORS 496.146(4).
As set forth above, FWC has the power to adopt rules that it deems appropriate to implement the state's wildlife policies, including permitting the orderly and equitable utilization of wildlife, ORS 496.012(3), and making decisions to allow for the best social, economic, and recreational utilization of wildlife resources, ORS 496.012(7). Thus, the statutes appear to provide ample authorization for FWC to promulgate OAR 635-043-0120. The rule provides for the issuance of hunting permits and reflects FWC's decision regarding an equitable allocation of wildlife resources in accordance with the state's wildlife policies.[5]
Nonetheless, petitioner argues that ORS 496.146 supports its position that FWC was without statutory authority to promulgate OAR 635-043-0120. In particular, petitioner points to the fact that ORS 496.146(6) provides that FWC may establish "special hunting and angling areas or seasons in which only persons less than 18 years of age or over 65 years of age are permitted to hunt or angle," and ORS 496.146(15) allows FWC to *710 "establish special fishing and hunting seasons and bag limits applicable only to persons with disabilities." In petitioner's view, because the legislature specifically listed those powers, it thereby limited FWC's ability to, by rule, provide for the ceremonial hunting permits at issue here. We are not persuaded.
Initially, we observe that the powers of FWC listed in ORS 496.146 do not purport to limit its broad discretionary authority pursuant to ORS 496.138 and ORS 496.012. Rather, those powers are "[i]n addition to any other duties or powers" provided to FWC by law. ORS 496.146. And, as noted, FWC's other duties and powers include promulgating rules that it "considers necessary and proper" to implement wildlife policies. ORS 496.138(2). Those policies include permitting "the equitable utilization of available wildlife" and making decisions regarding the "best social, economic and recreational utilization of wildlife resources." ORS 496.012(3), (7). Furthermore, ORS 496.146(4) gives FWC very general authority to authorize hunting permits "as the commission determines necessary to carry out the provisions of the wildlife laws[.]" The legislature's delineation of powers pursuant to ORS 496.146 is explicitly nonexclusive; it is in addition to anything else the commission may otherwise do given the powers and duties imposed on it by law. FWC's authority to establish special times and places for children and older people to hunt and to establish special hunting seasons and bag limits for persons with disabilities does not speak to its additional authority to provide for hunting permits by rule, nor does it limit FWC's ability to implement the state's broader policies. Given the general authority delegated to FWC by the legislature, along with the nature of ORS 496.146, OAR 635-043-0120 is within FWC's statutory authority.
Finally, in petitioner's view, OAR 635-043-0120 is contrary to law because it conflicts with the HF agreement. Petitioner contends that that agreement "is the exclusive expression of any Grand Ronde hunting rights or privileges" and "prohibits any hunting outside the express terms of the Agreement, whatever their basis, except for hunting conducted pursuant to state law, the same as every other citizen." However, the text of the HF agreement does not support petitioner's argument. That is, the agreement does not by its terms limit the state's ability to allow for hunting by the Grand Ronde Tribes. Rather, the HF agreement fully defines the tribe's hunting rights and permits the state to regulate any hunting by the tribe and its members not specifically allowed thereunder.
The HF agreement was intended to resolve a disagreement between the state and the Grand Ronde Tribes regarding the tribe's hunting, fishing, animal gathering, and trapping rights. OAR 635-041-0600 Ex 2(2). It specifically describes the controversy: "The Tribe contends that it possesses tribal hunting, fishing, trapping and animal gathering rights. The State, on the other hand, disagrees and presently enforces state law whenever the Tribe or its members hunt, fish, trap, or gather animals, contrary to any provision of the law." OAR 635-041-0600 Ex 2(2)(a). In order to resolve the issue, the parties intended the agreement "to define, specifically and permanently, the nature and extent of the Tribe's rights." OAR 635-041-0600 Ex 2(2)(b). In furtherance of that goal, the HF agreement contains principles in accordance with which the agreement is to be construed. Among those are the following:
"a. This agreement shall fully and completely define the tribal hunting, fishing, trapping, and animal gathering rights, and no additional tribal rights shall hereafter exist except those which are specifically set forth in this agreement.
"b. Any hunting, fishing, trapping, and animal gathering, including method, time, and place, which is conducted by the Tribe or its members and which is not specifically permitted by this agreement shall be subject to regulation under applicable state laws.
"* * * * *
"g. The parties agree that the State shall retain sovereign authority to manage fish and wildlife resources under applicable provisions of Oregon law, both on and off any reservation, established for the Tribe, *711 subject to the provisions of this agreement."
OAR 635-041-0600 Ex 2(3). Pursuant to the agreement, during the regular hunting season, the tribe may harvest deer, elk, and bear in the numbers and area set forth above, 244 Or.App. at 538, 260 P.3d at 707, without a state hunting license. OAR 635-041-0600 Ex 2(5). However, there is no tribal right to take deer, elk, or bear in greater number than the agreement provides, and any additional taking of those animals is subject to regulation under state law. OAR 635-041-0600 Ex 2(5)(b)(4) ("The following acts shall not be included within the Tribe's cultural hunting rights and are subject to regulation under applicable state or federal law * * * (4) The taking of deer or elk or bear in excess of the number specified in this agreement.").
Thus, as described therein, the agreement was aimed at defining the "rights" of the Grand Ronde Tribes to conduct hunting (and other) activities not necessarily otherwise provided for under state law. The HF agreement was to be the final resolution of the conflict with respect to that issuefully and completely setting forth those rights as not subject to further state regulation. See Webster's Third New Int'l Dictionary 1955 (unabridged ed 2002) (a "right" is "a power or privilege to which one is justly entitled"; a "capacity or privilege the enjoyment of which is secured to a person by law"; or the "capacity to assert a legally recognized claim"). Although the agreement clearly states that the Grand Ronde Tribes possess no tribal hunting rights not provided for therein, contrary to petitioner's view, it does not prohibit the state from allowing for additional hunting for the tribe. Rather, it recognizes that the state may regulate hunting not specifically provided for in the HF agreement. That is, it states that hunting conducted by the Grand Ronde Tribes or members of the tribe that is not specifically allowed pursuant to the agreement is "subject to regulation under state law." Indeed, the agreement contemplates that the state, under its own laws, may permit the tribe to take additional deer, elk, or bear, but provides that the tribe does not have a tribal "right" to take additional animals. OAR 635-041-0600 Ex 2(5)(b)(4).
Thus, although such hunting is not recognized as a tribal "right," the state may allow the tribe and its members to engage in hunting not contemplated by the agreement and may regulate that hunting (such as by requiring the tribe or its members to obtain state hunting licenses and comply with all other requirements of state law). That is wholly consistent with FWC, an agency of the state, providing by rule for the issuance of special ceremonial hunting permits for the Grand Ronde Tribes to conduct hunts not specifically allowed within the tribal hunting rights described in the HF agreement. Thus, under the terms of the agreement, the state may regulate any hunting outside the agreement and, in promulgating OAR 635-043-0120, the state has done so.
In sum, we conclude that OAR 635-043-0120 is within the scope of FWC's statutory authority.
OAR 635-043-0120 held valid.
NOTES
[1] The Grand Ronde Tribes, as amicus curiae, filed a brief in support of OAR 635-043-0120, which it contends "is necessary to allow Grand Ronde to provide fresh deer, elk, and bear meat for important Tribal ceremonies and celebrations which take place outside the State of Oregon's * * * regular big game hunting seasons."
[2] In its first and second assignments of error, petitioner asserts that the rule is invalid because it was adopted without compliance with certain applicable rulemaking procedures. See ORS 183.400(4)(c). However, respondent asserts and petitioner conceded at oral argument that the subsequent readoption of the rule renders those assignments of error moot. See Smith v. Dept. of Corrections, 101 Or.App. 539, 541 n. 1, 792 P.2d 109 (1990) (subsequent adoption of permanent rule renders moot a contention that temporary rule was adopted without compliance with applicable rulemaking procedures). Petitioner's contention in its reply brief that the claims are not moot because of a potential award of attorney fees to it is foreclosed by Keeney v. University of Oregon, 178 Or.App. 198, 205-06, 36 P.3d 982 (2001), rev. den., 334 Or. 327, 52 P.3d 435 (2002) (inchoate interest in attorney fees pursuant to ORS 183.497, dependent on the possibility that the petitioner might prevail on the merits on judicial review, is insufficient to prevent case from being moot). However, because the readoption of OAR 635-043-0120 does not affect petitioner's contention that the rule exceeds the agency's statutory authority and violates a constitutional provision, we consider the merits of petitioner's remaining assignments of error.
[3] The HF agreement also contains numerous other provisions relating to, among other things, trapping, cultural animal gathering, and a tribal licensing and tagging system. The specifics of those provisions are not pertinent to the issues presented in this case.
[4] Petitioner and the Grand Ronde Tribes disagree as to their relative interests with respect to part of that geographic area. Petitioner contends that "it retains treaty hunting rights" in part of the geographic area to which OAR 635-043-0120 refers. The Grand Ronde Tribes assert that petitioner has no tribal rights in that area. Petitioner and FWC agree that it is not necessary to resolve that dispute as part of this rule challenge, and we do not address it herein.
[5] We note that the parties also discuss ORS 190.110, pursuant to which FWC, in the course of administering wildlife programs and policies, is authorized to cooperate with the Grand Ronde Tribes (as it did in this case). That statute provides, in part:
"(1) In performing a duty imposed upon it, in exercising a power conferred upon it or in administering a policy or program delegated to it, * * * a state agency of this state may cooperate for any lawful purpose, by agreement or otherwise, * * * with an American Indian tribe or an agency of an American Indian tribe.
* * *
"(2) The power conferred by subsection (1) of this section to enter into an agreement with an American Indian tribe or an agency of an American Indian tribe extends to any * * * state agency that is not otherwise expressly authorized to enter into an agreement with an American Indian tribe or an agency of an American Indian tribe."
As petitioner points out, ORS 190.110 allows an administrative body only the capacity to cooperate or enter into agreements to carry out duties or powers that have otherwise been conferred upon it by the legislature. State ex rel SOSCF v. Klamath Tribe, 170 Or.App. 106, 115, 11 P.3d 701 (2000).
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281 S.W.2d 863 (1955)
James C. HUFFMAN (Plaintiff), Respondent,
v.
TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation (Defendant), Appellant.
No. 44492.
Supreme Court of Missouri. Division No. 1.
July 11, 1955.
Motion for Rehearing or to Transfer to Denied September 12, 1955.
*865 Warner Fuller, Arnot L. Sheppard, St. Louis, for appellant.
Haley, Fredrickson & Caruthers, Rexford H. Caruthers, St. Louis, for respondent.
Motion for Rehearing or to Transfer to Court en Banc Denied September 12, 1955.
VAN OSDOL, Commissioner.
This is an appeal from a $20,000 judgment rendered in plaintiff's action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for personal injuries allegedly sustained by plaintiff when he slipped and fell in the oily, slick area north of No. 1 interchange track in the Roselake Yard of the Pennsylvania Railroad Company in Illinois. At the time of his injury, plaintiff, a member of a switch crew in the employ of defendant Terminal Railroad Association of St. Louis, was engaged in the movement and delivery or interchange of a "cut" or train of cars from defendant's Central District Yard in East St. Louis to the Pennsylvania's Roselake Yard. Plaintiff's claim is based on the alleged failure of defendant to exercise ordinary care to provide plaintiff with a reasonably safe place to work.
Herein defendant-appellant contends the trial court erred in submitting plaintiff's case to the jury; in instructing the jury; in the admission and exclusion of evidence; and in permitting improper cross-examination of a witness for defendant.
There was evidence introduced tending to show that in the Roselake Yard there are three east-west interchange tracks numbered 1, 2, and 3, from south to north. Three or four car lengths to the westward of the easterly end of interchange track No. 1 there is a small wooden boardwalk, sometimes called a bridge, consisting of wedgeshaped pieces of wood laid against the rails in such a way as to make a ramp for the easy passage (over the rails) of wheelbarrows *866 loaded with tools. It is usual for defendant's switch crews when moving trains or cuts of cars to the three interchange tracks to complete the interchange movement a short distance west of the small wooden bridge. There the switch engine is usually detached from the train, and the foreman of the switch crew walks eastwardly a few hundred feet to deliver his "bills" to the yardmaster, and to get instructions from a dispatcher as to the track the switch engine (and caboose) may pass over in returning to defendant's Central District Yard. The Pennsylvania's switchstand No. 8 is some ten or twelve feet to the southeastward of the small wooden bridge. When a cut of cars is set on an interchange track, the journal boxes of each car of the train are oiled by employees of the Pennsylvania. The oiling of journal boxes of cars on these interchange tracks west of switchstand No. 8 and the small wooden bridge has been going on for years, and drippings of oil have fallen on the ground along and between the interchange tracks west of the small wooden bridge so that the area has become oil-soaked and slippery. This is the general condition from and west of switchstand No. 8 and the small wooden bridge, and for several hundred feet to the westward. There was evidence tending to show that east of the small wooden bridge there is no oily or slippery condition. A witness said it is oily west of No. 8 switchstand and the small wooden bridge with "an inch to an inch and a half top surface of oil." By this we understand the witness meant the ground has become soaked with oil to an inch or an inch and half in depth. The ground is also "bumpy." There was evidence tending to show that this condition had obtained for several years prior to the time when plaintiff was injured.
Plaintiff testified that he, the head man of a switch crew, had assisted in the movement of a cut of cars over to the No. 1 (the south) interchange track. The train had been stopped with the engine two or three car lengths west of the small wooden bridge. The engine was then disengaged from the train; moved forward (eastwardly) four to six feet; was there brought to a stop; and the foreman had gone eastwardly to attend to his "bills," and for instructions relating to the further movement of the switch engine. It was nighttimeabout eleven-thirtyand there was no artificial light at that place in the Roselake Yard. When the engine was stopped its headlight had been turned off in compliance with an operating rule. After the foreman had been gone fifteen or twenty minutes, plaintiff saw him returning and giving a signal to "come ahead." The foreman's signal was not observed by the engineer of the switch engine.
Plaintiff testified, "Well, the foreman kept giving signals, so I thought, well I better go back there and holler at him (the engineer), tell him to come on out of the track. * * * So, I was sitting on the pilot beam and I scooted off the pilot beam down with both feet on the footboard. * * I started to step off the engine and we have what is known as a grab iron, grab rail, to hold to. I lit my lanternthat is an electric lanternand took my left hand to hold the grab rail and stepped down on the ground. As I started, as I stepped on the ground I made a turn (to the left) towards the back of the engine, and when I stepped the other foot down, why I stepped on something that was greasy, was slick. I started stumbling and falling backwards. I fell into something along right just at the side of the engine, the front side of the engine and I cut a place between my shoulders. When I would up falling I was lying across the (north) rail in front of the engine, about halfway inside the track and half out." There was evidence introduced by plaintiff tending to show that he sustained serious injury.
Defendant developed evidence tending to show that, if plaintiff fell, his injuries were but trivial; and that, if plaintiff fell, it was at some point east of the small wooden bridge and switchstand No. 8, where the ground was not saturated with oil. Defendant also introduced evidence tending to show that plaintiff's condition of disability was not due to trauma or physical injury as a result of his falling, but that *867 plaintiff's condition was due to disease, syphilis, which had progressed to its third or tertiary degreethat is, tabes dorsalis, locomotor ataxia. Defendant also introduced evidence in impeachment. There was evidence that plaintiff had thrice been convicted of crime, one of which convictions was on a Federal charge. While serving this time, plaintiff was transferred (in 1937) to the United States Medical Center at Springfield; and the records of that institution disclose that plaintiff's condition was there diagnosed (in 1939) as "syphilis, tertiary, central nervous system."
As we have stated, plaintiff testified he stepped from the engine down "on the ground." At another place in his testimony he said he did not see what it was he stepped on and slipped; again he said he may or may not have stepped on a tie; and again he said he stepped on something higher than the ground, although he said he stepped on something slick. As will be noted infra, plaintiff, in his verdict-directing Instruction No. 1, hypothesized that plaintiff stepped "onto the ground," and that the ground "was oily, slick and not lighted." Defendant-appellant argues plaintiff's evidence forces the conclusion that plaintiff stepped down on a tie or some object other than the "ground" and there was no allegation or proof that any tie or other substance than the ground was oily and slick, so that the failure of plaintiff to definitely and unequivocally say he stepped and slipped on the "ground" as submitted was fatal, being a failure of proof of the fact as hypothesized in the instruction. But, as stated, plaintiff said he stepped on something slick; and we think the "ground" as submitted in the instruction should be reasonably considered as the area north of interchange track No. 1 where plaintiff stepped down, the "bumpy" slick surface of which area was comprised, it may be inferred, of ties extending from beneath the rails as well as cinders, gravel or earth. It seems that otherwise than above stated, defendant-appellant does not contend plaintiff failed to make out a case (as submitted) by his own testimony, if his testimony supporting his case was worthy of belief.
Having examined the evidence tending to support plaintiff's case as submitted, we are of the opinion there were substantial bases for the inferences that the area between interchange tracks Nos. 1 and 2 and west of the small wooden bridge and switchstand No. 8 was oily, slick and not lighted, and not reasonably safe for employees to step and walk upon. This was a place, the evidence shows, where employees usually completed interchange switching movements with necessarily incidental use of the area for stepping and walking upon in uncoupling, and moving switch engines from trains. The oily, slick condition had existed for years so that defendant, in the exercise of ordinary care, could have remedied the unsafe condition. And we believe we cannot say as a matter of law that the fact that the area was not lighted did not have its substantial part in rendering the place unsafe and in proximately causing plaintiff's fall and injury. The testimony of but a single witness, plaintiff, was substantial evidence tending to show that he, in attempting to relay or communicate the foreman's signal to the engineer stepped down on something slick in the unlighted area and was caused to slip and fall and was injured.
Defendant-appellant has devoted several pages of its brief in an endeavor to demonstrate that plaintiff's testimony was so manifestly false, so "entirely beyond reason" and unbelievable that it was wholly insufficient in probative value to make out a prima facie case. It is pointed out that plaintiff had made varying and inconsistent statements about his age and marriages; had denied that he had been convicted of crime; had misrepresented the times and places when and where he had worked; had denied or equivocated as to the facts of several former claims for personal injury; and had not theretofore recounted the manner of his instant injury as he did on the witness stand. Defendant-appellant also reminds us that plaintiff's testimony of the circumstances of his injury was not corroborated, and moreover, that testimony of witnesses for defendant tended to refute or destroy the substance of plaintiff's testimony. *868 The tenor of the testimony of defendant's witnesses was that they did not see plaintiff fall and that plaintiff had made statements to them relating to the circumstances of his injury inconsistent with the facts as stated by him on the witness stand. Now plaintiff's testimony at the trial of this cause as disclosed by the record was not contradictory or self-destructive. The testimony of these prior inconsistent and equivocal statements of plaintiff and other impeaching evidence were of interest to the jury in determining what credence should be given to plaintiff's testimony in the trial of the case. We do not say that impeaching evidence was not so sufficiently developed that the jury would not have been justified in disbelieving plaintiff; but we must say it is settled in our practice that it is the province of the jury as the triers of the facts to weigh the evidence and pass upon the credibility of the witnesses and the value of their testimony. Caswell v. St. Louis Public Service Co., Mo.Sup., 262 S.W.2d 40; Higgins v. Terminal R. R. Ass'n of St. Louis, 362 Mo. 264, 241 S.W.2d 380; Reeves v. Thompson, 357 Mo. 847, 211 S.W.2d 23; Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950; Henwood v. Coburn, 8 Cir., 165 F.2d 418.
Plaintiff's case was submitted to the jury by his principal verdict-directing Instruction No. 1, which was as follows,
"The Court instructs the jury that this case is brought and being tried under the Federal Employers' Liability Act, * * * and that under such law it was the duty of the Defendant * * * to exercise ordinary care to discover dangers in places where its employees were required to work and to furnish its employees with a reasonably safe place in which to work * * *.
"Therefore, you are further instructed that, if you find and believe from the evidence * * * the Plaintiff, James C. Huffman, while engaged in the performance of his duties as an employee of Defendant * * * was a member of a crew delivering railroad cars * * * on interchange track No. 1 in the Roselake Yard of the Pennsylvania Railroad Company, mentioned in evidence; and that it became necessary for Plaintiff to, and that he did, step from one of Defendant's locomotives, which was being used to move said railroad cars, onto the ground between said interchange track and * * * interchange track No. 2 in said yard and that the ground between said interchange tracks was oily, slick and not lighted, and that the Defendant * * * knew, or by the exercise of ordinary care, should have known that the ground between said tracks was in such condition and that it had been and was reasonably certain to be used by persons getting on and off railroad cars and locomotives in doing the work of delivering railroad cars * * * and that by reason of such oily, slick and unlighted condition between said tracks (if you find that it was in such condition), the Defendant * * * did not exercise ordinary care to furnish Plaintiff with a reasonably safe place to work, then you are instructed that the Defendant * * * was negligent, and if you further find and believe from the evidence that wholly or partly as a result of such negligence Plaintiff, James C. Huffman, slipped and fell, and as a direct result thereof, sustained bodily injury, then your verdict should be in favor of Plaintiff, James C. Huffman, and against" defendant.
Contrary to defendant-appellant's contention, we are of the opinion that the first paragraph of Instruction No. 1 did not impose an unqualified duty upon defendant to furnish plaintiff with a reasonably safe place in which to work. It is true the employer is not the insurer of his employees' safety, and it would seem that the employer has fulfilled his duty to his employee if the place of work furnished is reasonably safe, or if the employer has exercised ordinary or reasonable care to make it safe. Strictly speaking the test is not whether the place in which the work *869 is to be performed is absolutely safe, but whether the employer has exercised reasonable care to make it safe. Reese v. Illinois Terminal R. R. Co., Mo.Sup., 273 S.W.2d 217, and authorities cited therein. Here in the first paragraph of Instruction No. 1 the duty of the employer-defendant is abstractly stated as being the duty "to exercise ordinary care to discover dangers in places where its employees were required to work and to furnish its employees with a reasonably safe place in which to work * * *." (Our italics.) In our opinion the phrase "to exercise ordinary care" would be understood by a jury as applicable not only to the phrase "to discover dangers" but also the phrase "to furnish its employees with a reasonably safe place in which to work." It has been further noted that this Instruction No. 1 did not specifically and expressly submit to the jury that the oily, slick condition of the ground was dangerous or not reasonably safe. This is said by defendant-appellant to render the instruction prejudicially erroneous, there being, it is asserted, a failure to hypothesize or submit an element or ingredient essential to a recovery. See Reese v. Illinois Terminal R. R. Co., supra; and Wagner v. Missouri-Kansas-Texas Railroad Co., Mo. Sup., 275 S.W.2d 262. The Instruction No. 1 was not like the erroneous instructions in the Reese and Wagner cases. Although the Instruction No. 1 did not precisely and definitely require a finding that the oily, slick, unlighted condition was dangerous or not reasonably safe, yet inferentially the jury was required to so find, inasmuch as the instruction required the finding "that by reason of such oily, slick, and unlighted condition * * * the Defendant * * * did not exercise ordinary care to furnish Plaintiff with a reasonably safe place to work * * *"; and we further notice that Instruction No. 4, given at defendant's instance, made definite and clarified the requirement that the jury should find the hypothesized condition was not reasonably safe. In Instruction No. 4 the jury was advised that no verdict could be rendered for plaintiff unless it was found from the greater weight of the evidence that "at such points west of said walkway the ground was so slick, greasy and oily that it was not reasonably safe. * * *." Now the jury was also instructed by Instruction No. 6, given at defendant's request, that the evidence "does not establish that there was any oil, grease" east of the wooden bridge, and that if the jury found the switch engine was stopped "at a point east of said wood crosswalk * * *, your verdict must be in favor of defendant." We bear in mind that instructions should be read together and in combination, and we are of the opinion that Instruction No. 1, considered together with the other given instructions was not prejudicially erroneous or misleading. We are of the further opinion the language, "wholly or partly as a result of such negligence" plaintiff slipped and fell, "and as a direct result thereof, sustained bodily injury," was not a prejudicially erroneous submission of the essential element of actionable negligence-causation. The language "wholly or partly" is in apparent reference to the language "resulting in whole or in part from the negligence" as used in Section 51 of the Act. 45 U.S.C.A. § 51.
The jury was told by plaintiff's Instruction No. 3 that defendant did not contend that any act or failure to act on the part of plaintiff contributed in causing his injury and that although the jury might believe from the evidence that some act or failure to act on the part of plaintiff did contribute to his injury, the jury was not to consider such fact in connection with the issues of negligence of defendant and of damage to plaintiff. Defendant-appellant contends the instruction brought contributory negligence into the case, although plaintiff's negligence was not pleaded. It is said the instruction accentuated plaintiff's claim of defendant's negligence, and confused the issues. The instruction was cautionary in nature to be given or refused in the sound discretion of the trial court. In the state of the pleadings wherein no issue of diminution of damages because of contributory negligence of plaintiff, 45 U.S.C.A. § 53, was raised by defendant in this Federal Employers' Liability Act case, it is difficult to see how the instruction could *870 have been prejudicial. And we do not believe the instruction could be correctly said to have confused the issues in this case wherein no humanitarian rule negligence was involved. Holmes v. Terminal R. R. Ass'n of St. Louis, 363 Mo. 1178, 257 S.W.2d 922, and cases cited; Higgins v. Terminal R. R. Ass'n of St. Louis, supra.
The trial court refused to give defendant's proffered Instruction C which was as follows,
"You are instructed that if you believe from the evidence in this case that plaintiff is and was at the time he claims he was hurt on July 17, 1952, suffering from syphilis and resulting tabes dorsalis; and if you further believe from the evidence that his present physical condition is the direct result of syphilis, if you find he is suffering from that disease, then he cannot recover in this case, and your verdict should be for the defendant railroad company."
The instruction submits that plaintiff is and was suffering from syphilis and resulting tabes dorsalis and that his present physical condition is the direct result of syphilis. But the instruction does not negative that plaintiff sustained injury as the direct result of falling as submitted, and the instruction directs a verdict for defendant. Now a jury might have believed that plaintiff's present physical condition is due to syphilis. Even so, this would not authorize a verdict for defendant if plaintiff sustained injury as a direct result of having fallen in the circumstances as alleged, supported by substantial evidence, and submitted. We rule the trial court did not err in refusing the Instruction C.
Attending now contentions of error in the admission and exclusion of evidence, and in the cross-examination of a witness for defendant
Plaintiff's witnesses, physicians, were asked hypothetical questions and requested to give their opinions relating to the cause of plaintiff's physical condition and disability. It is the position of defendant-appellant that the trial court erred in admitting this opinion evidence because, it is said the hypothetical questions propounded did not require the witness to assume the truth of the facts shown in hospital records which plaintiff had introduced, and which records disclosed, inter alia, the diagnosis that plaintiff had suffered from tabes dorsalis. A careful reading of the record discloses that defendant's counsel may not have made specific and timely objections so as to raise and preserve his present contention of error with respect to the admission of this opinion evidence. However, it is not absolutely essential that a hypothetical question should include all material facts supported by evidence. The questioner may frame his hypothetical question on his own theory and may not necessarily include all of the material facts shown in evidence. The questioner may elicit an opinion on any combination or set of facts he may choose, if the question propounded fairly hypothesizes facts the evidence tends to prove and fairly presents the questioner's theory so that the answer will be of assistance to the jury on the issue. State v. Sapp, 356 Mo. 705, 203 S.W.2d 425; Golden v. National Utilities Co., 356 Mo. 84, 201 S.W.2d 292; Smith v. General Motors Corp., Mo.Sup., 189 S.W.2d 259. It has been written that for reasons of principle and to some extent of policy, the natural conclusion would be that the questioner need not cover in his hypotheses the entire body of testimony put forward on that point by him or his opponent. Vol. II, Wigmore on Evidence, 3d Ed., § 682, at page 807. In our case the examiner, plaintiff's counsel, suggested and the trial court permitted the expert witnesses to read the hospital records, and the witnesses were asked to assume their "validity" and that they "contain the information as shown by the records" in connection with other facts stated in the hypothetical questions and supported by the evidence. The hypotheses contained in questions were not unfair or valueless in supporting an opinion as in the case of De Donato v. Wells, 328 Mo. 448, 41 S.W.2d 184, 82 A.L.R. 1331, cited by defendant-appellant, *871 wherein the expert witnesses were required to eliminate all other causes of plaintiff's miscarriage so as to compel an opinion that the miscarriage was caused by the trauma as claimed by the examiner.
Complaint is also made that a witness for plaintiff, an examining physician, was permitted to base his opinion as an expert as to the cause of plaintiff's physical condition upon statements of plaintiff to the witness with respect to plaintiff's past experiences of pain. The doctor had testified that plaintiff complained to him of pain in the left shoulder and over the left shoulder blade, also of some stiffness in the left shoulder; "that if he (plaintiff) turned his head to the side he had some aggravation of pain in the shoulder. Secondly he complained of constant weakening pain in the lower part of his back, at times acute. * * * that at times the pain in his back was made worse, was aggravated, and that this was done by, he thought, by turning or twisting his body or stooping, and when he had acute pain in his back the pain went into the posterior aspect of his left side. When these attacks occur he has weakness of the lower extremity." A physician, in stating his expert opinion on a patient's condition, may testify to what the patient said (an exception to the hearsay rule) concerning his present, existing symptons and complaints. However, he may not base his opinion upon or testify to statements of the patient with respect to past physical conditions, circumstances surrounding the injury, or the manner in which the injury was received. Holmes v. Terminal R. R. Ass'n of St. Louis, supra, 363 Mo. 1178, 257 S.W.2d 922. If it be assumed the facts which the doctor testified plaintiff had stated as to his physical condition in some instances referred to plaintiff's experiences in the past, nevertheless, the plaintiff had testified during the trial that he had experienced the pains substantially of the nature detailed by the doctor as the bases in part of his opinion; that is, the "history" of pain which the doctor stated as having been related by plaintiff to him was otherwise in evidence. Therefore, it would seem the objection that "history" of previous conditions of pain was prejudicially permitted as the basis in part of the physician's opinion must fall. Oesterle v. Kroger Grocery & Baking Co., 346 Mo. 321, 141 S.W.2d 780; Holloway v. Kansas City, 184 Mo. 19, 82 S.W. 89; Baumhoer v. McLaughlin, Mo.App., 205 S.W.2d 274.
It was not an abuse of discretion for the trial court to permit cross-examination of defendant's witness, a physician, on matters tending to show his bias in favor of a defendant. Wild v. Pitcairn, 347 Mo. 915, 149 S.W.2d 800. Nor was it error to exclude evidence of, or limit the cross-examination of plaintiff concerning the collateral facts of plaintiff's marriages and decrees of divorce and the grounds on which the decrees were granted. Bush v. Kansas City Public Service Co., 350 Mo. 876, 169 S.W.2d 331. Some excerpts of a deposition, offered as plaintiff's admissions or in impeachment, were excluded. The exclusion of this evidence could not have been prejudicial. Plaintiff in substance admitted during his testimony as a witness the statements which the excerpts of the deposition would have tended to prove.
The judgment should be affirmed.
It is so ordered.
COIL and HOLMAN, CC., concur.
PER CURIAM.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court.
All of the Judges concur.
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281 S.W.2d 949 (1955)
E. H. RISSER et al. Appellants,
v.
CITY OF LITTLE ROCK et al. Appellees.
No. 5-724.
Supreme Court of Arkansas.
July 4, 1955.
Rehearing Denied October 3, 1955.
John R. Thompson, Bernal Seamster, Joseph C. Kemp and Cooper Jacoway, Little Rock, for appellants.
O. D. Longstreth, Jr., City Atty, Dave E. Witt, Asst. City Atty, and Mehaffy, Smith & Williams, Little Rock, for appellees.
*950 ROBINSON, Justice.
This is an effort by some of the residents of the Fourche Dam community, which is east of Little Rock in Pulaski County, to prevent the City of Little Rock from relocating a small portion of East 10th Street and East 26th Street in that city.
East 10th Street is on the north side of the Little Rock Municipal Airport and East 26th Street is on the south side. To facilitate the operation of modern aircraft, it is necessary for the city to install additional equipment at the ends of the northeastsouthwest runway at the airport. In order to do this, the city seeks to abandon a small portion of East 10th Street and establish a new route one block north on 9th Street. This will require traffic to make two sharp turns in traveling from 10th to 9th Street. By actual timing, it takes 35 seconds longer to travel the new route than it does the old one. On the south side of the airport, the city has relocated East 26th Street for a distance of a little over half a mile. This was done by building a crescent shaped loop which makes the new route approximately 600 feet longer than the old route. The old route is in such a condition that it cannot be traveled, hence the comparative time it takes to travel the two routes is not shown, but it requires a total of one minute and 15 seconds to drive the entire new route at a usual rate of speed.
Appellants filed suit to enjoin the city from abandoning the old routes in favor of the new ones. The chancellor denied the injunction and the residents of the Fourche Dam community have appealed. Appellants contend that "the City did not comply with the statutory requirement of securing approval from the Pulaski County Planning Commission; the City had no control or jurisdiction to close the roads in question; the City has failed to provide comparable roads that are equally safe and convenient; the fact that the plaintiffs' property does not abut on the portion of the road closed does not prevent the plaintiffs from suffering damages for which they are entitled to reimbursement; the court should have sustained the plaintiffs' plea of res adjudicata." Appellants also contend that the city is precluded from closing the roads by a contract made with the residents of the area. There are three points that merit discussion: first, is the city bound by a contract; second, is the cause res judicata; and third, have appellants suffered special and peculiar damages.
As to the question of whether the city is bound by an agreement heretofore made with the residents of the Fourche Dam area, appellants introduced evidence to the effect that, in 1934, the city undertook to close East 17th Street and the county road known as Fourche Dam Pike; that the residents of the Fourche Dam community objected, resulting in an agreement between the city officials, the county judge and the residents of that area, that the residents would not oppose the closing of East 17th Street, or seek damages for the closing of that street, if the city and county would construct a paved road on the north side of the airport; and that, in 1940, the agreement was modified whereby the city was to improve East 10th Street, and im-. prove and maintain East 26th Street with a right of way of 160 feet. Appellants contend that this was a valid and binding contract between the Fourche Dam residents and the city, and that the city is not now at liberty to change the location of East 10th and East 26th Streets, which are the roads furnishing access to the Fourche Dam community.
Any attempt on the part of the city to enter into a contract relating to the permanent establishment or abandonment of its public streets would be ultra vires. In establishing, maintaining or abandoning its streets, the city acts in a governmental capacity and no city administration has the authority to bind a future administration in such matters. Cities have the authority to control, supervise and regulate all streets within their corporate limits. Ark.Stats. §§ 19-2313, 19-2304. "A municipality cannot bind itself by a perpetual contract, *951 or by one which lasts an unreasonable length of time. Thus, a municipal corporation cannot obligate itself to keep a particular street open forever." 38 Am. Jur. 174. It is also said in 25 Am.Jur. 553: "It is established that the governmental power to control and regulate the use of highways in the public interest cannot be surrendered, or impaired by contract. Particularly as to municipalities, control over streets is given to them for the benefit of the public. It is in the nature of a trust held by the corporation, from which arises a continuing duty on the part of such corporations to exercise legislative control over their streets at all times and places when demanded by the public good. They have no power, by contract, ordinance, or bylaw, to cede away, limit, or impair their legislative or governmental powers, or to disable themselves from performing their public duties in this regard, at least without the explicit consent of the legislature, or to delegate the exercise of such powers and the performance of such duties to others, so as to relieve themselves of responsibility in this respect." In 37 Am.Jur. 735, 736, it is said: "It is declared to be against public policy to permit a municipal corporation to part with any of its legislative power. In the absence of a clear grant of power from the legislature, the municipal authorities can do nothing which amounts in effect to the alienation of a substantial right of the public. It cannot obligate itself not to exercise such powers, and a contract in which it purports to do so, even upon valuable consideration, is void. Thus, a municipal corporation cannot, by contract or otherwise, divest itself of its general police power, or of the power of eminent domain which has been delegated to it by the legislature, or of the power of taxation." The law is clear that a city cannot contract away perpetually its rights, obligations and duties in connection with the public streets.
Next we reach the question of res judicata. Ordinance 9004 was adopted by the Little Rock City Council on September 22, 1952. Under the provisions of the ordinance, the portions of East 10th and East 26th Streets involved herein were abandoned. The ordinance set out that the city council had ascertained that portions of such streets "have not been actually used by the public generally for a period of at least five years subsequent to the filing of the plat." It is perfectly obvious that the ordinance was adopted on authority of Ark. Stats. § 19-3825, which provides: "In all cases where the owner of property within a city or town shall have dedicated, or may hereafter dedicate, a portion of such property to the public use as streets or alleys by platting such property and causing such plat to be filed for record, as provided by law, and any street or alley, or section thereof, shown on the plat so filed shall not have been actually used by the public as a street or alley for a period of five (5) years, and in all cases where all property abutting any such street or alley, or section thereof, is owned by any educational institution or college, whether the same shall have been actually used by the public as a street or alley for a period of five (5) years or not, the city or town council shall have power to vacate and abandon the street or alley, or any portion thereof, by proceeding in the manner hereinafter set forth." After the adoption of Ordinance 9004, appellants in the case at bar filed a suit to enjoin the city from enforcing the ordinance by closing a portion of East 10th and East 26th Streets. The complaint alleged, inter alia, that "The defendants are now attempting to close, block, obstruct and barricade a portion of said 10th Street and have already begun to tear up the roadway and to interfere with travel along said road." An intervention was filed alleging that "The defendants are purporting to act under the authority of Ordinance No. 9004 of the City. Said ordinance is void and a nullity. Said ordinance was not enacted in the manner required by law and contains a recitation and finding that the road or street in question has not been used for a period of at least five years subsequent to the filing of the plat. In truth and in fact, said road has been constantly and continuously used by the public, *952 including the plaintiff and all others similarly situated, and said use has continued without abatement or interruption at the time it was opened until and through the present time. Because of the invalidity of the ordinance, the portion of East 10th Street that purports to be affected by the ordinance has not been vacated and the defendants have no right or authority to attempt to block, barricade, close and obstruct any portion of East 10th Street and the efforts of the defendants to close, barricade, block and obstruct East 10th Street are without authority of law and are of great damage to this plaintiff and to all others similarly situated." Both a demurrer and an answer filed by the city asserted the validity of Ordinance 9004 as a complete defense, and did not attempt to justify the closing of the streets on any other ground. In fact, there was no other ordinance authorizing the closing of the streets. On a final hearing, there was a decree enjoining the defendants from closing portions of the streets involved. The pleadings must have been considered amended to apply also to East 26th Street.
If Ordinance 9004 was void because it was based on the false premise that the streets in question had not been used for five years, then the city was without authority to close the streets and the injunction was granted properly by the trial court. It appears conclusive that the streets had been regularly used within the five year period, and therefore, that Ordinance 9004 was not passed in accordance with Ark. Stats. § 19-3825 authorizing the closing of streets where they have not been used for five years. There was no appeal from the Chancellor's decree enjoining the city from closing a portion of the streets. The date of the decree was June 26, 1953.
A short time later, on August 10, 1953, the City Council, acting on authority of Ark.Stats. § 19-2304 which gives the city the power to vacate portions of public streets, adopted Ordinance 9290. It provides for the closing of the same portions of East 10th and East 26th Streets as did the void Ordinance 9004. Seven days after the adoption of Ordinance 9290, the case at bar was filed attacking its validity. A copy of the ordinance is made a part of the complaint. It will be recalled that this ordinance had not been passed by the City Council at the time of the trial involving the validity of Ordinance 9004. The prayer of the complaint in the present case asks that Ordinance 9290 be declared null and void. An intervention filed by one of the appellants is to the same effect, and asks that the city be enjoined from closing the streets. There was no effort to enforce the order made in the first suit enjoining the city from closing the streets. The only issue in the first suit was the validity of Ordinance 9004. The city asserted no authority for closing the streets except the authority bestowed by that ordinance. True, the plaintiffs attacking the validity of the ordinance alleged damages, but such allegations were necessary to give them a standing in court. Without an allegation of damages, the Complaint and intervention would have been demurrable. If the cause is res judicata, as appellants claim, then the filing of the present suit was wholly unnecessary. The injunction in the first suit would have been sufficient to prevent the closing of the streets.
The principle of res judicata is so well known that it need not be restated here. One of the necessary elements of the doctrine is that the issues must be the same. In the first case, the only real issue was the validity of Ordinance 9004. The right of the city to close a portion of the streets, had this ordinance been found valid, was never considered. The city's right to close a portion of the streets under the authority of Ordinance 9290 was not involved. This ordinance was not in effect when the first case was tried. At the time of the first suit, the city could close portions of the streets only under the authority of Ordinance 9004, and the only issue raised in those pleadings was the validity of that ordinance. Hence, the issue in the first case is not the same as the issue in the case at bar, and the cause is therefore not res judicata.
*953 Next we come to the question of whether the appellants suffered special and peculiar damages. None of the plaintiffs own property abutting the portions of the streets being closed, but even if it is conceded that appellants have been damaged by the relocation of the roads, they have suffered no peculiar or special damages which could give rise to a cause of action. Travelers on 10th Street, as relocated, must turn two corners and travel a little farther, which requires less than a minute in additional time. This slight inconvenience, however, is not peculiar to appellants alone. This street is an outlet from the city to one of the most thickly populated sections of the county. Every person that travels the street suffers the same inconvenience as the appellants.
The principal contention of the appellants in regard to East 26th Street is that their property is especially suitable for industrial development and that the change in the street materially lessens the value of the property from that standpoint. They say that 26th Street, before being relocated, had a 160 foot right of way. The paved section was formerly 18 feet wide, while the new pavement is 22 feet wide. Appellants contend that the 160 foot right of way would be more attractive to industries than the new 40 foot right of way. The city owns all of the property on both sides of the old right of way as well as that on both sides of the new right of way. No doubt the city is anxious to assist in the industrial development of the county and it is not unreasonable to believe that the city would cooperate to the fullest extent in providing the necessary facilities for industries. But, be that as it may, the fact remains that appellants have access to the city and that they have suffered no peculiar and special damages. Appellants own a few hundred acres of land, but the streets in question lead to an area consisting of thousands of acres of level, alluvial soil that is the same as that owned by appellants.
On the question of damages, the case of Little Rock & Hot Springs Western Railroad Company v. Newman, 73 Ark. 1, 83 S.W. 653, 654, is in point. There the court said:
"The rule of law governing cases of this kind is that no private action on account of an act obstructing a public and common right will lie for damages of the same kind as those sustained by the general public even though the inconvenience and injury to the plaintiff be greater in degree than to other members of the public; but an action will lie for peculiar or special damage of a kind different from that suffered by the general public, even though suph damage be small, or though it be not confined to plaintiff, but be suffered by many others."
The court further said:
"If a railroad is constructed across the highway leading from the home of one who lives in the country to the town or city to which his business requires that he must often go, it is very natural that he should feel that the danger of delay or accident to which he may thus be at times subjected renders his property less desirable as a home, while as a matter of fact its market value may be actually increased by the construction of the railroad. If he suffers an injury in such a case, it is general, and not special. If one owning a home in the country could recover damages in such a case, the man who owns a home in the city, and has often to visit the country, might, on the same principle, claim damages to his home in the city, and so there would be no end to such claims, for the injury is common to the whole public, whether in the town or country."
In Wellborn v. Davies, 40 Ark. 83, the court said:
"The inconvenience to the complainant in visiting his patients, however often he may be called to do so, is not different from that which every citizen suffers, whose business or pleasure may call him to travel the road. *954 It is of the same character, only perhaps different in degree, from that which others suffer, who have other business, and live further away. This will not sustain his right of action. * * * The new roads were not as convenient to complainant as the old, and gradually the enclosures of his neighbors came to annoy and embarrassed him very seriously. Doubtless they did diminish the market value of his property. Nevertheless, these were the accidents to him, of a change in the population, business and necessities of the community at large. He made several applications to the County Court to reopen the old roads, and they were all refused. Evidently the public necessity did not require them."
In Stoutemeyer v. Sharp, 39 Ark. 175, 116 S.W. 189, 190, 21 L.R.A.,N.S, 74, the court said:
"In the present case the obstruction did not abut Sharp's premises. It was north of his place, and was between the tracts of land of Stoutemeyer and Parker. Sharp says the obstruction greatly inconvenienced him in taking his stock to Spring river for water, and preventing egress and ingress to that part of the country. This was an injury differing only in degree, and not in kind, from that suffered by Parker, Hutchinson, and the rest of the community. Assuming the road obstructed to be a public highway, we do not think that Sharp has brought himself within the rule above announced."
Also, in Tuggle v. Tribble, 177 Ark. 296, 6 S.W.2d 312, 314, the court said:
"In this connection, it may be said that there can be no change of an existing highway that does not cause some private inconvenience; and, in that sense, injury to the abutting property owners who have adapted themselves to the existing order of things and have purchased property on a highway which they believed would never be changed. There is no question presented in the record that appellants have been entirely cut off from any public highway by the proposed change in the public road in question."
In Greer v. City of Texarkana, 201 Ark. 1041, 147 S.W.2d 1004, 1007, it is said:
"Appellant insists that the effect of the changing of highway No. 71 is to destroy the value of his property, which constitutes the taking of his property without compensation. But the case of Tuggle v. Tribble, 177 Ark. 296, 6 S.W.2d 312, 314, defines the attitude of this court on such questions. In that case the county court changed the location of a county road near the city of Hot Springs. Tuggle owned land on the old highway, and he appealed from the order of the county court making the change, and he appealed to this court from the judgment of the circuit court affirming the judgment of the county court. It was held on the appeal that the county court had the right to change the road, although the change subjected Tuggle to some inconvenience, and depreciated the value of his property * * *. Appellant has not been deprived of his means of ingress and egress, as Dudley Avenue, on which his property is located, remains unaffected by the proposed change. Unaffected also is Jackson Street, running into Dudley Avenue at appellant's corner. Appellant's damage, as found by the court below, results from the diversion of the traffic ; but this was not a recoverable element of damage."
Our conclusion is that the decree of the Chancellor is correct and is therefore affirmed.
SEAMSTER, C. J., and MILLWEE. J not participating.
McFADDIN, J, dissents.
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281 S.W.2d 178 (1955)
G. A. C. HALFF FOUNDATION, a charitable corporation, et al., Appellants,
v.
Robert S. CALVERT, Comptroller of Public Accounts of the State of Texas, et al., Appellees.
No. 12819.
Court of Civil Appeals of Texas, San Antonio.
June 15, 1955.
Rehearing Denied July 13, 1955.
*179 Denman, Franklin & Denman, San Antonio, Robertson, Jackson, Payne, Lancaster & Walker, Dallas, for appellants.
John B. Shepperd, W. V. Geppert, Marietta McGregor Payne, Austin, for appellees.
*180 NORVELL, Justice.
This is an inheritance tax case, Article 7117 et seq., Vernon's Ann.Tex.Stats. On October 30, 1947, Godcheaux A. C. Halff amended Clause No. XI of his original will so as to provide that one-half of three-eighths of the residue of his estate should be distributed to a charitable corporation, association or trust fund, to be selected by the trustees named in the will. After the death of the testator in September of 1950, the G. A. C. Halff Foundation was formed by the surviving testamentary trustee, and the use of the foundation's property and resources was limited to charitable purposes within the State of Texas by the terms of its corporate charter. One-half of three-eighths of the residue of the estate has been appointed to the use of this foundation by the testamentary trustee. The trial court, sitting without a jury, held that this bequest did "not come within any exemption or exclusion provided in Article 7117 or Article 7122 of the Revised Civil Statutes of Texas and (was) subject to the State inheritance tax at the rates provided in Article 7122, * * *."[1] The recited basis of this holding is that the testamentary provision amending the will "vests one-half (½) of the three-eighths (3/8) of the residue of the Estate in * * * Hugh A. L. Halff, as Trustee, to select a charitable corporation, association or trust fund to be the beneficiary of the charitable trust provided for therein; that said * * * provision does not constitute a power of appointment and that the will of the said G. A. C. Halff does not contain any language providing that the charitable devisee is to be used in the State of Texas."
The case turns upon the correctness of the trial court's holding concerning the power of appointment. It has been decided that a bequest to a charitable organization authorized to operate generally throughout the United States and foreign countries is not exempt under the exceptions contained in Article 7122, when there is no provision in the will restricting the use of the bequest to the State of Texas. Presbyterian Church in United States v. Sheppard, Tex. Civ.App., 198 S.W.2d 282. It is believed that the holding of the cited case is applicable to charitable corporations, associations and other types of charitable organizations, including that type of charitable trust wherein the ultimate beneficiaries are selected and designated by the trustees.
However, appellants urge here that although Hugh A. C. Halff was a trustee of sorts, he was not authorized to select the ultimate beneficiaries of the charitable bequest, but possessed only the power to designate an organization to perform that function; that this right of selection is a true power of appointment and consequently such right when exercised relates back to the effective date of the will, hence title passed from the testator to the charitable foundation as of the date of the death of the testator. The exception contained in Article 7122 provides that the schedule of taxes contained therein "shall not apply on property passing to or for the use of the *181 United States or any religious, educational or charitable organization when such bequest, devise or gift is to be used within this State." The Legislature has thus decided that the greater good may be served by exempting certain property from taxation, considering the use to which it is dedicated. A use of property which alleviates a burden which the State or its political subdivisions would otherwise necessarily bear at public expense, or a use thereof which fulfills or accomplishes the generally accepted charitable objectives of the people of the State, is recognized as a proper subject of tax exemption by specific legislative enactments. The question presented then is whether the particular devise meets the legislative requirements for tax exemption set forth in the proviso of the applicable statute.
The pertinent provisions of the amending codicil read as follows:
"Sixth: I do hereby amend Clause XI of my said Last Will and Testament to read as follows:
"XI. The remaining three-eighths (3/8) of said rest, residue and remainder of my estate I devise and bequeath to my brother, Mayer L. Halff, and my nephew, Hugh A. L. Halff, and the survivor, as Trustees, for the following public charitable uses and purposes: To distribute one-half (½) of the same to National Jewish Hospital at Denver. * * * The other one-half (½) of the same is to be distributed to such corporation, association or trust fund as my said Trustees may select for any one or more or all of the following charitable purposes for the relief of the poor, to-wit: Hospitalization; the promotion of health; the relief of the afflicted and other medical aid; the relief of poverty; the advancement of education; governmental or municipal purposes. In making over to the selected entity the one-half (½) of the said three-eighths (3/8) of my residuary estate, my Trustees shall make the gift to said selected entity with the stipulation that the said gift shall be held by said selected entity as a special trust fund to be designated the G. A. C. Halff Fund in Memory of Fannie L. Halff, the income thereof to be applied by said selected entity to its corporate purposes.
"The designation of the charitable entity, other than National Jewish Hospital at Denver, which is to receive one-half (½) of said three-eighths (3/8) of said rest, residue and remainder of my estate, shall be made by the Trustees or the survivor of them within two (2) years after my death, but the time for the delivery of the funds or property to it and to said National Jewish Hospital at Denver shall be subject to the provisions hereinafter contained, giving my Executors the power to manage my estate for a period not exceeding fifteen (15) years from the date of my death; the said delivery of funds or property need not be made all at the one time, but may in the discretion of my Executors and the Trustees of said fund or the survivors or survivor or successor be made by successive deliveries from time to time during said period of administration to National Jewish Hospital at Denver and to such other charitable entity designated as above provided for. My intention is that the payments be made either all at once or in installments during said period, as may be found convenient in the administration of my estate."
Mayer L. Halff died prior to the death of the testator, leaving Hugh A. L. Halff as the surviving executor and trustee, who caused a corporation to be formed under the name of G. A. C. Halff Foundation, in accordance with Article 1302, § 105, Vernon's Ann.Tex.Stats. The charter was duly filed in the office of the Secretary of State on December 11, 1951, and contains the following provision:
"The purpose for which this corporation is formed is exclusively for charitable, scientific, literary, or educational purposes under Subdivision 105 of Article 1302 of the Revised Civil Statutes *182 of Texas, to-wit: For the relief of the poor, for hospitalization, for the promotion of health, and the relief of poverty, for the advancement of education, and for governmental or municipal purposes, provided that no part of the net earnings shall inure to the benefit of any private stockholder or individual and no part of the activities of the corporation shall be the carrying on of propaganda, or otherwise attempting, to influence legislation. All of the property of the corporation, both income and principal, shall be used within the State of Texas."
By written instrument, dated January 21, 1952, Hugh A. L. Halff as independent executor and trustee, designated the G. A. C. Halff Foundation as the corporation to receive one-half of three-eighths of the residue of the estate of G. A. C. Halff.
The Attorney General takes the position that the will created a charitable trust, and that the existence of such trust is incompatible with a power of appointment. As relating to this position, it is said in appellees' brief that, "since the will did not require the Trustee to designate a Texas charity, appellants' entire theory of exemption rests on the proposition that the provision of the will in question created a power of appointment rather than a charitable trust. Without the theory of `relation back' a concomitant to a power of appointment, appellants would have no possible claim to exemption, since the property must then have passed at the testator's death to the trustee free of any requirement that it be used within this State." Our attention is then called to the definition of a charitable trust contained in the American Law Institute's Restatement of the Law of Trusts, as follows: "A charitable trust is a fiduciary relationship with respect to property arising as a result of a manifestation of an intention to create it, and subjecting the person by whom the property is held to equitable duties to deal with the property for a charitable purpose." 2 Restatement, Trusts, 1095, § 348.
Numerous and varied types of trust may come within the provisions of this definition. There may be trusts having indefinite beneficiaries, 2 Restatement, Trusts, 1136, § 364, and the concept of a power of appointment may be incompatible with a trust arrangement whereby the trustee must determine the ultimate recipients of the charity. People v. Kaiser, 306 Ill. 313, 137 N.E. 826. In other instances, however, such incompatibility may not exist. There is a distinction between a power of appointment with its vesting of title, and the administration of a charity with its detailed selection of recipients or beneficiaries. Under the testamentary provision involved here the designated trustee, Hugh A. L. Halff, had no use of the property. His authority was limited to the holding of the legal title, with the incidental authority to conserve the property and convert it into cash if deemed advisable, and to designate a single entity to take the property and put it to a charitable use. This latter authority was in our opinion a power of appointment, special in nature and mandatory in operation. A power of appointment is an "authority conferred by one person by deed or will upon another (called the donee) to appoint, that is to select and nominate the person or persons who are to receive and enjoy an estate or an income therefrom or from a fund, after the testator's death, or the donee's death, or after the termination of an existing right or interest." Black's Law Dictionary (3rd Ed.) p. 1392; Ballentine's College Law Dictionary, p. 645; 33 Tex.Jur. 757, Powers, § 2; 1 Simes, Future Interests, 429, § 243. The present power is special in that it could be exercised only in favor of members of a limited group, namely, institutions chartered for charitable purposes.[2] 1 Simes, Future Interests, 431, *183 § 246. While the power was discretionary as to selection among a special group, it was also mandatory as to execution within a designated time. 1 Simes, Future Interests, 435, § 247.
In legal contemplation, therefore, title passed directly from the testator, G. A. C. Halff, to the appointee, G. A. C. Halff Foundation, as of the effective date of the will. It is said in 41 Am.Jur. 857, Powers, § 70, that:
"It is a well-founded principle that where a person takes by execution of a power, he takes, under the authority of the power, as if the power and the instrument executing the power had been incorporated in one instrument. The title rests on the act creating the power, and takes effect as if by the original deed. A use created under a power takes effect as if the use instead of the power had been inserted in the instrument containing the power. An appointee takes from the donor, the donee being treated as the agent of the donor. Property subject to a power of appointment is regarded as the property of the donor, and in exercising the power the donee is disposing of the donor's property. Thus, the appointee of a power possessed by a person who has no estate in the property takes title from the person in whom the title is vested. An appointee under a power, even though he is a child of the donee, does not take by descent from the donee, but by purchase from the donor of the power."[3]
The situation, insofar as inheritance tax liability is concerned, is the same as if the testator in his will had designated the G. A. C. Halff Foundation as the devisee of one-half of three-eighths of the residue of his estate. 1 Simes, Future Interests, 442, § 253. As the Foundation by its charter is restricted to Texas charities, the devise comes within the exception of Article 7122.
The operation of powers of appointment in connection with estate and succession taxes is well recognized. It is said in the Law Institute's Restatement of the Law of Property, that:
"Sec. 333, Construction of Succession and Estate Tax Statutes.
"Statutes imposing taxes upon the devolution of property upon death are construed as follows with reference to *184 property covered by a power of appointment unless the legislature manifests a contrary intent:
"(a) the transfer of such property is from the donor, not the donee, to the appointee or takers in default;
"(b) the donor is the `deceased,' where the power is created by will;
"(c) the donee is not the `deceased,' even though the power is exercised by will;
"(d) property covered by the power is not a part of the `estate' of the donee or `property which passes by will' of the donee, whether or not the power is general and whether or not the donee exercised it."
In Brown v. Commissioner of Internal Revenue, 50 F.2d 842, 846, the Third Circuit Court of Appeals, in speaking of the operation of a power of appointment, said:
"But where a power of appointment is discretionary, the power being exercised relates back to the period of time of the settlement of the power. That is, in this case, to the date of the testator's death. Therefore, when the power was once exercised, the church took the gift from the settlor, the creator of the power, and not from the trustees themselves, for the reason that the deed created no estate in any one except through the exercise of the power to appoint under the terms of the deed. The tribunal, authorized to appoint, having exercised the power, their act relates back to the settlor and the estate passed from him, as the creator of the power, and not from the trustees."
It is obvious that at the exact time of the death of a testator leaving a will containing a power of appointment, the amount of inheritance tax cannot be fixed with certainty. The power must first be exercised. In most cases there is some delay in ascertaining the amount of the tax due, although the liability must be determined as of the date of the death of the testator. We are not here concerned with an unreasonable delay. The testator set a two-year limit and the donee has made his appointment well within that time.
The fact that Hugh A. L. Halff occupied the position of executor and trustee under the will for the purpose of caring for the property until the appointment could be made, did not preclude him from also being a donee under a power of appointment. "A power may coexist with a trust, where they are not inconsistent." 72 C.J.S., Powers, § 1, p. 402, and a donee of a power of appointment may have power to sell the property and thus exercise the power of appointment by dividing the proceeds. 72 C.J.S., Powers, § 24(e), p. 420. A trust and a power may be two separate and distinct responsibilities and in the absence of incompatibility may be borne by the same person. There are numerous examples among the decided cases in which fiduciaries, such as executors and trustees, have exercised powers of appointment. Beck's Appeal, 116 Pa. 547, 9 A. 942; In re Stewart's Estate, 131 N.Y. 274, 30 N.E. 184, 14 L.R.A. 836; Cochran v. McLaughlin, 128 Conn. 638, 24 A.2d 836; Brown v. Commissioner of Internal Revenue, 3 Cir., 50 F.2d 842.
Under the doctrine of "relation back," the circumstance that the G. A. C. Halff Foundation was not chartered until after the death of the testator does not affect the exemption. 28 Am.Jur. 107, Inheritance, Estate and Gift Taxes, § 206.
We agree with appellants' conclusions that there was no taxable succession of property to Hugh A. L. Halff; that the will of G. A. C. Halff, deceased, vested in said Hugh A. L. Halff a special power of appointment to an entity which was required to make charitable use of the property in accordance with its corporate purpose; that under the doctrine of "relation back" the selection of the Texas charity, under the mandatory power expressed in the will, constituted selection by the testator as if the Foundation had been named in the will, so that at the time of taxable succession the bequest to the Foundation was exempt under Article 7122.
*185 The judgment of the trial court is accordingly reversed and judgment here rendered declaring that the bequest passing to the G. A. C. Halff Foundation is exempt from State inheritance taxes under Article 7122, Vernon's Ann.Tex.Stats.
Reversed and rendered.
NOTES
[1] "Art. 7122. Class E Foreign bequest
"If passing to or for the use of the United States, to or for the use of any other person or religious, educational or charitable organization or institution, or to any other person, corporation or association not included in any of the classes mentioned in the preceding portions of the original Act known as Chapter 29 of the General Laws of the Second Called Session of the Thirty-eighth Legislature, the tax shall be:
5% on any value in excess of $ 500 and not exceeding $ 10,000
6% " " " " " " 10,000 " " " 25,000
8% " " " " " " 25,000 " " " 50,000
10% " " " " " " 50,000 " " " 100,000
12% " " " " " " 100,000 " " " 500,000
15% " " " " " " 500,000 " " " 1,000,000
20% " " " " " " 1,000,000
"Provided, however, that this Article shall not apply on property passing to or for the use of the United States or any religious, educational or charitable organization when such bequest, devise or gift is to be used within this State."
[2] "If the donor of a power of appointment, the person who creates it, restricts the persons to whom an appointment can be made and the group of permissible appointees does not include the person who is to exercise the power, the donee, the power is commonly designated `special.' If, on the other hand, the donor has so drawn the power that the donee can appoint to himself or to his estate, the power is `general'." 5 American Law of Property 467, § 234.
[3] Professor Richard R. Powell, the Reporter on Property for the American Law Institute, in his treatise upon the Law of Real Property, notes some tendency toward a departure from the doctrine of relation back, particularly with reference to general powers presently exercisable. However, it is said by Powell that,
"The history of powers of appointment has caused courts constantly to reiterate the idea that an appointee takes from the donor rather than from the donee. By the middle of the eighteenth century this idea has come to be sometimes expressed in terms of the doctrine of `relation back.' Thus the act of exercise was literally read back into the instrument creating the power as if the donee had been a pen filling in a blank of the original instrument. This approach finds expression in many aspects of the law on powers of appointment. * * * So persuasive has been this historical agency approach that it is safe advice to a present day lawyer that it can be expected to apply to any problem arising today unless a statute has changed the law or the case falls into some category as to which the courts have made the major wrench of departing from history for the attainment of ends served by treating the donee as having ownership of the appointive assets." 3 Powell 297, § 387. Appointee taking from the donor.
In the American Law of Property, the doctrine of relation back as applied to general powers is criticized, but it is said that, "the `relation back' notion is a fairly accurate description of much of the present law concerning `special' powers of appointment, where the donee of the power, the person who exercises it, does not have the power to appoint himself it is well enough to regard the appointed property as passing from the donor to the appointee * * *." 5 American Law of Property 465, § 323. The Relation Back Doctrine.
See also, State Death Taxes and Powers of Appointment, by John F. Thompson, 26 Iowa Law Review 549.
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281 S.W.2d 100 (1955)
Leroy COKER et ux., Appellants,
v.
Marlene Herod HARRIS et vir, Appellees.
No. 14985.
Court of Civil Appeals of Texas, Dallas.
June 24, 1955.
Rehearing Denied July 22, 1955.
*101 Earl R. Parker and Burt Barr, Dallas, for appellants.
Waller M. Collie, Jr., Dallas, for appellees.
DIXON, Chief Justice.
This is a child custody contest between sisters, one the mother and the other the aunt of a four year old boy. The mother and her husband were plaintiffs in the trial court; the aunt and her husband were the defendants. After a trial before the court without a jury, judgment was rendered in favor of the mother.
Appellants, the aunt and her husband, in their points 2 and 3 assert that the judgment is contrary to the great weight and preponderance of the evidence, and that the testimony of impartial witnesses required the court to render judgment for the appellants.
Findings of act and conclusions of law were not requested and none were filed by the trial court. Therefore we are required as a matter of law to view the evidence in a light favorable to appellees, and to assume that the trial court found all issuable facts raised by the evidence in such manner as to sustain the judgment. Rule 296, Vernon's T.R.C.P., note 12; Silva v. Aranda, Tex.Civ.App., 223 S.W.2d 333. It is to be remembered, too, that in child custody suits the trial court is clothed with discretionary powers and its judgment will not be reversed except in case of an abuse of discretion. 21 Tex.Jur., 492.
The statement of facts is 521 pages in length. There were numerous witnesses, and their testimony is conflicting, some of it favorable to the mother and her husband, and some of it favorable to the aunt and her husband on the issue of the fitness of the respective parties to have the care and custody of the child. But we are bound by the legal principles stated in the last preceding paragraph. Bearing those principles in mind we shall therefore set out in a condensed form the record testimony which in our opinion amply supports the trial court's judgment.
There is evidence in the record to this effect: The mother of the child came to Texas in 1946 when she was 16 years of age and resided with her sister and her sister's husband until 1949 when she married the child's father. Some time after the birth of the child the mother and father separated, the mother and child moving back to appellants' home. Thereafter the parents were divorced, the mother being awarded care and custody of the child. The mother and child continued to live with appellants, and during this period the mother, who was employed, cared for the baby in the evenings, fed him, clothed him, and paid for their room and board. The mother and child moved with appellants to McCamey, Texas in 1951. After several months the *102 parties all returned to Dallas, where the aunt and mother both found employment. Then for a short period the aunt returned to McCamey, and with the mother's consent, took the child with her. For some months this arrangement continued, the mother sending $15 to $20 per week to McCamey for support of the boby, and making frequent visits to McCamey to see him. The aunt and her husband thereafter separated and the aunt came back to Dallas with the baby, living with the mother in an apartment. After about a month the aunt and her husband had a reconciliation, and the parties all moved back together, the mother paying part of the living expenses.
In 1954 the mother married appellee Robert B. Harris and she and the baby moved into an apartment with her new husband. The marriage of the mother and the removal of the mother and child to their own quarters did not sit well with the aunt who had grown to love the child.
In 1954 the aunt joined her husband who had gone to South America on business. She and her husband were to return in three weeks, and the child, with the mother's consent, was taken to South America on the assumption that they would return in three weeks. Several months went by and they did not return. Finally through the mother's efforts, together with the help of appellants' employer, and the co-operation of the Government of Venezuela, appellants were compelled to return to the United States with the child. The contest over the custody of the child soon began in earnest.
There is testimony in the record that Robert Harris, the mother's present husband, is the owner of a service station and makes $10,000 to $15,000 per year. He and the mother attend church at the Walnut Hills Baptist Church and take the child to Sunday School there. He is very fond of the little boy and treats him as if he were his own son.
In the light of the evidence as a whole, and especially the testimony above briefly summarized, we do not believe that the judgment in this case is contrary to the great weight and preponderance of the evidence. Nor do we find any basis for holding that the testimony of impartial witnesses required the court to render judgment for appellants. Therefore we overrule appellants' points 2 and 3.
In their first point appellants say that the trial judge erred in overruling their motion to recuse himself on the grounds of bias, prejudice, and lack of impartiality. The evidence showed that the attorney for appellees had supported the judge in his recent campaign for re-election. The grounds named are not sufficient as a matter of law to require the judge to recuse himself. 25 Tex.Jur. 262; 265. In the recent case of Moody v. City of University Park, Tex.Civ.App., 278 S.W.2d 912, at pages 918-919, this Court, speaking through Justice Young, had occasion to discuss this question, so we see no need to discuss it at length again here. Anyway appellants' first point has no merit for another reason: The testimony shows without dispute that one of appellants' attorneys also supported the trial judge in his campaign for re-election; in truth, the record indicates that said attorney for appellants was more active and did more in support of the judge in his campaign for re-election than did the attorney for appellees. Appellants' first point is overruled.
The judgment of the trial court is affirmed.
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177 S.W.3d 72 (2005)
Scott Alan ZUNKER, Appellant,
v.
The STATE of Texas, Appellee.
No. 01-02-00529-CR.
Court of Appeals of Texas, First District, Houston.
January 13, 2005.
Discretionary Review Refused October 5, 2005.
*75 Craig M. Greaves and Travis B. Bryan, III, Bryan, Stacy & Dillard, L.L.P., William F. Carter, Bryan, TX, for Appellant.
Bill R. Turner, District Attorney, Douglas Howell, III, Assistant District Attorney, Bryan, TX, for Appellee.
Panel consists of Justices TAFT, JENNINGS, and HANKS.
OPINION ON MOTION FOR REHEARING
GEORGE C. HANKS, JR. Justice.
We withdraw our Opinion of May 13, 2004 and issue the following Opinion in its stead. We deny appellant's motion for rehearing. Appellant, Scott Alan Zunker, and his co-defendants,[1] Valin Thomas Klock and Eric Vaughn Schultze, were indicted for the first-degree felony offense of aggravated sexual assault of the same complainant.[2] After appellant refused to enter a plea, the trial court entered a plea of not guilty on his behalf.[3] The jury found appellant and his co-defendants guilty and assessed punishments of 15 years in prison for appellant, 22 years for Klock, and 30 years for Schultze.
In seven points of error, appellant contends that the trial court erred in (1) denying appellant's request for a severance, (2) excluding evidence concerning prison conditions, (3) providing the jury with a general and ambiguous limiting instruction in the punishment charge, (4) denying appellant's motion for mistrial at punishment, and (5) allowing improper closing argument. We affirm.
Background
On November 19, 2000, College Station Police Department Detective Chad Harkrider was called to investigate the alcohol-related death of John Hickman at 3311 Bahia in College Station. When he arrived at the scene and discovered that there were numerous people to interview, Harkrider contacted College Station Police Sergeant Chuck Fleeger for assistance. Schultze and Klock were two of the people interviewed in connection with Hickman's death. During the course of the investigation, Detective Harkrider received an anonymous tip that there was a videotape of Hickman made on the night he died.
On March 27, 2001, Jana French, a friend of Klock's, provided the College Station Police Department with a videotape that she had obtained from Klock. Fleeger watched the videotape and discovered that, in addition to depicting Hickman the night he died, 18 minutes and 45 seconds of the tape showed three men sexually assaulting an unconscious female. Fleeger recognized Schultze and Klock as two of the three assailants because he had recently interviewed them in connection with Hickman's death. He later determined the identities of the complainant[4] and the third assailant, appellant.
*76 The sexual assault[5] began with appellant and Schultze entering a room where Klock was having sexual intercourse with the complainant, who appeared to be unconscious and physically unable to resist. Schultze, while manning the video camera said, "in her fucking cunt," and appellant attempted to insert a baseball into the complainant's vagina. Appellant manned the video camera while Schultze inserted the handle of a toilet plunger into the complainant's vagina. Schultze told appellant, "Make sure you get this on tape." When the plunger handle was inserted in the complainant's vagina, she moaned and said, "Ow. Stop," and continued to struggle. The three men laughed throughout the entire sexual assault. At one point, appellant lit a cigarette and burned the complainant's vagina with the lit cigarette. Appellant then, mockingly, said, "Ow. That's got to hurt," and he proceeded to flick ashes onto the complainant's buttocks. Appellant and Klock also inserted a screwdriver and other objects into the complainant's vagina. The men continued to laugh as they performed these various acts on the unconscious complainant, with Schultze declaring, "this is fucking hilarious" at one point during the assaults.
Police officers arrested appellant, Klock, and Schultze the day after Sergeant Fleeger received the videotape. Also on that day, police officers searched the house at 3311 Bahia and found a video camera and a camera bag that contained another videotape. This second videotape showed Schultze urinating on an unconscious Hickman.
During his investigation, Fleeger determined that the sexual assault occurred in July 2000, seven or eight months before the videotape was discovered.
Severance
In points of error one and two, appellant argues that the trial court erred in denying appellant's motion for severance because (1) Klock had a prior admissible conviction and (2) a joint trial was so prejudicial to appellant that he was denied a fair trial at punishment.
Severance is not a matter of right, but rests within the sound discretion of the trial court. Peterson v. State, 961 S.W.2d 308, 310 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). To show an abuse of discretion, an appellant bears the heavy burden of showing clear prejudice. Id.
A trial court must order a severance upon a timely motion and upon introduction of evidence that establishes either (1) that there is a previous admissible conviction against one defendant or (2) that a joint trial would be prejudicial to any defendant. TEX.CODE CRIM.PROC. ANN. art. 36.09 (Vernon 1981); Aguilar v. State, 26 S.W.3d 901, 903 (Tex.Crim.App.2000). Specifically, article 36.09 provides that:
Two or more defendants who are jointly or separately indicted or complained against for the same offense or any offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the state; and provided further, that in cases in which, upon timely motion to sever, and *77 evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.
TEX.CODE CRIM. PROC. ANN. art. 36.09.
Generally, when two defendants are jointly indicted for the same offense, they should be tried jointly. Dickerson v. State, 87 S.W.3d 632, 639 (Tex.App.-San Antonio 2002, no pet.). However, the trial court may order separate trials, at its discretion. TEX.CODE CRIM. PROC. ANN. art. 36.09. If a joint trial would prejudice either defendant, upon proper motion to sever, the trial court must sever the trial of the defendant whose joint trial could prejudice the other. Id.
The mere allegation that prejudice will result is not evidence of, or a sufficient showing of prejudice, as required under article 36.09, particularly when the severance is discretionary with the trial judge. Mulder v. State, 707 S.W.2d 908, 915 (Tex.Crim.App.1986). If no evidence is offered in support of the motion to sever, the trial court does not err in overruling the motion. See Sanne v. State, 609 S.W.2d 762, 776 (Tex.Crim.App.1980).
Klock's Conviction
In point of error one, appellant contends that the trial court erred and violated article 36.09 when it denied appellant's motion for severance because severance was mandatory in that Klock had a prior admissible conviction and appellant did not.
Appellant filed a pre-trial motion for severance, as well as a memorandum of law in support of his motion to sever. Neither of these pleadings mentioned Klock's conviction.[6] Both documents emphasized the prejudice appellant would suffer from the Hickman videotapes, the potential for differing defenses between the co-defendants, and the differing levels of culpability. During the hearing on the motion to sever, appellant admitted into evidence his prior criminal history, as well as those of Klock and Schultze. Neither the exhibits nor their contents were ever discussed during the hearing. At the conclusion of the hearing, the trial court asked the State to submit a brief outlining its arguments opposing severance, and the trial court afforded the defendants an opportunity to respond.
In his reply to the State's brief, appellant, for the first time, mentioned Klock's conviction for driving while intoxicated (DWI). The totality of appellant's reply on this point was as follows:
C. Prior Criminal Conviction
The State alleges there was never any evidence presented during the severance hearing that any of the defendants have admissible prior convictions. The State's claim is false. During the severance hearing the Defendant offered the criminal histories of himself as well as his co-defendants. In this exhibit it clearly shows that Valin Klock was convicted for the offense of Driving While Intoxicated on September 22, 1998 in Comal County.
In its order denying the severance, the trial court stated that the defendants *78 moved for severance for several reasons including: the possibility of the introduction of separate video sequence, antagonistic defenses, differing levels of culpability, and implication through statements of co-defendants. Whereas, the State urged that the cases be tried together because a single trial would lessen the trauma to the victim, a single trial would reduce the chances of potentially disparate sentences, and judicial economy would be best served with one trial.
The trial court found that "after a careful consideration of the evidence presented at the pretrial hearing, and the arguments presented by counsel, it is the opinion of the Court that defendants have failed to meet their `heavy burden' showing `clear prejudice.'" Because none of the defendants raised the "prior conviction" ground in his motion for severance, the trial court's order addressed only the prejudice factor, not the prior conviction factor.
To preserve error for appeal, a defendant must (1) object, (2) state the grounds with sufficient specificity, and (3) obtain an adverse ruling. TEX.R.APP. P. 33.1; see Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim.App.2002). Here, appellant objected to a combined trial because of potential prejudice, not Klock's prior conviction; he did not make a specific enough objection because the trial court did not make a ruling based on prior convictions, and finally, appellant did not obtain an adverse ruling on the prior conviction issue. Appellant has not preserved error on the denial of severance based on Klock's prior conviction.
We overrule point of error one.
Joint Trial Too Prejudicial
In point of error two, appellant argues that the trial court abused its discretion in denying appellant's motion for severance because a joint trial was so prejudicial to appellant that he was denied a fair trial at punishment.
Appellant was concerned that he would be prejudiced if he was forced to stand trial with Klock and Schultze, and appellant's attorney argued at the pre-trial severance hearing that appellant and Klock had shown remorse, but Schultze had not. Appellant's lawyer argued that appellant "might be punished or the bar might be raised on his punishment because of the arrogance and the statements that are made in the Schultze confession." Further, appellant's lawyer stated that he "viewed the Hickman death as being more inflammatory than the actual facts of this case.... The actions against Mr. Hickman, I fear, are going to rub off on my client and increase his punishment."
Appellant presented evidence of the criminal history and bad acts of both Klock and Schultze. Appellant contended that the disparity between the criminal history and bad acts of appellant and that of Klock and Schultze was "significant." Appellant's only "blemish" was that he had previously received deferred adjudication community supervision for harassment of a neighbor. In contrast, Klock's history revealed convictions for (1) DWI, (2) DWI-second, (3) assault-bodily injury, (4) possession of marihuana, (5) possession of controlled substance, (6) possession of drug paraphernalia, (7) driving while license suspended, (8) reckless damage or destruction of property, (9) disorderly conduct-noise, and (10) and (11) two failures to appear. With respect to Schultze, the State presented the Hickman videotapes, in addition to evidence that Schultze had previously harassed his neighbors, had damaged a neighbor's yard, had stolen a painting from the wall of a restaurant, had a pending felony aggravated assault charge stemming from a fight with his ex-girlfriend's boyfriend, and had been arrested *79 for evading arrest after leading police on a chase where speeds exceeded 100 miles-per-hour.
Appellant acknowledges that the trial court repeatedly instructed the jury not to consider the Hickman videotapes and Schultze's and Klock's various unadjudicated offenses as evidence against appellant. Despite having requested many of the instructions, appellant now argues that "it is reasonable to conclude that the greater the number of limiting instructions given to the jury the greater the likelihood of confusion and unfair prejudice." He asserts, as stated by the Dallas Court of Appeals, that there is a "limit to the number of times a skunk can be thrown into the jury box with instructions not to smell it." See Young v. State, 752 S.W.2d 137, 145 (Tex. App.-Dallas 1988, pet. ref'd).
During its opening statement at punishment, the State informed the jury that the Hickman videos were "offered to show you something about Eric Schultze." Sergeant Fleeger testified that neither appellant nor Klock was present on the Hickman videos. The record is replete with instructions from the trial court informing the jury not to consider the evidence presented against the other defendants when deciding appellant's punishment. Where the jury sentenced Schultze to 30 years in prison, Klock to 22 years in prison, and appellant to only 15 years, there is no indication that the jury was unable to follow the trial court's instructions.
We hold that appellant has failed to meet his heavy burden of showing that the trial court abused its discretion when it found that appellant did not show clear prejudice would result from a joint trial. See Peterson, 961 S.W.2d at 310.
We overrule point of error two.
Erroneously Excluded Evidence
In points of error three and four, appellant argues that the trial court erred during the punishment stage of the trial in excluding evidence concerning prison conditions because such evidence was relevant and admissible to rebut the false impression created by the State.
We review a trial court's decision to admit or exclude evidence for abuse of discretion. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996). Where the trial court's evidentiary ruling is within the "zone of reasonable disagreement," there is no abuse of discretion, and the reviewing court must uphold the trial court's ruling. Id. All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by the rules of evidence, or by other rules prescribed pursuant to statutory authority. TEX.R. EVID. 402. Evidence is relevant if it tends to make the existence of any consequential fact more or less probable than it is without the evidence. TEX.R. EVID. 401. However, after the defendant has been found guilty, evidence may be offered by the State and the defendant "as to any matter the court deems relevant to sentencing." TEX.CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1) (Vernon Supp.2004-2005).
The erroneous admission or exclusion of evidence does not result in reversible error unless it affects a substantial right of the accused. See TEX.R.APP. P. 44.2(b); Alexander v. State, 137 S.W.3d 127, 130 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd). Substantial rights are affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997).
During the punishment stage, appellant's attorney called Reginald Jenkins as a witness. Jenkins is a detention officer with the Brazos County Sheriff's Department, *80 and he was previously employed as a prison guard at a maximum security prison. Jenkins testified that appellant had been a "model inmate" during his more than 300 days of detention at the time of trial. Jenkins explained what a normal day is like for appellant while in detention, and that, due to his conviction for aggravated assault, he cannot become a prison trustee. Klock's attorney questioned Jenkins about the conditions in maximum security prisons. Jenkins testified that it was "very possible" that the defendants would be going to a maximum security prison, which holds murderers, major drug dealers, embezzlers, and forgers. He further testified that there is "rampant gang affiliation" in prison.
On cross-examination, the State elicited more testimony regarding the conditions in prison. Jenkins testified that rigid laws regulate prisons to make sure they are safe. Prison units have job fairs and classes allowing inmates to get degrees ranging from G.E.D.s to Ph.D.s, and law libraries that are second to none. Prison units also have exercise weights, baseball diamonds, basketball courts, and horseshoes. Each prison unit has a minimum of two televisions in each dayroom, and inmates are allowed to see the National Basketball Association finals and the Super Bowl on television.
On re-direct examination, Schultze's attorney asked Jenkins if he felt it would be helpful to hear from someone who "was actually on the inside looking out." Jenkins responded, "possibly."
Later, appellant's attorney called Leroy Hall to testify about the time that he served in the Texas Department of Corrections from 1990-1997. The State objected that the testimony from Hall concerning prison conditions was irrelevant. Appellant's attorney responded that the State had "opened the door to the country club atmosphere," and the trial court originally agreed. When the State added that the witness was an expert, who had not been properly designated, the trial court overruled that objection as well.
After appellant's attorney asked Hall a few more questions, the trial court began sustaining the State's relevance and invading-the-province-of-the-jury objections. The trial court then discussed the rulings with the attorneys outside the presence of the jury and reconsidered and sustained the State's relevance objection. The defendants' attorneys made a bill of exception, and, at the conclusion of the bill, the trial court clarified that Hall's testimony was inadmissible, and the court instructed the jury to disregard it. The trial court stated that it based its decision on
401, the relevance. I'm also basing my decision on the fact that I did not believe the door was opened by the State. Number three, I'm making my decision on the fact that ... I still think 701 and 702 may apply and there should have been a notice given that this person was an expert witness.
On appeal, appellant contends that (1) Hall's evidence was necessary to rebut a false impression left by the State about prison life, (2) Hall was not an expert, and (3) Hall's testimony was relevant because the State had "opened the door."
The Court of Criminal Appeals has explained that, under article 37.07 section 3(a), the admissibility of evidence at the punishment phase of a non-capital felony trial is a function of policy rather than relevancy. See Mendiola v. State, 21 S.W.3d 282, 285 (Tex.Crim.App.2000); Miller-El v. State, 782 S.W.2d 892, 895 (Tex.Crim.App.1990). This is so because, by and large, there are no discrete factual issues at the punishment stage. Miller-El, 782 S.W.2d at 895-96. Thus, determining *81 what is "relevant" in regard to punishment, under article 37.07 section 3(a), "should be a question of what is helpful to the jury in determining the appropriate sentence in a particular case." Mendiola, 21 S.W.3d at 285. In Schielack v. State, 992 S.W.2d 639 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd), when faced with the attempt to introduce similar evidence to that which was attempted to be introduced here, the Fourteenth Court of Appeals held as follows:
In the present case, the testimony which [Schielack] sought to introduce was neither [evidence of the circumstances of the offense itself or the defendant himself]. In fact, the testimony consisted of another person's experiences in prison. There is no evidence that [Schielack's] experience would be the same. As such, we believe that the trial court's decision to exclude this testimony was at least within the zone of reasonable disagreement; therefore, the trial court did not abuse its discretion.
Id. at 642-43.
Appellant argues that Schielack is not instructive because it was distinguished by the Waco Court of Appeals in Najar v. State, 74 S.W.3d 82 (Tex.App.-Waco 2002, no pet.). In Najar, Warden Botkin did not give testimony in the form of an opinion, lay or expert. See id. at 86 (citing TEX.R. EVID. 701, 702). She was never asked to express an opinion. Id. Thus, she was a fact witness whose testimony was challenged solely on the basis of its relevancy. Id. Najar stated that Schielack
is distinguishable from the present case because Botkin testified that inmates similarly-situated to Najarsame offense, no history of violence or aggression, no behavioral problems while incarceratedwould be placed into "minimum custody" and be immediately eligible for all appropriate prison programs; prison overcrowding is not an obstacle to expeditious placement into programs. Therefore, the warden's testimony was not merely speculative as to Najar. Furthermore, Schielack did not hold that evidence about prison conditions is per se irrelevant; Schielack stands only for the principle that its relevancy depends on the facts and circumstances of the case.
Id. at 87. We agree with Najar's characterization of the holding in Schielack. We do not, however, agree that Najar is more instructive than Schielack in this case.
During the defendants' bill of exception, Hall testified, at length, about the consequences of being "fresh meat" in prison. After the recitation, appellant's attorney and Schultze's attorney asked Hall to comment as to whether each of the defendants would be treated as "fresh meat." Appellant's attorney asked appellant to stand and then asked Hall, "What about a white male that's never been to prison before that's his size and weight. Is he going to be considered fresh meat or not?" Schultze's attorney then asked Schultze to stand, and he asked Hall, "Are the things that you said pertaining to Mr. Zunker..., would that go for Mr. Schultze as well?" Hall responded, "Yes. It will go for anybody that goes into the system that's never been there before." Hall's testimony was describing prison life as he had observed it several years before, rather than present prison life that was described by the warden in Najar.
The trial court could have reasonably concluded that Hall's testimony would not have been helpful to the jury in determining the appropriate sentence in this case. Also, the trial court could have reasonably concluded that Hall's testimony went beyond the scope of any door opened by the State. Under the precedent of Mendiola, *82 the trial court's decision to exclude the testimony of Hall was at least within the zone of reasonable disagreement.
Accordingly, we hold that the trial court did not err in excluding his testimony. Having held that the trial court did not err in excluding Hall's testimony, we need not determine whether Hall was a properly designated expert.
We overrule points of error three and four.
Jury Instruction
In point of error five, appellant argues that he suffered egregious harm because a limiting instruction regarding the extraneous offenses of Schultze in the court's charge at punishment was so general and ambiguous that it failed to limit the jury's consideration of evidence in assessing punishment to Schultze as the person against whom the evidence was admitted.
When a complaint is raised on appeal regarding error in the trial court's charge to the jury, a reviewing court must determine whether the charge was erroneous, and, if so, whether the error was harmful to the defendant. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). The State may offer evidence of extraneous offenses during the punishment phase of the trial. TEX.CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1). The trial court, as it did here, must charge the jury that it can only consider such evidence if it finds beyond a reasonable doubt that the defendant committed the offenses. See Huizar v. State, 12 S.W.3d 479, 483-84 (Tex.Crim. App.2000).
Here, the trial court's charge, at punishment, contained the following instruction:
You are further instructed that any act or acts which have been introduced against any defendant in this case can only be used against that defendant in determining his punishment and can not be considered by you in determining the punishment of any other defendant.
Appellant did not object to this instruction. Now, however, he complains that the instruction was so general and ambiguous that it failed to limit the jury's consideration of evidence in assessing punishment to Schultze as the person against whom the evidence was admitted.
Appellant acknowledges, that, because he did not object to the instruction when given to the jury, he must establish that he suffered egregious harm due to the instruction. See Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App.1994); Almanza, 686 S.W.2d at 171. Appellant contends that he suffered egregious harm because the jury instruction was too vague and general to prevent the jury from considering the Hickman videos against appellant when assessing punishment.
Assuming, without deciding, that there was error in the instruction, appellant has failed to show that he did not receive a fair trial. See Almanza, 686 S.W.2d at 171 (holding that appellant must show erroneous charge caused egregious harm preventing fair and impartial trial). The jury saw the Hickman videos and heard testimony from several witnesses that appellant was not involved or present during the filming of either episode. Appellant has presented nothing to show that the jury considered the Hickman videos against him because of the absence of a more specific instruction.
We overrule point of error five.
Jury Argument
In point of error six, appellant argues that the trial court erred in denying his motion for mistrial when the State argued to the jury at punishment that "they had *83 watched their best friend die" because there was no evidence that appellant was even present at the time of Hickman's death. In point of error seven, appellant contends that the trial court erred during the punishment stage of trial in overruling appellant's objection to the State's closing argument about a matter outside the record.
The law provides for, and presumes, a fair trial, free from improper argument by the State. Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App.1991). Proper jury argument generally must encompass one of the following general areas: (1) a summation of the evidence presented at trial; (2) a reasonable deduction drawn from that evidence; (3) an answer to the opposing counsels argument; or (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App. 1999); Sandoval v. State, 52 S.W.3d 851, 857 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). To determine whether a party's argument properly falls within one of these categories, we must consider the argument in light of the entire record. Sandoval, 52 S.W.3d at 857. In most cases, if error occurs, an instruction to disregard will cure any error committed. Shannon v. State, 942 S.W.2d 591, 598 (Tex.Crim. App.1996).
Motion for Mistrial
During closing argument at the punishment stage, the prosecutor stated that "These three Defendants need to be held accountable for the total and continued disregard for life and for the law. They had chances. They've been in trouble before. They watched their best friend die of a drug and alcohol overdose." The trial court sustained appellant's objection and instructed the jury to disregard the last statement, but denied the motion for mistrial.
At almost every mention of the Hickman videotapes throughout the trial, the trial court instructed the jury that the evidence introduced against one party cannot be considered against any other party. The jury saw the Hickman videotapes and heard testimony describing who was present during the filming of the videotapes.
We presume the instruction was sufficient to cure any harm. See Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App. 1987); Pineda v. State, 2 S.W.3d 1, 11 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). Once again, appellant has shown nothing to the contrary.
We overrule point of error six.
Outside the Record
In point of error seven, appellant contends that the trial court erred in overruling appellant's objection after the State argued matters outside the record during its final argument in the punishment stage of trial.
During closing argument at the punishment stage, the State argued:
Imagine the embarrassment, the humiliation that [the complainant] has had to go through. Every time you think about the excuses the Defendants offered, think about [her], what she's going through, what her parents are going through, what her dad is thinking knowing that his little girl was violated in the worst way.
The trial court overruled appellant's objection that the State's argument was outside the record. Appellant argues that this statement was a direct violation of the trial court's ruling on a motion in limine "that the State's attorney not mention or state to the jury the probable testimony of any witness who is absent or unavailable and was not called to testify in this cause."
*84 The complainant's parents did not testify; therefore, the argument was outside the record, and the trial court erred in overruling appellant's objection. Appellant concedes that "arguments which are outside the permissible bounds of jury summation are not constitutional errors and thus are subject to the harm analysis established by Tex.R.App. P. 44.2(b)." Rule 44.2(b) provides that a nonconstitutional error "that does not affect substantial rights must be disregarded." TEX. R.APP. P. 44.2(b). Determining harm under that standard in improper argument cases requires balancing the following three factors: (1) severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of conviction/punishment absent the misconduct. Id.; Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998).
Severity of the Misconduct
In Martinez v. State, 17 S.W.3d 677 (Tex.Crim.App.2000), the Court of Criminal Appeals was faced with a similar issue when it was asked to reverse a death penalty conviction in light of the following jury argument at the conclusion of the punishment stage of trial:
PROSECUTOR: And based on this evidence, thisthis rates as one of the worst crimes, one of the worst killings not only in Brazoria County but the State of Texas.
DEFENSE COUNSEL: Objection, your honor. That's not in the record.
THE COURT: Stay in the record, counsel.
PROSECUTOR: The evidence shows you, these were execution killings. 26 to 28 bullets. The family of the murdered victims, the family-the victims themselves, they cry out to you, for the death penalty in this case. There's no more
DEFENSE COUNSEL: Objection, your Honor. Not in the record, either. Absolutely no evidence of that.
THE COURT: Overruled.
PROSECUTOR: Justice in this case requires you, because we told you from day-one, what we wanted was a fair jury, a jury that would do justice in this case.
Martinez, 17 S.W.3d at 692. The court concluded that
the degree of misconduct, if any, was relatively mild in the present case. The prosecutor's comment that the victims and their families cry out for the death penalty appears to be intended as a plea for law enforcement. The jury was in a position to know that victims who are dead cannot presently cry out for the death penalty, and that, given the facts surrounding their deaths, no such cries were made before they died. Nor would the jurors be surprised to hear that the victims' families would be upset with appellant or that they would want retribution. And the prosecutor did not attempt, through this argument, to convey any specific facts about the effect of the victims' deaths upon their families. Instead, the prosecutor was pleading with the jury to give the death penalty because the record before the jury showed that the defendant deserved it. To the extent that the prosecutor conveyed facts outside the record, such facts had no tendency to adversely influence the jury against appellant beyond the influence exerted by a wholly legitimate plea for law enforcement.
Id. at 693 (emphasis added). Here, like in Martinez, the prosecutor's comments did not attempt to convey specific facts about the effect of the complainant's assault upon her family so much as it was conveying matters that the jury would not be surprised to hear because they are obvious or *85 common knowledge. Accordingly, we conclude that the degree of misconduct was minimal.
Curative Measures
The trial court did not make any attempt to cure the misconduct.
Certainty of Punishment Absent the Misconduct
Appellant was found guilty of the first-degree felony offense of aggravated sexual assaultan offense punishable by imprisonment for life or for a term of not more than 99 years or less than 5 years. See TEX. PEN.CODE ANN. § 12.32 (Vernon 2003). If a jury sentences an individual to less than 10 years, it may recommend to the trial court that the imposition of the sentence be suspended and that the defendant be placed on community supervision. TEX. CODE CRIM. PROC. ANN. art 42.12, § 4(a), (d)(1) (Vernon Supp.2004-2005). Here, the jury assessed punishment at 15 years in prison. To evaluate the "certainty of the punishment absent the misconduct," we must examine all the evidence presented during punishment.
State's Witnesses
The jury saw the videotape of Hickman taken shortly before his death. Sergeant Fleeger testified that neither appellant nor Klock was present in the Hickman video. Fleeger and Detective Harkrider both testified that appellant, Schultze, and Klock were not peaceful, law-abiding citizens, and that they have bad reputations in the community.
Karen Rogers, who lived next door to the Bahia house, testified that she was "afraid to go outside" when Schultze was outside.[7] She reported that, at 7:50 a.m. on December 15, 2000, Schultze yelled at her as she tried to get in her car to go to work. He yelled, "I hate my cock-sucking fucking cock-sucking neighbors and that they were all cock-suckers," and he threw a beer bottle at her. Rogers called the police, and Schultze told her that "he was going to be [her] worst nightmare" until she moved out. Tim Rogers, Karen's husband, went outside and confronted Schultze and, during the confrontation, Tim accused the residents of the Bahia house of failing to take care of their friend who died. Appellant, who had walked up while Schultze and the Rogerses were arguing, threatened to kill Tim.
Police Officer David Robinson responded to Karen Rogers's call to the police. He testified that he took appellant's and Schultze's statements, and he did not believe that either of them was intoxicated when the threat to kill Tim Rogers was made. Appellant received deferred adjudication for the incident.
Defense Witnesses
As previously discussed, the jury heard from Brazos County Sheriff Department Officer Reginald Jenkins. In addition to testifying about prison conditions discussed above, Jenkins testified that he has had contact with appellant 10 to 14 times a day during the year he has been incarcerated awaiting this trial. Jenkins testified that appellant "is an extremely quiet person, stays to himself, rarely comes out of his cell." He said that he has had no problems with appellant and, to the extent that there is such a thing, appellant has been a model prisoner. Jenkins testified that appellant did not take advantage of the drug and alcohol abuse treatment program that was available to the inmates.
*86 The jury heard testimony from Mike Patterson, the assistant chief of the College Station police department, concerning the events surrounding the threat that appellant made to Tim Rogers. Patterson testified that he attempted to ask appellant questions, but Schultze would answer for him. Patterson separated appellant from Schultze and questioned him about the confrontation. Appellant explained that Karen Rogers had said something about his friend who had died, and "that got him mad." Appellant told Patterson that he "never swore" at Tim Rogers. When he was asked if he felt appellant lied to him, Patterson responded, "I felt like he was (sic) wasn't fully truthful. I wasn't sure he was trying to be super deceptive, but I think he felt that he was in a bad place." Patterson testified that appellant pleaded guilty after being charged with threatening Tim Rogers.
Appellant testified during punishment that he remembered "growing up at the bar" with his father. His parents were divorced, and he lived with his father until his father's girlfriend took appellant's money from him. He moved back in with his mother, but he rebelled against her rules. He started drinking alcohol as a sophomore in high school and was getting intoxicated every weekend by his senior year in high school. During high school, he was arrested for minor in possession and public intoxication. He was living in Vernon, Texas with his mother and visiting Eric Schultze's brother in College Station when this sexual assault occurred. He later moved to College Station. Appellant testified that he "looked up to" Schultze and was in awe of him because he "partied hard, drank a lot of beer." Appellant explained that there were "a lot of good-looking girls always around him." Working at the bars gave appellant access to alcohol any time he wanted. Appellant testified that there was no doubt that Schultze was the "leader" of the Bahia house. Schultze would do things to exercise control over the group. For example, appellant had a friend come in town to visit, and Schultze assaulted him in the parking lot outside the bar. On another occasion, after appellant had been arrested, but before he was on probation, he stopped going out "partying" with Schultze. Schultze would call him and tell him that he was a "pussy for not coming drinking with them and stuff."
Appellant remembered that, on the night of the sexual assault, they went bowling and "drank a lot of beer." Appellant then drove to the Blarney Stone where they stayed and drank "a lot more" even after the bar closed. They left around 4 a.m. He does not remember how he got to the Bahia house, and he remembers parts, but not all of the events of the evening. He remembered walking in and seeing Klock on top of the complainant and "the part about the baseball and cigarette." He remembered waking up on the couch hung over and knowing that something bad had happened. He left the Bahia house and drove home to Vernon, Texas the day after the assault. Appellant expressed remorse for the part that he played in the assault and stated that has accepted God into his life and he prays that God would take away the night that this assault happened.
On cross-examination, appellant admitted that, in the video, it appears that he inserted the screwdriver in the complainant's vagina. He testified that he had no memory of that portion of the video. He also agreed that, on the video, it appeared that he was trying to "get [the baseball] into her vagina." He further agreed that they were looking for things in the room to insert in the complainant's vagina. Finally, appellant admitted that there was no *87 question in his mind that the Bahia house neighbors were "terrorized" by them.
Next, Ryan Miller testified that she dated appellant for one month. She testified that, despite having shared the same bed with him, appellant never forced himself on her, and she was shocked to hear that he had been arrested for this assault.
Brandon Caddell testified that he had known appellant since the sixth grade. Appellant "stood up for what he believed in and didn't let anybody push him around." Brandon's father is a pastor, and appellant regularly attended church with them. Brandon described appellant as a "sweet talker" to girls and "a big teddy bear."
Stephen Caddell, a pastor in San Antonio and Brandon's father, told the jury that appellant was a well-manned and polite boy who met Caddell's approval. He testified that appellant had leadership potential.
Cheryl Quernner, appellant's mother, testified that appellant was 10 when she and appellant's father got divorced. Appellant comes from a family of people with drinking problems, and he would get intoxicated in high school. Appellant has a need to be accepted and he will try to fit in to whatever group he is with. The jury heard that "all of [appellant's] girlfriends, past girlfriends are still very close to [him].... The girls have nothing but good things to say." Quernner testified that appellant would not let his family visit him in jailhe was too embarrassed. She said that he had been transformed while in jail and had real remorse so she believed that he could succeed on probation.
Brooke Bolton testified that she has known appellant since eighth grade. She has been intoxicated around him, and he has never taken advantage of her. She described appellant as her friend, and she "love[s] him to death."
Sabre Bofannon testified that she has known appellant for about six years. She described appellant as "a real outgoing person. He's a real friendly guy. He's overall a really nice guy." She testified that she had been "intimate" with appellant, and he was never forceful or aggressive, and he always respected her when she said, "no." She described to the jury how appellant's personality changed when he moved to College Station. He "was more worried about what his friends thought here [in College Station] than about us. He just wasn't the same person."
Lastly, Marvin Sharp testified that his son and appellant were friends. Appellant stayed over at the Sharp house in Vernon a lot, and appellant had excellent manners, was well-behaved, and polite and respectful to Sharp and his wife. He described appellant as a "follower." Appellant dated Sharp's niece, and Sharp never heard any problems about that relationship. Appellant had a key to the Sharp's house, and they found him to be "quite trustworthy."
Rebuttal Witnesses
Sergeant Fleeger testified again and stated that, "based on the heinousness of the crime" and his "knowledge ... [of] arrests of the Defendants before and after their arrests for this case," he did not believe the defendants deserved probation. He acknowledged that he had never recommended probation as a witness, but believed that sometimes it is appropriate.
Here, the jury heard testimony from 10 of appellant's witnesses. They all testified that appellant came from a troubled home, but was a good guy and a follower. In addition, the jury saw videotape evidence of appellant engaging in truly barbaric behavior the sexual assault of an unconscious young woman by Schultze inserting *88 a toilet plunger handle in her vagina and his suggesting that appellant and Klock force a baseball in her vagina, while Schultze manned the video camera. The videotape also showed appellant burning the complainant's vagina with a lit cigarette, and then, mockingly, said, "Ow. That's got to hurt," before he flicked ashes on the complainant's buttocks. The videotape also showed appellant and Klock inserting a screwdriver blade into the complainant's vagina. Appellant's misconduct was further emphasized by his laughter at the complainant during the assault, while Schultze declared that this was "fucking hilarious." The jury also heard testimony from several policemen who testified that the defendants were not law-abiding citizens.
Taking all of the evidence into consideration, and in light of our holding that the argument did not constitute severe misconduct, we hold with fair assurance that the trial court's error in overruling appellant's objection to the above argument did not influence the jury and did not affect his substantial rights.
We overrule point of error seven.
Conclusion
We affirm the judgment.
Justice JENNINGS dissenting.
TERRY JENNINGS, Justice, dissenting.
Because the appropriate standard for determining the harm of the State's improper punishment argument requires that this case be reversed and remanded for a new punishment hearing, I respectfully dissent.
In his seventh point of error, appellant contends that the trial court reversibly erred in allowing the State to make the following argument:
[State]: Imagine the embarrassment, the humiliation that [the complainant] had to go through. Every time you think about the excuses the Defendants offered, think about [her], what she's gone through, what her parents are going through, what her dad is thinking knowing that his little girl was violated in the worst way.
[Appellant]: Judge, I'll object. There is no evidence as to what her parents were thinking as to even their presence [sic] here in the courtroom.
[Trial Court]: Overruled.
(Emphasis added.) As conceded by the State during oral argument in this Court, there is, in fact, no evidence in the record that the complainant's parents were even living at the time of the offense or aware that the complainant had been sexually assaulted.
The law provides for, and presumes, a fair trial free from improper argument by the State. Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App.1991). It is well-settled that a prosecutor cannot use closing argument to place matters before the jury that are outside the record and prejudicial to the accused. Everett v. State, 707 S.W.2d 638, 641 (Tex.Crim.App.1986); Thompson v. State, 89 S.W.3d 843, 850 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). Arguments referencing matters that are not in evidence and may not be inferred from the evidence are usually "designed to arouse the passion and prejudices of the jury and as such are highly inappropriate." Thompson, 89 S.W.3d at 850 (quoting Borjan v. State, 787 S.W.2d 53, 57 (Tex.Crim.App.1990)).
Here, the State invited the jury, "every time" it considered the defendants' punishment arguments, to instead focus on what her parents were "going through" and, in particular, "what her dad is thinking *89 knowing that his little girl was violated in the worst way." (Emphasis added.) It is readily apparent that the State, in an effort to completely nullify the defendants' punishment arguments, sought to inflame the "passions and prejudices of the jury," especially those members of the jury who were parents. This highly prejudicial argument was egregiously inappropriate, and the trial court gravely erred in overruling appellant's objection, an objection which so obviously should have been sustained.
Appellant concedes that the trial court's error in overruling his objection was non-constitutional and that the appropriate harm standard of review provides that such an error "that does not affect substantial rights must be disregarded." TEX. R.APP. P. 44.2(b). In Hawkins v. State, the Court of Criminal Appeals has recently held that determining harm under this standard concerning improper punishment argument in non-capital cases requires balancing three factors: (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of the punishment assessed absent the misconduct (likelihood of the same punishment being assessed). 135 S.W.3d 72, 77 (Tex. Crim.App.2004).
In regard to the first factor, the State's argument, asking the jurors to substitute their thoughts "about ... what her parents are going through, what her dad is thinking knowing that his little girl was violated in the worst way" in place of appellant's punishment arguments, when there is absolutely no evidence whatsoever that the complainant's parents were even aware of the sexual assault, was a flagrant attempt to arouse the passion and prejudices of the jury. The degree of such misconduct is not "minimal," and, as noted above, such an argument, "designed to arouse the passion and prejudices of the jury," is "highly inappropriate." Thompson, 89 S.W.3d at 850 (quoting Borjan, 787 S.W.2d at 57).
The trial court, in regard to the second factor, made no attempt at all to correct the State's misconduct. The bottom line is that it simply failed to sustain appellant's proper objection to an obviously improper argument. Moreover, the trial court's failure to sustain appellant's objection to the argument borders on constitutional error. See Thompson, 89 S.W.3d 843, 852 (noting that State's argument "by urging the jury to consider matters not before them, and while effectively acknowledging that to do so was a violation of their solemn oath as jurors ... violated the Due Process Clause of the Fourteenth Amendment and implicated the Confrontation Clause of the Sixth Amendment.").
Finally, in regard to the third factor, appellant faced the widest possible range of punishment provided for an offense in the Texas Penal Code: confinement in prison "for life or for any term of not more than 99 years or less than 5 years." TEX. PEN.CODE ANN. § 12.32 (Vernon 2003). If the jury had sentenced appellant to confinement for 10 years or less, it could have recommended to the judge that the imposition of appellant's sentence be suspended and that appellant be placed on community supervision. TEX.CODE CRIM. PROC. ANN. art. 42.12 §§ 4(a), (d)(1) (Vernon Supp. 2004-2005).
Given the wide range of possible punishment, the certainty of appellant's sentence, confinement for 15 years, absent the State's misconduct cannot be considered separate and apart from the severity of the State's misconduct. As noted in the majority opinion, appellant presented numerous character witnesses who testified on his behalf in the punishment phase of trial. Although, as noted in the majority opinion, the credibility of their character testimony may have been brought into question under *90 cross-examination, an intermediate court of appeals is not a fact-finder. More importantly, the simple fact remains that the State, regardless of the actual evidence before the jury for its consideration in assessing punishment, invited the jury, "every time" it considered appellant's punishment arguments to simply focus on what the complainant's parents were "going through," and, in particular, "what her dad is thinking knowing that his little girl was violated in the worst way"matters which were not in evidence. This was not a mere "plea for law enforcement" as discussed in Martinez v. State, 17 S.W.3d 677, 693 (Tex.Crim.App.2000). In effect, the State argued that the jury should ignore the evidence and focus on the specific facts about the effect the offense had on the complainant's parents. Given the severity of this misconduct and its highly prejudicial nature, it cannot be said with certainty that the jury, absent the misconduct, would likely have assessed the "same punishment" of confinement for 15 years.
The facts of this case are truly ugly, but the severity of the offense did not relieve the trial court of its solemn obligation to "preserve, protect, and defend the Constitution and laws of the United States and of this State." In fulfilling this duty, we, as judges, should remember the words of Justice Felix Frankfurter: "A timid judge, like a biased judge, is intrinsically a lawless judge." Wilkerson v. McCarthy, 336 U.S. 53, 65, 69 S. Ct. 413, 419, 93 L. Ed. 497 (1949) (Frankfurter, J. concurring). I cannot conclude with "fair assurance," as is required by the rule of law, that the trial court's error in overruling appellant's proper objection to the State's highly inappropriate argument "did not influence the jury, or had but a slight effect." See Reese v. State, 33 S.W.3d 238, 243 (Tex. Crim.App.2000). Accordingly, I would grant appellant's motion for rehearing, sustain his seventh point of error, and reverse and remand the case for a new punishment hearing.
NOTES
[1] Appellant's co-defendants also appealed their convictions. The Opinions for Klock v. State, 01-02-00265-CR, 2005 WL 90928, 177 S.W.3d 53, and Schultze v. State, 01-02-00210-CR, 2005 WL 90731, 177 S.W.3d 26, were issued simultaneously with appellant's Opinion.
[2] See TEX. PEN.CODE ANN. § 22.021(a)(2)(A)(v) (Vernon Supp.2004-2005) (acts in concert with another toward same victim).
[3] A trial court must enter a plea of not guilty on behalf of the defendant when he refuses to plead. TEX.CODE CRIM. PROC. ANN. art. 27.16(a) (Vernon 1989).
[4] Before the police showed her the videotape, the complainant did not know that she had been assaulted. She testified that she worked with Klock at a pub, and she and some of her girlfriends were at a bowling alley when Klock and his friends arrived. Both groups went to another pub and then on to a bar that appellant managed. There was excessive drinking, and the complainant did not remember any of the events occurring between the bar and waking up next to Klock in the Bahia house the next morning.
[5] The description of the sexual assault is based on our review of the videotape as well as Sergeant Jeff Capps's testimony from the guilt stage of trial.
[6] In his brief to this Court, appellant asserts that, "in the memorandum, he pointed out to the trial court that Article 36.09 V.A.C.C.P. required a severance in the event that one defendant has no prior admissible convictions while another co-defendant does." Although appellant "pointed out" the statute, he never "pointed out" to the trial court that one of appellant's co-defendants had a prior conviction.
[7] Rogers testified that she was "uncomfortable" around appellant and Klock "but not as afraid" as she was around Schultze.
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281 S.W.2d 428 (1955)
Wood McARTHUR, Appellant,
v.
J. M. SMALLWOOD, C. G. Hall, J. V. Satterfield, Jr., Harry W. Parkin and J. L. Shaver, Members of the Arkansas Justice Building Commission, Appellees.
No. 5-764.
Supreme Court of Arkansas.
July 27, 1955.
*430 Williams & Gardner, Russellville, for appellant.
Tom Gentry, Atty. Gen., Mehaffy, Smith Williams, Little Rock, for appellees.
NED A. STEWART, Special Chief Justice.
The appellant and plaintiff below, Wood McArthur (hereinafter referred to as appellant), proceeding as a taxpayer, filed this case in the Chancery Court of Pulaski County, Arkansas, against the appellees and defendants below, J. M. Smallwood, C. G. Hall, J. V. Satterfield, Jr., Harry W. Parkin and J. L. Shaver (hereinafter referred to as appellees), as members of the Arkansas Justice Building Commission, seeking to have Act 375 of 1955 declared unconstitutional and void and in violation of certain constitutional rights of the plaintiff and other taxpayers similarly situated, and seeking to enjoin the appellees from complying with, or in any manner carrying out, the provisions of the Act. The appellees waived service of summons, entered their appearance, and filed a demurrer to the complaint which was sustained by the Pulaski Chancery Court, and after appellant declined to plead further, that Court entered a decree dismissing the complaint.
The appellant duly perfected an appeal to this Court. Thereafter the regular Court disqualified itself and a Special Court (composed
of the writer, J. G. Burke, Harry P. Daily, Surrey E. Gilliam, Harry L. Ponder John Mac Smith and Edward L. Wright) was appointed to decide the case. In the public interest, this Special Court entered an order granting permission to any interested party in the State to file a brief with the Court covering any issue that party desired to raise concerning Act 375 of 1955. These briefs were to be filed by July 11, but none have been forthcoming, and the Court has proceeded to determine the appeal upon the record and briefs filed in Case No. 5-764 and upon its own investigation of the law.
Act 375 of 1955 creates the Arkansas Justice Building Commission and authorizes the Commission to construct a Justice Building on the capitol grounds in Little Rock, Arkansas, and to finance the construction by the issuance of bonds to be payable from and secured solely by a pledge of the funds in the Justice Building Fund, established by the Act. The funds therein will be derived from the rental of space in the building to the Workmen's Compensation Commission, the Public Service Commission, and such other persons or agencies as may occupy space therein; from moneys received from various county treasurers from additional costs taxed by the Act; from appropriations on a current basis; and from gifts, bequests, donations or other sources. Authorization is granted for lease agreements between the Commission and the Workmen's Compensation Commission and the Public Service Commission, and provision is made for the payment of rentals thereunder from the Workmen's Compensation Commission funds and Public Service Commission funds directly to the Commission without said funds first going into the state treasury. The funds derived from the additional costs taxed by the Act are also paid directly to the Commission and do not go into the state treasury. The bonds to be issued by the Commission shall be general obligations of the Commission only and shall in no event constitute an indebtedness for which the faith and credit of the State of Arkansas, or any of its revenues, are pledged. Appellant makes several *431 attacks upon the constitutionality of the Act which will be hereinafter considered in order.
Delegation of Legislative Power
It is alleged that there is a delegation of legislative power to the Commission contrary to and in violation of Article 5, Section 1, as amended by Amendment No. 7, and Article 4, Sections 1 and 2, of the Constitution of the State of Arkansas. It is well settled that legislative bodies have no right to delegate the lawmaking power to commissions and boards established by the legislature, but it is equally well settled that the legislature may delegate the power to determine facts upon which the law makes or intends to make its own action depend and that general provisions may be set forth with power given to those who are to act under such general provisions to complete the details. See, among other cases, Fort Smith v. Roberts, 177 Ark. 821, 9 S.W.2d 75; Fulkerson v. Refunding Board of Arkansas, 201 Ark. 957, 147 S.W.2d 980; Currin v. Wallace, 306 U.S. 1, 59 S. Ct. 379, 83 L. Ed. 441. We have carefully examined Act 375 and find no unconstitutional delegation of legislative power. The Act is complete in itself and when placed into operation the objects accomplished necessarily will be those provided for and intended by the Legislature. The Commission will do no more than find the necessary facts, complete the necessary details, and exercise a discretion, within clearly defined limits, as to the execution of the Act. We have considered the various grounds urged by the appellant as constituting an unlawful delegation of the legislative power and find them to be without merit.
Payment of Rent by the Workmen's Compensation Commission and Public Service Commission and Payment of the Proceeds of the Costs Levied Directly to the Commission.
The Act provides that the rental payments under the lease authorized to be executed between the Workmen's Compensation Commission and the Commission shall be paid directly from Workmen's Compensation Commission funds to the Commission prior to the deposit of any of said moneys in the Workmen's Compensation Fund in the state treasury. And, the Act authorizes the sale of the present Workmen's Compensation Commission building and the deposit of the funds derived therefrom directly with the Commission to be applied to the rental payments in the manner provided in the Act. The Act contains a similar provision with reference to the rental payments by the Public Service Commission in that said payments are to be made from Public Service Commission funds prior to the payment of any of said funds into the state treasury. And, the costs collected pursuant to the provisions of the Act are also to be forwarded by the various county treasurers directly to the Commission, and none of the costs go into the state treasury. The appellant contends that these provisions of the Act are contrary to Article 5, Section 29 and Article 16, Section 12 of the Constitution of the State of Arkansas. In addition, appellant cites certain cases such as Moore v. Alexander, 85 Ark. 171, 107 S.W. 395; Jobe v. Caldwell, 99 Ark. 20, 136 S.W. 966; Dickinson v. Clibourn, 125 Ark. 101, 187 S.W. 909; and others, for the propositions that one legislature cannot bind future legislatures concerning the expenditure of public funds by making continuing appropriations, that the life of an appropriation is two years, and that appropriations must state distinctly the maximum amount to be drawn in dollars and cents, and the purpose for the authorized expenditure. These cases do not reach the issue raised since they deal with money in the state treasury and it appears to be well settled that such moneys must be disbursed by specific appropriations of not to exceed two years in duration. The real issue is whether these funds must be paid into the state treasury. If there is no such constitutional requirement, then there is no violation of the provisions relied upon by appellant and no conflict with the law of the above cited cases. This Court has held, Gipson v. Ingram, 215 Ark. 812, 223 S.W.2d 595, that there are certain public moneys. *432 designated in that case "each funds", which may be controlled by the Legislature and in accordance with legislative directive need not be paid into the state treasury and need not be specifically appropriated. Appellant concedes that if the funds involved herein are "cash funds" within the Gipson v. Ingram case, supra, that decision is controlling. The Court in the Gipson v. Ingram decision, supra, defined "cash funds" as follows, at pages 816 and 817 of 215 Ark, at page 597 of 223 S.W.2d:
"So, for purposes of this topic `cash funds' are those received by the state agencies and institutions from sources other than taxes, as that term `taxes' is ordinarily used."
Appellant would distinguish the Gipson v. Ingram decision, supra, on the ground that the moneys involved herein are derived from "taxes" as that term is ordinarily used.
The Legislature has clearly designated the funds involved as "cash funds" and we find no express constitutional restriction upon the supreme power of the Legislature to deal with public revenues of any type prior to the time such revenues are placed in the state treasury. Therefore, since the Constitution is a restriction upon the otherwise supreme power of the Legislature rather than a grant of power to the Legislature, there would appear to be no sound constitutional reason for nullifying the express legislative action in this particular. Furthermore, these funds clearly qualify as moneys received from sources other than taxes, as that term is ordinarily used.
The Workmen's Compensation Act establishes a special fund in the state treasury known as the Workmen's Compensation fund and into that fund the various premium taxes and fees provided for by the Act are deposited. Original qualification fees are charged insurance carriers at the time of securing the first license to transact business and self-insurers at the time of qualifying as such, which fees are paid directly to the Workmen's Compensation Commission. A premium tax in an amount calculated on the basis of the administration cost of the Act, but not to exceed 3% on all premiums received, is levied against each participating insurance carrier, and these fees are collected by the Insurance Commissioner. The Commission collects directly a comparable tax on self-insurers. Thus, it is seen that the Workmen's Compensation Commission funds are collected from insurance carriers, who, by choice, participate in the writing of compensation, and from self-insurers, on the basis of financing the administration of the Act, and are segregated as a trust fund in the state treasury. These funds are collected and must be used for workmen's compensation purposes and are not available for the general or other purposes of the State of Arkansas. The leasing of adequate facilities peculiarly designed for the functions of the Workmen's Compensation Commission is obviously a proper part of the administration of the Compensation Act and a proper use of the funds collected therefor.
The cost of the operation of the Public Service Commission is financed by fees levied and charged against rail carriers, other carriers and utilities, and the amount of the fees collected is governed by the cost of the operation of the Public Service Commission. On receipt of the fees and charges provided for, the Secretary of the Public Service Commission pays the same into the state treasury and the amount so received by the treasurer is credited by him to the Public Service Commission fund therein. The deposits so made replace money appropriated out of the treasury for the operation of the Public Service Commission, and whether or not there is in the strict sense of the word a trust fund, the result is the same because the Public Service Commission funds are neither collected for nor used by the State for the general purposes or any other purpose thereof. The leasing of adequate facilities for the functioning of the Public Service Commission is clearly a proper element of its operation and a proper use of the funds collected therefor.
*433 The funds that will be realized from the additional costs levied by the Act fall in the same category. They will be paid by those securing the services of our courts and, as in the case of other costs, are designed to help finance the services received. It seems too apparent for comment to observe that the proper housing of the Supreme Court, the Clerk, the Library and the Attorney General is essential to the administration of justice. Also, these funds are not and will not be available for the general or other purposes of the State.
The funds involved, being special funds restricted in their use, are clearly moneys received from sources other than taxes, as that term is ordinarily used. Therefore, in our opinion, the Gipson v. Ingram decision, supra, is controlling and the legislative treatment of the funds involved is neither contrary to nor in violation of the Constitution of the State of Arkansas. This conclusion is entirely consistent with that reached by courts of other jurisdictions. See Ziegler v. Witherspoon, 331 Mich. 337, 49 N.W.2d 318; State ex rel. Fatzer v. Kansas Armory Board, 174 Kan. 369, 256 P.2d 143; State v. Florida State Improvement Commission, 158 Fla. 743, 30 So. 2d 97. In the last cited case, there was pledged to the payment of revenue certificates issued to finance the construction of an office building, among other things, funds collected by statute for the administration of the Workmen's Compensation Division of the Florida Industrial Commission. It was argued that this pledge amounted to the pledging of a state tax for the payment of rentals. Concerning such use of the Workmen's Compensation fund, the court states, at page 99 of 30 So.2d:
"Here we have a clear declaration that these funds are not the property of the state but that they shall be administered by the Commission, the State Treasurer being the mere custodian of them for that purpose. They are trust funds held in like category as funds held and administered by the Board of Commissioners of Everglades Drainage District in the drainage of the Everglades. Lainhart v. Catts, 73 Fla. 735, 75 So. 47. These funds never reach the state treasury as state funds; are never available for the general purposes of the state, but are solely for the use of the Florida Industrial Commission. They are similar to funds allocated to the Florida Improvement Commission that were discussed in State ex rel. Watson v. Caldwell, supra. Under such a state of facts we can conceive of no theory by which these funds could be called state funds, and thereby immunized by Section 6, Article IX of the Constitution, from use in servicing the revenue certificates."
The Financing of the Building, Including the Execution of Leases and the Issuance of Bonds.
As previously pointed out, the Act authorizes the Commission to issue bonds to be payable from and secured solely by a pledge of the funds in the Justice Building Fund, and the Act expressly provides that the bonds shall be general obligations only of the Commission and in no event shall they constitute an indebtedness for which the faith and credit of the State, or any of its revenues, are pledged. Appellant challenges the provisions of the Act pertaining to the financing of the Justice Building as being in violation of Article 16, Section 1 as amended by Amendment No. 13, and Amendment No. 20. Article 16, Section 1 of the Constitution prohibits the State from lending its credit and from issuing any interest bearing treasury warrants or scrip. By the express language of Act 375, the credit of the State of Arkansas is not involved and this Court has held that Article 16, Section 1 did not even prohibit the State from issuing bonds. In Brown v. Arkansas Centennial Commission, 194 Ark. 479, 107 S.W.2d 537, this Court stated, at page 482 of 194 Ark., at page 538 of 107 S.W.2d:
"It is plainly manifest from this language that the bonds to be issued *434 are not obligations of the state, but `shall be solely and exclusively the obligations of The Commission in its corporate and representative capacity.' This language is too plain to be misunderstood and is not open to construction. So the state is not lending its credit and it is not issuing any interest bearing treasury warrants or scrip, and the provisions of said section of the Constitution are not invaded. State Military Note Board v. Casey, 185 Ark. 271, 47 S.W.2d 23. Even where the state issued its own bonds to borrow money for its own uses and purposes, we held there was no violation of this provision of the Constitution. Bush v. Martineau, 174 Ark. 214, 295 S.W. 9; Connor v. Blackwood, 176 Ark. 139, 2 S.W.2d 44; Tapley v. Futrell, 187 Ark. 844, 62 S.W.2d 32; Sparling v. Refunding Board, 189 Ark. 189, 71 S.W.2d 182."
The pertinent provisions of Amendment No. 20 are that "the State of Arkansas shall issue no bonds or other evidence of indebtedness pledging the faith and credit of the State or any of its revenues for any purpose whatsoever, except by and with the consent of the majority of the qualified electors of the State". The Arkansas Justice Building Commission, although a public agency, is created as an entity with specified authority and powers and for purposes of Amendment No. 20, the Commission, in our opinion, is not the State of Arkansas. In similar situations this Court has authorized public agencies to issue bonds pledging for their payment revenues available to the particular agency and has rejected challenges of unconstitutionality under Amendment No. 20.
In Davis v. Phipps, 191 Ark. 298, 85 S.W.2d 1020, 100 A.L.R. 1110, bonds were to be issued by the State Board of Education under Act No. 333 of 1935, which authorized the issuance of bonds to be secured by school district bonds which had been delivered to the State Board of Education as security for loans from the revolving fund. The court stated, 191 Ark. at page 303, 85 S.W.2d at page 1023:
"But, aside from further speculation, we may say that Amendment No. 20 prohibits bonds or instruments issued by the state itself for the security of which is pledged the state's faith and credit. A bond is a written promise to pay money, and we have said, in the foregoing discussion, that the state is not issuing these bonds, and it would not be bound for their payment of these bonds. Therefore these bonds, which the state board of education is about to issue, are not within the prohibited class."
And 191 Ark. on page 304, 85 S.W.2d on page 1023:
"Finally, it may be suggested that the pledges contemplated by the state board of education are not within the forbidden class for another reason; that is, under Amendment No. 20 it would seem that pledges of revenue are forbidden only when such pledges are to secure state bonds. This seems to be in accordance with the language of Amendment No. 20."
In Jacobs v. Sharp, 211 Ark. 865, 202 S.W.2d 964, there was involved Act No. 62 of 1947, which authorized the issuance of bonds by state institutions to finance buildings, the bonds to be obligations of the Board of Trustees of the particular institution only and not obligations of the State. The bonds were to be payable from revenues of the institutions, such as dormitory rental charges. The court upheld the validity of the Act and on page 870 of 211 Ark., on page 966 of 202 S.W.2d, stated:
"Therefore, it appears to us to be certain that the bonds to be issued by the Board of Trustees are not State bonds and that the faith and credit of the State are not pledged. Not being the obligations of the State of Arkansas, Amendment No. 20 has no application to them and is not violated, because the prohibition therein relates only to State bonds."
*435 The moneys pledged to the payment of the bonds in the Jacobs v. Sharp decision, supra, were admittedly public revenues. Therefore, it seems to be well established by the decisions of this Court that the pledging of so-called state or public revenues is not prohibited by Amendment No. 20 unless the pledge is to the payment of State of Arkansas bonds. Thus, the real inquiry is whether the bonds that will be issued by the Commission, for purposes of Amendment No. 20, must be classified as State of Arkansas bonds regardless of the express provision in the Act that they are not. And, in making this inquiry, the Court must look to the substance of the transaction. Carpenter v. McLeod, 202 Ark. 359, 150 S.W.2d 607; State ex rel. Attorney General v. State Board of Education, 195 Ark. 222, 112 S.W.2d 18.
To properly determine the matter, it is necessary to analyze the funds that will be pledged to the obligations of the Commission. The Justice Building Fund is established as a trust fund by Section 15 of the Act. Sub-section (a) of Section 15 covers the moneys that will be received from the various county treasurers from the additional costs taxed by Section 14 of the Act. Section 14 expressly provides that the costs will be collected only in the event the Legislature does not make an annual appropriation of at least $28,000 to the Justice Building Fund for the payment of rent for space occupied by the Supreme Court, the Clerk of the Supreme Court, the Supreme Court Library, and the Attorney General. There is no obligation on the Legislature to make this appropriation and there is no attempt to bind future legislatures in this particular. The appropriations, being current in nature, present no constitutional problem because they will simply amount to a bestowing by the Legislature of its bounty, and in this regard it is supreme. Cone v. Hope-Fulton-Emmett Road Improvement District, 169 Ark. 1032, 277 S.W. 544; Grable v. Blackwood, 180 Ark. 311, 22 S.W.2d 41; Page v. Rodgers, 199 Ark. 307, 134 S.W.2d 573; Clayton v. City of Little Rock, 211 Ark. 893, 204 S.W.2d 145. Furthermore, there is no constitutional objection to the making by one legislature of a continuing levy. Moore v. Alexander, 85 Ark. 171, 107 S.W. 395. The only other consideration necessary in the determination of whether there are sufficient obligations on the part of the State of Arkansas with reference to the additional costs levied to constitute this a State of Arkansas bond is whether the levy is irrevocable. There is no such express provision in the Act, but it does appear to be established under the decisions of this Court that the law in effect at the time of the making of a contract becomes a part of it, as if expressly referred to and incorporated in its terms. See Adams v. Spillyards, 187 Ark. 641, 61 S.W.2d 686, 86 A.L.R. 1493; Ffospelhorn v. Burke, 196 Ark. 1028, 120 S.W.2d 705; City of Little Rock v. Community Chest of Greater Little Rock, 204 Ark. 562, 163 S.W.2d 522, 142 A.L.R. 1072; Liebe v. Sovereign Camp Woodmen of the World, 205 Ark. 540, 170 S.W.2d 370; Gulf Insurance Co. v. Holland Construction Co, 218 Ark. 405, 236 S.W.2d 1003. And, see the Michigan case of Ziegler v. Witherspoon, supra, wherein the court stated on page 327 of 49' N.W.2d:
"It is not disputed that when the bonds are issued a contract will be made between the bondholders and the issuing authorities, and that the contract will include the provisions of all relevant existing laws. `It is also settled that the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to and incorporated in its terms.' Von Hoffman v. City of Quincy, 4 Wall. 535, 71 U.S. 535, 18 L. Ed. 403. See Hammond v. Place, 116 Mich. 628, 74 N.W. 1002; City of Pontiac v. Simonton, 271 Mich. 647, 261 N.W. 103. Thus the contract will include those acts which authorize the collection of taxes for the State highway fund."
Therefore, when bonds are issued by the Commission, the bondholders may well acquire *436 contractual rights with reference to this and other provisions of Act 375 so that an attempt by a subsequent Legislature to abrogate or alter such provisions in such a manner as to impair the security of the bondholders would constitute an impairment of their contractual rights. Even so, in our opinion, there would be no violation of Amendment No. 20. The levy of additional costs creates a special fund in every sense of the word and the funds never reach the state treasury. An irrej vocable levy of this nature places no obligation upon any funds of the State which have heretofore been or which would otherwise be available for the general or other purposes of the State. The bondholders can look only to those sources of revenue made available by the Act, and if they are insufficient, no claim of any nature can be asserted against the State. We have carefully considered the Carpenter v. McLeod, Comptroller, supra, and State ex rel. Atty. General v. State Board of Education, supra, decisions, and have concluded that they are distinguishable. Those decisions were dealing with funds in the state treasury and one legislature was attempting to bind another as to the disposition of state treasury funds. This is not true in the instant case and we have heretofore pointed out the supreme power of the Legislature to deal with these funds without the necessity of future legislative action. Furthermore, our conclusion is consistent with what we believe to be the correct interpretation of Amendment No. 20, as set out in the Davis v. Phipps, supra, and Jacobs v. Sharp, supra, decisionsthat is, the irrevocable pledging of state funds is condemned only when they are pledged to full faith and credit obligations of the State. There was necessarily an irrevocable pledging of public revenues in the Jacobs v. Sharp decision, supra, but, as is the case here, the pledge was not of state treasury funds, and, therefore, the bonds were not in fact State of Arkansas obligations. Our research reflects that this is the view taken by a substantial majority of courts of other jurisdictions.
The case of State ex rel. Capitol Addition Building Commission v. Connelly, 39 N.M. 312, 46 P.2d 1097, 1103, 100 A.L.R. 878, is peculiarly in point from the standpoint of the additional costs levied by Section 14 of the Act. That case involved an Act of the New Mexico Legislature creating the Capitol Addition Commission and authorizing the issuance of debentures secured by an irrevocable pledge of the proceeds of a $2.50 levy upon each and every civil action filed in the offices of the clerks of the various district courts. Concerning the point immediately involved, the court stated:
"And so we conclude that the debentures in question, neither requiring nor warranting a resort to the general taxing power of the state for their retirement, but payable instead from proceeds of an imposition in the nature of an excise laid upon all civil actions, filed with the various district clerks of the state, in addition to the regular docket fee, to be converged into a special fund in the hands of the state treasurer, will not constitute a general obligation on the part of the state. Hence, they are not within the interdiction of article 9, § 8, of the State Constitution."
See the following New Mexico cases handed down subsequently in which that court adheres to the special fund doctrine: State Office Building Commission v. Trujillo, 46 N.M. 29, 120 P.2d 434; Stone v. City of Hobbs, 54 N.M. 237, 220 P.2d 704.
In Ziegler v. Witherspoon, supra, there was a pledge of the income received from motor vehicle taxesa special tax not available for the general purposes of the state. On page 326 of 49 N.W.2d, the court stated:
"For these reasons we find that the constitutional debt limitation will not apply to bonds issued under Act No. 22, supra.
"This conclusion has been reached by a large majority of other courts *437 which faced the same problem. In Gruen v. State Tax Commission, 35 Wash.2d 1, 211 P.2d 651, 679, the court said:
"`The cases which we have considered state what must be held to be the unanimous view of the courts of this country upon the question of whether or not bonds payable out of a special fund, supplied by an excise tax, constitute a debt within the meaning of constitutional limitations fixing a general debt limitation. Based upon those cases and the cited cases decided by this court, which indicate an approval of the special fund doctrine and, further, that excise taxes are not controlled by constitutional provisions, we hold that the issuance and sale of bonds provided for in this act do not in any way constitute a debt against the state of Washington. The bonds provided for are to be paid from a special fund and solely from anticipated revenues to be derived from the sale of cigarettes. They are not, and cannot be, a general obligation of the state. In the event the anticipated profits do not materialize and the fund becomes exhausted, the purchaser of the bonds has no legal redress against the state. He must look solely to the fund upon which they are drawn.
"`Whether there would be a moral obligation to redeem the bonds is a matter which does not concern this court. It is sufficient to say there is no legal obligation to do so in the event the special fund is exhausted. In that event, there will be no additional tax burden by reason thereof; for, as just stated, there is no general obligation on the part of the state to redeem the bonds.'"
See also the following cases: Nichols v. Williams, 338 Mich. 617, 62 N.W.2d 103; State v. Florida State Improvement Commission, supra; State v. Florida State Improvement Commission, 160 Fla. 230, 34 So. 2d 443; State ex rel. Fatzer v. Kansas Armory Board, supra; Guthrie v. Curlin, Comm'r of Highways, Ky, 263 S.W.2d 240.
Turning to the other moneys that will be placed in the Justice Building Fund, Sub-section (b) of Section 15 of the Act covers rental payments under the lease agreement to be executed by the Workmen's Compensation Commission and the Justice Building Commission, and the sums to be received from the sale of the Workmen's Compensation Commission building. Section 11 of the Act expressly authorizes the Workmen's Compensation Commission and the Justice Building Commission to enter into a lease for such term, containing such provisions, and for such amount as the said parties shall determine. It is contemplated that a lease will be executed and that the term thereof will extend over the life of the bonds to be issued by the Commission. There is express legislative authorization for the contemplated long term leasing and we see no constitutional objection to the action taken by the Legislature in this regard. Long term contracts are necessarily involved in every bond issue of state agencies heretofore approved by this Court, and this Court has approved similar long term contracts dealing with other subject matter. A ten year contract under which the Board of Penitentiary Commissioners obligated itself to furnish convict labor, was upheld in McConnell v. Arkansas Brick & Mfg. Co, 70 Ark. 568, 69 S.W. 559. In Chidester School District No. 59 v. Faulkner, 218 Ark. 239, 235 S.W.2d 870, it was held that the board of directors of a school district might enter into a contract covering the employment of a teacher or other officer for a term extending beyond that of the board itself, and that such contract was binding upon succeeding boards. See annotations 70 A.L.R. 794 and 149 A.L.R. 336.
The Court stated on page 242 of 218 Ark, on page 872 of 235 S.W.2d:
"In Gardner v. North Little Rock Special School District, 161 Ark. 466, 257 S.W. 73, 75, this court approved the general rule announced in 24 R.C. *438 L, page 579, as follows: `In the absence of an express or implied statutory limitation, a school board may enter into a contract to employ a teacher or any proper officer for a term extending beyond that of the board itself, and such contract if made in good faith and without fraudulent collusion, binds the succeeding board. It has even been held that under proper circumstances a board may contract for the services of an employee to commence at a time subsequent to the end of the term of one or more of their number, and subsequent to the reorganization of the board as a whole, or even subsequent to the terms of the board as a whole. The fact that the purpose of the contract is to forestall the action of the succeeding board may not of itself render the contract void. But a hiring for an unusual time is strong evidence of fraud and collusion, which, if present, would invalidate the contract.' See also, School District No. 45, Pope County v. McClain, 185 Ark. 658, 48 S.W.2d 841."
Similar leasing arrangements have been repeatedly approved by the highest courts of other jurisdictions. In Preston v. Clements, 313 Ky. 479, 232 S.W.2d 85, it was held that the Kentucky State Property and Building Commission could legally enter into contracts with other state agencies to rent the Capitol Annex Building when ready for occupancy. The building was to be financed by revenue bonds. In State v. Florida State Improvement Commission, 159 Fla. 338, 31 So. 2d 548, revenue certificates were to be issued to provide funds for the construction of toll roads to be payable from the income derived from fees and tolls. Before construction, it was agreed to lease the same to the State Road Department in lieu of the actual collection of tolls and the plan was upheld as being valid. In Loomis v. Keehn, 400 Ill. 337, 80 N.E.2d 368, an act authorizing the construction of armories and the renting of the same to the state was upheld. In State v. Florida State Improvement Commission, supra, in approving a somewhat similar lease arrangement, the court states, at pages 99' and 100 of 30 So.2d:
"* * * State agencies generally have authority to contract with each other in so far as necessary to administer duties within the scope of their authority.
* * * it is also our view that the funds collected by the Florida Industrial Commission pursuant to Chapter 440.51(b) Florida Statutes of 1941, F.S.A, are trust funds for the exclusive use of paying its administrative expenses, that it is a voluntary assessment paid by those who take advantage of the act, that it is not a state fund and that the Florida Industrial Commission was authorized to pledge said funds in payment of the lease contract with the Florida State Improvement Commission."
See also State ex rel. Thomson v. Giessel, 267 Wis. 331, 65 N.W.2d 529; Dean v. Kuchel, 35 Cal. 2d 444, 218 P.2d 521; State ex rel. Fatzer, v. Kansas Armory Board, supra.
From the above, we conclude that the contemplated long term leasing arrangement between the Workmen's Compensation Commission and the Justice Building Commission is valid. Furthermore, the Workmen's Compensation funds are designated trust funds collected and used for a specific purpose and in no sense are they funds which have been or could otherwise be available for the general or other purposes of the State, and, of course, that portion thereof to be used for rental payments under the lease never reaches the state treasury. Therefore, for the reasons heretofore set forth with reference to the additional costs levied by the Act, we find no violation of Amendment No. 20 even though the authorization set forth in Act 375 is irrevocable in the sense that it cannot be abrogated by a subsequent Legislature in such a manner as to impair the obligation of the bondholders' contract.
As to the contemplated sale of the present Workmen's Compensation building and *439 the placing of the proceeds thereof into the Justice Building Fund to be applied to the rent of the Compensation Commission, we find no diversion of funds because they will still be utilized for Workmen's Compensation purposes, and, as previously pointed out, the Legislature can bestow its bounty where it wishes. Also, all objections to the disposition of state property appearing in the decision of this Court in Harris v. Emerling, Ark, 271 S.W.2d 618, decided October 11, 1954, appear to be fully complied with.
The situation existing with reference to the lease agreement to be executed by the Public Service Commission and the Justice Building Commission is the same as in the case of the Workmen's Compensation Commission, and what has been heretofore said in this opinion with reference to the validity of the Compensation Commission lease is applicable and controlling as to the Public Service Commission lease. There is, in our opinion, no violation of Amendment No. 20 in either instance.
Any other funds that will be supplied by the State, covered by Sub-section (d) of Section 15, will be on a current basis and pursuant to no obligation on the part of the State to supply any such funds.
The only obligations of the State of Arkansas with reference to these bonds are entirely negative in form, being those in connection with the constitutional impairment of contract provisions, and since these obligations are with reference to clearly designated special funds, which never find their way into the state treasury, and which have not been and cannot be available for the general or other purposes of the State, and since there can be no obligation on the part of the State with reference to these bonds if the funds specified in the Act prove insufficient, it is our considered opinion that the bonds are not state bonds within the contemplation of Amendment No. 20. The cases relied upon by appellant are easily distinguishable. In Opinion of the Justices, 146 Me. 183, 79 A.2d 753, the act made the execution of a lease to the State of Maine mandatory and in McCutcheon v. State Building Authority, 13 N.J. 46, 97 A.2d 663, the leasing was restricted to state agencies. Furthermore, it appears that the obligations under the leases involved therein would have to be discharged from funds raised by general taxation which would otherwise be available for general or other state purposes. The obligations under the leases were not specifically restricted to designated special funds which would in no event be available for general or other state purposes, as is the case under Act 375. And, leasing is not restricted to state agencies by Act 375. As appears from the admitted facts in this case and from the authorization of the Act itself, the Justice Building Commission will covenant to charge and collect rent from the occupants of the building, whoever they may be, which, together with such other revenue of the Commission as may be available therefor, will always be sufficient in amount to insure the prompt payment of the principal of and interest on the bonds when due and to maintain an adequate reserve for contingencies, and it is entirely possible that it may become necessary for the Commission to lease space to others.
The Additional Costs Levied by Section 14 of the Act.
The appellant contends that this section of the Act violates Article 2, Section 13 of the Constitution, which provides in part that every person "ought to obtain justice freely, and without purchase, completely, and without denial, promptly and without delay, conformably to the laws." This Court has held that it is within the power of the Legislature to make reasonable provisions for the payment of costs of litigation so as to help defray the expenses of the courts. Marshall v. Holland, 168 Ark. 449, 270 S.W. 609. The proper housing of the Supreme Court, the Clerk, the Library and the Attorney General is an obvious and necessary expense of the administration of justice and of our courts. These costs are levied at the circuit, chancery and probate court levels and appeals from those courts are directly to the Supreme *440 preme Court. The mere fact that there are no appeals to the Supreme Court in a substantial number of cases filed in the circuit, chancery and probate courts, of which fact we take judicial knowledge, is immaterial. The right of appeal is a valuable asset to any litigant and is available to all litigants. The mere fact that these rights may not be utilized in every case does not detract from their importance and there is no constitutional objection to levying costs to contribute to the expense of the maintenance of these rights.
Exemption from Taxation
Section 16(f) of the Act exempts the bonds to be issued by the Commission from all taxes, state, county and municipal, including income taxation and inheritance taxation. Appellant challenges this provision as being unconstitutional under Article 16, Sections 5 and 6 of the Constitution of the State of Arkansas. We agree with the contention of the appellant insofar as property taxation is concerned. This Court has held that these provisions of the Constitution prohibit any legislative attempt to exempt bonds from property taxation at least where the bonds are held by any person or agency whose property is not otherwise exempt from taxation. Jernigan v. Harris, 187 Ark. 70S, 62 S.W.2d 5; Ward v. Bailey, 198 Ark. 27, 127 S.W.2d 272. However, the exemption from state income taxation is valid. Ward v. Bailey, supra; Fulkerson v. Refunding Board of Arkansas, supra; Sims v. Ahrens, 167 Ark. 557, 271 S.W. 720; 4 Ark.L.Rev. 433, Property Tax Exemption in Arkansas. And, inasmuch as an inheritance or estate tax is not a property tax, that exemption is valid. State v. Handlin, 100 Ark. 175, 139 S.W. 1112; Gates v. Bank of Commerce Wiseman v. Phillips, 191 Ark. 63, 84 S.W.2d 91, 97.
The invalidity of the provisions of Section 16(f) of the Act insofar as they purport to exempt the bonds from property taxation does not affect the validity of other provisions of the Act which we have herein sustained. Section 22 of Act 375, the separability provision; Jernigan v. Harris, supra.
Conclusion
The action of the lower court in sustaining the demurrer, and upon the plaintiff's declining to plead further, in dismissing the complaint is affirmed.
There were no dissents.
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281 S.W.2d 327 (1955)
William W. McKINNEY et al., Petitioners,
v.
Orville D. WHITE et ux., Respondents.
No. A-5043.
Supreme Court of Texas.
July 27, 1955.
Allen Melton and James R. Ellis, Dallas, for petitioners.
Richard F. Stovall, Floydada, Enos T. Jones, Austin, for respondents.
HICKMAN, Chief Justice.
This is a statutory action in trespass to try title to 160 acres of land in Dickens County brought by respondents, Orville D. White and wife, against petitioners, William W. McKinney, W. J. Danforth and wife, Marion G. Danforth, R. L. Gass and wife, Annette Gass, C. C. Dowlen and wife, Velma Dowlen, and other parties who filed disclaimers. A judgment in favor of respondents for title and possession of the land was affirmed by the Court of Civil Appeals, 278 S.W.2d 553. The real controversy is over the ownership of undivided mineral interests in the land. Petitioners claim no interest in the surface.
It was stipulated that the common source of title was Eric P. Swenson. By deed dated October 19, 1916, Swenson and others conveyed the land to Lee W. Bilberry, retaining a vendor's lien to secure the payment of six purchase money notes made payable to S. M. Swenson and Sons. Bilberry conveyed the land to T. H. Tallant and wife by deed dated May 28, 1917, in which the Tallants assumed the payment of the vendor's lien notes. On March 30, 1919, T. H. Tallant and wife conveyed ½ the minerals to A. T. Reed, E. C. Edmonds, and N. E. Porter, which deed was duly recorded. Thereafter, on May 12, 1919, T. H. Tallant and wife conveyed the land to J. F. Tallant, without excepting any mineral interest from the grant or mentioning the mineral deed to Reed et al. As part of the consideration, J. F. Tallant assumed payment of the outstanding vendor's lien notes. On February 11, 1920, J. F. Tallant conveyed the land to G. M. Williamson, who also assumed the payment of the vendor's lien notes. On January 29, 1921, S. M. Swenson and Sons transferred the vendor's lien notes to the American National Insurance Company, the transfer reciting that the Swensons "do sell, transfer and assign, without recourse *328 on us, unto said American National Insurance Company, the said notes (describing them), together with the vendor's lien securing the payment thereof. * * *" On March 1, 1921, Williamson executed a deed of trust to Shearn Moody, Trustee for the American National Insurance Company "for the purpose of taking up and extending" the above notes. On November 5, 1924, G. W. Williamson and wife conveyed the land to P. H. Miller and wife. On November 21, 1924, Miller and wife conveyed the land to J. C. Guthery and wife. On April 15, 1926, the Gutherys executed a deed of trust to H. W. Ferguson, Trustee for Dallas Joint Stock Land Bank to secure the bank in the payment of a note of even date given in renewal and extension of the balance due on the note executed by Williamson to the American National Insurance Company and the balance due on a note executed by Guthery to Miller, which notes had been transferred to said bank. On March 3, 1936, the land was sold by a substitute trustee under the powers contained in the deed of trust to the Dallas Joint Stock Land Bank, at which sale the bank became the purchaser. Thereafter, the bank conveyed to D. G. Harris and wife. Harris and wife conveyed to Frank D. Hale and wife, who, in turn, conveyed to respondents, White and wife. It is thus shown that whatever title the respondents have in the land came through the sale under the deed of trust.
Turning now to the title of petitioners, the record discloses, as above stated, that while T. H. Tallant and wife were the owners of the land they executed a deed to ½ of the minerals to Reed, Edmonds, and Porter. Whatever title petitioners have came through that deed. Edmonds filed a disclaimer as to his 1/3 of the ½ mineral interest.
The petitioners claim under deeds from Reed and Porter and under Reed's will. N. E. Porter conveyed his entire 1/6 interest in the minerals to Bess Porter, who, in turn, conveyed the same interest to Eva D. Porter. Eva D. Porter conveyed a 1/12 interest to petitioner, William W. McKinney. She filed a disclaimer in the suit. It thus appears that McKinney's claimed interest is ½ of the Porter 1/6 interest, or 1/12 of the minerals.
Turning next to the claim of petitioner Danforth, we find that A. T. Reed, who acquired a 1/6 interest in the minerals under the deed from T. H. Tallant, conveyed to R. L. Gass and wife "1/3 of ½ interest in ½ interest" in and to said minerals. That is a 1/12 interest. But Gass conveyed to Danforth the same interest expressed in his conveyance as "½ of our 1/3 of ½ interest" in these minerals. By that deed Gass parted with all the interest which he acquired through the A. T. Reed deed. However, Reed later died testate, devising his interest in these minerals to his wife and two daughters, Mrs. Dowlen and Mrs. Gass. Thereafter, Reed's widow, joined by her them husband, and Velma Dowlen, joined by her husband, deeded that interest to Gass and wife. It thus appears that petitioners, William W. McKinney, W. J. Danforth and wife, Marion Danforth, and R. L. Gass and wife, Annette Gass, together own or claim 3/12ths of these minerals. The record does not disclose that petitioners, C. C. Dowlen and wife, Velma Dowlen, own any interest in the minerals.
The question of law to be decided is whether or not the trustee's sale passed to the purchaser at that sale the mineral estate conveyed by T. H. Tallant to Reed, Edmonds, and Porter. It will be kept in mind that that mineral deed was executed prior to the execution of any deed of trust. At that time Swenson et al. owned the superior title to the land, and as such owners had the right to rescind the sale and repossess the property, or affirm the sale and foreclose their lien through a judicial proceeding. Stone Cattle and Pasture Co. v. Boon, 73 Tex. 548, 11 S.W. 544.
After that mineral deed was executed, Swenson and Sons transferred the purchase money notes and the vendor's lien to the American National Insurance Company, but, as noted above, did not transfer the superior title. It is well settled that an assignment of purchase money notes and the *329 vendor's lien securing same does not convey to the assignee the superior title to the land. Stephens v. Matthews' Heirs, 69 Tex. 341, 6 S.W. 567; Farmers' Loan & Trust Co. v. Beckley, 93 Tex. 267, 54 S.W. 1027; Cleveland State Bank v. Gardner, 121 Tex. 580, 50 S.W.2d 786; Robinson v. Smith, Tex. Civ.App., 130 S.W.2d 381, error refused.
By that assignment the insurance company acquired only the right to obtain a judgment on the notes with a foreclosure of the vendor's lien. Obviously, it could not convey any greater right, and the right of the Dallas Joint Stock Land Bank could rise no higher than that of the insurance company. When the deed of trust was executed by Williamson, he was not the owner of the ½ mineral estate conveyed by Tallant to Reed et al. Not being the owner of that interest, he could not fix a deed of trust lien thereon. Neither was Guthery the owner of that interest when he executed a deed of trust to the Dallas Joint Stock Land Bank, under the powers of which the land was sold by the substitute trustee. Since no one with authority to do so executed a deed of trust lien upon the ½ mineral estate sold to Reed et al., that interest could not have passed by the deed of trust sale by the substitute trustee for the Dallas Joint Stock Land Bank. We assume that the bank could have come into court and declared upon its note as a renewal of the original purchase money notes given to Swenson and Sons and procured a foreclosure of the lien on this interest. In that proceeding, in order to be entitled to a foreclosure upon the mineral interest sold to Reed et al., the record owners thereof would have been necessary parties.
Reduced to its simplest form, the situation is this: The property has been sold under the powers contained in a deed of trust. That deed of trust did not cover the ½ mineral interest conveyed to Reed et al., because both that deed of trust and the deed of trust executed by Williamson to the American National Insurance Company were executed by parties who did not own that ½ interest. They had no authority to fix a deed of trust lien thereon, and a sale under the powers contained in either of those deeds of trust could not pass the interests which petitioners hold under the deed to Reed et al.
Respondents rely on Texas Land & Mortgage Co. v. Cohen, 138 Tex. 464, 159 S.W.2d 859. In that case a deed of trust lien existed against the land at the time an interest in the minerals was conveyed, and the question presented was the right of a subsequent purchaser of the land who took same subject to the deed of trust lien to renew the indebtedness under the provisions of Articles 5520 and 5522 of the Revised Statutes, Vernon's Ann.Civ.St. arts. 5520, 5522. The question governing our decision of this case was not presented in that case.
This brings us to a consideration of the character of judgment to be rendered. Except as to the 1/12 interest in the minerals standing in the name of petitioner William W. McKinney, the 1/12 interest standing in the names of W. J. Danforth and wife, Marion Danforth, and the 1/12 interest standing in the names of R. L. Gass and wife, Annette Gass, the judgment of the trial court will not be disturbed. In so far as that judgment divested those named petitioners of title to their respective interests in these minerals, that judgment and the judgment of the Court of Civil Appeals affirming same are reversed, and judgment is here rendered that respondents take nothing as to them.
Undisturbed in part and reversed and rendered in part.
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281 S.W.2d 47 (1955)
Mrs. Ottice F. GREENFIELD
v.
MANUFACTURERS CASUALTY COMPANY et al.
Supreme Court of Tennessee.
June 10, 1955.
Hugh K. McLean and Chas. C. Montgomery, Paris, for plaintiff in error.
Van Dyke & Dunlap, Paris, for defendants in error.
SWEPSTON, Justice.
This is a Workmen's Compensation case and the question is whether or not the accident and injury arose out of and in the course of employment of petitioner by the defendant Davis Stores in Paris, Tennessee. The trial Judge held that the injury was not compensable.
The petitioner had been employed for about two weeks prior to the injury as manager of Davis Stores. Working hours were not of a fixed period of the day but she was required to attend to a variety of matters even though it made it necessary for her to work at night. On this particular evening her district supervisor requested that she come back after her dinner hour and told her that the store would pay for her evening meal. When she was on her way to obtain said meal at a public eating place and had gotten about two blocks away from the store she was struck by an automobile while attempting to cross the street and suffered very severe injuries.
The Trial Judge made no findings of fact but simply announced the conclusion that he was of opinion that the accident did not arise out of and in the course of employment. Petitioner testified that whenever an employee of the Store worked overtime, the Store paid for his evening meal. She was corroborated in this by another employee, Mrs. Hill. The district supervisor, Mr. Schwartz, said that the store paid for the evening meal only when the employee had been especially requested or directed to return for work over-time. The weight of the proof is with the petitioner. Petitioner testified that she was instructed by Mr. Schwartz to take her evening meal under such circumstances at one of three designated public eating places. Mr. Schwartz denied that he so instructed her but said he simply suggested that she eat at different places by reason of good public relations. Mrs. Hill did not corroborate petitioner but simply said that they almost always went to one of these three designated *48 places. The weight of the proof is against petitioner on this point.
The first six assignments of error all go to the question first above stated. Petitioner was paid $75 a month. Petitioner received no other compensation than $75 a month except reimbursement for the evening meal when she worked late at the Store. The substance of petitioner's theory is contained in the second proposition of fact. It is said that the contract of employment contemplated that she would be required to work late at night from time to time; that in order that she might perform such duties she must necessarily eat an evening meal; that it was contemplated that she would eat such meal in as short a time as possible at the expense of the Store so that she might resume the performance of her duties in said Store without delay; that the injuries therefore arose out of and in the course of her employment, because at the time she was engaged in the performance of an act personal to her in the sense that it was necessary for her physical well-being, but same was contemplated and agreed upon by the defendants in their contract. It is further said that the contract contemplated that she should be at the place where said accident happened, at the time and on the date the same occurred, and because also she was specifically requested on that occasion to be there.
Petitioner's counsel has compiled a very interesting and plausible brief to support his contention. However, we find nothing in the case to take it out of the general rule stated in Free v. Indemnity Ins. Co. of N.A., 177 Tenn. 287, 145 S.W. (2d) 1026, and in numerous other cases to the effect that is well settled by the authorities that the relation between master and servant is suspended when the servant leaves the place of actual employment to go to his home for rest or food or to associate with his family.
In 58 Am. Jur., 723, Section 217, it states that:
"The hazards encountered by employees while going to or returning from their regular place of work, before reaching or after leaving the employer's premises, are not ordinarily incident to the employment, and for this reason injuries resulting from such hazards are in most instances held not to be compensable as arising out of and in the course of employment. This general rule is subject, however, in most jurisdictions to certain well-recognized exceptions which depend upon the nature, circumstances and conditions of the particular employment and the cause of the injury."
The sections following set out the exceptions to the general rule, and under Section 228, on page 735, it is said:
"Ordinarily, an employee is not under the protection of the statute while away from the employer's premises during an intermission for lunch, although there may be exceptional circumstances entitling the employee to compensation in such a case."
There is a full note in 141 A.L.R. 862, giving the cases wherein compensation was allowed and those wherein it was not allowed.
Smith v. Camel Mfg. Co., 192 Tenn. 670, 241 S.W. (2d) 771, has dealt with the general question and the opinion quotes from our case of Little v. Johnson City F. & M. Co., 158 Tenn. 102, 11 S.W. (2d) 690, wherein it is said:
"`If the place at which the injury occurred is brought within the contract of employment, by the requirement of its use by the employee, so that he has no discretion or choice as to his mode or manner of coming to work, such place and its use seem logically to become elements or factors in the employment and the injury thus arises out of the employment and is incurred *49 in the course thereof. But, on the contrary, if the employee, at the time of the injury, has gone beyond the premises of the employer, or has not reached them, and (has) chosen his own place or mode of travel, the injury does not arise out of his employment nor is it within the scope thereof.'" 158 Tenn. at page 106-107, 11 S.W. (2d) at page 692.
At the time of this accident petitioner was not engaged in any business for the benefit of her employer. She was simply traveling along a route she herself selected and was on her way not even to the nearest one of the three eating places, but to the one that she preferred to eat at. She was simply attending to the routine matter of going to obtain her evening meal. The fact that she was to be reimbursed for the cost of the evening meal amounts to nothing more than payment of additional compensation for the work to be done after she returned to the employer's premises from her evening meal.
We are unable to find any fact or facts that bring this accident within the coverage of the Compensation Act so as to justify us in holding that it arose out of and in the course of her employment.
The last assignment of error concerns a letter written by her employer after the injury, in which liability for compensation is assumed to exist. This was unsuccessfully sought to be used as a basis for a new trial. The insistence is this letter shows that the risk of such an injury was directly within the contract of employment.
We find no merit in this assignment and same is overruled.
The judgment of the lower Court is affirmed.
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612 S.W.2d 88 (1981)
Bill BRISCOE, Appellant,
v.
GULF SUPPLY CO., INC. d/b/a International Materials & Service Co., Inc., Appellee.
No. 18515.
Court of Civil Appeals of Texas, Fort Worth.
February 5, 1981.
Rehearing Denied March 5, 1981.
*89 Beecham, Brown, Longenecker, Rapier & Yeager and John E. Rapier, Dallas, for appellant.
Carrington, Coleman, Sloman & Blumenthal, and Mark S. Werbner, Dallas, Childs, Fortenbach, Beck & Guyton, and Jennifer Wilson, Houston, for appellee.
PER CURIAM.
January 9, 1981 Transcript of the clerk of the trial court was received and filed by the clerk of this appellate court. This filing was by direction of the court because presented after date of January 1, 1981 when the new and/or amended Rules of Civil Procedure became effective. It was believed that while there was no doubt but that we ultimately would disregard or perhaps dismiss the transcript filed on January 9, 1981 because it was not timely presented, nevertheless we were obliged to accept and file it. Tex.R.Civ.P. 386 "Time to File Transcript and Statement of Facts."
Under neither the old rules or those new amended rules effective January 1, 1981 calculation for permissible "timely filing" of the transcript in this court reveals that the last day would be December 15, 1980, because, in this case, no motion for new trial was filed. In such a case the transcript is "timely filed" at anytime within sixty (60) days after the date judgment was signed. This is true under neither the new or old rules.
Perforce provisions of Tex.R.Civ.P. 21c, "Extensions of Time on Appeal" appellant could have filed, but did not, a motion for extension of time within which to file his transcript. Such motion could have been filed, with effect, to and inclusive of date of December 30, 1980. Had he filed a motion to that end by such date it would have been "timely filed." What that means is that thereby the appellant would have saved and preserved the authority and power of this court to grant (rightly or wrongly) *90 an extension of time within which the transcript would be permitted to be filed.
Because appellant did not file his motion on or before December 30, 1980 there is no authority by law for this court to grant any extension of time within which to file the transcript. (Actually the time within which we could have become "invested" with the authority to grant the extension "came and went" without the investiture having taken place. This was because no motion for extension of time was filed by appellant until after date of December 30, 1980.)
It was thereafter (January 9, 1981 or later) that a motion for extension of time was filed. Such motion, when filed, was for extension of time within which to file both the transcript and statement of facts.
For our purposes the fact that we filed the transcript on January 9, 1981, when it was tendered to be filed, did not mean that appellant could claim benefit; or that this court was bound to proceed to a decision on the merits if briefs were filed. By the provisions of Rule 386, as amended effective January 1, 1981, our understanding is that an appellant is to be afforded notice and opportunity to oppose the dismissal of his case on appeal. Here we have had presented an appellee's motion to have the appeal dismissed because the record (or the transcript) was not timely filed in the appellate court. We have also had presented the motion of the appellee to have the judgment affirmed on certificate. (The appellate courts are authorized by Rule 386 to similarly act in disposition of the appeal on their own motions.) Both parties have been accorded notice of this hearing. There is no question but that the time is one appropriate for action on all motions.
To be noticed is that a statement of facts was brought to court after January 9, 1981; it was not tendered for filing but was left with the clerk along with the motion for extension of time to file the transcript and statement of facts.
Whether filed, or not filed and made the exhibit and/or subject of a motion for extension of time within which to file the same, the rules relative to transcript and statement of facts would be the same. We would be without authority to treat a transcript as a proper part of the appellate record for purposes of disposition of the appeal on its merits when the appellant had neither "timely filed" it, by Rule 386, nor within the 15 days after that last day it might have been "timely filed," filed a motion to have extended the time within which it might be authorized to be filed by the provisions of Rule 21c.
That said in the preceding paragraph would have full application to a statement of facts. Of course the filing of a transcript is a necessary predicate for the acceptance of the statement of facts for purposes of filing.
We deny the motion of appellant for extension of time relative to filing. We grant the motions of appellee to dismiss the appeal and to affirm the judgment of the trial court on certificate.
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727 S.E.2d 504 (2012)
315 Ga. App. 679
ANDERSON
v.
The STATE.
No. A12A0306.
Court of Appeals of Georgia.
April 19, 2012.
*506 Patricia Margaret Moon, for Anderson.
Richard Randolph Read, Roberta A. Earnhardt, Conyers, for the State.
MIKELL, Presiding Judge.
Based on acts of sodomy committed against J.A., his adopted daughter, James Karl Anderson was found guilty by a jury of three counts of aggravated child molestation[1] and was acquitted of one count of child molestation. Pursuant to OCGA § 17-10-6.1, he was sentenced on each aggravated child molestation count to life in prison, with 25 years to serve on each count, consecutively, and the balance on probation. After hearings, Anderson's amended motion for new trial was denied. He appeals, challenging the sufficiency of the evidence and enumerating other errors. We affirm.
On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence. This Court does not weigh the evidence or determine witness credibility, but only determines whether the evidence, viewed in the light most favorable to the jury's verdict, is sufficient under Jackson v. Virginia.[2] We uphold the verdict if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.[3]
Properly viewed, the evidence adduced at trial showed the following. Anderson had married the mother of the victim and had adopted the victim, J.A., when she was small. J.A.'s mother testified that "[s]o far as [J.A.] was concerned, he's pretty well been her father." At some point, Anderson moved out of his wife's bedroom and into the bonus room in the family home; later, in May 2007, the month J.A. turned nine years old, Anderson moved out of the family home altogether and into his own apartment. Thereafter, on occasions when her mother had to work at night, J.A. and her younger sister, who was developmentally challenged, would from time to time spend the night with Anderson at his apartment.
J.A. was eleven years old and in sixth grade at the time of the August 2009 trial. She testified that the last time she stayed overnight at her father's apartment, he woke her up as she was sleeping on the couch. He was naked and he told her to take her clothes off. When she refused, he got mad, pulled her clothes off, and told her to suck his penis. When she resisted, he pushed her head toward his penis and forced her to comply. He then "put his penis in [her] butt," while moving "back and forth." She testified that "it hurt really bad"; that she told him to stop; and that she was crying. He "kept switching back and forth" between forcing her to engage in oral sex and forcing her to engage in anal sex. He pulled a packet with writing on it from under the couch, and she felt "some stuff, something greasy" on her behind. This episode occurred when J.A. was ten years old, two or three weeks before J.A.'s recorded interview with a police investigator on October 17, 2008.
J.A. further testified that Anderson had forced her to engage in oral and anal sex on earlier occasions, although she could not remember how many times; and that the abuse began when she was in the third grade. The abuse took place first at her home and, later, at Anderson's apartment.
On October 16, 2008, J.A., who was "sick and tired" of the abuse, made outcry to her mother. J.A. told her mother that she did not want to spend the night at her dad's *507 apartment. When her mother asked why, J.A. told her that her father sometimes put his penis "in her mouth and also in her butt"; and that the abuse had occurred both at her home and at Anderson's apartment.
The next morning, October 17, 2008, her mother called the police and took J.A. to the Rockdale County Sheriff's Office, where J.A. was interviewed by Jennifer Perry, a P.O.S.T.-certified investigator with the Criminal Investigation Division of the Rockdale County Sheriff's Department. Perry testified for the state at trial. The recording of the interview was admitted into evidence without objection and was played for the jury.
In this interview, J.A. graphically described the abuse she had suffered for the two years prior to October, 2003, in a manner consistent with her later testimony at trial. J.A. explained that, when the abuse began, Anderson would make J.A. put her mouth on his penis. On occasion, including the last time J.A. stayed at Anderson's apartment overnight two weeks earlier, Anderson made J.A. suck his penis while he was licking her vagina. J.A. called this "disgusting." J.A. told Perry that Anderson would not stop until "stuff" came out of his penis, which he always made her swallow. He told her that it would help her skin.
In February 2007, more than a year before her October 2008 interview with Perry, J.A., then eight years old, had made her first outcry of sexual abuse against her father. The outcry was reported to authorities, and two separate investigations were begun. The investigations were closed, however, when J.A. recanted in March 2007. Later, at the August 2009 trial, J.A. explained that her 2007 accusation against her father "was the truth, but [she] said it was a lie to keep the family together"; and that she recanted the accusation "[b]ecause I felt like I wanted to keep my relationship with my father and I didn't want to break the family apart." This testimony was consistent with her statements to Perry in the October 2008 recorded interview. At that time, J.A. told Perry that she had recanted her 2007 accusation because Anderson "played the guilt trip on [her] and he was mad"; and she "did not want to be the bad guy."
Anderson testified at trial and denied the charges against him. He called several witnesses, including investigators of J.A.'s 2007 outcry, as well as a childhood friend who testified as a character witness. At the conclusion of the trial, the jury found Anderson guilty of three counts of aggravated child molestation. His amended motion for new trial was denied, and this appeal followed.
1. In his first enumeration of error, Anderson contends that the evidence was insufficient to support his convictions for aggravated child molestation. We disagree.
A person commits child molestation when he "[d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person."[4] Aggravated child molestation occurs when a person "commits an offense of child molestation which act physically injures the child or involves an act of sodomy."[5] The testimony of J.A., standing alone, was sufficient to support the verdict;[6] and the jury was entitled to consider the victim's out-of-court statements, such as those made in the October 2008 police interview, as substantive evidence under the Child Hearsay Statute, OCGA § 24-3-16.[7] Accordingly, we conclude that any rational trier of fact could have found Anderson guilty beyond a reasonable doubt of the three counts of aggravated child molestation with which he was charged.[8]
*508 Anderson argues that the evidence was insufficient because there was no physical evidence of abuse. However, the victim's testimony, alone, supports his convictions, despite the absence of any physical evidence, because "Georgia law does not require corroboration of a child molestation victim's testimony."[9] Anderson further points to inconsistencies between J.A.'s in-court testimony and her recorded October 2008 police interview, as well as her earlier recantation of her 2007 outcry. But "any inconsistencies between the victim's trial testimony and her out-of-court statements were issues of witness credibility that were solely within the province of the jury and play no part in this Court's sufficiency of the evidence review."[10] On appellate review, "we determine only the legal sufficiency of the evidence adduced below and do not weigh the evidence or assess the credibility of the witnesses."[11] Thus, "[a]s long as there is some evidence, even though contradicted, to support each necessary element of the [s]tate's case, the verdict will be upheld."[12]
2. Anderson asserts that the recording of the October 2008 interview of J.A. should have been excluded from evidence, because it lacked sufficient indicia of reliability. Under the Child Hearsay Statute, OCGA § 24-3-16, the victim's out-of-court statements are "admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability." In this case, following a pre-trial hearing, the trial court ruled that this recording showed "sufficient indicia of reliability" and was admissible under OCGA § 24-3-16. "The trial court has broad discretion in determining the admissibility of child hearsay evidence, and we will reverse a trial court's ruling on the admissibility of statements under OCGA § 24-3-16 only if the trial court abused its discretion."[13] We find no abuse of discretion here.
When determining whether an out-of-court statement has sufficient indicia of reliability, a court may consider the following factors, without limitation:
(1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child's statement to the persons present; (3) the child's age; (4) the child's general demeanor; (5) the child's condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child's general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child's statement, and the type of coaching and circumstances surrounding the same; and[] the nature of the child's statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child.[14]
These factors, however, "are not to be mechanically applied but considered in a manner best calculated to facilitate the determination of the required degree of trustworthiness."[15] Moreover, "even if all factors do not indicate reliability, the trial *509 court does not necessarily abuse its discretion in admitting the statement."[16]
Here, Perry testified that the interview took place in a "children friendly" room at the sheriff's office, outside the presence of J.A.'s mother, thus avoiding any undue influence.[17] J.A. was ten years old at the time of the interview; the interview resulted from J.A.'s spontaneous outcry to her mother the day before; and there was no evidence of coercion or coaching. The most recent episode of abuse had taken place only "two or three" weeks before the interview. Perry testified that at first J.A. seemed nervous, but later she was "very detailed." J.A. appeared to understand Perry's questions, and her responses to Perry's questions seem unrehearsed and spontaneous, contrary to Anderson's contention. J.A. did not appear to be in any physical or emotional distress; there was no evidence that J.A. received either threats or promises; and, to Perry's experienced eye, J.A. did not appear to be under the influence of drugs or alcohol. Perry further testified that, prior to the interview, she had spoken with J.A.'s mother; and that J.A.'s statements in the interview were consistent with the statements J.A. had made to her mother.
J.A. admitted in the interview that she had lied in recanting her 2007 accusations, and she explained why she had done so. Any inconsistencies in her statements to her schoolmates, her 2007 outcry, her interview statements, and her testimony at trial had chiefly to do with the amount of detail she provided. These minor inconsistencies were issues going to the weight and credibility of the evidence, not its admissibility.[18]
Further, J.A. testified as a witness at trial and was subject to cross-examination, "thus allowing [Anderson] every opportunity to cross-examine her before the jury regarding the circumstances surrounding the videotaped interview, and giving the jury the opportunity to judge her demeanor and credibility during that examination."[19] As this Court has explained, "This circumstance provided an additional safeguard to [Anderson's] right of fair trial and provided him full opportunity for confrontation."[20] We conclude that the trial court did not abuse its discretion in admitting the recording of the victim's October 2008 interview.
3. Anderson asserts that, because the recording of the October 2008 interview lacked sufficient indicia of reliability, the trial court erred in permitting the recording to be replayed in court at the jury's request during its deliberations. This enumeration fails. We determined in Division 2 above that J.A.'s interview provided sufficient indicia of reliability and was therefore admissible under OCGA § 24-3-16. Further, because the replay of the interview occurred under essentially the same circumstances and with essentially the same cautionary jury charge as that found appropriate in Lopez,[21] the trial court did not abuse its discretion in allowing the interview to be replayed for the jury during its deliberations.
4. In two enumerations of error, Anderson contends that the trial court erred in allowing J.A.'s schoolmates, D.P. and E.E., to testify as to J.A.'s outcry statements to them. Anderson argues that the circumstances of the statements made by J.A. to these two outcry witnesses lacked "sufficient indicia of reliability" as required by the Child *510 Hearsay Statute, OCGA § 24-3-16. However, Anderson has not preserved these alleged errors for appellate review. At the pretrial hearing, the trial court addressed Anderson's motion in limine only as to the October 2008 interview; and Anderson made no effort to address the reliability of the testimony of these two outcry witnesses, even though the state noted that they would be called as witnesses at trial. Anderson neither sought nor obtained any pre-trial ruling as to the admissibility of testimony of these witnesses; nor did Anderson object at trial to the testimony of either D.P. or E.E., on this or any other ground. Anderson asserts in his brief that these alleged errors were preserved for appellate review, but he has provided no citation to the record; and our review of the record has not shown that these alleged errors were preserved. Because Anderson "failed to object to the introduction of any of this evidence[,] his claim that the evidence was improperly admitted pursuant to the Child Hearsay Statute was not preserved for appellate review."[22]
5. Anderson contends that the trial court erred in admitting into evidence certain items found during the execution of a search warrant at his apartment. We find no error.
On October 16, 2008, when J.A. told her mother of Anderson's abuse, the mother, shocked and angry, immediately went over to Anderson's apartment to confront him. She testified that, when she told him that J.A. had disclosed his abuse, he "blew up." The next day, after interviewing J.A., Perry and deputies from the Rockdale County Sheriff's Office executed a search warrant on Anderson's apartment. There, they found Anderson on the floor of a bathroom closet, unresponsive and lying face down in his own bodily fluids. An ambulance was called for him. On the floor of the closet, deputies found an almost-empty bottle of vodka near Anderson's head and a fully-loaded 9 millimeter handgun between his knee and foot. This weapon and its ammunition were admitted into evidence at trial without objection.
The deputies also found, on Anderson's kitchen table, an envelope containing ten Falcons tickets and a white index card on which was written, in Anderson's handwriting, "ED U HAVE BEEN A TRUE FRIEND .... ALL MY FALCONS STUFF IS YOURS `LOVE AJ' [signature] 10-17-08." On the outside of the envelope was written, again in Anderson's handwriting, the name "Ed Blunt," one of Anderson's friends. After the pretrial hearing on Anderson's in limine motion, the trial court determined that these items were admissible as evidence of consciousness of guilt.
Anderson asserts that the probative value of this evidence was outweighed by its prejudicial effect. However, it was for the trial court to exercise its discretion in determining the admissibility of evidence as showing consciousness of guilt.[23] We find no abuse of discretion here.
In general, any statement or conduct of the accused tending to show consciousness of guilt is admissible in Georgia.[24] In Aldridge,[25] this Court addressed for the first time the question of whether attempted suicide would be admissible as conduct indicating a consciousness of guilt.[26] We concluded that such evidence would be admissible: "evidence of attempted suicide by the accused where such person is, at the time or thereafter, charged with or suspected of crime, is relevant as possibly indicating a consciousness of guilt and admissible for whatever weight the jury chooses to assign."[27] Here, the record shows that, on the afternoon of the day after Anderson's wife told him that J.A. had revealed the abuse, he was found in a drunken stupor on the floor of *511 a small closet; his handgun was found within arm's reach; and the handgun was fully loaded. Whether the note and Falcons tickets, in conjunction with the foregoing, were evidence of a contemplated suicide attempt and were indicative of consciousness of guilt, or whether these items had an innocent explanation, was a question for the jury.[28]
Judgment affirmed.
MILLER and BLACKWELL, JJ., concur.
NOTES
[1] The indictment charged Anderson with committing aggravated child molestation between January 1, 2007, and October 9, 2008, by commanding the victim to place her mouth on his penis; by placing his mouth on the victim's vaginal area; and by placing his penis in and on the victim's anus.
[2] 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
[3] (Footnote omitted.) Whitaker v. State, 293 Ga. App. 427, 667 S.E.2d 202 (2008). Accord Harvey v. State, 295 Ga.App. 458, 671 S.E.2d 924 (2009).
[4] OCGA § 16-6-4(a)(1).
[5] OCGA § 16-6-4(c). OCGA § 16-6-2(a)(1) provides that "[a] person commits the offense of sodomy when he or she performs ... any sexual act involving the sex organs of one person and the mouth or anus of another."
[6] See OCGA § 24-4-8; Cobb v. State, 309 Ga. App. 70, 73(1), 709 S.E.2d 9 (2011) (victim's testimony, standing alone, was sufficient to support conviction for child molestation).
[7] See Manders v. State, 281 Ga.App. 786, 788(1), 637 S.E.2d 460 (2006). Accord Lamb v. State, 293 Ga.App. 65, 66, 666 S.E.2d 462 (2008).
[8] See Jackson, supra. See OCGA § 16-6-4(c); Woods v. State, 304 Ga.App. 403, 405(1), 696 S.E.2d 411 (2010).
[9] (Punctuation and footnote omitted,) Barnes v. State, 299 Ga.App. 253, 254(1), 682 S.E.2d 359 (2009).
[10] (Citation and punctuation omitted.) Lopez v. State, 291 Ga.App. 210, 212(1), 661 S.E.2d 618 (2008).
[11] (Punctuation and footnote omitted.) Foster v. State, 286 Ga.App. 250, 252(1), 649 S.E.2d 322 (2007).
[12] (Citation and punctuation omitted.) Phillips v. State, 284 Ga.App. 683, 684(1)(a), 644 S.E.2d 535 (2007).
[13] (Citation and punctuation omitted.) Phillips v. State, 284 Ga.App. 224, 227(1)(b), 644 S.E.2d 153 (2007). Accord Barclay v. State, 306 Ga. App. 766, 767(1), 702 S.E.2d 907 (2010).
[14] Brown v. State, 300 Ga.App. 359, 361(2), 685 S.E.2d 377 (2009), citing Gregg v. State, 201 Ga.App. 238, 240(3)(b), 411 S.E.2d 65 (1991).
[15] (Citation and punctuation omitted.) Brown, supra.
[16] Woolums v. State, 247 Ga.App. 306, 307(1), 540 S.E.2d 655 (2000). Accord Krirat v. State, 286 Ga.App. 650, 656(2), 649 S.E.2d 786 (2007).
[17] See Phillips, supra, 284 Ga.App. at 228(1)(b), 644 S.E.2d 153. See also Krirat, supra (parents' presence during victims' statements was not reversible error, although court notes that better practice would be to conduct victim interviews outside parents' presence).
[18] See Kight v. State, 242 Ga.App. 13, 16(1), 528 S.E.2d 542 (2000). Accord Nelson v. State, 279 Ga.App. 859, 862(1)(a), 632 S.E.2d 749 (2006).
[19] (Citation omitted.) Phillips, supra, 284 Ga. App. at 228(1)(b), 644 S.E.2d 153. Accord Hughes v. State, 297 Ga.App. 581, 584(2), 677 S.E.2d 674 (2009).
[20] (Punctuation omitted.) Hughes, supra, citing Phillips, supra, 284 Ga.App. at 228(1)(b), 644 S.E.2d 153.
[21] Supra at 213-214(3), 661 S.E.2d 618.
[22] (Footnote omitted.) Romani v. State, 303 Ga. App. 829, 830(1), 695 S.E.2d 303 (2010).
[23] Nguyen v. State, 273 Ga. 389, 398(3), 543 S.E.2d 5 (2001) (trial court did not abuse discretion in admitting evidence of defendant's attempt to influence witness's testimony as showing consciousness of guilt).
[24] Aldridge v. State, 229 Ga.App. 544(1), 494 S.E.2d 368 (1997), citing Bridges v. State, 246 Ga. 323, 324(2), 271 S.E.2d 471 (1980).
[25] Supra.
[26] Id. at 544-545(1), 494 S.E.2d 368.
[27] (Citations and punctuation omitted.) Id. at 545(1), 494 S.E.2d 368.
[28] See id.
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516 S.W.2d 924 (1974)
Benito ANCIRA, Jr., Appellant,
v.
The STATE of Texas, Appellee.
No. 48935.
Court of Criminal Appeals of Texas.
December 18, 1974.
*925 M. N. Garcia, Austin, for appellant.
Jim D. Vollers, State's Atty., and Larry Gist, Asst. State's Atty., Austin, for the State.
OPINION ON APPELLANT'S MOTION FOR REHEARING
DAVIS, Commissioner.
Appeal is taken from a conviction for possession of heroin. Trial was before the court upon a plea of not guilty. Punishment was assessed at five (5) years.[1]
On original submission, judgment was affirmed in a per curiam opinion reciting that "there is no showing that the appellate brief was filed in the trial court as required by Article 40.09, Section 9, V.A.C. C.P." The Clerk of the 207th District Court has by supplemental transcript forwarded to this Court his original appellate brief reflecting a file mark of March 29, 1974. See Art. 40.09, Sec. 15, Vernon's Ann.C.C.P. Thus, the record now reveals that his appellate brief was timely filed in the trial court.
Appellant urges that the trial court erred in overruling his motion to suppress evidence acquired as the result of custodial interrogation of appellant without Miranda warnings being given.
In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, the United States Supreme Court held that evidence obtained as the result of a custodial interrogation was inadmissible unless the State proved that proper warnings were given to the defendant and an affirmative waiver of rights was shown. See Art. 38.22, V. A.C.C.P. Custodial interrogation was defined in Miranda as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."
Officer Reed of the Lockhart Police Department received information from a reliable informer, who had previously given him information resulting in convictions prior to the date in question, that appellant was selling heroin on the street corners in Lockhart. Reed testified that on October 8, 1972, the date that the events in question transpired, there was no doubt in his mind that appellant was selling heroin, and that appellant was a "Class-a suspect for selling heroin." On said date, Reed was clad in uniform and driving a police vehicle when he saw appellant get out of a car in front of appellant's house. The record reflects the following testimony of Reed regarding his reason for stopping in front of appellant's house.
"Q. What was your purpose in pulling up there then?
"A. Talking to Benny [appellant].
"Q. Why did you want to talk to him?
"A. About selling heroin.
"Q. I see, you knew he was selling it, then?
"A. Yes, sir.
"Q. So your plan was to interrogate him?
* * * * * *
"Q. Is that right?
"A. Yes, sir."
*926 Pursuant to Reed's request, appellant came over to the police vehicle, and at this point Reed testified, "I told Benny [appellant] I would like to talk to him, if he would ride around and talk awhile, and he said he would." In response to examination by appellant's counsel, Reed stated his "sole and only purpose was to interrogate him [appellant] about selling heroin." After telling appellant that he had information that appellant was selling heroin, Reed stated that "He [appellant] shook his head that he was selling heroin." Reed then asked appellant if he had any heroin at the house or on him at that time and, according to Reed, appellant said "that he did have some on him at that time." Reed stopped the car, both men got out and, in response to Reed's request, appellant gave Reed the contraband he had on his person. The testimony of Reed reflects that from the time he picked appellant up until he stopped the car "ten to fifteen minutes" elapsed, and the sole topic of the conversation was heroin. Miranda warnings were given appellant for the first time after he surrendered the heroin to Reed.
The State points to the testimony of Reed that he did not warn appellant of his rights at a prior point in time for the reason that appellant was not under arrest, and that the officer would have let appellant go if he had expressed such a desire.
The questioning of appellant by the officer in the police vehicle cannot be characterized as a general investigation into an unsolved crime,[2] nor was the questioning made under circumstances to bring it within the ambit of general on-the-scene investigatory process.[3]
While questioning does not have to occur at the police station for Miranda warnings to be required, Orozco v. Texas, 394 U.S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d 311 (1969), Miranda stated, "[C]ompulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation." We see little difference in questioning in the police station and interrogation in a police vehicle. Only appellant and Officer Reed were present in the patrol car. The officer's testimony reflects that he was armed and in uniform and the vehicle bore police insignia. The setting was such that the potential for compulsion existed.
It is not necessary that an accused be under formal arrest prior to the interrogation for Miranda rights to arise. Windsor v. United States, 389 F.2d 530 (5th Cir., 1968). In Windsor, it was held that Miranda rights had arisen, and the Court said, "The Government agents' testimony that Windsor was not a suspect and not under arrest when questioned in his motel room is belied by the facts of the case.... Windsor was definitely the central figure in their investigation ...."
In Brown v. State, supra, and Jones v. State, Tex.Cr.App., 442 S.W.2d 698, where this Court held that Miranda rights had not arisen, it was noted that the investigation had not begun to focus on the accused. In United States v. Phelps, 443 F.2d 246 (5th Cir., 1971), the significance of whether or not the focus of the investigation had finally centered on the defendant was discussed:
"... [W]e have noted several significant factors which should be considered in determining whether or not a defendant is in custody. For example, probable cause to arrest, subjective intent of the police, focus of the investigation, and subjective belief of the defendant have all been deemed relevant. *927 United States v. Montos, supra. [421 F.2d 215, 5th Cir., 1970] However, throughout the decisions one of these factors has consistently impressed our court: whether or not the focus of the investigation has finally centered on the defendant. In Miranda itself the Supreme Court explained that `in custody' was a short-hand phrase for what Escobedo v. Illinois, 1964, 378 U.S. 478, 490, 84 S. Ct. 1758, 12 L. Ed. 2d 977, described as an investigation which has focused on an accused. Similarly, in Windsor v. United States, supra, 389 F.2d at 533, we held that Miranda was applicable since
"`The obvious purpose of the agents interrogating him was to elicit an incriminating statement for "the investigation was no longer a general inquiry into an unsolved crime" but had begun "to focus on a particular suspect" namely, Windsor.'"
Reed testified that there was no doubt in his mind that appellant was selling heroin, and that appellant was a "Class-A suspect for selling heroin." Reed had received information from a reliable informer that appellant was selling heroin. His purpose in asking appellant to get into the police car was to interrogate him about the sale of heroin. Clearly the investigation had focused on the appellant. The State's argument that the investigation had focused on appellant's selling heroin rather than on appellant's possession of heroin is not persuasive.
While we deem the setting in which the interrogation took place and the specific focus of the investigation on appellant very significant factors, we find it difficult to formulate a general rule to distinguish custodial interrogation from noncustodial interrogation. A case by case approach in which the evidence is reviewed in the light of Miranda and subsequent decisions is deemed necessary.
A careful review of all the pertinent circumstances in the instant case dictates that appellant's inculpatory statements and surrender of the contraband resulted from custodial interrogation. The failure to comply with Miranda v. Arizona, supra, and Art. 38.22, V.A.C.C.P., rendered same inadmissible.
Appellant's motion for rehearing is granted, the judgment of a affirmance is set aside, and the judgment is reversed and the cause remanded.
Opinion approved by the Court.
NOTES
[1] On original submission, the Court noted that the judgment did not recite punishment required by Art. 42.01, V.A.C.C.P., pointed to the fact that a docket entry dated the same day as the judgment reflected punishment as having been assessed at five years, and reformed the judgment to reflect the punishment assessed to be five years. Ferguson v. State, Tex.Cr.App., 367 S.W.2d 695; Coffman v. State, Tex.Cr.App., 379 S.W.2d 656.
[2] See Brown v. State, Tex.Cr.App., 475 S.W.2d 938, and numerous cases cited therein.
[3] See Graham v. State, Tex.Cr.App., 486 S.W.2d 92; Evans v. State, Tex.Cr.App., 480 S.W.2d 387; Calhoun v. State, Tex.Cr. App., 466 S.W.2d 304.
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516 S.W.2d 626 (1974)
Vestal ROBINSON and wife, Ruby Robinson, Petitioners,
v.
TROUSDALE COUNTY, Tennessee, et al., Respondents.
Supreme Court of Tennessee.
November 18, 1974.
*627 Solon Fitzpatrick, Carthage, for petitioners.
James Donoho, Hartsville, for respondents.
OPINION
HENRY, Justice.
This is an inverse condemnation suit involving the nature of the estate of tenancy by the entireties under Tennessee law and the common law disability of coverture.
Petitioners, husband and wife, sued Trousdale County for damages for the taking of certain real estate owned by them as tenants by the entirety, for the purpose of widening a public road adjacent to their property, and for incidental damages.
The answer of Trousdale County, among other defenses, asserts that petitioners are barred from seeking compensation and damages by virtue of a deed, executed by the husband alone, conveying the property involved to Trousdale County, in fee simple.
The case was tried by the Circuit Judge without the intervention of a jury.
The trial judge held that the husband was estopped to claim any damage because of the deed; that there were no incidental damages, and allowed the wife Five Hundred Thirty Dollars ($530.00) as actual damages for the value of the land taken.
All parties prayed and perfected appeals to the Court of Appeals.
That court affirmed the judgment of the trial court in all respects except as to the ownership and disposition of the money ($530.00), representing the value of the land. The court directed (1) that this sum be held by the Clerk of the trial court and invested by him during the joint married lives of petitioners; (2) that should the husband die first, the entire recovery would be paid to the wife; (3) that should the wife die first the entire recovery would be paid to Trousdale County, and (4) in the event of a divorce, it would be distributed equally between the wife and Trousdale County.
All parties have petitioned this Court for certiorari. We granted the petition of the wife with argument limited to the disposition of the recovery.
A proper determination of this question necessarily involves a consideration of the nature of an estate by the entireties in Tennessee, the rights, benefits and privileges of the tenants, the right of a tenant to convey his or her interest, and the common law disability of coverture.
Our investigation leads us to the conclusion that the decisional law of Tennessee, not only is nebulous and confusing, but is in substantial conflict and out of harmony with justice, reason and logic.
We, therefore, propose to clarify the law by a clear, comprehensive and definitive opinion.
Any investigation into the Tennessee law governing tenancies by the entireties must start with the landmark case of Ames v. Norman, 36 Tenn. 683 (1857). In holding that the interest of the husband may be sold on execution for the satisfaction of his debts, but his grantee holds in subordination of the contingent right of the wife, the Court, after discussing the nature of a tenancy by the entirety, said:
"From the peculiarity of this tenancy, the unity and indivisibility of the seizin, there is some confusion in the cases respecting the power of the husband alone to make any conveyance or disposition of the land thus held during their joint lives, and also as to the right of creditors of the husband to subject the same to the satisfaction of the husband's debts. But upon examination of the authorities, it appears to be settled that during their joint lives the husband may dispose of the estate. He may lease or mortgage it, or it may be seized and sold upon execution for his debts. The doctrine, properly understood, is that the husband, without the wife's joining him in the conveyance, cannot alien the estate, so as to affect the interest of the wife in case she survives him, as in that event she will be entitled to the whole."
*628 Justice Beard, speaking for the Court in Cole Manufacturing Co. v. Collier, 95 Tenn. 115, 31 S.W. 1000 (1895), said:
"It may be conceded that at common law the husband, during coverture, had the unlimited right to the usufruct of this estate, and that he could mortgage the property, or otherwise make a valid transfer of the possession of the same. (Citing cases)
`This right necessarily resulted from the common-law view of the effect of marriage upon the wife's property rights. Marriage conferred upon the husband the dominion of the wife's real estate. The rents and profits belonged to him jure mariti. They were not only under his personal control, but they could be seized by his creditors.'"
With reference to tenancies by the entirety, the Court said:
"This estate, therefore, being a `unit of indivisible part,' in which the wife, no less than the husband, `is the owner of the whole from the moment of the conveyance to them,' and equally with him entitled to the whole (McCurdy v. Canning, 64 Pa. 39); and it being apparent also that his right to collect the entire rents rests alone jure mariti, and there being no way for the purchaser of the husband's interest to dispossess him without at the same time dispossessing the wife, we have no hesitation in holding that the act of 1849-50, (sec. 3338, Mill. & V.Code) excludes such purchasers from possession against the wife." 95 Tenn. at 119-123, 31 S.W. at 1001.
The nature of the estate is further discussed and commented upon in Beddingfield v. Estill & Newman, 118 Tenn. 39, 100 S.W. 108 (1906).
Commenting upon the four indispensable unities of time, title, interest and possession, the Court in Bennett v. Hutchens, 133 Tenn. 65, 70, 179 S.W. 629 (1915), held that neither the husband nor the wife can dispose of any part without the assent of the other but the whole must go to the survivor.
In Hux v. Russell, 138 Tenn. 272, 197 S.W. 865 (1917), the Court, citing Ames and Cole Mfg. Co., recognized the general rule of the common law to be that the husband has full control of, and the right to, the rents, profits and usufruct of the property held as tenants by the entireties, to the exclusion of the wife.
The Married Women's Emancipation Act (Ch. 26, Acts of 1913) (T.C.A. § 36-601) reads as follows:
"Be it enacted by the General Assembly of the State of Tennessee, That married women be, and are, hereby fully emancipated from all disability on account of coverture, and the common law as to the disabilities of married women and its effect on the rights of property of the wife, is totally abrogated, and marriage shall not impose any disability or incapacity on a woman as to the ownership acquisition, or disposition of property of any sort, or as to her capacity to make contracts and do all acts in reference to property which she could lawfully do if she were not married; but every woman now married, or hereafter to be married, shall have the same capacity to acquire, hold, manage, control, use, enjoy, and dispose of, all property, real and personal, in possession, and to make any contract in reference to it, and to bind herself personally, and to sue and be sued with all the rights and incidents thereof, as if she were not married."
In 1918, this Court in Gill v. McKinney, 140 Tenn. 549, 205 S.W. 416, relying and quoting at length from Ames v. Norman, supra, held that the Legislature, in enacting Chapter 26 of the Acts of 1913, intended to abolish estates by the entireties. William J. Harbison, Esquire (now a member of this Court), writing in the Vanderbilt Law Review, characterized this decision as being "unfortunate and wholly unexpected." (See Harbison, Domestic *629 Relations, 1956 Tennessee Survey, 9 Vand. L.Rev. 990, 998-99).
We concur in this view. This decision has released a veritable Pandora's box of legal pandemonium and, in our view, nothing in the Married Women's Emancipation Act supports the Court's conclusion.
It is interesting to note, in view of cases hereinafter cited, the opinion of the Court in Morton v. State, 141 Tenn. 357, 209 S.W. 644 (1918), where it is stated:
"By our Married Woman's Act of 1913 (Acts 1913, c. 26), the policy of this state was completely changed, so that married women are no longer under the disability of coverture, and are completely emancipated. (Emphasis ours)
In Kellar v. Kellar, 142 Tenn. 524, 221 S.W. 189 (1920) this Court declined to reconsider its holding in Gill.
In McGhee v. Henry, 144 Tenn. 548, 234 S.W. 509 (1921), the Court held that neither tenant by the entirety could separate his interest from the other except by the joint action of both or by operation of law, and neither had the power of alienation so as to prejudice the other.
In 1919, the Legislature repealed Chapter 26, of the Acts of 1913 (see Chapter 141, Acts 1919), and re-enacted it in its present form (T.C.A. § 36-601). The second section of the amendatory act (carried forward into the Code as Sec. 36-602) reads as follows:
"Be it further enacted, That nothing in this Act shall be construed as abolishing tenancies by the entirety, and as affecting the husband's right of curtesy."
In 1932, in the case of Stegall v. Chattanooga, 16 Tenn. App. 124, 66 S.W.2d 266, the Court of Appeals for the Eastern Section held that the purpose of the amendatory act was to meet the holding in Gill and to restore the disability of the wife in reference to the estate held by her husband and her as tenants by the entirety. Based on this theory, the Court held that the right of action for damages to property held as tenants by the entirety was vested absolutely in the husband and that he could release it without the consent of the wife or sue thereon without joining her as a party.
In 1934, the Supreme Court, speaking through Chief Justice Grafton Green, in Alfred v. Bankers' & Shippers' Insurance Co., 167 Tenn. 278, 68 S.W.2d 941, without referring to Stegall, rejected the idea that the Married Women's Act, as amended, re-instated the common law in respect to estates by the entirety. The following language from that case is pertinent:
"Nor can it be said that the husband is the dominating personality in the tenancy, since the passage of the Married Women's Emancipation Act. That statute merely provided that it should not be construed as abolishing tenancies by the entirety. As intimated in Campbell v. Campbell, 167 Tenn. 77, 66 S.W.2d 990, decided January 13, much of the husband's domination over the estate by the entirety came by reason of his common-law jus mariti with respect to the wife's property, and not by virtue of the tenancy itself. Cole Mfg. Co. v. Collier, 95 Tenn. 115, 31 S.W. 1000, 30 L.R.A. 315, 49 Am.St.Rep., 921. Such jus mariti is largely destroyed by the act of 1919 at least during the life of the wife. 167 Tenn. at 283, 68 S.W.2d at 942.
This is an obvious repudiation of the opinion of the Court of Appeals, in Stegall, since, at common law, the husband was the dominating personality and Stegall affirmed the common law. We reaffirm this opinion by Chief Justice Green.
In Moore v. Chase, 25 Tenn. App. 239, 156 S.W.2d 84 (1941), the Court of Appeals following Alfred, held that it is now well established that the husband cannot dispose of anything but his own interest and the wife alone could maintain an action to protect her interests from her husband's *630 attempt to convey property, both real and personal, owned as an estate by the entirety.
A year later, the Court of Appeals, in Williams v. Cravens, 28 Tenn. App. 541, 191 S.W.2d 942 (1942), again followed Alfred. The Court refused to accept the claim of the complainant that a tax sale decree and deed of only the husband's interest entitled the complainant to possession of the wife's interest also. The following language is apt:
"This because by the common law the husband had the right to usufruct and possession of land owned by him and his wife by the entirety. But this common-law rule, which resulted more from the wife's disability than from the husband's right, seems to have been changed in this state by our statute removing the wife's common-law disabilities." (Emphasis ours)
In Sloan v. Sloan, 182 Tenn. 162, 184 S.W.2d 391 (1945), this Court held that the purchaser of a husband's interest in an estate by the entirety where the wife does not join, stands in the husband's shoes so far as ultimate survivorship is concerned but "the purchaser ... takes no present right to possession."
Thereafter, in 1954, the Supreme Court, in Irwin v. Dawson, 197 Tenn. 314, 273 S.W.2d 6, held that a lease of realty executed by the husband alone was invalid. Citing Alfred, the Court held:
"It is well settled in this State that a husband cannot dispose of his wife's interest in an estate owned as by the tenants by the entirety, and cannot sell or encumber anything but his interest."
There is a specific holding in this case that the husband alone did not have the right to lease land held with his wife as tenants by the entirety.
Again, in 1965, the Court, in Cartwright v. Giacosa, 216 Tenn. 18, 390 S.W.2d 204, held that a contract of sale of realty executed solely by the husband, could not be enforced against the wife. Again, the Court followed Alfred.
In In re Guardianship, Plowman, 217 Tenn. 487, 398 S.W.2d 721 (1966), the Court held that a husband was not obligated to account to the wife for rents and profits collected by him from real property owned as tenants by the entirety.
The opinion inferentially, at least, rejects Alfred and adopts Stegall. The whole thrust of this opinion is that it operates to solidify the restoration of coverture as it existed at the common law. Inter alia, the Court said:
"We have no direct holding on the point in issue in this case, but we are satisfied from our examination of the law generally, and the text writers on the subject, that a tenancy by the entirety confers upon the husband the right to possession and control of the property involved, together with the use and profits therefrom for which he is not required to make an accounting to his wife." 217 Tenn. at 492, 398 S.W.2d at 723.
The Court then makes this unusual observation:
"To permit the wife to demand an accounting of rents collected by her husband on property owned by them as tenants by the entirety by suit at law would disrupt and injure the marriage relationship and would be of little, if any, benefit to the wife. It would, no doubt, bring an end to the relationship." 217 Tenn. at 493, 398 S.W.2d at 723.
We are constrained to doubt that any such dire and disastrous consequences would ensue if the wife were accorded equal legal status as opposed to being made legally subservient and subordinate to her husband. This is but a judicially decreed recognition of the traditional pattern of married women being forced into a subservient and supportive role that is inherently unequal, patently unfair, and at variance *631 with the concept of equality mandated by contemporary standards of justice.
In Covington v. Murray, 220 Tenn. 265, 416 S.W.2d 761 (1967), the Court again held that neither tenant by the entirety can separate his or her interest from the other except by joint action of both, or by operation of law.
In Mitchell v. Sinclair Refining Co., 221 Tenn. 516, 428 S.W.2d 299 (1968), the Court held that the cause of action for damage to real estate owned by the husband and wife as tenants by the entirety, vests absolutely in the husband to the exclusion of the wife during coverture. It suggests that the wife had a right to protect her interest in the land, but that right did not defeat her husband's right to use the land and to contract validly pursuant thereto. This case quotes, with approval from In re Guardianship, Plowman, supra, and reaffirms the proposition that the amendment to the Married Women's Emancipation Act of 1913 operated to restore the disability of the wife with reference to estates held by her and her husband as tenants by the entirety. The Court holds that there is a distinction between an ownership right and a husband's right to the control and use of an estate by the entirety.
The thrust of Plowman and Mitchell is to take Tennessee back to the old common law rule and to onerate a married woman with the ancient and antiquated common law disabilities. Moreover, there are now two distinct lines of cases in Tennessee, one accepting and one rejecting the common law view and the courts, as of this time, have not reconciled the conflict.
The latest pertinent pronouncement of our Supreme Court is Weaks v. Gress, 225 Tenn. 593, 474 S.W.2d 424 (1971), from which we quote at length because this case summarizes the Ames and Cole rule, as well as Plowman:
"In the Ames opinion the Court, by way of dictum, said that Norman, becoming invested with the rights of the husband as they existed at the time of the sale, had the right to occupy and enjoy the profits of the land as owner during the joint lives of the husband and wife. This dictum was nullified in Cole Manufacturing Co. v. Collier, 95 Tenn. 115, 31 S.W. 1000, 30 L.R.A. 315. In that case, the husband's interest in the estate by the entirety had been sold at an execution sale to satisfy his debts, and it was held that the purchaser did not step into the shoes of the husband. That the only interest purchased at the execution sale, was the right to succeed to the estate in the event the wife predeceased the husband.
`In the case of In re Guardianship of Plowman, 217 Tenn. 487, 398 S.W.2d 721, this Court expressly affirmed Ames, as modified by Cole, and approved the holding in Stegall v. Chattanooga, 16 Tenn. App. 124, 66 S.W.2d 266 (1932), that the Act of 1919, Chapter 126, now codified as § 36-602, reestablished tenancies by the entirety after their abolition by the Married Woman's Emancipation Act, Chapter 26, Public Acts of 1913, § 36-601 T.C.A., exactly as such tenancies had existed prior to the Emancipation Act so that the common law primacy of the husband in relation to such a tenancy exists at the present time.'" 225 Tenn. at 597-598, 474 S.W.2d at 426.
We have reviewed these cases and have considered them in the light of contemporary standards of justice.
We do not believe that the common law disability of coverture has any sanction in our jurisprudence or any relevance in our society. At best it is outmoded; at worst oppressive and degrading.
The net result of the holdings of Plowman, Mitchell and Weaks may be summarized as follows:
a. A tenancy by the entirety confers upon the husband the right to possession, control, rents and profits from the estate.
*632 b. The wife has no right to an accounting.
c. The common law disability of coverture is restored as to estates held by the husband and wife as tenants by the entirety.
d. The husband is the dominant tenant, the 1919 Amendment having restored his common law primacy.
To put the present law in proper perspective, let us assume that a husband and wife, having no other assets whatsoever, simultaneously inherit the sum of $250,000.00 each and that they pool their inheritances and purchase an apartment house, taking title as tenants by the entirety. The rental income starts coming in. The husband, the dominant tenant, appropriates all rental income and expends it in accordance with his desires, without the consent of the wife and over her protest. Short of resorting to the divorce courts, she has no legal remedy. One does not have to be a "Women's Libber" or even have an educated conscience, or anything beyond an elemental sense of justice to grasp the patent unfairness of such a situation. It is not only archaic; it is gross and unconscionable.
In United States v. Yazell, 382 U.S. 341, 86 S. Ct. 500, 15 L. Ed. 2d 404 (1966), the Supreme Court of the United States refers to the disability of coverture as a "qua int doctrine" and a "peculiar institution ... . which is now, with some exceptions, relegated to history's legal museum."
Justice Black made this appropriate observation:
"The Texas law of `coverture' which was adopted by its judges and which the State's legislature has now largely abandoned, rests on the old common-law fiction that the husband and wife are one. This rule has worked out in reality to mean that though the husband and wife are one, the one is the husband. This fiction rested on what I had supposed is today a completely discredited notion that a married woman, being a female, is without capacity to make her own contracts and do her own business... . It seems at least unique to me that this Court in 1966 should exalt this archaic remnant of a primitive caste system to an honored place among the laws of the United States."
The fact that Tennessee clings to the common law concept of coverture casts a shadow of doubt upon the intellectual consistency of our approach to the whole area of equality of the sexes, and points up the need for bringing this phase of our law into harmony with modern thinking.
We hold that the Married Women's Act (Ch. 26, Acts of 1913), fully and effectively eradicated the common law disability of coverture and that the amendatory act, Chapter 126, Acts of 1919, did not have the legal effect of restoring it.
We abolish the last vestige of the common law disability of coverture in Tennessee.
We do not abolish the estate of tenancy by the entirety, but we strip it of the artificial and archaic rules and restrictions imposed at the common law, and we fully deterge it of its deprivations and detriments to women and fully emancipate them from its burdens.
From this date forward each tenant shall have a joint right to the use, control, incomes, rents, profits, usufructs and possession of property so held, and neither may sell, encumber, alienate or dispose of any portion thereof except his or her right of survivorship, without the consent of the other. Any unilateral attempt will be wholly and utterly void at the instance of the aggrieved tenant and any prospective purchaser, transferee, lessee, mortgagee and the like will act at his peril.
Lastly we reach the matter of the ownership of the fund now in the Registry of the Court. The husband conveyed his *633 right of expectancy. The County has acquired the needed land for the public road. The result is that all parties in this case have received their just desserts except Mrs. Robinson. She gets the money.
It results that the judgment of the Court of Appeals, is modified and affirmed, and this cause is remanded to the Circuit Court of Trousdale County for the distribution of the fund.
The costs of this cause are taxed against Trousdale County.
FONES, C.J., and COOPER, BROCK and HARBISON, JJ., concur.
HENRY, Justice (concurring).
I wrote the main opinion to reflect the unanimous views of the Court.
While I am in full accord with the conclusions we have reached on the common law disability of coverture and share with my colleagues a sense of pride in this progressive action, I am convinced that we should have based our decision to a substantial extent, on constitutional grounds.
We can no longer countenance sex-based classifications.
I fully appreciate the traditional policy of the Courts to avoid constitutional questions where their resolution is not necessary to a decision. Sometimes issues of such overriding importance arise that the courts are under a duty to speak. This is such an issue.
The Constitution and laws of the United States recognize that a married woman is a person and an individual entitled to the same protection of the laws as other individuals regardless of ancient provisions of the common law. Alexander v. Alexander, 140 F. Supp. 925 (W.D.S.C. 1956).
My research indicates that the first decision of the Supreme Court of the United States to invalidate a sex discriminatory law was Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971). In that case the Court held that a mandatory provision of the Idaho Probate Code giving preference to men over women in the appointment of the administrators of decedent estates is violative of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.
Subsequently in Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972) the Court held that denial to unwed fathers of a hearing on fitness accorded to other parents whose custody of their children is challenged by the State constitutes a denial of the equal protection of the law.
In Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973), the Court held that a statutory distinction in benefits payable to male and female members of the Air Force for their respective spouses, constitutes an unconstitutional discrimination against servicewomen and therefore violates the Due Process Clause of the Fifth Amendment of the Constitution of the United States.
In Wiesenfeld v. Secretary of Health, Education and Welfare, 367 F. Supp. 981 (D.C.N.J. 1973), the Court held that a provision of the Social Security Act [402(g)] authorizing payment of insured benefits to widows and divorced mothers but not to widowers is unconstitutional as violating equal protection under the Fifth Amendment.
A footnote to an article entitled "Are Sex-based Classifications Constitutionally Suspect?", appearing in Northwestern University Law Review, Vol. 66, No. 4 (1971-1972) contains a "mini" brief on sex as a classification. It reads as follows:
"See, e.g., Cohen v. Chesterfield County School Bd., 326 F. Supp. 1159 (E.D.Va. 1971) (mandatory maternity leave at five months pregnancy denied equal protection); Kirstein v. Rector & Visitors *634 of the Univ. of Virginia, 309 F. Supp. 184 (E.D.Va. 1970) (state university must admit women); United States ex rel. Robinson v. York, 281 F. Supp. 8 (D. Conn. 1968) (statute providing for longer sentences for women than for men convicted of the same offense held a denial of equal protection); Karczewski v. Baltimore & O.R.R., 274 F. Supp. 169 (N.D.Ill. 1967) (Indiana law allowing husband, but not wife, to sue for loss of consortium, denied wife equal protection); White v. Crook, 251 F. Supp. 401 (N.D.Ala. 1966) (Statute barring women completely from jury service violated the equal protection clause); Sail'er Inn, Inc. v. Kirby, 5 Cal. 3d 1, 485 P.2d 529, 95 Cal. Rptr. 329 (1971) (statute forbidding women to work as bartenders violated the 1964 Civil Rights Act, California constitution, and the fourteenth amendment); Commonwealth v. Daniel, 430 Pa. 642, 243 A.2d 400 (1968) (statute providing for longer sentences for women than for men convicted of the same offense held invalid); State v. Crow Wing County Welfare Bd., 3 EPD ¶ 5162 (Minn. Human Rights Comm'n 1971) (refusal to grant social worker two months maternity leave violated Minnesota law and the fourteenth amendment). See also Paterson Tavern & G.O.A. v. Borough of Hawthorne, 57 N.J. 180, 270 A.2d 628 (1970) (city ordinance prohibiting employment of female bartenders was an unreasonable exercise of the police power)."
Numerous cases from other jurisdictions support the proposition that where the husband has a right of action for consortium and that right is denied the wife, the classification violates the Equal Protection Clause of the Fourteenth Amendment.[1]
I am not unmindful of our own case of Krohn v. Richardson-Merrill, Inc., 219 Tenn. 37, 406 S.W.2d 166 (1965) containing dictum to the contrary.[2] Suffice it to say, I am in complete disagreement with both the reasoning and result of that case.
I think the above cases have a real relevance to the matters under consideration. They clearly indicate a definite and substantial trend one might say of floodtide proportions in the direction of the elimination of sex as a proper classification.
I would hold that the application of the common law disability of coverture is violative of Section 1 of the Fourteenth Amendment to the Constitution of the United States in that married women are "citizens" of the United States and the application of this doctrine deprives them of their property without due process of law, and denies them the equal protection of the law. Moreover, said doctrine is an invidious and "suspect" classification based upon sex and marital status, and is predicated on no rational basis, and abridges their right to acquire, enjoy, lease, hold, own and benefit from their own property.
I would hold, for the same reasons, that the application of this doctrine is violative of Article 1, Section 8, of the Constitution of the State of Tennessee, in that it operates to deprive married women of their property and abridges their rights and privileges as citizens of the State, contrary to the law of the land.[3]
I am authorized to state that my brother BROCK joins me in this concurring opinion.
NOTES
[1] See, e.g., Owen v. Illinois Baking Corporation, 260 F. Supp. 820 (W.D.Mich. 1966); Deems v. Western Maryland Railway Company, 247 Md. 95, 231 A.2d 514 (Maryland 1967); Leffler v. Wiley, 15 Ohio App. 2d 67, 239 N.E.2d 235 (1968); Gates v. Foley, 247 So. 2d 40 (Fla. 1971); Diaz v. Eli Lilly and Company, 302 N.E.2d 555 (Mass. 1973).
[2] The opinion recites: "In the first place, we do not find this question to be properly and timely made by the assignments of error in this case."
[3] The "law of the land" provision of Art. 1, Sec. 8 of the Tennessee Constitution is synonymous with the "due process of law" provisions of the Fifth and Fourteenth Amendments to the Constitution of the United States. Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739 (1965).
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516 S.W.2d 28 (1974)
J. F. DICKSON, Appellant,
v.
R. P. DICKSON, Appellee.
No. 12187.
Court of Civil Appeals of Texas, Austin.
November 13, 1974.
*29 James D. Stewart, Mitchell & Stewart, San Antonio, for appellant.
Roy Q. Minton, Jones, Blakeslee, Minton, Burton & Fitzgerald, Inc., Sander W. Shapiro, Clark, Thomas, Denius, Winters & Shapiro, Austin, for appellee.
PHILLIPS, Chief Justice.
This is an appeal from certain temporary orders entered in a divorce suit. By temporary injunction, the trial court enjoined appellant husband from "going to or around the premises at 4711 East Riverside Drive, Austin," which was the location of appellant's law offices and the location from which he had conducted other business at the time this divorce suit was filed. We affirm the action of the trial court in entering the temporary injunction.
Appellant is before this Court on six points of error, all of which we overrule.
Appellant's first point is the error of the trial court in entering its temporary orders because appellee's petition was unverified. While it is true that the original petition for divorce was unverified, a verified petition under the provisions of Rule 682, Texas Rules of Civil Procedure is not necessary to support the granting of injunctive relief after a full hearing was had on the matter. Magnolia Petroleum Co. v. State, 218 S.W.2d 855 (Tex.Civ.App.1949, writ ref'd n.r.e.); O'Connor v. National Motor Club of Texas, Inc., 385 S.W.2d 558 (Tex.Civ.App.1964, no writ).
Appellant's points of error two, three and four complain that the trial court abused its discretion by entering a mandatory temporary injunction taking property out of the possession of one person and putting it in the possession of another and also by entering a temporary injunction which destroyed the status quo. Appellant's point four asserts the abuse of discretion by the trial court in entering an injunction not supported by pleadings and evidence.
*30 By these three points of error appellant is complaining of the order of the court dividing the operation of two farms, viz, Faro Farm No. 1, in Austin and Faro Farm No. 2 in Kentucky. Appellant was awarded the right to operate the latter and appellee the right to operate and manage the former. Next, appellant complains of the granting to appellee the occupancy of the office at 4711 East Riverside Drive and the injunctive relief against appellant from going on or around the 4711 East Riverside Drive office.
At the outset, an appeal is not authorized from the order of the court relating to pendente lite control over Faro Farm No. 1 and Faro Farm No. 2. Sec. 3.58 of the Family Code, V.T.C.A., authorizes the court to "make temporary orders respecting the property and parties as deemed necessary and equitable." A noninjunctive order concerning the control and custody of separate portions of the estate of the parties during the pendency of the suit is not an order subject to review by this Court. Archer v. Archer, 407 S.W.2d 529 (Tex.Civ.App.1966, no writ). The portion of the order concerning temporary control of Faro Farms No. 1 and No. 2 is not a temporary injunction which may be appealed under the provisions of Article 4662, Vernon's Ann.Civ.St. Consequently, we dismiss this portion of the appeal as not being properly before this Court. Under this reasoning, we must also dismiss that portion of the appeal concerning the court's order relating to control of the premises at 4711 East Riverside Drive. In Texas, except where a rule or statute authorizes an appeal from an interlocutory order, there is no right of appeal therefrom. Henderson v. Shell Oil Co., 143 Tex. 142, 182 S.W.2d 994 (1944); Archer v. Archer, Supra; Witt v. Witt, 205 S.W.2d 612 (Tex.Civ.App.1947, no writ); 3 Tex.Jur.2d Appeal and ErrorCivil Cases, § 73, et seq. (1974). Further, the fact that an interlocutory order contains elements which are, under the law, appealable, does not authorize review of elements of the order which are not made specifically appealable. Witt v. Witt, Supra; Bloomfield Royalty Corp. v. Carco Investments, Inc., 435 S.W.2d 178 (Tex.Civ.App.1968, writ ref'd n.r.e.).
Article 4662, V.A.C.S., authorizes appeals from orders granting temporary injunctions entered pursuant to Sec. 3.58, Vernon's Annotated Family Code, and its predecessors (Art. 4636, V.A.C.S.). Janelli v. Bond, 148 Tex. 416, 225 S.W.2d 824 (1950). In this respect there was evidence before the court that appellant had agreed to injunctive relief against himself which enjoined him from any personal contract with appellee. The court then found that "in order to prevent severe emotional and mental duress to appellee which would cause her irreparable harm and for which she had no legal remedy the parties should be mutually enjoined from personal or other direct contract, and the court hereby further finds that allowing the two parties to maintain offices and to perform substantial work at the same premises would be inconsistent with the previously defined injunctive orders...." Based upon a well-developed record the Court concludes that the conduct of the two Faro Farm operations be divided between the parties, that the appellee be allowed to occupy the offices, described above, and that appellant be enjoined from going on those premises except in carefully described circumstances. The record also discloses that appellee is well-qualified to manage the property temporarily given to her control by the court. In our review of the injunctive order, we are limited to the question of whether the action of the court constitutes a clear abuse of discretion. From a review of this record, as a whole, we conclude that it was not. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962); Florence v. Florence, 388 S.W.2d 220 (Tex.Civ.App.1965, writ dism'd).
*31 Cases cited by appellant such as Story v. Story, 142 Tex. 212, 176 S.W.2d 925 (1944), which denied a party a temporary injunction where a trial of real property was involved, are not in point. In Story, the court dissolved an injunction stating that the party seeking the injunction had an adequate remedy at law. At the stage of proceedings before us, no title rights to the property in question are adjudicated and the order of the court was granted, under its broad power, to temporarily safeguard the personal values involved in the divorce action, as well as the operation of the estate pending a final division.
In his point of error number five, appellant complains that the trial court abused its discretion by entering a temporary injunction directly affecting property rights of a non-party. The non-party is a corporation, Dickson Properties, Inc., which had its office, under a lease, at 4711 East Riverside Drive. The appellant joined Dickson Properties, Inc. as a cross-plaintiff in this suit. The corporation appeared by its president and principal shareholder (appellee). The court, after extensive discussion, agreed to hear evidence in connection with the cross-action against Dickson Properties, Inc., insofar as it concerned the use of the premises at 4711 East Riverside Drive. If this corporation was not explicitly joined, we hold that it was joined by implication. Mims v. Hearon, 248 S.W.2d 754 (Tex.Civ.App.1952, no writ); Perkins v. Terrell, 214 S.W. 551 (Tex.Civ.App.1919, writ ref'd); Pelton v. Trico Oil Co., 167 S.W.2d 625 (Tex.Civ. App.1942, no writ).
In reply to appellant's point of error number six, we hold that the trial court did not err in refusing to disqualify himself from participation in the suit for either of two reasons. In the first place there has been no ruling on appellant's motion to disqualify, consequently, it may be considered waived. Rule 90, Tex.R.Civ.P. Secondly, if there had been such a ruling, it would not be subject to interlocutory review under the cases discussed above.
The judgment of the trial court granting the temporary injunction is affirmed.
Affirmed.
O'QUINN, J., not sitting.
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516 S.W.2d 663 (1974)
Howard WELLS, Appellant,
v.
The STATE of Texas, Appellee.
No. 49118.
Court of Criminal Appeals of Texas.
December 4, 1974.
Rehearing Denied January 8, 1975.
*664 John L. Bates, Raymond T. Palladino and C. Stephen Allen, Waco, for appellant.
Martin D. Eichelberger, Dist. Atty., Felipe Reyna, Raymond Matkins and William M. Harman, Asst. Dist. Attys., Waco, Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
ODOM, Judge.
The appellant was convicted of the offense of aggravated assault on a police officer. Punishment was assessed at confinement in the county jail for one year. Imposition of the sentence was suspended and, upon recommendation of the jury, appellant was placed on probation.
Appellant, in his first ground of error, contends that the complaint or affidavit upon which the information was based is fatally defective. The complaint makes a direct, unqualified accusation. Appellant contends that the complaint is fatally defective because the affiant had only information and belief as to the facts of the accusation, but no actual and direct knowledge of the transaction. The record reflects that the affiant was a detective for the Waco Police Department. The affiant testified that he made his accusations in the complaint based on information obtained from the police offense report which he believed to be factual.
The appellant argues that an affiant to a complaint or affidavit supporting an information must have actual and direct knowledge of the transaction in order to make a direct, unqualified accusation. Appellant further argues that where an affiant has only information and belief as to the facts, he can assert, at most, that he has good reason to believe, and does believe, the accused has committed an offense.
Appellant recognizes, however, that the requisites of a complaint or affidavit to support a prosecution under an information are not as stringent as the requirements of a complaint or affidavit for a search warrant. See Chapa v. State, Tex.Cr.App., 420 S.W.2d 943; Cisco v. State, Tex.Cr. App., 411 S.W.2d 547. In Chapa v. State, supra, 420 S.W.2d at p. 944, this Court said: "The purpose of the complaint is to apprise the accused of the facts surrounding the offense with which he is charged in order to permit him to prepare a defense to such charge." Cf. Vallejo v. State, Tex.Cr.App., 408 S.W.2d 113. The requisites of Art. 21.22, Vernon's Ann.C. C.P., provide that an information must be supported by an affidavit made by some credible person charging the defendant with an offense. A person authorized to present informations and conduct prosecutions cannot be the affiant to the complaint supporting an information. Catchings v. State, 162 Tex. Crim. 342, 285 S.W.2d 233; Kennedy v. State, 161 Tex. Crim. 303, 276 S.W.2d 291, 294, on motion for rehearing. The purpose for requiring a supporting affidavit before institution of a prosecution by information is to prevent one individual from being both the accuser and the prosecutor in misdemeanor cases. See Kennedy v. State, supra. In order to effectuate the purposes of a complaint or affidavit accompanying an information, we hold that it is not necessary to inquire into the nature of the knowledge upon which an affiant bases his factual statements.
It is uncontested that the complaint in the instant case, on its face, meets the requirements of Art. 15.05, V.A.C.C.P., and adequately informs the appellant of the *665 charges against him. There has been no showing that the affiant is not a credible person. See Art. 21.22, V.A.C.C.P. The complaint, valid on its face, is sufficient to support prosecution by information.
In his second ground of error, appellant contends that the trial court erred in refusing to instruct the jury on the meaning of the word "scuffle." The word was used several times by witnesses to describe the incident between the police officers and the appellant. There is no special legal meaning of the word "scuffle." It is understood by the ordinary person. No instruction defining "scuffle" was required. Also, the definition of the word "scuffle" is not a "defensive theory" as asserted by the appellant. The court properly instructed the jury on self-defense. Cf. Turley v. State, 171 Tex. Crim. 514, 352 S.W.2d 130.
In his third and fifth grounds of error, appellant contends that the trial court erred in failing to give an instruction on "illegal search and arrest as a defensive issue" and "on the appellant's rights upon an illegal search and arrest." The evidence raised an issue of a lack of probable cause for arresting the appellant without a warrant.
The court gave instructions to the jury concerning the right of a peace officer to arrest without a warrant, using the exact words of Articles 14.01(b) and 14.03, V.A. C.C.P. The court further instructed the jury that violence does not amount to assault or battery when used in self-defense or to prevent unlawful arrest. The court then instructed the jury to acquit the appellant if they found that the only acts of violence used by the appellant were in his necessary defense or to prevent his unlawful arrest. Cf. Duke v. State, 168 Tex.Cr. R. 403, 328 S.W.2d 189. The instructions given by the court were sufficient regarding illegal arrest as a defense.
In his fourth and sixth grounds of error, appellant challenges the admission into evidence of marihuana. Only a partial transcript of the proceedings at trial is before this Court. There is no reference to the introduction of marihuana or any objection to such introduction except in appellant's brief. The record does not reflect any attempt by the appellant or his retained counsel to present a complete or agreed statement of facts or a formal bill of exception showing admission of marihuana into evidence. Nothing is presented for review. Art. 40.09, V.A.C.C.P.; American Plant Foof Corp. v. State, Tex. Cr.App., 508 S.W.2d 598.
Finding no reversible error, the judgment is affirmed.
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612 S.W.2d 78 (1981)
Reggie BARHAM, D/B/A Southwest Pipe & Supply, Appellant,
v.
SUGAR CREEK NATIONAL BANK, Appellee.
No. A2518.
Court of Civil Appeals of Texas, Houston ( 14th Dist.).
January 28, 1981.
*79 George R. Pain, Farris, Pain & Horne, Houston, for appellant.
Bradford E. Morris, Morris & Hlavinka, Stafford, for appellee.
Before J. CURTISS BROWN, C. J., and PAUL PRESSLER and JUNELL, JJ.
PAUL PRESSLER, Justice.
Appellant appeals a Summary Judgment granted the Plaintiff below. Appellee's original petition alleges that on August 10, 1979, Nugent Equipment Company of Lafayette, Louisiana executed a check payable to Reggie Barham, d/b/a Southwest Pipe & Supply for $6,250.25. On August 27, Barham, endorsed this check by placing his account number on its reverse side and deposited it in his account with Appellee. Immediately upon deposit, Barham withdrew the full amount of the deposit. The check was later returned to Appellee marked "Payment Stopped." Appellee gave notice of its dishonor to Barham immediately. Appellee alleged that after proper offsets the remaining balance due on the dishonored check was $2,359.52. Appellee sued for such amount and for attorney's fees.
Appellee filed a Motion for Summary Judgment with supporting affidavits attached. Barham filed an objection to the Motion for Summary Judgment contending that the supporting affidavit of Ron Smulcer was insufficient in that it failed to show that it was based upon the affiant's personal knowledge. A hearing was held on March 4, and on May 9, Summary Judgment was entered in favor of the Appellee for $2,359.52 together with $500.00 attorney's fees.
Appellant reurges its contention that the supporting affidavit of Ron Smulcer had no affirmative showing of personal knowledge. Appellant also complains that the court below erred in awarding attorney's feed to Appellee as there was no agreement between the parties concerning payment of attorney's fees and no statutory authorization for such award.
Affidavits in support of a Motion for Summary Judgment must state that the statements made therein are made on personal knowledge, must set forth facts which would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 233 (Tex.1962); Tex. R.Civ.P. 166-A(e). The affidavit must not merely state that the affiant is competent to testify to the matters stated therein; but rather there must be something in the affidavits to show affirmatively how the affiant is competent to testify. Murfee v. Oquin, 423 S.W.2d 172, 174 (Tex.Civ.App.-Amerillo 1967, writ ref'd n. r. e.).
The supporting affidavit at issue reads in pertinent part as follows:
*80 "My name is Ron Smulcer. I am Vice President and Cashier of Sugar Creek National Bank. I am over 21 years of age, of sound mind, and in all respects qualified to make this Affidavit, and I have personal knowledge of all facts stated in this Affidavit."
The affidavit then states the facts set forth in Appellee's Original Petition.
Appellant contends that the affidavit does not affirmatively show how the affiant could have gained his personal knowledge of the facts stated therein. Appellee, in response, contends that it was sufficient that the affiant was identified as Vice President and Cashier of the bank, since it may be reasonably assumed that as such the affiant would be peculiarly situated to have this personal knowledge. Appellant relied on the holding in Greater Houston Bank v. Miller & Freeman Ford, Inc., 540 S.W.2d 390 (Tex.Civ.App.-Corpus Christi 1976, no writ) as supportive of his position, That case concerned claims against the proceeds of sale of an automobile purchased by Julieta P. Gomez. Each claimant filed a Motion for Summary Judgment. In the supporting affidavit filed by Miller & Freeman Ford the affiant was identified as "... President of Miller & Freeman Ford, Inc. and, therefore, a duly authorized agent of Defendant in the above styled cause of action." Id. p. 391. The affidavit stated certain facts including the statement that one Manuel Gomez, husband of Julieta P. Gomez, authorized work on the vehicle. The summary judgment granted by the trial court in favor of Miller & Freeman Ford was reversed because the affiant would not have had personal knowledge of the marital status of Julieta Gomez through his position as president of his company. Therefore, how he was competent to make an affidavit concerning this fact should have been affirmatively shown. Id. p. 392. The Greater Houston Bank case is clearly distinguishable from the instant case. Ron Smulcer's position as Vice President and Cashier of the Bank peculiarly qualified him to have personal knowledge concerning each of the facts in the supporting affidavit.
Appellant also contends that the affidavit of Smulcer merely raises a fact issue because it is the affidavit of an interested party. In 1977, Tex.R.Civ.P. 166-A(c) was amended effective January 1, 1978 to provide "... A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, ... if the evidence is clear, positive, and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted." The statements in the affidavit of Smulcer satisfy these requirements. They could have been readily controverted by Appellant but were not. Therefore, the mere fact that the affiant was an interested party will not defeat the summary judgment. Lazidis v. Goidl, 564 S.W.2d 453 (Tex.Civ.App.-Dallas 1978, no writ). Appellant's first point of error is overruled.
Appellant contends, in his second point of error, that the court below erred in awarding attorney's fees to the Appellee as there was no agreement between the parties regarding the payment of attorney's fees and no statutory authorization for the award thereof. We disagree.
Tex.Rev.Civ.Stat.Ann. art. 2226 (Vernon Supp.1980) provides in part:
"Any ... corporation ... or other legal entity having ... suits founded on oral or written contracts may present the same to such persons or corporation or to any duly authorized agent thereof; and if, at the expiration of 30 days thereafter, payment for the just amount owing has not been tendered, the claimant may ... also recover, in addition to his claim and costs, a reasonable amount as attorney's fees." The check endorsed and deposited by Barham constitutes a written contract wherein as a matter of law he agreed that "... upon dishonor and any necessary notice of dishonor..." he would "... pay the instrument according to its tenor at the time of his indorsement to the holder or to any subsequent indorser who takes it up ..." Tex.Bus. & Com.Code Ann. § 3.414(a) (Vernon 1968). According to the uncontroverted *81 affidavit of counsel for Appellee, written notice of the claim was delivered to Appellant more than 30 days prior to the institution of this suit. One entitled to recover in such a situation is also authorized by Art. 2226 to recover reasonable attorney's fees. Guardian Bank v. San Jacinto Savings Association, 593 S.W.2d 860, 863 (Tex.Civ. App.-Houston [1st Dist.] 1980, no writ). Appellant's second point of error is overruled and the judgment of the court below is in all things affirmed.
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778 S.W.2d 546 (1989)
Barbara SHERARD, Individually and as Representative of Mark A. Henson, Deceased, Appellant,
v.
Carl SMITH, Appellee.
No. 13-88-058-CV.
Court of Appeals of Texas, Corpus Christi.
August 31, 1989.
Rehearing Denied October 19, 1989.
*547 Stephen Burkett, Burkett & Associates, Inc., Corpus Christi, for appellant.
Frank E. Weathered, Law Office of David J. Dunn, Corpus Christi, for appellee.
Before SEERDEN, UTTER and KENNEDY, JJ.
OPINION
SEERDEN, Justice.
Appellant brought suit for wrongful death based on a motor vehicle collision which occurred on July 2, 1984. Appellee had hired Rene Hinojosa to haul grain from his farm to the elevator. Hinojosa's truck was loaded with 14 or 15 tons of grain when he stopped it on South Padre Island Drive to retrieve a shovel that had fallen from the truck. Appellant's son drove his vehicle into the rear of the truck and was killed.
Appellant pleaded that appellee was negligent and that appellee is vicariously liable for Hinojosa's negligence, alleging that Hinojosa was appellee's agent, servant, or employee. The trial court granted appellee's motion for summary judgment. We affirm the trial court's judgment.
Four points of error are presented. Point one is a global point stating simply that it was error to grant the summary judgment. This point is sufficient to allow appellant to argue all grounds of error she expressly raised in the trial court. Cove Investments, Inc. v. Manges, 602 S.W.2d 512, 517 (Tex.1980). Points two and three claim that appellee failed to establish his case as a matter of law and that the evidence raised a fact issue as to Hinojosa's status as an independent contractor and that a fact issue was created as to the employment status of Hinojosa. The fourth point claims appellee is vicariously liable for Hinojosa's negligence as a matter of law.
The summary judgment evidence shows that appellee, Carl Smith, has been a farmer since 1955. He raises grain in Nueces County, Texas. Smith, a relatively small volume farmer, customarily hires someone to haul his grain from the farm where it is raised to the grain elevator where it is stored and sold. Appellee had used the same haulers for a number of years, but in 1984, for the first time, he hired Hinojosa to do his hauling. Prior to the wreck made the basis of this suit, Hinojosa had been hauling for Smith about one week.
Appellee's motion for summary judgment contends that the summary judgment evidence establishes as a matter of law that
1. Hinojosa was an independent contractor and not the agent, servant or employee of appellee;
2. there was no evidence of breach of duty of care by appellee in connection with the occurrence made the basis of this suit;
3. there was no evidence of negligence on part of appellee; and
4. there was no evidence that any action or lack thereof on the part of appellee was a proximate cause of this collision.
Appellant's response to the motion for summary judgment alleges in general that material fact issues preclude summary judgment. The response also specifically alleges the agency and employee theory, the negligent hiring of Hinojosa and the failure of appellee to exercise reasonable care on his part in controlling a portion of the hauling. In addition, the response affirmatively *548 alleges that appellee was negligent in employing Hinojosa because he did not possess the required permit and/or license. The response is supported by depositions of appellee and Rene Hinojosa, interrogatories, and two affidavits, the contents of which will be discussed hereafter.
After considering the summary judgment evidence submitted by both parties, the trial court judge granted appellee's motion.
A party seeking a summary judgment has the burden of showing as a matter of law that there is no material issue of fact and that it is entitled to judgment as a matter of law. Goswami v. Metropolitan Savings and Loan Association, 751 S.W.2d 487, 491 (Tex.1988); Griffin v. Rowden, 654 S.W.2d 435, 435-36 (Tex. 1983). Evidence favorable to the non-movant must be taken as true and every reasonable inference must be indulged in favor of the non-movant; any doubts must be resolved in favor of the non-movant. Goswami, 751 S.W.2d at 491; Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex.1985).
In his first reply point, appellee argues that appellant has abandoned her claim for negligent hiring and supervision because the question was not briefed and thus is waived. Appellee cites as authority for this proposition the case of Cleaver v. Dresser Industries, 570 S.W.2d 479, 482 (Tex.Civ.App.-Tyler 1978, writ ref'd n.r. e.). We have examined appellant's brief and find that, while her first point of error is broad enough to raise the claim of negligent hiring, she argues only that appellee is vicariously liable for Hinojosa's negligence by virtue of an employer/employee or agency relationship or as a matter of law.
In light of the authorities cited and the arguments raised by appellee in his first reply point we will only address the matters briefed by appellant. Where there is no dispute as to the controlling facts and only one reasonable conclusion can be inferred, the question of whether one is an "employee" or "independent contractor" is a question of law. Industrial Indemnity Exchange v. Southard, 138 Tex. 531, 160 S.W.2d 905, 906 (1942). To constitute the relationship of employer and employee, the employer must have the right to select, control, and, for misconduct, discharge the employee. 33 Tex.Jur.3rd Employer and Employee § 2 (1984). An independent contractor is any person who, in the pursuit of an independent business, undertakes to do a specific piece of work for other persons, using his own means and methods, without submitting himself to their control in respect to all details. Industrial Indemnity Exchange, 160 S.W.2d at 907. Recognized tests to determine when one is acting in the capacity of independent contractor are:
1. the independent nature of the business;
2. the obligation to furnish necessary tools, supplies and material to perform the job;
3. the right to control the progress of the work except the final result;
4. the length of time of the employment; and
5. the method of paymentwhether by the time or by the job.
Pitchfork Land & Cattle Co. v. King, 162 Tex. 331, 346 S.W.2d 598, 603 (1961); Home Interiors & Gifts, Inc. v. Veliz, 695 S.W.2d 35, 41 (Tex.App.-Corpus Christi 1985, writ ref'd n.r.e.). It has also been stated that the independent nature of the agreement of employment may be inferred from two circumstances (1) that the party is engaged in a distinct and generally recognized employment; and (2) that his stipulated remuneration is to be determined by some quantitative standard. Pitchfork Land & Cattle Co., 346 S.W.2d at 604.
The distinction between an independent contractor and an agent or employee is not always easy to determine, and there is no uniform criterion by which they may be differentiated. Bullock v. W & W Vending and Food Service of Texas, Inc., 611 S.W.2d 713 (Tex.Civ.App.-Tyler 1981, no writ). Nevertheless, it has often been stated that the test for determining whether a master-servant or independent contractor relationship exists is whether the employer has the "right to control" the details of the *549 work. Newspapers, Inc. v. Love, 380 S.W.2d 582, 589 (Tex.1964); Home Interiors & Gifts, Inc. v. Veliz, 695 S.W.2d 35, 40 (Tex.App.-Corpus Christi 1985, writ ref'd n.r.e.)
Appellant argues in her first three points of error that there was a fact issue as to whether Hinojosa was an employee of Smith or an independent contractor.
There are no conflicts or disputes in the summary judgment evidence submitted by the parties.
Appellee hired Hinojosa to haul his grain from the field to the Corpus Christi Grain Elevator. He agreed to pay him a specific price for each hundred weight of grain hauled. He withheld no monies for any form of taxes nor did he provide any medical or other benefits. He provided no fuel for Hinojosa's truck. The only benefit Hinojosa was to receive for his services was the cash payment based on the amount of grain he delivered to the elevator. While appellee looked at Hinojosa's truck and inquired as to liability insurance coverage at the time of hiring, Hinojosa was responsible for maintenance of the truck and for furnishing any tools or helpers necessary to achieve the task of delivering the grain. The evidence clearly shows that the relationship between appellee and Hinojosa was that of independent contractor-owner rather than employee-employer.
Appellant seeks to create a fact issue in the employment relationship through the affidavit of A.H. Vaughn, Sr., which was attached to her reply to the motion for summary judgment. Mr. Vaughn's affidavit shows that he has been in the trucking and hauling business for twenty-five years and has hauled grain for farmers in Nueces County, Texas. He states that his experience is that a farmer, such as Mr. Smith, does have the right to direct and control the details of the grain haulers' work. He lists numerous examples of details which the farmer has a right to control. He concludes his affidavit by stating that the delivery of the grain to the storage facility is ultimately under the farmer's supervision and control.
This affidavit is not sufficient to create a fact issue in this case. It is wholly conclusory in nature and sets out no specific facts relative to the agreement between appellee and Hinojosa, and, thus has no probative value in this case. Manges v. Astra Bar, Inc., 596 S.W.2d 605, 610 (Tex.Civ.App.- Corpus Christi 1980, writ ref'd n.r.e.). Legal conclusions in affidavits are insufficient to raise fact issues in response to motions for summary judgments. Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex.1984); Swiderski v. Prudential Property & Casualty Insurance Co., 672 S.W.2d 264, 268 (Tex.App.-Corpus Christi 1984, writ dism'd). Points of error one through three are overruled.
In her fourth point of error, appellant contends that Smith is vicariously liable, as a matter of law, for Hinojosa's negligence. She bases this contention on the theory that Hinojosa leased his truck to Smith for a commercial purpose in a commercial setting. Appellee contends that this point has been waived because appellant did not present this theory to the trial court. In fact, there is no evidence in the record that Smith leased the truck. The only evidence is that Smith hired Hinojosa to haul grain. Hinojosa was using his own truck. Appellant cites no case stating that such an agreement creates a lease of the truck, and we presume there are no such cases. Point of error four is overruled.
The judgment of the trial court is affirmed.
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612 S.W.2d 327 (1981)
Imogene Gaines MOORE, et al., Appellants,
v.
CITY OF BLYTHEVILLE, Appellee.
No. CA80-437.
Court of Appeals of Arkansas.
March 11, 1981.
*329 Oscar Fendler, Blytheville, and Bill W. Bristow, Jonesboro, for appellants.
Max Harrison, Percy Wright and Reid, Burge & Prevallet, Blytheville, by Robert L. Coleman, Blytheville, for appellee.
GLAZE, Judge.
This case involves four appellants who appeal from a Chancery Court decree which compelled the appellee, the City of Blytheville, to take certain corrective action to abate a nuisance caused by its dump, but which denied damages that appellants alleged they suffered as a result of the nuisance. In 1956, the appellant, Imogene Moore, and her husband, now deceased, conveyed a five acre tract of land to the appellee, and the appellee used the tract thereafter as the city dump. The deed of conveyance contained three covenants wherein the appellee agreed: (1) to erect a fence to prevent debris from blowing onto adjoining lands; (2) to chemically treat the garbage so as to prevent objectionable odors; and (3) to purchase and use equipment to bury the garbage.
Appellants Moore and her daughter, Mona Phillips, own acreage which adjoins the dump. Appellant Ron Stallings is the executor of the Wesley Stallings Estate which has an interest in land located next to the dump. The fourth appellant, Richard Conley, is a tenant who farms the lands *330 owned by Moore and Phillips. In 1976, twenty years after the dump was established, the appellants filed this action against the appellee. The cause was not tried by the court until October, 1979. The appellants' complaint as amended alleged that the appellee breached the three covenants contained in the 1956 deed, and that its actions constituted inverse condemnation, i.e., the appellee's actions amounted to a taking and devaluation of the adjoining land owned by Moore, Phillips and Stallings. The relief sought by appellants was for an order to enforce the deed covenants, an injunction to abate a nuisance caused by the dump and damages suffered due to inverse condemnation and a loss of crops.
Appellants first contend that the lower court's decree entered in March, 1980, offers no real relief because it will not provide for abatement of the nuisance which the Chancellor found to exist. The Chancellor ordered the appellee to take the following corrective measures within sixty days of its decree so as to abate the nuisance:
(a) The top surface of the dump site shall be graded so as to eliminate water pockets or pools from forming on the top of the mass;
(b) The sides of the dump site should be graded and sloped at such an angle which would permit proper drainage of rain water falling upon the site; and,
(c) The digging and maintaining of ditches in an area immediately adjacent to the dump site, on both the East and West sides, for the purpose of collecting and carrying off water either falling upon or accumulating at the dump site. Such ditches should connect with existing drainage ditches on the South side of the dump site.
The court's order, appellants argue, does not go far enough. In a motion to reconsider, they asked the court to require the employment of an engineer to do a feasibility study to include surveys for drainage ditches, tests for leachate and plans for covering the refuse to prevent further accumulation of leachate.
The Chancellor has a great deal of discretion regarding the question of whether and to what extent injunctive relief should be granted. Arkansas Community Organization for Reform Now v. Brinegar, 398 F. Supp. 685 (E.D.Ark.1975), affirmed 531 F.2d 864 (8th Cir. 1976). It is also settled law that whatever judgment is entered takes its validity from the action of the court based on existing facts and not from what may happen in the future after the court has rendered its judgment. Brotherhood of Locomotive Firemen and Enginemen v. Simmons, 190 Ark. 480, 79 S.W.2d 419 (1935). In the instant case there is no evidence within any degree of certainty that the migration of leachate from the dump to adjoining lands was a problem. One witness, an inspection engineer-geologist with the State Department of Pollution Control and Ecology, testified that he saw a small amount of leachate coming from the dump at its northeast corner, but later admitted that he had not determined leachate had caused damage to any crops. This same witness related that he dug a ten foot hole on the east and west sides of the dump and no leachate had seeped into either hole. Another employee, a field inspector, of the same State agency, stated that leachate could deplete the growth of crops, but again offered no evidence that it had. Certainly, if any nuisance and causally connected damage to crops by leachate could be established in the future, the appellants would not be foreclosed from bringing an action at that time. From a review of the record before us, however, we find that the facts do not establish or warrant the commission of an engineer. We are satisfied that the Chancellor exercised appropriate discretion as to the extent of what actions he required of the appellee to alleviate the existing nuisance.
The second point for reversal raised by appellants concerns the trial court's denial of damages. The court's decree denied damages to Moore and Phillips premised on the doctrines of laches and equitable estoppel. *331 Stallings and Conley were refused damages because proper evidence was not presented which complied with the Arkansas law for loss of growing crops.
Although the lower court's decree did not specifically deal with the inverse condemnation issue, it is clear that damages were not awarded to the appellant landowners, Moore, Phillips and Stallings on this theory. These appellants did offer proof through testimony on this issue by a real estate appraiser, but it is difficult to discern from the record on what basis the Chancellor denied the relief sought. Moore and Phillips did not have a claim for crop damages. Thus, the only common loss which Stallings could have with Moore and Phillips, is a devaluation of their respectively owned properties. Again, the court denied Moore's and Phillips' damage claims because of laches and estoppel, but was silent as to Stallings except for his claim for crop damage. Of course, we review Chancery cases de novo, and if the Chancellor is correct for any reason, we affirm the decision. Apple v. Cooper, 263 Ark. 467, 565 S.W.2d 436 (1978).
We agree with the Chancellor that the doctrine of laches does apply to the condemnation damage claims. The Moore family, including Phillips, has owned the property adjoining the dump prior and subsequent to the time the dump was established. Stallings testified that his adjoining property has been owned by his family since the 1940's. These appellants failed to file any action for inverse condemnation until 1976, i.e., twenty years after the appellee commenced operation of the dump. By the time this case was tried in 1979, they offered evidence that Stallings' land was valued at $1,800 per acre and the Moore and Phillips properties were worth $1,200 per acre. The appellants' real estate appraiser then rendered his opinion that their entire tracts of land were decreased in value because a number of acres contained in each tract could not be cultivated due to the adjoining dump. He valued Stallings' loss at $9,600 and Moore's and Phillips' losses at $16,800. In weighing this evidence, we take judicial notice that the value of farm land has materially increased in the past twenty years, and during the same period, the dollar has continued to diminish in purchasing power. Tomlinson v. Williams, 210 Ark. 66, 194 S.W.2d 197 (1946); Sinkhorn v. Meredith, 250 Ark. 711, 466 S.W.2d 927 (1971).
Our Supreme Court has held that when a person, who knows his rights, takes no step to enforce them until the condition of the other has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable and operates as estoppel against the assertion of the right. Dickenson v. Norman, 165 Ark. 186, 263 S.W. 387 (1924). We find that the tremendous increase in the value of land alone in the past twenty years would have permitted the Chancellor to apply the laches doctrine against Moore, Phillips and Stallings. This fact coupled with the devaluation of today's dollar certainly places the appellee at more of a disadvantage than if appellants had pursued their condemnation claim at some reasonable time after the dump was established in 1956.
Before leaving the damage issue relative to inverse condemnation, we also note that the appellee offered expert testimony to the effect that the market value of the land owned by these appellants was not affected by the city dump. Thus, the Chancellor was presented with opposing expert opinion evidence, and he may well have relied on the opinion of appellee's expert witness in denying the appellants' claims.
The appellants Stallings and Conley also sought damages to crops they lost on acreage located next to the dump, and they presented evidence that each suffered respective losses of $5,502 and $14,802. In considering these requests for damages, the Chancellor held that Stallings and Conley did not present proper evidence to sustain their alleged damages for loss of crops. Appellee contends that laches also should bar any crop damage claims because, as noted earlier, the Stallings had owned and farmed their land since the 1940's, and Conley testified that he had leased lands from *332 the Moores and farmed it for eight years, which was sometime in 1971.
A study of the decree and record reflects that the Chancellor did not consider laches as applicable to the loss of crop claims, but based his decision only on the fact that such crop damages were not properly sustained by the evidence presented. We agree with the Chancellor. However, the measure of damages the Chancellor appears to have used to make his decision we find is erroneous. Before we discuss the measure of damage issue, we will first dispose of the issues raised by the appellee regarding the statute of limitation and laches and their applicability to appellants' claims for crop damages. The applicable statute of limitations to the facts at bar is found in Ark.Stat.Ann. § 37-206 (Repl.1962) which provides for a three year limitation for injuries to real property. See Consolidated Chemical Industry, Inc. v. White, 227 Ark. 177-178, 297 S.W.2d 101 (1957). In accordance with § 37-206, Stallings and Conley limited their claims, seeking damages commencing in 1973 or three years prior to the filing of this action in 1976. Although there are other legal problems relative to these appellants' request for crop damages, we find no evidence in the record which limits their claims to less than the statutory three year period, and we, therefore, find laches does not apply to these specific claims.
The primary issue to be decided, and previously mentioned, is what is the measure of damages in view of the evidence presented in the trial below. Once we make this determination, we can then decide if Stallings and Conley presented proper evidence to meet their burden of proof to establish the damages to which they contend they are entitled. The burden is clearly on these appellants. Adams v. Adams, Ex cx, 228 Ark. 741-745, 310 S.W.2d 813 (1958).
First, we reject appellee's contention that the measure of damages to crops set forth in AMI 2225 is applicable since its terms contemplate the destruction of a mature crop. The facts in the record before us indicate that no crops that may have been planted grew to maturity. Stallings testified that before the seeds he planted germinated, the rats would literally dig them out of the ground. He related that he could not plant because the rats would take (destroy) the plants. Conley later testified that 1979 was the first time in eight years he had a crop because of some kind of acid in the soil which came from the dump. The Supreme Court in the case of Farm Bureau Lumber Corporation v. McMillan, 211 Ark. 951-954, 203 S.W.2d 398 (1947) stated the rule we must follow in selecting the correct rule or measure to determine damages to crops:
... if the total destruction of the crop was at a time when the crop was too young to have a market value and when it was too late to plant another crop, the "rental value of the land" is the rule that governs; but if the destruction of the crop was at a time when the market value could be determined, then the "market value of the crop" is the rule to govern...
In considering the evidence before us in view of the rule stated in McMillan, we find that the rental or usable value of the land was the correct criterion or measure to be applied to the facts at bar. The proof presented by the appellants concerned the market value of what they believed would have been their average yield per acre but for the damage caused by the appellee's dump. Since the evidence in the record is insufficient regarding the rental value of the acreage appellants contend was damaged, we would agree that the Chancellor's denial of the damages to crops was correct.
The appellants petition this court to remand this cause to the Chancellor for a hearing on the damages if we, as we have done here, determined the proof offered by appellants was insufficient. Where a case has been once heard upon the evidence or there has been a fair opportunity to present it, we would not usually remand a case solely to give either party an opportunity to produce other evidence. This rule is not imperative, and this court *333 has the power, in furtherance of justice, to remand any case in equity for further proceedings, including hearing additional testimony. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). It has also been a long standing practice and rule of our Supreme Court, which we adopt as well, that Chancery cases will not be remanded for further proceedings when we can plainly see from the record what the rights and equities of the parties are. Prickett v. Ferguson, 45 Ark. 177, 55 Am.Rep. 545 (1885), and Ferguson v. Green, supra.
From the record, we are unable to decide the issue regarding crop damages without remanding. As we mentioned earlier, it appears from the record, the court's decree and the parties briefs that the parties and the Chancellor relied on the measure of damages for matured crops as is set forth in AMI 2225. Of course, we have held this was error. Our Supreme Court has held that when all the parties tried a case upon an erroneous theory, and the Chancery Court decided the case upon that theory, the court may exercise its discretion to remand so that pertinent facts, not fully developed, might be ascertained. Brizzolara v. Powell, 214 Ark. 870, 218 S.W.2d 728 (1949).
It is obvious from the record that the court and the parties were concerned with an erroneous standard when considering appellants' claims for damages to their crops. We in no way imply that either the court or appellee had the duty to try appellants' case. However, in accordance with the principle announced in Brizzolara and in the furtherance of justice, we remand this cause with directions to permit these appellants and the appellee to present further evidence relative only to any damages Stallings and Conley may have suffered to their crops in view of the measure or rule enunciated in Farm Bureau Lumber Corporation v. McMillan, supra. The proof as to damages at the hearing will be restricted in one respect. Since the record does reflect that in 1977 Stallings did not farm his six acres in question because it was a wet year, we hold that any damages he sustained in 1977 were not due to appellee's dump.
For the foregoing reasons we affirm the lower court's decision except that part which pertains to claims for crop damage by Stallings and Conley which is reversed and remanded for proceedings consistent with this opinion.
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2458905/
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255 P.3d 34 (2011)
45 Kan. App. 2d 953
In the Matter of the MARRIAGE OF Linda M. STRIEBY, Appellee, and
James M. Strieby, Appellant.
No. 103,525.
Court of Appeals of Kansas.
May 27, 2011.
*37 Karen M. Virgillito, of Overland Park, for appellant.
Joseph W. Booth, of Lenexa, for appellee.
Before GREEN, P.J., MALONE, J., and BUKATY, S.J.
GREEN, J.
James and Linda Strieby were divorced on April 27, 2005, after 29 years of marriage. The divorce decree incorporated a separation agreement, which settled the maintenance that James was to pay to Linda. On appeal, James contends that the trial court erred in denying his motion to terminate or modify maintenance because of a change in circumstances. We disagree. In addition, James asserts that the trial court erred in increasing and accelerating his maintenance without his consent. We agree. James also maintains that the trial court erred in awarding attorney fees to Linda. We determine that the trial court's award of attorney fees in the amount of $5,500 to Linda, incurred in responding to James' motion to terminate or to modify maintenance, was proper. Nevertheless, on Linda's request for attorney fees based on her response to James' motion for reconsideration, we remand to the trial court to clarify the amount of attorney fees to which Linda is entitled. Finally, James contends that the trial court wrongfully required him to post a $165,000 supersedeas bond to stay enforcement of the trial court's judgment pending appeal. We disagree. Accordingly, we affirm in part, reverse in part, and remand to the trial court to clarify the attorney fee award to Linda regarding James' motion for reconsideration.
*38 The maintenance provision, which was settled by the parties' separation agreement and was not decreed by the trial court, stated as follows:
"Section 2. Maintenance
"Husband shall pay to Wife the sum of $1,000 per month for the permanent maintenance of Wife commencing on May 1, 2005 and continuing on the 1st day of each month thereafter, until the death of either party, Wife's remarriage, Wife's cohabitation, or one hundred and one (101) consecutive months, whichever shall first occur. `Cohabitation' shall be defined for purposes of this agreement as living with a non-relative male in a marriage-like relationship for substantially consecutive periods of time in excess of thirty (30) days.
"As and for further maintenance, pursuant to In Re the Marriage of Monslow, 259 Kan. 412 (1996), 912 P.2d 735, Husband shall pay to Wife 20% of the gross amount of any and all regular earnings and bonus compensation earned by him during the period in which the Wife is entitled to receive maintenance above and beyond his current base salary of $60,000.00 so long as the parties' minor child remains unemancipated. At such time as the parties' minor child is emancipated, Husband shall pay to Wife 25% of the gross amount of any and all regular earnings and bonus compensation earned by him during the period in which Wife is entitled to receive maintenance above and beyond his current base salary of $60,000.00.
"Wife's maintenance share of the gross amount of any and all regular earnings and bonus compensation earned by Husband beyond his base salary of $60,000.00 as set out above shall not exceed $5,000.00 per month so that Husband's total maintenance obligation to wife shall not exceed $6,000.00 per month. Husband shall pay Wife her share of additional earnings within ten (10) days of his actual receipt of said compensation.
"The parties shall exchange by January 31st of each year following a year in which the Wife received maintenance, copies of all documents showing all of the parties' respective earnings from employment, including but not limited to his/her W-2's and 1099's.
"The Court shall retain jurisdiction of maintenance pursuant to K.S.A. 60-1610(b)(2) so that at any time, on hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the maintenance originally awarded that has not already become due, no modification shall be made without the consent of the party liable for the maintenance, if it has the effect of increasing or accelerating the liability for the unpaid maintenance beyond what was prescribed in the original decree.
"All maintenance payments shall be made payable to the Kansas Payment Center, P.O. Box 758599, Topeka, Kansas XXXXX-XXXX.
"The maintenance payments shall be included as income on Wife's income tax returns. Such payments shall give rise to a deduction in an equal amount on Husband's income tax returns."
When James fell behind on his maintenance payments, he moved to terminate, or in the alternative, to modify maintenance on May 5, 2008. He argued that since the divorce, there had been "a substantial change of circumstances affecting both the relative needs of [Linda] and the ability of [James] to pay." James contended that since the time of the divorce, Linda's lifestyle had remained consistent and had even improved, while he had lost his savings and had been forced to liquidate all of his investment accounts due to circumstances that were not foreseeable when the divorce became final. Specifically, James pointed out that Linda had gone back to school, received a master's degree, and was employed as a teacher. On the other hand, James asserted that his circumstances had changed for the worse since the divorce: (1) he received the last severance check from his former employer the month that the divorce was finalized, (2) he bought into a franchise business that was unsuccessful, which ultimately resulted in a loss of over $400,000, (3) he relocated to Tacoma, Washington, for a new job, where he faces a higher cost of living than in the Kansas City *39 metropolitan area, and (4) he now has two mortgage payments because he was unable to sell his Leawood home.
On the other hand, Linda asserted that James had failed to state a claim for which relief could be granted and requested that James be ordered to pay her attorney fees and costs associated with the motion.
Following a hearing on the matter, a hearing officer denied James' motion to terminate or to modify maintenance, holding that Linda was entitled to regular maintenance of $1,000 per month. The hearing officer noted that under the terms of the separation agreement, Linda would also be entitled to 25% of James' earnings exceeding $60,000, should she request this additional maintenance. The hearing officer awarded attorney fees to Linda in the amount of $4,395, based on a finding that James' motion was frivolous in nature.
Following James' request for de novo review, the trial court conducted hearings on February 13, 2009, and March 6, 2009. During the hearings, James alleged that there had been a change in circumstances since the divorce due to his age, poor health, limited time left in the workplace, and the loss of his investments in a bad business deal. In contrast, James argued that Linda had a teaching job and still had money from the divorce, retirement accounts, social security, and life insurance benefits. James explained that he had been forced to pay maintenance out of his half of the investment accounts received in the property settlement. Moreover, he asked the trial court to modify the maintenance to conclude after 45 months, rather than the 101 months set out in the separation agreement.
Linda maintained that the trial court lacked jurisdiction to terminate maintenance and that no change in circumstances had occurred since the divorce which would justify a modification of maintenance. Linda pointed out that she made an annual salary of $35,000 while James made an annual salary of $283,000, that the original award had been agreed to in the separation agreement, and that it was not her fault James had lost money in an investment. In support of her request for attorney fees, Linda argued that James' motion was frivolous, and she summarized the difficulties she had in getting him to respond to discovery.
The trial court denied James' motion to terminate or to modify maintenance and granted attorney fees to Linda. The court held that James had failed to prove that circumstances had changed since the divorce because Linda's need for maintenance had not changed and James still had the ability to pay. Specifically, the court stated:
"7. Respondent has had no significant change in circumstances or his ability to pay maintenance to Petitioner. It was known at the time the Separation Agreement was executed by both parties that there would be a fluctuation in Respondent's income.
"8. In particular, the parties negotiated a cap on the maximum amount of maintenance which Respondent would pay to Petitioner. The parties agreed the maximum monthly maintenance payment from Respondent to Petitioner would not exceed $6000.00 per month. Additionally, the parties agreed in their Separation Agreement that upon emancipation of all of the children, the escalation clause included in the Agreement would increase from twenty percent (20%) to twenty-five percent (25%). Further, the emancipation of the children was known and anticipated at the time of the execution of the Separation Agreement;
"9. At the time of the execution of the Separation Agreement, Respondent was not employed and his severance package was ending. The parties knew that Respondent's income and/or situation would change and it was likely he would return to employment earning a significant income.
"10. This has been born[e] out by the fact that the Respondent is now again employed in an executive position earning approximately $265,000.00 annually as his base salary plus bonuses;
"11. Respondent's financial circumstances with respect to his investments were by his own choice. It is not fair to reduce Respondent's maintenance obligation *40 to Petitioner because Respondent spent assets on something he chose to do."
The trial court ordered James to make maintenance payments as follows:
"Commencing January 1, 2008 through December 1, 2008, the Court finds that Respondent owed Petitioner spousal support in the sum of $1,000.00 per month plus an additional payment equal to 25% of the gross amount of any and all regular earnings and bonus compensation earned by him during the period in which Wife is entitled to received maintenance above and beyond his current base salary above $60,000.00. Being directed by the Court to calculate the specific amount owed, Petitioner's Counsel determined the amount to be $4,664.00 per month of additional maintenance for a total monthly payment of $5,664.00 per month.
"The Court further finds that commencing January 1, 2009, and on the 1st day of each month thereafter and continuing until the death of either party, Petitioner's remarriage, Petitioner's cohabitation as defined in the written separation agreement of the parties, or one hundred and one (101) consecutive months from May 1, 2005, which ever shall occur first, Respondent shall pay to Petitioner as maintenance $1,000.00 per month. In addition, if Respondent's monthly gross income rises above $5000 per month, then Respondent shall pay to Petitioner, as additional maintenance, twenty-five percent (25%) of his gross income which exceeds $5000 per month. For the months of January, February and March of each year, the Respondent shall pay to the Petitioner no less than a total monthly maintenance payment of $4,000 per month. Respondent's additional percentage of maintenance to be paid to the Petitioner shall include any bonus or other compensation which the Respondent receives from his employment. "The `additional maintenance' shall be paid by Respondent within ten (10) days of receipt."
James moved for reconsideration, arguing that the escalator provision in the separation agreement, which stated that Linda was entitled to 20% or 25% of James' annual earnings and bonus compensation over $60,000, was ambiguous and unconscionable and was also unenforceable because of inadequate consideration and lack of jurisdiction. James later amended his motion for reconsideration. He alleged that he had paid the base maintenance obligation in full. In support, James included a copy of a check that he had sent to the Kansas Payment Center. The check was for $54,000; it had a handwritten notation that stated "maintenance paid in full." James alleged that this payment represented the base maintenance of $1,000 a month for the 54 months he still owed under the terms of the separation agreement. Moreover, he contended that because he had satisfied his base maintenance obligation, Linda was no longer entitled to receive any additional maintenance, that is, 25% of his earnings over $60,000.
At a hearing on his amended motion, James argued that the escalator clause in the separation agreement was unenforceable and unconscionable, that the $54,000 lump-sum payment of his base maintenance obligation rendered any additional maintenance moot, and that the trial court's order requiring him to pay $4,000 per month in the first quarter of the year constituted an unlawful acceleration of his maintenance payments. In response, Linda asserted that James could not renegotiate the terms of his maintenance obligation, nor could he contend any change in circumstances or law had occurred since the divorce.
The trial court denied the motion, finding James' argument that the $54,000 payment allowed him to avoid the additional escalator maintenance payment was "contrary to common sense," "an absurdity," and held that "[n]o reasonable person would interpret the Separation Agreement to provide for the ability to pay in advance the $1,000.00 per month payment for one hundred and one (101) consecutive months to avoid all payments pursuant to the escalator clause." As a result, the court held that the $54,000 payment "shall not be applied as an advance payment to the base maintenance of $1000 per month for the remaining 54 consecutive [months] of maintenance." Instead, the trial court applied James' $54,000 payment first to interest, then to past due maintenance, and *41 then to the current monthly payment of $5,270 in accordance with the separation agreement.
The trial court also affirmed its previous ruling that Linda was entitled to maintenance of $1,000 per month beginning on May 1, 2005, for 101 consecutive months. Additionally, the court ruled that Linda was entitled to 25% of James' earnings and bonus compensation exceeding an annual salary of $60,000 "during the period of time [Linda] is entitled to receive maintenance." The court determined that "the `period of time' for the additional maintenance pursuant to the escalator clause as established is the timeframe in which [Linda] is `entitled' to receive maintenance." The court also awarded additional attorney fees to Linda.
Did the Trial Court Err in Denying James' Motion to Terminate or to Modify Maintenance?
James argues that the trial court erred in denying his motion to terminate or to modify maintenance. The majority of James' arguments on appeal center on the trial court's interpretation and enforcement of the escalator clause as set forth in the separation agreement. Because all of the parties' children were emancipated, the separation agreement stated that Linda was entitled to 25% of James' earnings and bonus compensation above and beyond his base salary of $60,000.
Generally, when reviewing a motion to modify maintenance, this court examines the record to determine if there is substantial competent evidence to support the trial court's ruling and whether the trial court abused its discretion. In re Marriage of Evans, 37 Kan. App. 2d 803, 804, 157 P.3d 666 (2007). To the extent that this issue involves interpretation of the parties' settlement agreement, it is subject to normal rules regarding contract interpretation which require de novo review. See Drummond v. Drummond, 209 Kan. 86, 91, 495 P.2d 994 (1972); In re Marriage of Loscher v. Hudson, 39 Kan. App. 2d 417, 426, 182 P.3d 25, rev. denied 286 Kan. 1178 (2008); In re Marriage of Wessling, 12 Kan. App. 2d 428, 430, 747 P.2d 187 (1987).
When interpreting written contracts, courts must first ascertain the parties' intent. If the terms of the contract are clear, the parties' intent must be determined from the contract language without applying the rules of construction. Carrothers Constr. Co. v. City of South Hutchinson, 288 Kan. 743, 751, 207 P.3d 231 (2009). When interpreting a contractual provision, it should not be done by isolating one particular sentence or provision. Courts must construe and consider the entire instrument from its four corners. City of Arkansas City v. Bruton, 284 Kan. 815, 832-33, 166 P.3d 992 (2007). "`The law favors reasonable interpretations, and results which vitiate the purpose of the terms of the agreement to an absurdity should be avoided. [Citation omitted.]' [Citation omitted.]" Wichita Clinic v. Louis, 39 Kan. App. 2d 848, 853, 185 P.3d 946, rev. denied 287 Kan. 769 (2008). The intent of the parties to a separation agreement must be determined from the agreement alone if the terms are unambiguous. Dodd v. Dodd, 210 Kan. 50, 55, 499 P.2d 518 (1972).
The Trial Court Awarded Maintenance under a Separation Agreement
In the present case, the parties agreed to the amount of maintenance set forth in the separation agreement. The trial court reviewed and approved the agreement, finding it "fair, just and equitable." The trial court adopted the separation agreement, including the maintenance provisions, and incorporated it into the divorce decree.
There is a fundamental difference between maintenance by decree and maintenance settled by a separation agreement. In re Marriage of Ehinger, 34 Kan. App. 2d 583, 587, 121 P.3d 467 (2005), rev. denied 280 Kan. 982 (2006). While maintenance by decree may be modified by the court upon a showing of material change in circumstances, "[i]t is clear that maintenance settled by a separation agreement that is incorporated into the divorce decree is not subject to subsequent modification by the court except as prescribed by the agreement or as subsequently consented to by the parties." 34 Kan. App. 2d at 587, 121 P.3d 467. See K.S.A. 2010 Supp. *42 60-1610(b)(3) ("Matters settled by an agreement incorporated in the [divorce] decree, other than matters pertaining to the legal custody, residency, visitation, parenting time, support or education of the minor children, shall not be subject to subsequent modification by the court except: [A] As prescribed by the agreement or [B] as subsequently consented to by the parties."). As a result,
"`[t]here is a distinct difference between what the court has the authority under statutes to do with respect to [maintenance] in a divorce case and what the parties may agree upon. . . . A husband and wife are competent parties to agree between themselves upon a division of property and payments to be made by the husband for the support of the wife. When such agreements are fairly and intelligently made . . . they are uniformly upheld by the courts.'" McKinney v. McKinney, 152 Kan. 372, 374, 103 P.2d 793 (1940) (quoting Petty v. Petty, 147 Kan. 342, 352-53, 76 P.2d 850 [1938]).
The separation agreement of James and Linda stated the following:
"The court shall retain jurisdiction of maintenance pursuant to K.S.A. 601-610(b)(2) so that at any time, on hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the maintenance originally awarded that has not already become due, no modification shall be made without consent of the party liable for the maintenance, if it has the effect of increasing or accelerating the liability for the unpaid maintenance beyond what was prescribed in the original decree."
As a result, the separation agreement of the parties gave the trial court jurisdiction to modify spousal maintenance, but it did not give the trial court jurisdiction to terminate spousal maintenance under K.S.A. 2010 Supp. 60-1610(b)(2). Thus, the separation agreement gave the trial court jurisdiction only to modify spousal maintenance under K.S.A. 2010 Supp. 60-1610(b)(2).
The Escalator Clause is Permissible under K.S.A. 2010 Supp. 60-1610(b)(2)
The separation agreement provided that Linda was entitled to a base maintenance payment of $1,000 per month for 101 consecutive months. It also stated that Linda was entitled to additional maintenance of 20% to 25% of "any and all regular earnings and bonus compensation" earned by James above and beyond his base salary of $60,000. This type of additional maintenance provision, often referred to as an "escalation" or "escalator" clause, is "a means of adjusting maintenance without modifying the original decree," and is defined as "`any provision requiring the adjustment of alimony or child support payments based upon a certain percentage of, or a fixed amount of, the paying spouse's income and increases in that income, above and beyond a fixed sum of payments." In re Marriage of Monslow, 259 Kan. 412, 416, 418, 912 P.2d 735 (1996).
James points out that there is a split of authority regarding the validity and enforceability of escalator clauses in other jurisdictions. Nevertheless, these decisions are irrelevant because our Supreme Court in Monslow held that the use of an escalator clause is permissible under K.S.A. 2010 Supp. 60-1610(b)(2). 259 Kan. at 420, 912 P.2d 735.
In Monslow, the husband's law firm had undergone dissolution at the time of the divorce. The trial court ordered the husband to pay his wife maintenance of $450 per month for a term of 48 months. Recognizing the potential for temporary significant increases in the husband's income, the court additionally ordered that if the husband's
"adjusted gross income rises above the $4,227/month average which he experienced for such gross earned income during the first eleven months of 1992, then respondent shall pay petitioner, as and for additional maintenance, 20% of any such increases during the above described . . . period. Such additional maintenance, if any, shall be payable quarterly." 259 Kan. at 413, 912 P.2d 735.
On appeal, the husband challenged the trial court's use of the escalator clause to impose maintenance. In rejecting the husband's *43 arguments, our Supreme Court discussed the 1982 amendments to the divorce code and held that there was no legislative intent in K.S.A. 60-1610(b)(2) to preclude the use of escalator clauses in maintenance awards. Specifically, the court found that although the term "`modifiable'" contained in the statute "could be construed to mean modifiable by court order, the more likely interpretation is that the decree may include provisions for modifications which would become operative, without court intervention, upon the occurrence of named circumstances." The court further stated that "if the legislature had intended future payments of maintenance to be modifiable only upon court order, it could be expected to have said so. It appears that the legislature contemplated modifications in maintenance payments to be triggered by events without court action." 259 Kan. at 419-20, 912 P.2d 735. Accordingly, the court upheld the trial court's use of the escalator clause in setting the maintenance order. 259 Kan. at 420, 912 P.2d 735.
James attempts to distinguish Monslow from the present case, contending that the Monslow decision was fact sensitive and does not stand for the proposition that all escalator clauses are valid. Specifically, James contends that the escalator clause in Monslow was reasonable because (1) the husband's salary fluctuated, (2) the husband received a disproportionate share of investments in the divorce, and (3) the escalator clause was calculated based on husband's adjusted gross income and allowed for consideration of wife's income. James asserts that the escalator clause was unreasonable in this case because (1) the clause was not meant to address foreseeable fluctuations in his salary, (2) the equal distribution of property and assets forced him to use the assets received in the property division to meet his maintenance obligations, and (3) the clause was calculated based on gross income.
James' arguments are flawed. Moreover, they ignore the biggest difference between Monslow and the present case. Unlike Monslow, which involved a court-ordered escalator clause, James agreed to the inclusion of the escalator clause in the separation agreement following formal mediation and consultation with his attorney. The provisions dealing with property division and the calculation of maintenance based on James' gross income were specifically contemplated by the separation agreement. Thus, we conclude that James actively participated in what he now complains about: the escalator provision in the separation agreement. See Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 296, 64 P.3d 357 (2003) ("A party may not invite error and then complain of that error on appeal.").
Additionally, contrary to James' argument, the escalator clause in Monslow did not take the wife's income into consideration. 259 Kan. at 413, 912 P.2d 735. Indeed, our Supreme Court rejected the husband's argument that maintenance is primarily a "needs-driven concept." 259 Kan. at 417-18, 912 P.2d 735. Moreover, the Monslow court ruled that escalator clauses are generally permissible under K.S.A. 60-1610(b)(2). Although the court stated that the escalator clause "was a reasonable way of dealing with the particular circumstances in this case," it in no way limited its holding to that case or otherwise suggested that an escalator clause would not be appropriate in other situations. 259 Kan. at 420, 912 P.2d 735. In any event, the present escalator clause, as in Monslow, was clearly meant to address foreseeable fluctuations in James' salary. The trial court noted the following:
"At the time of the execution of the Separation Agreement, Respondent was not employed and his severance package was ending. The parties knew that Respondent's income and/or situation would change and it was likely he would return to employment earning a significant income. . . . This has been born[e] out by the fact that the Respondent is now again employed in an executive position earning approximately $265,000.00 annually as his base salary plus bonuses."
The use of an escalator clause in setting a maintenance award is permissible under K.S.A. 2010 Supp. 60-1610(b)(2), and James agreed to the inclusion of the escalator clause in the separation agreement. Like *44 Monslow, the use of an escalator clause seems reasonable under the present facts.
Enforcement of the Escalator Clause Is Not Unconscionable
James contends that enforcement of the escalator clause is unconscionable and constitutes overreaching. James contends that even though both parties were in an equal position when the divorce was finalized, they are in an unequal position now, making the escalator clause operate as a penalty to him and a windfall to Linda. James argues that "[a]t this point in time, fairness and justice would indicate that Respondent should be given the chance to rebuild as much of his retirement savings as is possible so that he can adequately provide for his own future."
James' argument ignores the fact that maintenance in this case was not court ordered; it was settled and provided for in the separation agreement. The parties reached the separation agreement after formal mediation and after consultation with an attorney of their choice. The agreement stated that the parties intended for the agreement to be incorporated into the terms of the divorce decree and for the contractual obligations of the agreement to continue after its incorporation into the decree. The agreement specifically stated:
"Each party acknowledges that they have made the decision to accept the terms of this Agreement of their own free will and volition and have not been induced, unduly influenced, or coerced into this decision. Each party believes that the terms of this Agreement are just, equitable, and not unconscionable."
James contends that in considering whether a change in circumstances occurred, the trial court was required to consider the eight-factor test set out in Williams v. Williams, 219 Kan. 303, 306, 548 P.2d 794 (1976), and compare his current financial situation to his financial state when he entered into the separation agreement. Williams sets forth the factors a court must consider in making a maintenance award, not in determining whether maintenance set by a separation agreement can be modified. 219 Kan. at 306, 548 P.2d 794. As a result, James' reliance on Williams is misplaced.
The separation agreement tied James' maintenance obligations to his income: Linda is entitled to a minimum of $1,000 and a maximum of $6,000 in monthly maintenance, and she is only entitled to additional monthly maintenance above the $1,000 base maintenance if James' annual earnings and bonuses are over $60,000. The record reflects that although James was not employed when the separation agreement was finalized, he was earning an annual salary of $265,000 plus bonuses when he moved to terminate or to modify his maintenance.
The separation agreement specifically stated that James was required to make maintenance payments "until the death of either party, Wife's remarriage, Wife's cohabitation, or one hundred and one (101) consecutive months, whichever shall first occur." In entering the divorce decree, the trial court ruled that the separation agreement was "fair, just and equitable." Since the divorce, James' salary has increased significantly. There is no indication in the record that Linda's financial situation has improved dramatically. James' financial losses relating to any investments were his own choice. As a result, the trial court properly determined that there had been no change in circumstances since the divorce which would warrant a modification of maintenance. Moreover, enforcement of the escalator clause was not unconscionable.
The Terms of the Escalator Clause Are Not Ambiguous
James also maintains that the escalator clause is ambiguous because the parties attributed differing meanings to it. Moreover, he contends that the trial court had difficulty understanding and interpreting the clause with respect to when the obligation to pay would begin. Nevertheless,
"an agreement is not made ambiguous `merely because the parties disagree as to its meaning when the disagreement is not based on reasonable uncertainty of the meaning of the language used.' Tri-Cor, Inc. v. United States, 458 F.2d 112, 126 *45 (Cl.Ct.1972). Accordingly, an allegation of ambiguity does not substitute for a true lack of clarity. `Words do not become ambiguous simply because lawyers or laymen contend for different meanings or even though their construction becomes the subject matter of litigation.' Thomas v. Continental Casualty Company, 225 F.2d 798, 801 (10th Cir.1955)." In re Estate of Oswald, 45 Kan. App. 2d 106, 117-18, 244 P.3d 698 (2010).
Moreover,
"[t]he language in a contract is ambiguous when the words used to express the meaning and intention of the parties are insufficient, in the sense that the contract may be understood to reach two or more possible meanings. [Citation omitted.] If a contract is not ambiguous, it must be enforced according to its terms, for the law presumes the parties understood their contract and that they had the intention which its terms import. If the court finds that the contract is unambiguous, the intent of the parties should be determined from a consideration of the instrument itself in its entirety. [Citation omitted.]" In re Marriage of Gurganus, 34 Kan. App. 2d 713, 717, 124 P.3d 92 (2005).
The escalator clause states, in relevant part:
"At such time as the parties' minor child is emancipated, Husband shall pay to Wife 25% of the gross amount of any and all regular earnings and bonus compensation earned by him during the period in which Wife is entitled to receive maintenance above and beyond his current base salary of $60,000.00.
"Wife's maintenance share of the gross amount of any and all regular earnings and bonus compensation earned by Husband beyond his base salary of $60,000.00 as set out above shall not exceed $5,000.00 per month so that Husband's total maintenance obligation shall not exceed $6,000.00 per month. Husband shall pay Wife her share of additional earnings within ten (10) days of his actual receipt of said compensation."
The trial court interpreted these provisions to mean that if James earned over $60,000 per year, or over $5,000 per month, he owed Linda the additional maintenance under the escalator clause for the full year. At the hearing on James' motion to terminate or to modify maintenance, the parties discussed when Linda would be entitled to the additional maintenance. James maintained that based on the previous year's salary, he would not actually earn over $60,000 until March of each year. Nevertheless, the trial court determined that commencing January 1, 2008, through December 31, 2008, James would owe Linda maintenance in the amount of $1,000 per month, plus an additional payment equal to 25% of the gross amount of any and all regular earnings and bonus compensation earned by him during the period in which Linda is entitled to receive maintenance above and beyond his current base salary above $60,000. For the year 2008, the trial court determined that James owed Linda additional maintenance of $4,664 each month, which amount did not include the base maintenance of $1,000 each month.
In addition, the trial court determined
"that commencing January 1, 2009, and on the [first] day of each month thereafter and continuing until the death of either party, [Linda's] remarriage, [Linda's] cohabitation as defined in the written separation agreement of the parties, or one hundred and one (101) consecutive months from May 1, 2005, which ever shall occur first, [James] shall pay to [Linda] as maintenance $1,000.00 per month. In addition, if [James'] monthly gross income rises above $5000 per month, then [James] shall pay to [Linda], as additional maintenance, twenty-five percent (25%) of his gross income which exceeds $5000 per month. For the months of January, February and March of each year, [James] shall pay to [Linda] no less than a total monthly maintenance payment of [$4,270] per month. [James'] additional percentage of maintenance to be paid to [Linda] shall include any bonus or other compensation which [James] receives from his employment."
Based on the trial court using the calendar year for both 2008 and 2009 in calculating the additional maintenance that James would *46 owe Linda, the clear terms of the maintenance provisions state the following: that James owes additional maintenance only if he has earned compensation "beyond his base salary of $60,000." As James correctly points out, based on his yearly salary of $265,000 for the years 2008 and 2009, he would not earn $60,000 in compensation until March of each year.
In calculating the additional maintenance that James would owe Linda for the calendar years 2008 and 2009, the trial court annualized the additional maintenance and ordered James to pay $4,664 each month for 2008 and $4,270 each month for 2009. In calculating the additional maintenance this way, the trial court neglected to impose the condition that James had to earn compensation "beyond his base salary of $60,000" before Linda would be entitled to additional maintenance. This had the effect of increasing the amount of additional maintenance James would owe each year. Moreover, requiring James to start his additional maintenance payments in January of each year instead of late March had the effect of accelerating the time for which James would have been required to pay his additional maintenance: "within ten (10) days of his actual receipt of said compensation. . . beyond his base salary of $60,000." As a result, the trial court changed the clear wording of the unambiguous agreement: Linda was not entitled to additional maintenance unless James earned compensation "beyond his base salary of $60,000."
The maintenance provisions do not state that earned compensation of $60,000 can be interpreted to mean earned compensation of $5,000 each month. Nevertheless, this is what the trial court did. The cardinal rule of construction is "that courts will not rewrite a contract by construction if it is clear and unambiguous." Thomas v. Thomas, 250 Kan. 235, 244, 824 P.2d 971 (1992). Clearly, our rules of construction preclude the trial court from rewriting the agreement in this way. For example, in determining that an amendment to the Internal Revenue Code after a settlement agreement went into effect would allow an ex-husband to reduce his maintenance below the annual maximum amount and that it could not rewrite the agreement, this court stated:
"Although we may sympathize with defendant's discomfort when observing that the alimony she receives now both subjects her to personal income tax liability and reduces the base upon which the annual alimony obligation is computed, we can neither rewrite the agreement nor modify the decree." Beard v. Beard, 5 Kan. App. 2d 458, 460, 618 P.2d 856, rev. denied 229 Kan. 669 (1980).
Moreover, in Quenzer v. Quenzer, 225 Kan. 83, 85, 587 P.2d 880 (1978), our Supreme Court stated that a court "may not rewrite a contract or make a new contract for the parties under the guise of construction. [Citation omitted.] Words cannot be written into a contract which import an intent wholly unexpressed when it was executed. [Citation omitted.]"
For the reasons stated, we reverse the trial court's order calculating additional maintenance owed for the years 2008 and 2009. Moreover, we remand to the trial court to recalculate the additional maintenance owed for the years 2008 and 2009, calculating the additional maintenance as we have set forth above.
Prepayment of Remaining Maintenance
Next, James contends that the separation agreement only contemplated that Linda was entitled to receive $101,000 ($1,000 per month for 101 months). Moreover, he further asserts that once he paid the remaining base maintenance of $54,000, she would no longer be entitled to any additional maintenance under the escalator clause. The trial court rejected this argument, holding that James could not avoid additional maintenance payments under the escalator clause by prepaying the balance of the base maintenance in a lump sum.
The separation agreement clearly states that Linda is entitled to $1,000 per month for 101 consecutive months. The separation agreement does not state that Linda is entitled to 101 consecutive months of maintenance unless James chooses to prepay the balance of the base maintenance. Therefore, the terms of the separation agreement cannot *47 be interpreted to allow James to pay the entire sum of the base maintenance to avoid making any payments under the escalator clause.
Moreover, the language of the separation agreement supports this interpretation. The separation agreement stated that spousal maintenance would be terminated under the following four conditions: (1) the death of either James or Linda; (2) Linda's remarriage; (3) Linda's cohabitation; or (4) 101 consecutive months. The separation agreement, however, does not allow James to terminate or to satisfy his maintenance obligation by prepaying it during the time period originally set for its payment. See In re Marriage of Harbutz, 279 Kan. 359, 363, 109 P.3d 1191 (2005) (The trial court lacked jurisdiction under K.S.A. 2003 Supp. 60-1610[b][2] to permanently terminate spousal maintenance during the time period originally set for its payment. As a result, any termination of maintenance during that period was subject to further modification and maintenance could be resumed or continued on an appropriate showing in a later hearing.). Like Harbutz, the trial court in this case had jurisdiction only to modify spousal maintenance; it did not have jurisdiction to terminate spousal maintenance under K.S.A. 60-1610(b)(2). Based on what we have previously stated, the trial court properly denied James' motion to terminate or to satisfy his remaining maintenance obligation.
The Separation Agreement was Supported by Adequate Consideration
James also argues that because the separation agreement divided the assets nearly equally, the escalator clause is "nothing more than a gratuitous promise" and is speculative in nature because he is not required to obtain a job with an annual salary exceeding $60,000. James contends that because no consideration was given in exchange for the promise to pay additional maintenance under the escalator clause, there is no obligation on his part to perform.
Nevertheless, with respect to maintenance, the separation agreement specifically provided: "Wife and Husband, in consideration of their mutual promises set out in this agreement. Both agree that the following provision, terms and conditions shall be applicable and binding upon both of them in the complete settlement of their dissolution of marriage." Thus, the separation agreement was supported by adequate consideration.
Reallocation of the $54,000 Lump-Sum Payment was Proper
James next argues that the trial court's reallocation of his $54,000 lump-sum payment constituted an abuse of power and violated provisions of the Uniform Commercial Code.
James made the $54,000 payment with the intention of paying off the entire amount of base maintenance. The trial court properly held that James was not allowed to pay off the base maintenance in a lump-sum payment and reallocated the amount first to interest and then to past due maintenance.
Moreover, as previously discussed, James had no authority under the separation agreement to make a lump-sum payment to pay off the base maintenance and end his maintenance obligations under the escalator clause. Because we have remanded this matter to recalculate the additional maintenance for the years 2008 and 2009, we need not address this matter further.
Did the Trial Court Abuse Its Discretion in Awarding Attorney Fees to Linda?
Next, James contends that the trial court's award of attorney fees to Linda was unwarranted because his actions have not been frivolous or unjustified.
The trial court had authority to award attorney fees under K.S.A. 2010 Supp. 60-1610(b)(4), which provides that "[c]osts and attorney fees may be awarded to either party as justice and equity require." Where the court has authority to grant attorney fees, its decision is reviewed under an abuse of discretion standard. Estate of Kirkpatrick v. City of Olathe, 289 Kan. 554, 572, 215 P.3d 561 (2009).
"The district court is vested with wide discretion to determine the amount and the recipient of an allowance of attorney fees. When reviewing an award of attorney fees, the appellate court does not reweigh *48 the testimony or evidence presented or reassess the credibility of witnesses. [Citation omitted.] An attorney fee award will not be set aside on appeal when supported by substantial competent evidence. [Citation omitted.]" In re Marriage of Burton, 29 Kan. App. 2d 449, 454, 28 P.3d 427, rev. denied 272 Kan. 1418 (2001).
In determining the reasonableness of attorney fees, Rule 1.5(a) (2010 Kan. Ct. R. Annot. 458) of the Kansas Rules of Professional Conduct (KRPC) sets forth the eight criteria that should be considered by the court:
"(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
"(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
"(3) the fee customarily charged in the locality for similar legal services;
"(4) the amount involved and the results obtained;
"(5) the time limitations imposed by the client or by the circumstances;
"(6) the nature and length of the professional relationship with the client;
"(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
"(8) whether the fee is fixed or contingent."
Our Supreme Court has urged consideration of these factors in determining the reasonableness of attorney fees. See Davis v. Miller, 269 Kan. 732, 751, 7 P.3d 1223 (2000).
Linda first requested attorney fees for the fees incurred in responding to James' motion to terminate or modify maintenance. In granting Linda's request for fees, the trial court stated:
"In regard to attorney fees, the Court's gonna grant attorney's fees in the amount of $5,500 not necessarilybased on all the facts and circumstances, the Court finds that Mrs. Strieby prevailed, and that's one of the considerations the Court could takecan consider in determining whether attorney's fees is appropriate. Court does have the authority to assess attorney's fees under K.S.A. 60-1601 et seq. The Court finds that Mrs. Strieby has sufficient assets to pay her own attorney's fees, but that Mr. Strieby is earning a very high income and is also capable of paying his fees and Mrs. Strieby's fees. The Court finds that there were unnecessary delays that are more attributable to Mr. Strieby than Mrs. Strieby. The Court finds that the feesbeing charged the hourly rate is within the range, standard range for hourly rate within the community. Mrs. Hill is an experienced attorney, and that her hourly rate is appropriate and reasonable, and that the amount of hours expended were necessary. And it's unfortunate that it took multiple, multiple hearings but that'sthat happened and under the circumstances, the Court finds those time expended and the amount expended to be reasonable. Therefore, I am granting the award of attorney's fees as well."
Linda also requested attorney fees associated with responding to James' motion for reconsideration. At the hearing on the motion, the following discussion took place:
"MS. HILL [Linda's counsel]: I had a request for attorney's fees because this just continues to go on and on and on.
"THE COURT: Well, it's theCourt finds that Mr. Strieby takes one unreasonable position after another, and that [Linda] has prevailed in regard to the motion. Mr. Strieby does have the ability to pay, and that considering all the equities, Court will order Mr. Strieby reimburse [Linda] for her attorney fees. Do you know what those fees are today?
"MS. HILL: Are you going to ask that I prepare the Journal Entry for today's hearing?
"THE COURT: Yes.
"MS. HILL: I would estimate that timesay an hour. $2800.
"THE COURT: I don't think an hour is going to be enough to prepare the Journal Entry with the history of this case.
"MS. HILL: I agree. What do you think would be fair to do the Journal Entry and *49 get Ms. Virgillito [James' counsel] to sign it?
"THE COURT: I'm going to say four hours, but if it takes less, you tell us it takes less. I'm going to assume four hours.
"MS. HILL: It would be $3560.
"THE COURT: You want any comments or arguments about fees at this time?
"MS. VIRGILLITO: No, your Honor.
"THE COURT: That request is granted.
"MS. HILL: Thank you. What I will do is I'll keep track of my time, and if we are able to do this relatively quickly, I will submit an adjusted amount of my actual time from this point forward for the preparation of the Journal Entry, so it could be that amount, could be less.
"THE COURT: Okay. So ordered. All right."
James contends that the trial court ignored the record, alleging that it was Linda who actually sought the continuances. James also maintains that his motion to modify should not be considered frivolous just because he did not prevail, and he suggests that the trial court was punishing him for pursuing his right to seek a modification.
The trial court itself is an expert in the area of attorney fees and can draw on and apply its own knowledge and expertise in determining their value. An appellate court is also an expert on the reasonableness of attorney fees. Nevertheless, an appellate court does not substitute its judgment for that of the trial court on the amount of the attorney fee award unless in the interest of justice the appellate court disagrees with the trial court. Johnson v. Westhoff Sand Co., 281 Kan. 930, 940, 135 P.3d 1127 (2006).
Although the trial court did not expressly address the factors in KRPC 1.5(a) in its initial award of attorney fees, the court did generally discuss some of the factors, including the results obtained, the reasonableness of the fee, and counsel's expertise. Based on the record before us, and in light of our standard of review, we cannot say that the trial court abused its discretion in awarding fees of $5,500 to Linda.
Nevertheless, there seems to be some confusion with respect to the amount of fees awarded at the hearing on James' motion for reconsideration. The transcript reflects that the trial court awarded fees in the amount of $3,560, but that the amount could change depending on how long it took Linda's counsel to prepare the journal entry. The journal entry states that Linda was awarded attorney fees of $962.50. Linda's brief states that the fee listed in the journal entry was an error and that she intends to file a K.S.A. 60-260 motion with the trial court to address this matter. Given the conflicting award amounts and the lack of any statement in the record indicating how long it took counsel to prepare the journal entry, the trial court's second award of fees cannot be upheld. As a result, we remand this matter to the trial court for a determination of the proper fee award.
Did the Trial Court Err in Requiring James to Post a Supersedeas Bond to Stay Enforcement of the Court's Order Pending Appeal?
Finally, James challenges the trial court's imposition of a $165,000 supersedeas bond under K.S.A. 2010 Supp. 60-2103(d). James argues that the court lacked a basis for setting the amount of the bond. He also contends that the bond unlawfully increases and accelerates his maintenance obligations, as the bond amount was predicated upon James maintaining his current job status until completion of the case on appeal.
Resolution of this issue will necessarily involve statutory interpretation. Interpretation of a statute is a question of law over which this court possesses unlimited review. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271, 202 P.3d 7 (2009).
On March 29, 2010, James moved this court for an order staying execution of the trial court's judgment and a waiver of the bond requirement. James argued that he had a likelihood of success on appeal and would be financially burdened with little likelihood of recovery if he were forced to make payments during the appeal. James also contended that a bond was unwarranted in light of his $54,000 lump-sum payment. We *50 denied James' motion for a stay, noting that we were not able to properly evaluate his argument as it related to bond requirements. We retained jurisdiction but remanded the case to the trial court for the limited purpose of hearing and determining James' stay request, including issues of bond requirements or waiver.
Upon remand, the trial court held a hearing and ordered a bond of $165,000. In determining the amount of the bond, the court considered the following: (1) that the current maintenance owed and unpaid by James was $95,555.19 as of May 4, 2010; (2) that James' ongoing monthly maintenance obligation is $5,270; (3) that the appeal process could take approximately 12 months; and (4) that James had two outstanding attorney fee judgments against him in the amount of $6,462. The court granted a stay on the condition that James post the bond amount. James subsequently notified this court that he was unable to meet the bond requirement.
Even if the trial court erred in setting the amount of the bond, this court cannot provide relief to a party who has never paid the bond. See Resolution Oversight Corp. v. Kansas Health Care Stabilization Fund, 38 Kan. App. 2d 899, Syl. ¶ 10, 175 P.3d 268, rev. denied 286 Kan. 1179 (2008) ("An appellate court lacks statutory or constitutional authority to render advisory opinions in cases found to be moot. A case is moot when no further controversy exists between the parties and where any judgment of the court would be without effect."). As a result, James' argument fails.
Affirmed in part, reversed in part, and remanded with directions.
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778 S.W.2d 480 (1989)
Allen E. HUMPHREY, Appellant,
v.
Walter W. AHLSCHLAGER, Jr., Appellee.
No. 05-88-01426-CV.
Court of Appeals of Texas, Dallas.
August 3, 1989.
*481 David Wills, Dallas, for appellant.
Leighton Aiken, James A. Pikl, Dallas, for appellee.
Before HOWELL, THOMAS and OVARD, JJ.
THOMAS, Justice.
This is an appeal from a judgment entered against appellant, Allen E. Humphrey. In a single point of error, Humphrey contends that the trial court abused its discretion in overruling his fourth motion for continuance. We disagree and affirm the trial court's judgment.
FACTUAL BACKGROUND
Energy Fuel Corporation of America (EFCA), an original defendant in this cause of action, executed a promissory note payable to appellee, Walter W. Ahlschlager, Jr. At the same time, Humphrey, president of EFCA, executed a personal guaranty in favor of Ahlschlager. After EFCA failed to make three consecutive payments on the note, a default letter was sent to EFCA and Humphrey. On February 10, 1984, Ahlschlager filed this action against EFCA and Humphrey.
The original trial date was May 6, 1985. A motion for continuance, urged by EFCA, was granted on May 3, 1985, because new counsel had been hired. On September 30, 1986, Humphrey's oral deposition was taken. In November 1986, EFCA was nonsuited because it had filed for bankruptcy.
A. Humphrey's First Motion For Continuance
On June 15, 1987, the parties were again scheduled for trial. On that date, Humphrey's counsel presented an oral motion for continuance. The basis for the motion was that Humphrey had suffered a heart attack within the twenty-four hour period preceding the trial date. Humphrey's unopposed motion was granted by the trial court.
B. Humphrey's Second Motion For Continuance
By agreement of the parties, the trial court preferentially set the case for trial on December 7, 1987. Humphrey filed his second motion for continuance on December 1, 1987, requesting a six-month delay and alleging that he was still suffering from a severe heart condition which rendered him unable to attend the trial.
Ahlschlager protested the second motion for continuance, citing repeated delays caused by Humphrey. Ahlschlager requested that the court grant a continuance only upon the conditions that: (1) Humphrey be ordered to submit to an independent physical examination; (2) both parties be provided a copy of the examining doctor's findings; and (3) the parties be required to submit a recommendation to the court regarding a new trial date. The trial court granted Humphrey's second motion for continuance with an order essentially meeting all of Ahlschlager's conditions. *482 The record does not include the results of the independent physical examination by Dr. Charles L. Harris. However, presumably based upon these findings, the matter was specially set for May 31, 1988.
C. Humphrey's Third Motion For Continuance
Fourteen days prior to trial, Humphrey filed his third motion for continuance, reiterating his severe heart problems together with a new physical complaint. This motion was unopposed by Ahlschlager. An order was entered by the trial court granting the motion with the stipulation that a second physical examination of Humphrey was to be performed. Dr. Harris filed a letter with the court, which neither affirmatively stated that Humphrey was able to attend trial nor that he was unable to attend trial. It merely concluded that it "appears that the patient has developed a new medical problem that will require further evaluation by a neurologist." At the end of June 1988, the trial court set the case for trial on October 17, 1988.
D. Humphrey's Fourth Motion For Continuance
On October 11, 1988, Humphrey filed his fourth motion for continuance containing the same basic reiterations of his health problems. This motion was supplemented by a lengthy affidavit from Humphrey, as well as letters from Humphrey's cardiologist and neurologist. Both physicians were of the opinion that Humphrey's condition was unchanged and, therefore, he was not well enough to participate in a trial.
This fourth motion was vigorously opposed by Ahlschlager. Attached to Ahlschlager's response was an excerpt from Humphrey's deposition. This excerpt demonstrated that Humphrey admitted that he had no personal knowledge concerning certain offsets claimed as affirmative defenses in his second and third amended original answers, but that other persons had knowledge of the facts supporting the offsets. Further, Ahlschlager supplemented his response with records from Humphrey's country club which indicated that Humphrey had regularly played golf at the club from December 1985 through, at least, May 1988.
After considering the motion, response, and oral arguments, the trial court overruled Humphrey's fourth motion for continuance. By agreement, the jury request was withdrawn. Before the start of trial, Humphrey's counsel withdrew, pursuant to Humphrey's specific instructions. Following the judgment in favor of Ahlschlager, Humphrey filed this appeal.
DENIAL OF FOURTH MOTION FOR CONTINUANCE
In a single point of error, Humphrey asserts that the trial court abused its discretion in overruling his fourth motion for continuance because he was "unable to appear, personally or by deposition, to present his defenses." Each written motion contained the following language:
[Humphrey] is the principal witness to the transactions out of which this litigation has arisen and is the only potential witness who has personal knowledge of the circumstances of the transactions that constitute the subject matter of this litigation. [Humphrey's] testimony at trial will relate to the affirmative defenses asserted in Defendant's First Amended Original Answer filed June 1, 1987. Such testimony cannot be otherwise procured and has not been heretofore reduced to writing.
Accompanying all of Humphrey's written motions for continuance were affidavits or letters from his treating physicians, as well as Humphrey's personal affidavits, detailing his physical complaints. No mention was made in any of Humphrey's motions or affidavits regarding the existence of his deposition of September 30, 1986, or its alleged incompleteness. Further, no specific facts were set forth in the motions or affidavits as to the details of the testimony Humphrey would present at trial.
A. Standard of Review
The granting of a continuance rests within the sound discretion of the trial court. Hernandez v. Heldenfels, 374 *483 S.W.2d 196, 202 (Tex.1963). Mere absence of a party does not automatically entitle him to a continuance. Erback v. Donald, 170 S.W.2d 289, 291 (Tex.Civ.App.-Fort Worth, writ ref'd w.o.m.). Also, the motion should contain some prognosis as to when or if the witness will ever be able to testify. Jones v. John's Community Hosp., 624 S.W.2d 330, 332 (Tex.App.-Waco 1981, no writ).
The requisites for an application for continuance are set forth in rule 252 of the Texas Rules of Civil Procedure, which states, in part, "If the ground of such application be the want of testimony, the party applying therefor shall make affidavit that such testimony is material, showing the materiality thereof, and that he has used due diligence to procure such testimony, stating such diligence...."
B. Due Diligence
When a motion for continuance is based upon the absence of a party, there must be a showing of diligence in attempting to obtain the required testimony. The due diligence requirement in procuring a witness's testimony has been considered by a number of courts when a motion for continuance has been based upon the illness of a witness. In Shannon v. Marchbanks, 35 Tex. Civ. App. 615, 80 S.W. 860 (1904, writ ref'd), the trial court refused to grant the defendant's motion for continuance, although it was shown by affidavit that she was old and feeble in mind and body. In upholding the trial court's ruling, the court of appeals reasoned that the defendant had been ill since the inception of the suit and that proper diligence had not been exercised to obtain her testimony by deposition. The defendant's deposition had been taken previously, but a complete copy was not in the record. Therefore, the court of appeals also held that, without the entire deposition, it could not determine whether the defendant testified fully. Shannon, 80 S.W. at 862; see also A.E. Swift & Sons, Concrete Contractors, Inc. v. Sam Sanders, Inc., 405 S.W.2d 402, 403 (Tex.Civ.App. Amarillo 1966, no writ); J.C. Penney Co. v. Duran, 479 S.W.2d 374, 380 (Tex.Civ. App.-San Antonio 1972, writ ref'd n.r.e.).
B. Materiality of Testimony
Further, there is a necessity to show by affidavit the materiality of the testimony to be offered by the absent witness. In Wilson Fin. Co. v. State, 342 S.W.2d 117, 121 (Tex.Civ.App.-Austin 1961, writ ref'd n.r. e.), the trial court overruled the defendants' motion for continuance based upon the illness of one of their witnesses. The motion alleged that the testimony of the absent witness was material because he was the manager of the business of one of the defendants and was the only person having complete knowledge of the operation of the business during the time involved in the suit. However, the motion did not state what was expected to be proved by the witness. In sustaining the trial court's decision, the court of appeals held that the motion did not meet the requirements of rule 252 and further stated:
[The motion] does not say what testimony the witness would give, how it is material or that it is admissible.... We think the trial court was not called on to make an independent examination of the answer to speculate as to the materiality and admissibility of evidence that might be relevant to the alleged affirmative defenses. The allegations of the motion were not sufficient to enable the trial court to determine the materiality of the absent witnesses' testimony, nor to permit the opposing party to admit its truth and thereby prevent a delay of the trial.
Wilson, 342 S.W.2d at 121; see also Marsh v. Williams, 154 S.W.2d 201, 203 (Tex.Civ. App.-Beaumont 1941, writ ref'd w.o.m.); Berry v. Berry, 257 S.W.2d 780 (Tex.Civ. App.-Eastland 1953, no writ).
Our case appears to be factually and legally on point with Connor v. Wright, 737 S.W.2d 42 (Tex.App.-San Antonio 1987, no writ). The defendant in Connor, suffering from iritis and hypertensive cardiovascular disease, filed three motions for continuance based upon her illness. These motions were supported by affidavits from her treating physician stating that she was physically unable to testify either by deposition or in court. The motions also stated *484 that the defendant was the only witness with personal knowledge of the circumstances and transactions giving rise to the lawsuit, and that her testimony was required for trial and could not be obtained from any other source. In affirming the trial court's decision to overrule the third motion for continuance, the Connor court concentrated on the failure of defendant's counsel to set forth the proposed testimony he intended to elicit from his client, or to set forth any facts as to the due diligence used in attempting to obtain her deposition. Further, there was no averment as to when the defendant would be able to testify.
Humphrey's fourth motion for continuance has the same deficiencies as those enumerated in Connor. There is no evidence in our record to show that Humphrey's counsel made any attempts to have his client deposed in an informal, nonstressful setting. Humphrey argues in his motion for continuance that his illness made it impossible for him to appear at trial or to be subjected to a deposition. This position is basically corroborated by the affidavits of his treating physicians. However, in light of the evidence presented indicating that Humphrey was well enough to regularly play golf during much of the pendency of this suit, we cannot say that the trial court abused its discretion in overruling Humphrey's motion. It may have legitimately appeared to the trial court that he could have also been deposed without negative consequences.
We further note that Humphrey made no averment in his fourth motion for continuance to suggest that his deposition testimony was incomplete with regard to his affirmative defenses, except for the standard statement that his testimony could not be otherwise procured and had not yet been reduced to writing. The motion likewise does not meet the materiality requirement of rule 252. The language is overly broad and does not set forth one specific fact about which Humphrey would testify to at trial. Humphrey's affidavit attached to his motion was equally lacking in specifics. In addition, it appears from his deposition that Humphrey was not the only potential witness who had personal knowledge of the circumstances of the transactions surrounding this litigation. Finally, Humphrey failed to set forth any specific time period within which he could be expected to be able to testify, as required by Shannon and Jones. Humphrey's motion merely requests a six-month continuance, after which his condition would be reevaluated and another trial date set.
To support his contention, Humphrey relies upon Burke v. Scott, 410 S.W.2d 826 (Tex.Civ.App.-Austin, 1967, writ ref'd n.r. e.), where the court of appeals held that the trial judge abused his discretion in denying defendant's motion for continuance when the defendant and his key witness were both too ill to attend trial. We find important differences between the facts in Burke and the facts before us. First, an attempt was made to depose the defendant in Burke, even though he was seriously ill and bedridden. Second, Burke's motion set out the facts to which he and his key witness would testify at trial. Lastly, the motion in Burke set forth specific time periods within which the court could expect the defendant to be available for trial and his witness to have recovered enough to be deposed.
We hold that the trial court did not abuse its discretion in denying Humphrey's fourth motion for continuance and overrule the sole point of error. The trial court's judgment is affirmed.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2459156/
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341 F.Supp.2d 979 (2003)
Almella STARKS-UMOJA, Plaintiff,
v.
FEDERAL EXPRESS CORPORATION, Defendant.
No. 01-2878 M1/A.
United States District Court, W.D. Tennessee, Western Division.
December 30, 2003.
*980 *981 *982 Julian Taylor Bolton, The Cochran Law Firm, Memphis, TN, for Plaintiff.
Matthew A. Vega, FedEx Corporation Legal Department, Memphis, TN, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ORDER DENYING DEFENDANT'S MOTION TO DEEM DEFENDANT'S STATEMENT OF UNDISPUTED MATERIAL FACTS AS ADMITTED AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO STRIKE UNAUTHENTICATED EXHIBITS
McCALLA, District Judge.
Before the Court is Defendant's Motion for Summary Judgment, filed April 1, 2003. Plaintiff responded in opposition on May 2, 2003. For the following reasons, the Court GRANTS Defendant's motion for summary judgment.[1]
I. Motion to Deem Defendant's Statement of Undisputed Facts as Admitted
Plaintiff's initial Response to Defendant's Statement of Undisputed Material Facts, filed May 2, 2003, did not comply with Local Rule 7.2(d)(3). Plaintiff merely remarked "Disputed" in response to Defendant's statements without explaining the reasons for her disagreements and without referencing or attaching copies of the record in support of her positions. Defendant filed a motion to deem its statement of undisputed facts as admitted on May 12, 2003 due to Plaintiff's failure to properly respond.
Long after the time for responding to the summary judgment motion had expired, and after Defendant had filed the motion to deem its statement of material facts as admitted, Plaintiff filed her Amended Responses to Defendant's Statement of Undisputed Material Facts on June 27, 2003. Plaintiff maintained that Defendant's statement of material facts was too lengthy and she could not prepare a complete response within the time allotted. In that regard, the Court notes that the appropriate course of action would have been to request an extension of time, rather than filing an incomplete response that failed to comply with the local rules. However, in the interest of permitting Plaintiff to fully present her claims the Court has considered Plaintiff's late-filed *983 responses and the Court DENIES Defendant's motion to deem its undisputed facts as admitted.
II. Motion to Strike Certain Exhibits
In her initial response to the motion for summary judgment, Plaintiff also failed to properly authenticate a number of the exhibits filed along with her response to Defendant's motion for summary judgment in accordance with the requirements of Federal Rule of Civil Procedure 56(e). Exhibits numbered 1, 2, 3, 4, 5, 7, 10, 12, 18, 19, 20, 22, 23, and 26 were not properly authenticated by the use of an affidavit or deposition testimony.[2] Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2722 (1998) ("To be admissible, documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e)."); Federal Express Corp. v. United States Postal Serv., 75 F.Supp.2d 807, 815 (W.D.Tenn.1999). Defendant moved to strike these exhibits on May 12, 2003.
Plaintiff filed a response on June 27, 2003 and attempted to authenticate exhibits 1, 2, 3, 4, 5, 7, 10 and 20, which consist of a series of medical records, by reference to the deposition of Dr. Joel Reisman, an expert witness. Although Federal Rule of Evidence 703 permits Dr. Reisman to rely on these records from other physicians in formulating his opinion, the medical records from other physicians may not be admitted to the Court without proper authentication. The records were marked as exhibits during Mr. Reisman's deposition for identification purposes only and Defendant's counsel preserved an objection to their admissibility. (Reisman Dep. at 67-68.) The medical records are not properly authenticated by Dr. Reisman's deposition and Plaintiff has offered no other indicia of authenticity.
Plaintiff also attempted to authenticate exhibit 18, which contains performance evaluations from 1982 through 1992, by reference to the deposition of Earl Potter. After reviewing Mr. Potter's deposition, it appears that Plaintiff's performance appraisals dating back to 1980 were discussed during the deposition, but do not appear to have been marked or attached as exhibits to the deposition. (Potter Dep. at 47-51.) Therefore, the Court has no indication that exhibit 18 contains the documents actually referenced during the deposition. Plaintiff also attached a letter indicating her attorney's receipt of her personnel file from Defendant. However, the copy of Plaintiff's personnel file is not actually attached to the letter submitted to the Court, nor has Plaintiff's attorney submitted a declaration that these are the documents received from Defendant during discovery. The Court has no indication that exhibit 18 contains the documents actually produced during discovery.[3] Thus, exhibit 18 has not been properly authenticated.
Plaintiff has attempted to authenticate exhibit 22, labeled FedEx Corporate Services Human Resource Policies June 12, 2000, exhibit 23, labeled FedEx Your Employee Benefits Book 2000, and exhibit 26, also labeled FedEx Corporate Services Human Resource Policies June 12, 2000, by arguing that Defendant produced these documents during discovery. Again, the Court has no indication that exhibits 22, 23, and 26 contain the documents actually produced during discovery.
If exhibits 1, 2, 3, 4, 5, 7, 10, 18, 20, 22, 23, and 26 were offered at trial without *984 more foundation, the Court would sustain Defendant's objections as to lack of authentication. On the motion for summary judgment, the Court has decided to consider the documents despite the lack of authentication. Defendant has not argued that the exhibits are inaccurate representations of the documents in issue, but has merely argued that Plaintiff failed to properly authenticate them. In the interest of fairly considering all of the evidence that Plaintiff contends supports her claims, the Court DENIES the motion to strike these exhibits.
However, Plaintiff has not attempted to authenticate exhibit 12 (a collection of e-mails and other documents) or exhibit 19 (several letters Plaintiff purportedly sent to Pete Potter, Lisa Jacobs, Laz Owens, and Sandra Marshall). Defendant maintains that it did not receive exhibit 19 from Plaintiff during the discovery process. Moreover, each of the purported recipients of the letters comprising exhibit 19 deny ever having received the letters. (Fowler Decl. 5/12/03 ¶ 6; Potter Decl. 5/12/03 ¶ 5; Owens Decl. 5/12/03 ¶¶ 4-5; Jacobs Decl. 5/12/03 ¶¶ 5-6.) Therefore, the Court GRANTS Defendant's motion to strike Plaintiff's exhibits 12 and 19.
III. Background[4]
Plaintiff worked at Federal Express Corporation ("FedEx") from 1980 until her termination on November 8, 2000. (Def.'s Statement of Undisputed Material Facts[5] ¶ 29.) Her performance evaluations prior to 1993 reflect that she was viewed as an above average employee. (Pla.'s SUMF ¶ 4; Potter Dep. at 49-50.) She went on disability leave in 1994 due to bipolar disorder and breast cancer, for which she underwent a mastectomy in 1994. (Def.'s SUMF ¶ 32.) Plaintiff's cancer is currently in remission. (Def.'s SUMF ¶ 34.) At the time, the chemotherapy medicine Plaintiff took caused problems with the other medications she was taking. (Def.'s SUMF ¶ 33.) Plaintiff was on disability leave from 1994 until 1999. (Def.'s SUMF ¶ 32.) Dr. Anthony Jackson, then Plaintiff's physician, released her to return to work without restrictions in January of 1999. (Def.'s SUMF ¶ 38.) Plaintiff returned to work without restrictions on January 18, 1999. (Def.'s SUMF ¶ 39.)
Pete Potter, Plaintiff's supervisor at FedEx beginning in late 1999, (Def.'s SUMF ¶ 47), issued Plaintiff a counseling letter for unsatisfactory work on several projects on November 23, 1999.[6] (Def.'s SUMF *985 ¶ 50.) Plaintiff then went on disability leave again for one day on November 30, 1999 and afterwards was placed on temporary return to work status. (Def.'s SUMF ¶ 51; Potter Dep. Exh. 5 at FDX 01087.) Temporary return to work means the employee works no less than 15 hours but no more than 28 hours per week. (Pla.'s Resp. to Def.'s SUMF ¶ 56; Pla.'s Exh. 23 at 124.) According to FedEx's leave of absence history, Plaintiff was on temporary return to work status from November 30, 1999 through April 17, 2000. (Potter Dep. Exh. 5 at 01087.)
On February 9, 2000, Dr. Antoine Jean-Pierre began treating Plaintiff. He completed a "Mental Health Assessment: Initial Report" for Kemper National Services ("Kemper"), which administers the disability program at FedEx, stating that he had instructed Plaintiff not to return to work after his examination. He also submitted a clinical report detailing his examination of Plaintiff. (Jean-Pierre Dep. Exh. 5.) Dr. Jean-Pierre completed a "Mental Health Assessment: Progress Report" for Plaintiff after seeing her for therapy on March 31, 2000. (Jean-Pierre Dep. Exh. 2.) At that time, he noted that Plaintiff showed improved ability to control her mood and seemed to be in an upbeat mood with much energy. (Id.) He projected that he would be able to provide Plaintiff a clinical release to work on April 17, 2000. (Id.; Def.'s SUMF ¶ 61.)
On May 8, 2000, Dr. Jean-Pierre informed Kemper by letter that in his professional opinion Plaintiff could return to work without restrictions. He released her to work without any restrictions effective three weeks prior to the date of the letter (i.e. April 17, 2000).[7] (Def.'s SUMF ¶ 59; Jean-Pierre Dep. Exh. 1.) According to Dr. Jean-Pierre's letter, Plaintiff expressed unhappiness with this opinion. (Jean-Pierre Dep. Exh. 1.) Dr. Jean-Pierre wrote, "At this point it is difficult to expect any further progress from a patient with a strong manipulative tendency and wants a professional to cover for not assuming her responsibility. It is my opinion that she has reached maximum improvement to return to full duty and I will no longer provide psychiatric services." (Id.) Dr. Jean-Pierre addressed a "To whom it may concern" letter on May 15, 2000 releasing Plaintiff to work with no restrictions. (Def.'s SUMF ¶¶ 62, 67; Jean-Pierre Dep. Exh. 3.) He also told Plaintiff on May 15, 2000 that she could return to work. (Def.'s SUMF ¶ 67.)
Mr. Potter received a fax from Kemper on May 12, 2000 that included a letter from Dr. Jean-Pierre releasing Plaintiff to return to work without restrictions as of April 17, 2000. (Def.'s SUMF ¶ 66.) Mr. Potter sent Plaintiff a memorandum on May 16, 2000 acknowledging his receipt of notification from Plaintiff's physician that she was available to return to work with no restrictions. (Def.'s SUMF ¶ 68.) Mr. Potter requested a meeting with Plaintiff on May 22, 2000 to review her assignments and discuss matters relevant to her return to work. (Def.'s SUMF 70.) Plaintiff returned to work on May 22, but was absent again on May 23. (Def.'s SUMF ¶ 75.)
Dr. Robert Fink began treating Plaintiff on May 19, 2000. (Def.'s SUMF ¶ 69.) He addressed a "To whom it may concern" letter on May 19, 2000 stating that Plaintiff *986 should remain off work for approximately two weeks. (Id.) Plaintiff sent this letter to Mr. Potter on May 23, 2000. (Def.'s SUMF ¶¶ 71, 73.) Mr. Potter received this letter on May 24, 2000 and again placed her on leave in FedEx's computer system. (Def.'s SUMF ¶ 75.)
Based on Dr. Jean-Pierre's earlier release to return to work, Kemper sent Plaintiff a letter on May 30, 2000 informing her that her claim for disability benefits was denied as of May 7, 2000. (Def.'s SUMF ¶ 76; Owens Dep. Exh. 3.) On September 22, 2000, the FedEx employee benefits department received a copy of the letter from Kemper advising that Plaintiff was no longer eligible for disability benefits. (Id.) Prior to receiving this letter, neither Mr. Potter, nor Laz Owens, the Human Resources Advisor, were aware that Kemper had denied benefits to Plaintiff. (Def.'s SUMF ¶ 79.) It is not clear from the record why Kemper did not notify FedEx for almost seven months regarding the denial of Plaintiff's disability benefits.
FedEx treats a denial of further benefits as a release to return to work. (Def.'s SUMF ¶ 55.) Therefore, Mr. Owens advised Mr. Potter to return Plaintiff to work based on FedEx's policy and Kemper's denial of benefits. (Owens Dep. at 40-41.) On September 28, 2000, Mr. Potter sent Plaintiff a standard return to work letter because Kemper had denied her disability leave. (Def.'s SUMF ¶ 83; Potter Dep. Exh. 10.) The letter requested that Plaintiff return to work on October 3, 2000 and stated that failure to return to work would be considered a voluntary resignation. (Potter Dep. Exh. 10.)
Under FedEx's policy, Plaintiff was still required to bring a medical release stating that she was cleared to work. (Pla.'s SUMF ¶ 7; Potter Dep. at 78; Pla.'s Exh. 22 at HRP 00038[8].) Mr. Owens stated that he never saw any documentation from Plaintiff, or from a physician on her behalf, concerning her medical condition. (Owens Dep. at) According to Mr. Potter, he did not receive a release from Plaintiff other than Dr. Jean-Pierre's letter. Mr. Potter indicated that he insisted upon her return to work after four months of absence because Kemper had denied her disability leave and the last pieces of documentation FedEx had received from Plaintiff's physicians were Dr. Fink's May 19 letter stating Plaintiff would be off of work for two weeks and Dr. Jean-Pierre's May 15 letter stating that Plaintiff could return to work. (Pla.'s SUMF ¶ 7; Potter Dep. at 76-80.) Accordingly, the letter Mr. Potter sent requested that Plaintiff return to work on October 2, 2000 or provide medical substantiation for her continued absence. (Potter Dep. Exh. 10.)
On September 23, 2000, Dr. Fink evaluated Plaintiff and completed a form indicating that Plaintiff's "functional level at this point appeared, in my opinion, not to warrant continued covered medical leave. I indicated that I could no longer sustain this." (Def.'s SUMF ¶ 80.) September 23, 2000 was the last time Plaintiff saw Dr. Fink. Plaintiff never provided FedEx with a copy of Dr. Fink's September 23 findings. (Def.'s SUMF ¶¶ 81, 82.)
Plaintiff returned to work on October 2 or 3, 2000. (Def.'s SUMF ¶ 86.) On October 4, 2000, Mr. Potter spoke with Plaintiff, who told him she was going to get *987 something from her doctor about her fitness to return to work. For this reason, Mr. Potter approved three days of reserved vacation time, from October 4-6. (Def.'s SUMF ¶¶ 87, 92, 93.) Mr. Potter expected her to return to work on October 9, 2000.
Plaintiff did report to work on October 9, but left "sick" at approximately 3:45 p.m. (Def.'s SUMF ¶ 94.) On October 10, Plaintiff did not report to work until 10:45 p.m. (Def.'s SUMF ¶ 95.) On October 11, Plaintiff called in to say that she would be late because she needed to pick up a prescription. (Def.'s SUMF ¶ 99.) In response to Plaintiff's failure to work full days, Mr. Potter spoke with Plaintiff about her absences from work. He also sent Plaintiff a memorandum reminding her that business hours at FedEx are from 8:00 a.m. until 5:00 p.m. and informing her that her failure to comply with the required hours was unacceptable. (Def.'s SUMF ¶ 104; Potter Dep. Exh. 33.)
Also on October 11, 2000, Plaintiff sent Mr. Potter and Mr. Owens an e-mail stating, "I have validated that I have an employee disability.... I am requesting special accommodations for working hours and conditions. This accommodation will allow me to continue taking my medication while working. Thank you for your attention to this request." (Def.'s SUMF ¶ 100.) Mr. Potter does not recall Plaintiff requesting any accommodation prior to the October 11 e-mail.[9] (Def.'s SUMF ¶ 101.) Plaintiff then left work early on October 11 after leaving a written message for Mr. Potter informing him that she needed to leave at 4:35 p.m. in order to take medication. (Def.'s SUMF ¶ 99; Potter Dep. Exh. 34.)
On October 12, 2000, Mr. Potter responded in writing to Plaintiff's note from the previous day requesting an accommodation and stating that she would be leaving early to take medication. (Def.'s SUMF ¶ 105.) Mr. Potter's response stated:
Almella, again, you cannot do this on a daily basis unless you provide documentation from a physician and you request an accommodation. At that time, it will be determined if we can accommodate your request. Other individuals taking medicine are not allowed to do this without fulfilling this requirement.... You are missing a significant portion of the working day as outlined in the reminder letter I sent you yesterday (Wednesday, Oct. 11). Again, please observe the normal working hours as I have outlined to you. I will view any additional occurrences as a reason for disciplinary action. There are procedures to follow and I have outlined them for you on more than one occasion. You seem determined to ignore my direction. Please follow this procedure if you need an accommodation.
(Potter Dep. Exh. 34.)
On October 12, 2000, Plaintiff did not report to work until 10:45 a.m. Mr. Potter sent Plaintiff another memorandum reminding her that her absences from work, including late arrivals and early departures, were unacceptable. (Def.'s SUMF ¶ 106; Potter Exh. 36.)
Mr. Owens advised Mr. Potter regarding Plaintiff's request for an accommodation. (Def.'s SUMF ¶ 102.) After speaking with Mr. Owens, Mr. Potter also informed Plaintiff in writing in the October 12, 2000 memorandum that he *988 needed her to provide two things so that FedEx could validate her need to miss work and determine whether FedEx could provide her with an accommodation. (Def.'s SUMF ¶ 106; Potter Exh. 36.) Mr. Potter's memorandum stated:
To assist you upon your return to work (October 3, 2000), I agreed to let you use your reserve vacation to consult with your physician to determine your medical fitness to return to work and prepare any letters of accommodation that you might need. I have yet to receive any form of substantiation that you might have that would validate a need to miss work in the manner you have. I am again requesting that you:
1. Present evidence from your physician that supports any medical condition that you might have which would affect your ability to be at work.
2. Present to me in writing the need for any accommodation that you may need.
(Id.)
Plaintiff did not report to work on October 13. (Def.'s SUMF ¶ 107.) On Monday, October 16, 2000, Plaintiff did not report to work. According to an e-mail Mr. Potter received, Plaintiff called the receptionist and stated that she was getting her new ID badge, but she never came to work at all. (Def.'s SUMF ¶ 108.) Also on October 16, 2000, Mr. Potter received a letter from Plaintiff's attorney, Julian Bolton, who had been retained to advise Plaintiff regarding her employment status and her disability. The letter stated, in part, "[P]lease advise me of your policy on long-term disability. Further, a copy of such policy is also requested. Ms. Starks states that a doctor has cleared her for return to work without restrictions or accommodation. May I have a copy of that report." (Def.'s SUMF ¶ 109; Potter Dep. Exh. 38.)
On October 17, 2000, Plaintiff sent Mr. Potter a letter informing him that she would not be able to work the remainder of the week due to a medication adjustment. (Def.'s SUMF ¶ 111.) Mr. Potter never received substantiation from a doctor that she needed to miss work because of a medication adjustment. (Def.'s SUMF ¶ 112.) Plaintiff also did not come to work on Monday, October 23, 2000. (Def.'s SUMF ¶ 116.)
On October 31, 2000, Mr. Potter sent Plaintiff another memorandum regarding her absence from work. (Def.'s SUMF ¶ 117.) The memorandum stated:
Almella, you have exhausted your medical leave of 10 days. We do not have medical substantiation for a continuance of medical related leave. It is imperative that you return to work by November 2, 2000 at 0800 hours.... Failure to return to work by this date will be considered a voluntary resignation. If you need to reach me prior to your returning to work, please call me at XXX-XXX-XXXX.
(Potter Dep. Exh. 42.) Mr. Potter also left Plaintiff a voice-mail message with this information. (Def.'s SUMF ¶ 117.)
Plaintiff did not come to work between November 2 and November 8, nor did she contact Mr. Potter. (Def.'s SUMF ¶¶ 118-19, 121.) Between October 31 and November 8, Plaintiff did not provide Mr. Potter with any documentation from any doctors, nor did Plaintiff's attorney contact him. (Def.'s SUMF ¶ 121.) On November 8, 2000, FedEx sent Plaintiff a Voluntary Termination of Employment letter because she had not returned to work on November 2, 2000, nor had she contacted Mr. Potter though she had been requested to do so. (Def.'s SUMF ¶ 119.)
According to Mr. Potter, he never perceived that Plaintiff had a disability or knew the reason for her leaves of absence. (Def.'s SUMF ¶ 36, 48, 129.) He testified *989 that when she came to work she operated a personal digital assistant, operated a computer, understood FedEx software, drove a car, and dressed very nicely. (Def.'s SUMF ¶ 129.) He did not know she had been diagnosed as bipolar or that she had suffered from cancer. (Def.'s SUMF ¶ 89.) He also testified that he was unaware of Plaintiff's history of cancer and mental problems until he heard about them during his deposition. (Def.'s SUMF ¶ 48.) As Plaintiff's supervisor, Mr. Potter was required to record Plaintiff as disabled in FedEx's computer system (PRISM) as a matter of paperwork based on the duration of her absences from work, but he was never aware of the nature of any disability. (Def.'s SUMF ¶¶ 51-54, 36, 48.) Mr. Potter's assessment of Plaintiff's performance at FedEx upon her return from leave included the statement, "The only problems we had is when it was time to actually do something, and then we got sick." (Def.'s SUMF ¶ 130; Potter Dep. at 117-18.)
Plaintiff disputes whether Mr. Potter knew the reason for her leaves of absence and argues that his statements are self-serving. Plaintiff offers a statement from Mr. Potter's deposition that, as part of his managerial duties, he periodically inquired as to how she was doing while she was out on leave. (Potter Dep. at 29-30.) However, he never received a response from Plaintiff to his queries. (Id.) Plaintiff also cites to the denial of benefits letter Defendant received from Kemper on September 20, 2003. (Owens Dep. Exh. 3.) However, this letter does not indicate any of Plaintiff's medical history. Plaintiff also directs the Court to an e-mail Mr. Potter sent to Lisa Jacobs on April 21, 2000 stating, "There is nothing [Ms. Starks-Umoja] can do; unfortunately for whatever reason, she is incapable of any type of assignment. At best she appears confused half of the time." (Pla.'s Exh. 14.) This e-mail generally discusses problems with Plaintiff's absenteeism and does not show an awareness of Plaintiff's medical history. (Id.)
Mr. Owens similarly testified that he was not aware of the nature of Plaintiff's illness, health problems, or her medical history at the time he was advising Mr. Potter about the status of Plaintiff's employment. (Def.'s SUMF ¶¶ 88-89.) He did not know that Plaintiff suffered from bipolar disorder or that she had had cancer. (Def.'s SUMF ¶ 89; Owens Dep. at 42-43.) According to Mr. Owens, Kemper does not disclose that information to FedEx. (Def.'s SUMF ¶ 91.)
Plaintiff disputes whether Mr. Owens knew the nature of her medical problems and cites to the denial of benefits letter received from Kemper on September 20, 2003. (Owens Dep. Exh. 3.) However, this letter does not indicate any of Plaintiff's medical history and Plaintiff offers no other evidence that Mr. Owens knew the nature of her medical history or her alleged disability.
Plaintiff filed a charge of discrimination with the EEOC on July 26, 2001 alleging that FedEx discriminated against her in violation of the Americans with Disabilities Act on November 2, 2000[10] when it discharged her from the position of Senior Instructional Design Specialist. (Starks-Umoja Dep. Exh. 8.) Plaintiff did not check the retaliation box in her charge of discrimination. (Id.) The charge of discrimination states in pertinent part:
I believe that I have been discriminated against because of my disability, in violation of the ADEA [sic], in that I was forced to return to work before being released from my Doctor. I could not *990 perform my duties because I could not work eight hours due to the medication I was taking. I was also denied an accommodation.
(Id.) After the EEOC issued a right to sue letter, Plaintiff filed a Complaint on October 21, 2001 alleging that FedEx discriminated against her in violation of the Americans with Disabilities Act based on her disability and retaliated against her. Plaintiff also asserted a cause of action based on the Tennessee Human Rights Act.
IV. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "if ... there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Supreme Court has explained that the standard for determining whether summary judgment is appropriate 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 v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
So long as the movant has met its initial burden of "demonstrat[ing] the absence of a genuine issue of material fact," Celotex, 477 U.S. at 323, 106 S.Ct. 2548, and the nonmoving party is unable to make such a showing, summary judgment is appropriate. Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir.1989). In considering a motion for summary judgment, "the evidence as well as all inferences drawn therefrom must be read in a light most favorable to the party opposing the motion." Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
V. Analysis
FedEx has moved for summary judgment as to Plaintiff's claims of disability discrimination and retaliation in violation of the Americans with Disabilities Act and Plaintiff's claim that FedEx violated the Tennessee Human Rights Act.
A. Disability Discrimination
The Americans with Disabilities Act provides:
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
42 U.S.C. § 12112(a) (2003).
To establish a prima facie case of employment discrimination based on disability, Plaintiff must establish that (1) she is a disabled person within the meaning of the ADA, (2) she is otherwise qualified, with or without reasonable accommodation, to perform the essential functions of the job, and (3) the employer terminated her because of her disability. Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir.1998). If Plaintiff establishes a prima facie case, the burden shifts to Defendant to articulate a legitimate, non-discriminatory reason for its action. Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1179 (6th Cir.1996). If Defendant meets that burden, Plaintiff must show that the proferred explanation is a pretext for unlawful discrimination. Id.
*991 1. Disability
The Americans with Disabilities Act defines disability as: 1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; 2) a record of such impairment; or 3) being regarded as having such an impairment. 42 U.S.C. § 12102(2). Plaintiff argues that she is disabled under all three definitions of disability.
a. Substantially Limited in a Major Life Activity
Under the first definition of disability, Plaintiff must initially prove that she has a physical or mental impairment. 42 U.S.C. § 12102(2)(A). Plaintiff must then demonstrate that the impairment substantially limits at least one of her major life activities. Id. "It is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis of an impairment." Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002).
Neither party in this case has directly addressed the issue of whether Plaintiff has an impairment within the meaning of the ADA. Given Plaintiff's diagnosis of bipolar disorder, the Court assumes she has an impairment for purposes of the first definition of disability.
The parties have argued extensively in their papers about whether Plaintiff has an impairment that substantially limits a major life activity. Plaintiff argues that she is substantially limited in the major life activities of sleeping, cognitive functioning, concentration, and impaired affective modulation. (Pla.'s Mem. in Opp. to Def.'s Mot. for Summ. J. at 8.)
Major life activities constitute tasks central to most people's daily lives. MX Group, Inc. v. City of Covington, 293 F.3d 326, 337 (6th Cir.2002). According to the regulations implementing Title II, major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 28 C.F.R. § 35.104. This list is merely illustrative and not exhaustive. MX Group, 293 F.3d at 337.
The Sixth Circuit has accepted sleeping as a major life activity within the meaning of the ADA. Boerst v. Gen. Mills Operations, 25 Fed. Appx. 403, 406, 2002 U.S.App. Lexis 813, *9 (6th Cir. January 15, 2002).[11] However, following the Tenth Circuit, the Sixth Circuit has held that concentrating is not a major life activity. Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir.1999); Linser v. Ohio Dep't of Public Health, 2000 U.S.App. Lexis 25644, *9 (6th Cir. October 6, 2000); Boerst, 25 Fed. Appx. at 406.[12] With respect to cognitive functioning, the Court assumes this is an attempt to argue that Plaintiff is substantially limited in her ability to think. The Sixth Circuit has stated that it is doubtful that thinking constitutes a major life activity. Hill v. Metro. Gov't of Nashville & Davidson County, 54 Fed. Appx. 199, 201, 2002 U.S.App. Lexis 26276, *5 (6th Cir. Dec.17, 2002) (finding that the *992 plaintiff was not disabled although he suffered from bipolar disorder).[13] Plaintiff has not explained what "impaired affective modulation" means or how it constitutes a major life activity that has been substantially limited. Therefore, the Court will only consider whether Plaintiff is substantially limited in the major life activity of sleeping.
In support of her claim that she is substantially limited in the major life activity of sleeping, Plaintiff cites to her medical records, included the unauthenticated documents discussed supra. Plaintiff relies on the records of Dr. Fink and Dr. Jean-Pierre in support of her claim that she is substantially limited in the major life activity of sleeping, Dr. Jean-Pierre released her to return to work by letter dated May 15, 2000. Dr. Jean-Pierre also noted that he believed Plaintiff was manipulative and "wants a professional to cover for not assuming her responsibility." Similarly, Dr. Fink found that Plaintiff's functional level did not warrant continued covered medical leave in his September 23, 2000 evaluation (although Plaintiff did not provide this document to either Kemper or FedEx).[14] Furthermore, the records from Dr. Fink in which he notes that Plaintiff had trouble sleeping and showed impaired insight and judgment all pre-date his September 23, 2000 evaluation in which he indicated that he could no longer support continued medical leave.
In addition, Plaintiff's assertion that she is substantially limited in the major life activity of sleeping is entirely too conclusory to defeat Defendant's motion for summary judgment. None of the records or testimony Plaintiff has submitted indicate the nature or severity of her sleeping problems. For example, Dr. Neal noted on October 31, 2000 that "she hasn't been able to sleep". Plaintiff has not even provided evidence of how many hours of sleep she gets each night. See Boerst, 25 Fed. Appx. at 407 ("Getting between two and four hours of sleep a night, while inconvenient, simply lacks the kind of severity we require of an ailment before we will say that the ailment qualifies as a substantial limitation under the ADA.") This evidence is simply insufficient to show that Plaintiff is "substantially limited" in the major life activity of sleeping.
Furthermore, Dr. Joel Reisman performed an independent medical examination of Plaintiff in connection with this litigation. Dr. Reisman concluded, "There is little question that this claimant meets the diagnostic criteria for Bipolar Disorder." However, he noted that she functioned well in all areas and "that her sleep is normal and that she is happy." After interviewing Plaintiff and reviewing her medical records, Dr. Reisman stated, "It is therefore my opinion that at the time of her termination, she was also able to engage in activities central to most people's lives and she was capable of working in a broad range of employment situations." Dr. Reisman's findings are consistent with the findings of Dr. Jean-Pierre and Dr. Fink, both of whom believed Plaintiff could return to work.
Finally, Defendant has submitted a significant amount of uncontradicted evidence that Plaintiff is an adult who functions quite capably. Among other things, she *993 cooks for her family, drives her daughter to school, plays the piano, helps her daughter with homework, does the laundry, conducts music workshops at churches and retreats, visits church members, and is employed as the pastor at her church where she gives weekly sermons and conducts Baptisms, Anointing Services, and Communions. (Def.'s SUMF ¶¶ 10, 12-16, 20, 137-154.) Plaintiff also holds two Master's Degrees. (Def.'s SUMF ¶¶ 6, 7.)
The Court finds that there is insufficient evidence to support a finding that Plaintiff is substantially limited in the major life activity of sleeping within the meaning of the ADA. Merely having an impairment does not make Plaintiff disabled for purposes of the ADA. Therefore, while Plaintiff's bipolar disorder may be an impairment, Plaintiff does not meet the first test for disability.
b. Record of an Impairment
Under the second definition of disability, Plaintiff is required to show that she has a record of an impairment. "The phrase has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities." 28 C.F.R. § 35.104; MX Group, 293 F.3d at 337 (emphasis added).
Plaintiff certainly has a record of having suffered from bipolar disorder and having undergone a mastectomy. She has been under the care of various psychiatrists for a lengthy period of time. Additionally, she was on disability leave from her job at FedEx for approximately five years. However, Plaintiff has done nothing more than provide the Court with evidence of her impairment in support of her argument under this test of disability. She has not provided the Court with a record of an impairment that has caused her to be substantially limited in any activity that is central to most people's lives. The existence of an impairment is not sufficient to show that Plaintiff has a record of being substantially limited in a major life activity within the second definition of disability.[15]
c. Regarded as Disabled
Under the third definition of disability, Plaintiff must show that Defendant mistakenly believes that: 1) Ms. Starks-Umoja has a physical impairment that substantially limits one or more major life activities; or 2) Ms. Starks-Umoja has an actual, non-limiting impairment that substantially limits one or more major life activities. Sutton, 527 U.S. at 489, 119 S.Ct. 2139. "It is not enough ... that the employer regarded [the] individual as somehow disabled; rather, the plaintiff must show that the employer regarded the individual as disabled within the meaning of the ADA." Ross v. Campbell Soup Co., 237 F.3d 701, 709 (6th Cir.2001).
In support of her claim under this definition of disability, Plaintiff asserts that FedEx regarded her as substantially limited in the major life activities of stress, concentrating, and working. (Pla.'s Mem. in Opp. to Def.'s Mot. for Summ. J. at 11.) Stress is clearly not a major life activity. As discussed above, concentrating is not a major life activity. Therefore, the Court will only discuss whether FedEx regarded Plaintiff as substantially limited in the major life activity of working.
*994 In order for Plaintiff to establish that FedEx regarded Plaintiff as substantially limited in the major life activity of working, Plaintiff is required to show that FedEx believed she was "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes." 29 C.F.R. § 1630.2(j)(3)(i).
In support of her claim that FedEx regarded her as substantially limited in the major life activity of working, Plaintiff points to an e-mail sent from Mr. Potter to Lisa Jacobs, a Human Capital Management Program Specialist, some six months before her actual termination. In the e-mail from Mr. Potter, dated April 21, 2000, he writes:
Almella Starks-Umoja has been back on [Temporary Return to Work] since Monday. She has called in sick two of the four days she has been on assignment.... I am going to have to hire a temporary to cover her assignment due to her absenteeism. I am at the end of my rope with her. There is nothing she can do; unfortunately for whatever reason, she is incapable of any type of assignment. At best she appears confused half of the time.
What are our options here. For any type of work we do, she is unable to perform. I would like to process termination. Is there any reason from your standpoint that this cannot be done? Please advise.
Notwithstanding the above e-mail, there is no evidence that either Mr. Potter, Plaintiff's supervisor, or Mr. Owens, the Human Resources Advisor, were aware of Plaintiff's bipolar disorder or her previous treatment for breast cancer. At most, the evidence indicates that they knew that Plaintiff took medication and that she had previously been on disability leave. The Court does not believe Mr. Potter or Mr. Owens made the decision to terminate Plaintiff's employment based on a mistaken belief about Plaintiff's mental impairment. In fact, rather than terminating Plaintiff based on a perceived disability, both Mr. Potter and Mr. Owens wanted to return Plaintiff to work because they believed she did not suffer from a disability at all. They decided to terminate Plaintiff's employment after she failed to adhere to FedEx's attendance requirements by failing to show up for work and failing to provide medical documentation for continued medical leave.
The Court has strong doubts about whether Plaintiff could ultimately establish that FedEx regarded her as disabled based on Mr. Potter's e-mail, particularly in light of the fact that the e-mail appears to be an ambiguous isolated comment made months before Plaintiff's termination. However, given the factual similarity between the e-mail at issue in this case and the memo at issue in the Sixth Circuit's decision in Ross v. Campbell Soup Co., 237 F.3d 701, 704 (6th Cir.2001), the Court can not say on a motion for summary judgment that FedEx did not regard Plaintiff as disabled. In Ross, the Sixth Circuit found that the plaintiff, suffering from a back injury, had created a genuine issue of material fact under the "regarded as" definition of disability where he offered evidence of an internal company memorandum stating "Maureen When can we bring this problem person to a termination status. P.S. Back Case." Id. at 706. Therefore, for purposes of summary judgment, the Court assumes that FedEx regarded Plaintiff as disabled and assumes Plaintiff satisfies the third test for disability.
2. Otherwise Qualified
Even if Plaintiff can establish that FedEx regarded her as disabled, she has not presented evidence that she is *995 otherwise qualified to perform the duties of the position in question with or without reasonable accommodation. To be considered qualified, "an employee must demonstrate that he or she was meeting the employer's legitimate expectations and was performing to the employer's satisfaction." Dews v. A.B. Dick Co., 231 F.3d 1016, 1022 (6th Cir.2000). "An employee who cannot meet the attendance requirements of the job at issue cannot be considered a `qualified' individual protected by the ADA." Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir.1998). Plaintiff plainly failed to meet the attendance requirements for a position at FedEx. She continuously arrived late to work, left early, or did not show up at all. She also failed to provide medical documentation for her absences in response to repeated requests from her supervisor.
Significantly, although Plaintiff mentioned an accommodation with respect to her hours and working conditions in an e-mail to Mr. Potter, she failed to specify the nature of the accommodation and she failed to provide medical documentation for her accommodation request. "Generally, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed.... Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation." Gantt, 143 F.3d at 1046 (quoting 29 C.F.R. pt. 1630 App. § 1630.9) (internal quotation marks omitted). "There is no question that the EEOC has placed the initial burden of requesting an accommodation on the employee. The employer is not required to speculate as to the extent of the employee's disability or the employee's need or desire for an accommodation." Gantt, 143 F.3d at 1046.
In response to Plaintiff's e-mail mentioning an accommodation, Mr. Potter appropriately requested that she clarify her needs with respect to an accommodation and provide medical documentation for her request. "When the need for an accommodation is not obvious, an employer, before providing a reasonable accommodation, may require that the individual with a disability provide documentation of the need for accommodation." 29 C.F.R. pt. 1630 App. § 1630.9. Plaintiff never responded to Mr. Potter to clarify her request for an accommodation.[16] Plaintiff also neglected to provide medical documentation for any accommodation. She simply failed to appear at work. Plaintiff did not satisfy her responsibility with respect to requesting an accommodation and has not created a genuine issue of material fact as to whether she was otherwise qualified to perform her job with or without reasonable accommodation. Therefore, Plaintiff has failed to establish a prima facie case of discrimination. The Court GRANTS Defendant's motion for summary judgment on Plaintiff's claim of disability discrimination.
*996 3. Legitimate Non-Discriminatory Reason/Pretext
In addition to contesting Plaintiff's prima facie case of disability discrimination, FedEx has offered a legitimate non-discriminatory reason for Plaintiff's discharge. FedEx asserts that it terminated Plaintiff's employment due to her repeated absences from work without medical documentation. This constitutes valid grounds for discharge. In her response, Plaintiff has not offered any evidence of pretext and has not even argued that FedEx's stated reasons for discharge were pretextual. Therefore, even if the Court determined that Plaintiff satisfied the elements of the prima facie case, the Court would grant FedEx's motion for summary judgment.
In this case, rather than showing discrimination based on disability, the evidence in this case tends to suggest that Plaintiff no longer wished to perform in her job at FedEx and sought out doctors who, at least initially, would support her claim for disability leave. It appears that as soon as a doctor cleared her to return to full time work, she then changed doctors. On September 23, 2000, Dr. Fink found that her functional level did not support continued medical leave, a fact that she did not disclose to FedEx, and when she could not find another doctor to support continued medical leave despite being given leeway from FedEx to do so, she simply did not show up for work, which ultimately led to her termination.
B. Retaliation
Plaintiff also asserts a retaliation claim against FedEx. However, Plaintiff did not check the retaliation box on her charge of discrimination. Therefore, she has failed to exhaust her administrative remedies.[17]Ang v. Procter & Gamble Co., 932 F.2d 540, 545 (6th Cir.1991). Additionally, she filed the charge of discrimination after FedEx had already terminated her employment. Any allegedly retaliatory conduct would have occurred prior to the filing of her EEOC charge and, therefore, should have been included in the original charge.[18]Id. at 547. The Court GRANTS Defendant's motion for summary judgment on Plaintiff's retaliation claim.
C. Tennessee Human Rights Act
Tennessee Courts look to the Americans with Disabilities Act when interpreting claims under the Tennessee Human Rights Act, Tenn.Code Ann. § 4-21-101, et seq. Dunn v. Sharp Mfg. Co., 2003 WL 1793038, 2003 U.S. Dist. Lexis 6454, *8 (W.D.Tenn. Jan. 10, 2003) citing Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 706 (Tenn.2000). Because the Court has granted summary judgment in favor of FedEx on Plaintiff's ADA claims, the Court also GRANTS Defendant's motion for summary judgment on Plaintiff's Tennessee Human Rights Act claims.
*997 VI. Conclusion
For the foregoing reasons, the Court GRANTS Defendant's motion for summary judgment.
NOTES
[1] Defendant also filed a Supplemental Motion for Summary Judgment on July 25, 2003. In the supplemental motion, Defendant argues that Plaintiff should be judicially estopped from pursuing her disability discrimination claim because she failed to report this case as a potential asset in her personal bankruptcy case. Plaintiff responded in opposition to the supplemental motion on August 25, 2003. Because the Court has determined that it is appropriate to dismiss this case based on the substantive grounds presented in the first motion for summary judgment, the Court does not address the merits of the supplemental motion.
[2] Defendant also moved to strike exhibits 7 and 19 on the grounds that Plaintiff did not produce these documents in response to discovery requests.
[3] The performance evaluations also do not include a FDX bates stamp number indicating that Defendant produced them during discovery.
[4] Plaintiff claims to dispute many of the assertions in Defendant's Statement of Undisputed Material Facts. However, despite filing an amended response to explain her disputes to Defendant's Statement of Undisputed Material Facts, many of Plaintiff's responses constitute mere argument that fails to include citations to the record to support her objections. In particular, Plaintiff has objected to much of the testimony of Earl Potter and Laz Owens as self-serving, but has failed to offer any indication that their testimony is actually false or should be called into question. (See, e.g., Plaintiff's Response to Defendant's Statement of Undisputed Material Facts ¶¶ 35, 36, 48, 53, 54, 71, 76, 78, 88, 89, 91, 110, 119, 129, 132.) Moreover, many of Plaintiff's objections are plainly baseless given the supporting documentation provided by Defendant and the statements of Plaintiff's examining physicians that she could return to work. Without evidence to show a disagreement regarding the facts or create an inference that Plaintiff's view of the facts is correct, Plaintiff has not created a genuine issue of material fact and the Court accepts the facts as asserted by Defendant. Therefore, unless otherwise noted, the following facts are not materially disputed.
[5] Hereinafter, "SUMF".
[6] Plaintiff disputes this statement, but her dispute seems to be limited to the assertion that she did not receive the letter until sometime after November 23, 1999. (Pla.'s Resp. to Def.'s SUMF ¶ 50.) Plaintiff does not actually offer a date upon which she contends she received Mr. Potter's letter.
[7] Plaintiff states that she disputes this fact on the grounds that the reports are conflicting because Dr. Jean-Pierre advised Kemper on May 8, 2000 that she could return to work as of April 17, 2000, but that he did not provide an actual letter of release until May 15, 2000. (Pla.'s Resp. to Def.'s SUMF ¶ 59.) These statements are plainly not in conflict as Dr. Jean-Pierre released Plaintiff to work at that time and the documents speak for themselves.
[8] The FedEx Corporate Services Human Resources Policies manual, dated June 12, 2000, states in pertinent part:
Return From Leave.... Under no circumstances should an employee return to work without a release from a treating physician or IME, or the claim is denied by a disability review physician.
[9] Plaintiff disputes this fact and relies on the documents attached as collective Exhibit 19 to her response. However, as noted above, the Court has stricken these documents because Plaintiff failed to authenticate them and Defendant's employees deny ever receiving them.
[10] Plaintiff lists November 2, 2000 as the date of her termination on the charge of discrimination although FedEx sent the Voluntary Termination of Employment letter on November 8, 2000.
[11] The Court recognizes that this opinion is unpublished. However, Sixth Circuit Rule 28(g) allows for citation to unpublished opinions if "an unpublished disposition has precedential value in relation to a material issue in a case, and [ ] there is no published opinion that would serve as well." The Court, therefore, relies on the Boerst opinion because the Court has not located a published opinion in this circuit discussing whether sleeping is a major life activity.
[12] The Court recognizes that these opinions are unpublished. The Court relies on the Linser and Boerst opinions because the Court has not located a published opinion in this circuit discussing whether concentrating is a major life activity.
[13] The Court recognizes that this opinion is unpublished. The Court relies on Hill decision because the Court has not located a published opinion in this circuit discussing whether thinking is a major life activity and because of the factual similarity to the case before the Court.
[14] Even if the Court were to consider the unauthenticated medical records Plaintiff has submitted, they would not alter the Court's decision.
[15] The Court also notes that there is no evidence that either Mr. Potter or Mr. Owens were aware of this record of Plaintiff's impairment because Kemper did not disclose Plaintiff's medical records to FedEx. At most, they were aware that she had been on disability leave and that she was taking medication when she was called back to work in September of 2000.
[16] The Court has previously stricken, supra, two memoranda addressed from Plaintiff to Mr. Potter, Mr. Owens, and Lisa Jacobs regarding her accommodation request because they were not authenticated and were not produced during discovery. Mr. Potter, Mr. Owens, and Ms. Jacobs also submitted affidavits stating they never received either of these memoranda.
Even if the Court considers these memoranda in response to the motion for summary judgment, they do not alter the Court's decision. Although one of the memoranda purports to specify Plaintiff's accommodation request regarding her working hours and conditions, neither memorandum is accompanied by documentation from a physician confirming a medical necessity for such an accommodation as clearly requested several times by Mr. Potter.
[17] Plaintiff alleges in part that FedEx retaliated against her in response to a charge of discrimination she filed in 1994. There is no evidence of a causal connection between her termination in November of 2000 and the discrimination charge filed in 1994, particularly since Plaintiff has not provided evidence that anyone involved in the decision to terminate her employment was aware of this prior charge.
[18] Plaintiff's attempt to distinguish her case from Ang on the basis that an attorney did not help her prepare the charge is unavailing. She had retained an attorney before filing the charge of discrimination. She had previously filed a charge of discrimination with the EEOC in 1994. Additionally, in her response to the motion for summary judgment Plaintiff stated, "Ms. Starks-Umoja was knowledgeable of the EEOC procedures." (Pla.'s Mem. in Opp. to Def.'s Mot. for Summ. J. at 17.)
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https://www.courtlistener.com/api/rest/v3/opinions/2459164/
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341 F. Supp. 2d 911 (2004)
Herman BLANKENSHIP, et al., Plaintiffs,
v.
J. Kenneth BLACKWELL, Ohio Secretary of State, Defendant, and
Benson A. Wolman, et al., Intervenors.
No. 2:04-CV-965.
United States District Court, S.D. Ohio, Eastern Division.
October 12, 2004.
*912 *913 Michael P. Cassidy, Cassidy & Associates, Independence, H, for Plaintiffs.
Arthur J. Marziale, Jr., Ohio Atty Gen'l, Columbus, OH, for Defendants.
Donald J. McTigue, Columbus, OH, for Intervenors.
OPINION AND ORDER
SARGUS, District Judge.
This matter is before the Court for consideration of the Plaintiffs' combined Application for Temporary Restraining Order and Motion for Preliminary Injunction[1] seeking to allow Ralph Nader and Peter Miguel Camejo to be placed on Ohio's general election ballot this November as candidates for President and Vice President, respectively, of the United States of America. For the reasons that follow, the Plaintiffs' request (Doc. # 2) is denied. In addition, the Court considers the Motion to Intervene filed by a group of Individual Electors (Doc. # 3) and the Motion to Dismiss filed by Defendant Blackwell (Doc. # 6). These motions are granted.
I.
Plaintiffs, Herman Blankenship, Kim Blankenship, Julie Coyle, Logan Martinez and Larry Snider [collectively referred to as "Plaintiffs"], are residents of the State of Ohio and are members of the nominating committee seeking to qualify Ralph Nader and Peter Miguel Camejo as independent joint candidates for the offices of President and Vice President of the United States. (Complaint at ¶¶ 6-7). Plaintiffs commenced this action on October 6, 2004 following the decision of the Defendant herein, Ohio Secretary of State J. Kenneth Blackwell, to deny ballot access in the State of Ohio to Nader and Camejo. Plaintiffs claim that the Ohio statute which requires that petition circulators be residents of the State of Ohio[2] is unconstitutional *914 in that it deprives those who sign the petitions of "their [First Amendment] rights to free speech and free association...." (Id. at ¶ 18). The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331. Before considering the merits of Plaintiffs' claim, the Court provides a brief summary of the facts giving rise to this action.[3]
On August 18, 2004, a Joint Statement of Candidacy and Nominating Petition was filed with the Office of the Ohio Secretary of State Elections Division on behalf of Ralph Nader. The nominating petition contained 14,473 signatures. (Id. at ¶ 21; Sec. of State Findings of Fact and Conclusions of Law, hereinafter "Sec. Findings" at 1). The Elections Division processed the nominating petition and directed the individual Ohio county boards of elections to determine the validity of petitions, part-petitions and signatures. (Complaint at ¶ 23; Sec. Findings at 1). The county boards of elections were directed to report their findings by September 3, 2004. (Sec. Findings at 1). On September 8, after reviewing the findings by the county boards, the Elections Division determined that a total of 6,464 signatures on the petition were valid. (Id. at 2).
Although the petition contained more than 5,000 signatures, the minimal requirement under Ohio law, the validity of the 6,464 signatures was challenged by a group of electors of the State of Ohio.[4] The Office of the Secretary of State held a three-day hearing on the protesters' challenge to the petition signatures. Both the protesters and candidates Nader and Camejo were represented by counsel at the hearing. (Id.).
On September 28, 2004, the Hearing Officer issued Findings of Fact and Conclusions of Law on the protesters' challenge. In the thirty-one page ruling, the officer concluded that there were "a number of significant problems relating to the petition, particularly in regard to the people who purportedly had circulated many of the part-petitions that were subject to the protest." (Sec. Findings at 2). In particular, 405 signatures were determined invalid under Ohio law because various petition circulators "did not circulate any part-petition nor witness the affixing of any signatures to a part-petition" as required by Ohio law. (Sec. Findings at 4, ¶ 16; 5, ¶ 18; 6, ¶ 23; 7, ¶ 29). At least one such circulator testified that he did not know who Ralph Nader is and was told that the petitions related to the same-sex marriage issue.[5] (Id. at 6, ¶ 26). Three hundred forty nine (349) signatures were determined invalid because two circulators could not distinguish those petitions that were lawfully circulated and those that were not, i.e., those to which signatures were not witnessed. (Sec. Findings at 8-9). One signature was determined invalid as a forgery. (Id. at 7). Fifteen (15) signatures were invalidated because a circulator did not actually circulate certain petitions. (Id. at 19). Seventeen (17) signatures *915 were invalidated because no date of signing was identified. (Id. at 25). Thirteen (13) signatures were invalidated based upon mathematical errors after reviewing part-petitions from a particular county boards of elections. (Id. at 27).
Of the greatest significance to this case, a large number of signatures were challenged because various circulators allegedly claimed on the petitions that they were residents of Ohio, when in fact they were not. A total of one thousand nine hundred fifty six (1,956) signatures were determined to be invalid because petition circulators falsely identified themselves as residents of the State of Ohio and/or did not witness the affixing of signatures to the petitions. (Id. at 10-24).
In particular, circulator Robert Ellis falsely attested to having a residence in Cincinnati, Ohio for the petitions in question. Three to four days prior to circulating petitions for Nader's candidacy in Ohio, Ellis circulated Marriage Protection Amendment petitions in Ohio and attested to having a residence in Dolton, Illinois. (Sec. Findings at 10). The evidence before the Secretary established that Ellis' claimed Ohio residence was false. Sixty six (66) signatures acquired by Ellis were excluded on account of this fraud.
Circulator Curtis Warner falsely attested to residing at an address in Cincinnati, Ohio. Warner also signed a voter registration card using the same address at the time he circulated petitions for Nader. (Id. at 12). One day prior to circulating petitions for Nader, Warner attested in connection with circulating Marriage Protection Amendment petitions in Ohio that his address was in Stockton, California. The evidence before the Secretary established that Warner did not reside at the Ohio address claimed and one hundred eighty nine (189) signatures acquired by Warner were invalidated on account of his fraud.
Circulator Daryl Oberg attested that he resided at an address in North Royalton, Ohio. The evidence before the Secretary of State showed that Oberg left this address in 2000 and had not returned. In 2003, Oberg was registered to vote in the State of California and claimed at least two addresses in that state. (Id. at 14). Oberg also used the address of a motel in Blue Ash, Ohio on certain Nader petitions he circulated. The Secretary of State concluded that Oberg had not maintained a valid residence in Ohio for at least four years. Accordingly, three hundred forty one (341) signatures which he acquired by petition circulation were invalidated.
George Woods circulated petitions using a Dayton, Ohio address of his nephew. The evidence before the Secretary of State established that Woods did not reside with the nephew and had moved to Texas, where he also registered to vote. (Id. at 17). Forty four (44) signatures were invalided by the Secretary of State on account of Woods' fraud.
John Laws attested that he was a resident of Lorain, Ohio on petitions he circulated in this state. The evidence before the Secretary of State established that Laws left the address in 2003 and moved to Los Angeles, California, where he registered to vote. (Id. at 20). Laws vacated a residence on 4207 Columbo Lane, Lorain, Ohio in the fall of 2003, according to an affidavit from his wife. Thereafter, he registered to vote in California in 2003. In 2004, he circulated petitions in Nevada and swore he resided in that state. Approximately one month before circulating petitions in Ohio for Nader, Laws circulated Nader petitions in the State of Nevada using a Las Vegas, Nevada address. The Secretary of State concluded that Laws was not an Ohio resident and invalidated five hundred forty four (544) signatures Laws acquired.
*916 Steven Larry Laws attested that he resided in Lorain, Ohio, where he registered to vote in 1980. (Sec. Findings at 22). He used his 1980 address on the petition at issue in this case. His sister continues to reside at this address. When the process server came to her residence in September of 2004, she stated that her brother was in Nevada. There is no evidence that he moved back to the residence. Other evidence before the Secretary showed that Laws registered to vote in Nevada in 2000 using a Nevada hotel address and listing a Los Angeles, California address. In 2002, Laws registered to vote in California using two different California addresses. In 2003, Laws registered to vote using a third California address. (Id.). The Secretary of State concluded that Steven Laws is a California resident, noting that he has been indicted in that state for criminal nonsupport. (Id. at 23). In February 2004, Laws was sentenced on the felony to five years community control. At the hearing before the Ohio Secretary of State, Laws' attorney confirmed that Laws is a resident of California. As a result, seven hundred seventy two (772) signatures Laws acquired by circulating petitions in Ohio were invalidated.
By disallowing the total of one thousand nine hundred fifty six (1,956) signatures on account of fraudulent residency status, the Nader candidacy, on this basis alone, was left with fewer than 5,000 valid signatures, thereby failing to qualify for placement on the Presidential ballot in Ohio.
Of the 6,464 signatures, the Secretary of State disallowed 800 signatures for reasons not related to residence of the circulator. The Plaintiffs take no issue with this action of the Secretary of State. Before considering the issue of the actual residence of the circulators, the Nader candidacy had submitted 5,646 valid signatures. The petitions circulated by Ellis, Warner, Oberg, Woods, John Laws and Steven Laws, included 1,900 signatures, all of which were excluded by the Secretary of State. Consequently, the questions of whether those petitions are valid and whether the signatures should be counted determine whether Nader should be on the Ohio Presidential ballot.
In total, the Hearing Officer recommended to the Secretary of State that 2,756 signatures be deemed invalid. As a result, the Nader petition was left with 3,708 valid signatures, which is less than the 5,000 required by Ohio law. (Sec. Findings at 30). As a result of this deficiency, the Secretary of State ordered that Nader and Camejo be removed from the election ballot. (Complaint at ¶ 31).
On October 4, 2004, the Plaintiffs herein filed a separate action in the Ohio Supreme Court seeking a writ of mandamus to "compel[ ] the Defendant to re-review certain Part-Petitions and signatures of Electors that were invalidated upon the substantiated position that profuse voter registration backlog data resulted in the failure of Boards to properly review Circulators and Elector validity against updated records." (Id. at ¶ 32). This matter remains pending before the Ohio Supreme Court.
In this action, Plaintiffs "focus[ ] both on a portion of the 8,009 signatures rejected at local Board review and a portion of the 2,756 signatures invalidated as a result of Defendant's acceptance of the Hearing recommendation."[6] (Id. at ¶ 34). Plaintiffs *917 challenge the invalidation of signatures due to the failure of circulators to meet the residency requirement of Ohio law. Plaintiffs claim that if the residency requirement is found to be unconstitutional, and the 1,956 signatures excluded by the Secretary of State are allowed, the Nader petition "will have exceeded the number of valid signatures required and Defendant will be required to certify the Candidacy and place [Nader and Camejo] on the ballot." (Id. at ¶ 42). Accordingly, Plaintiffs seek temporary and preliminary injunctive relief.
With this background in mind, the Court proceeds to consider the various pending motions.
II.
A. Motion to Intervene
The individual group of electors who commenced the protest action before the Ohio Secretary of State move for intervention in the instant case as Third-Party Defendants. The motion is made pursuant to Fed.R.Civ.P. 24(a)(2) and (b)(2). The proposed intervenors state that they "have a significant interest in the subject matter of this case ... are truly the real parties in interest here and the existing parties may not adequately represent that interest." (Motion to Intervene at 2).[7]
Rule 24 allows for intervention as a matter of right as well as permissive intervention. The rule provides:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately protected by existing parties.
(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common.... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
Fed.R.Civ.P. 24(a), (b).
Intervention of right is appropriate if four requirements are satisfied: "(1) timeliness of the application to intervene; (2) the applicant's substantial legal interest in the case; (3) impairment of the applicant's ability to protect that interest in the absence of intervention; and (4) inadequate representation of that interest by parties already before the court." Jordan v. Michigan Conference of Teamsters Welfare Fund, 207 F.3d 854, 862 (6th Cir.2000). With respect to timeliness, the Court considers the following five factors:
(1) the point to which the suit has progressed; (2) the purpose for which the intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervenor's failure, after he or she knew or reasonably should have known of his *918 interest in the case, to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention.
Id.
In this case, the Court finds the Motion to Intervene is timely made. The motion was filed only one day after this action was commenced. Furthermore, no party is prejudiced by the motion and the proposed intervenors have complied with the expedited schedule established by the Court.
The Court also concludes that the remaining three elements necessary for intervention of right are satisfied. The proposed intervenors have a substantial legal interest in this case since they originated the challenge to Nader's ballot petition before the Ohio Secretary of State. In addition, in the absence of intervention, the proposed intervenors' ability to protect their interest may be impaired. Finally, the proposed intervenors' interest is not necessarily adequately represented by Defendant Blackwell, since the Defendant acts in the capacity of a governmental agency. As the Sixth Circuit has explained, the movant is not required to show that the representation will in fact be inadequate. Rather, the burden "is minimal because it is sufficient [to show] that representation may be inadequate." Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1247 (6th Cir.1997) (citation omitted). As the proposed intervenors point out, they occupy a unique position in that they "have expended substantial resources to expose widespread fraud by petition circulators for the Nader campaign." (Motion to Intervene at 5).
In sum, the Court concludes that intervention of right pursuant to Rule 24(a) is warranted for those individuals who commenced the protest action before the Ohio Secretary of State. In light of this conclusion, the Court need not consider the alternative motion for permissive intervention under Rule 24(b).
B. Abstention
Both Defendant Blackwell and the Intervenors argue that the Younger abstention doctrine applies to this case. The doctrine, which takes its name from the Supreme Court case of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), arose in the context of a state criminal proceeding. Harris had been indicted in state court for a violation of California's Criminal Syndicalism Act. Harris then commenced an action in federal court challenging the state law on constitutional grounds. The Supreme Court held that "the possible unconstitutionality of a statute `on its face' does not in itself justify an injunction against good faith attempts to enforce it." Id. at 51, 91 S. Ct. 746. In contrast, the person seeking to enjoin a state proceeding must show that an unconstitutional statute is being enforced in bad faith, for purposes of harassment, or some other unjustifiable circumstance that would warrant federal intrusion into the state proceeding. Id. at 54, 91 S. Ct. 746.
Thus, the Younger doctrine counsels against a federal court interfering with a pending state court action unless unusual or drastic circumstances exist.[8]Younger abstention applies when the state proceeding: (1) is currently pending; (2) involves an important state interest and (3) affords the plaintiff an adequate opportunity to raise constitutional claims. Carroll v. City of Mount Clemens, 139 F.3d 1072, 1074 (6th Cir.1998) (citations omitted).
*919 The Defendant and Intervenors argue that each of these elements is satisfied. First, Defendant and Intervenors observe that the Ohio Supreme Court is currently reviewing the issues raised by Plaintiffs herein in the context of the Plaintiffs' request for writ of mandamus. Second, they assert that the issues raised in the state proceeding are matters of important state interest. Third, they argue that Plaintiffs have an adequate opportunity to present their First Amendment claim to the Ohio Supreme Court. The Court disagrees with this position.
As this Court observed in Monongahela Power Co. v. Schriber, 322 F. Supp. 2d 902, 915 (S.D.Ohio 2004), abstention is "the exception, not the rule." Federal courts have the discretion to abstain from considering a case to avoid unwarranted interference with state proceedings, but the Supreme Court has discouraged declining jurisdiction on this basis because "there is no doctrine that the availability or even pendency of state judicial proceedings excludes the federal courts." New Orleans Public Service, Inc. v. New Orleans, 491 U.S. 350, 373, 109 S. Ct. 2506, 105 L. Ed. 2d 298 (1989) ["NOPSI"]. Furthermore, as the Supreme Court observed in NOPSI, "[t]here is no greater federal interest in enforcing the supremacy of federal statutes than in enforcing the supremacy of explicit constitutional guarantees...." Id. at 365, 109 S. Ct. 2506. According to the Supreme Court:
[I]t has never been suggested that Younger requires abstention in deference to a state judicial proceeding reviewing legislative or executive action. Such a broad abstention requirement would make a mockery of the rule that only exceptional circumstances justify a federal court's refusal to decide a case in deference to the States.
Id. at 368, 109 S. Ct. 2506. Indeed, as Plaintiffs point out, "[t]he Younger doctrine does not require abstention merely because a federal plaintiff alleging a constitutional violation in federal court, filed a claim under state law, in state court, on the same underlying facts." Wexler v. Lepore, 385 F.3d 1336, 1340-41 (11th Cir.2004), citing Rogers v. Desiderio, 58 F.3d 299, 301 (7th Cir.1995); Marks v. Stinson, 19 F.3d 873, 882 (3rd Cir.1994); Crawley v. Hamilton County Commissioners, 744 F.2d 28, 30 (6th Cir.1984).
In this case, the Court is called upon to enforce an explicit constitutional guarantee. This is exactly the situation in which Supreme Court in NOPSI held that the federal interest is at its greatest. Thus, the Court concludes that the fact Plaintiffs have a pending action in state court based on the same underlying facts does not obviate this Court's "virtually unflagging" obligation to adjudicate a claim within its jurisdiction. NOPSI, 491 U.S. at 359, 109 S. Ct. 2506, citing Deakins v. Monaghan, 484 U.S. 193, 203, 108 S. Ct. 523, 98 L. Ed. 2d 529 (1988). The Court therefore declines to abstain from considering this case.[9]
*920 C. Plaintiffs' Application for Temporary Restraining Order and Motion for Preliminary Injunction
Plaintiffs challenge R.C. § 3501.38 on the basis that it serves to deprive electors in this state of their rights under the First Amendment to the United States Constitution,[10] by restricting the qualifications of circulators to registered voters who are residents of Ohio. As the Defendant aptly observes, § 3501.38 sets forth the requirements for those signing nominating petitions as well as the obligations of circulators with respect to such petitions. The residency requirement for circulators is actually contained in R.C. § 3503.06, which states:
3503.06 Registration and residency required for voting or other acts No person shall be entitled to vote at any election, or to sign or circulate any declaration of candidacy or any nominating, initiative, referendum, or recall petition, unless the person is registered as an elector and will have resided in the county and precinct where the person is registered for at least thirty days at the time of the next election.
R.C. § 3503.06.
According to Plaintiffs, a requirement that circulators reside in the State and are registered voters severely burdens interactive political speech and the right of association without advancing any legitimate state interest. The United States Supreme Court has never squarely addressed the issue of state residence although it has addressed the issue of voter registration.
In Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999), the Court considered whether three aspects of a Colorado election statute withstood a First Amendment challenge: the requirement that initiative petition circulators be registered voters; the requirement that circulators wear a name-bearing identification badge; and the requirement that proponents *921 of an initiative report the names and addresses of all paid circulators and the amount paid to each such circulator. The Court concluded that the restrictions "significantly inhibit communication with voters about proposed political change, and are not warranted by the state interests (administrative efficiency, fraud detection, informing voters) alleged to justify those restrictions." Id. at 192, 119 S. Ct. 636.
The Court noted that the question before it was only whether circulators had to be registered to vote in Colorado, which the Court held was an unconstitutional burden in violation of the First Amendment. A majority of the Court expressly declined to address whether a state law requirement that circulators reside within the state could withstand constitutional scrutiny. Id. at 197, 119 S. Ct. 636. In the same opinion, Justice Thomas, Id. at 211, 119 S. Ct. 636, Justices O'Connor and Breyer, Id. at 217, 119 S. Ct. 636, and Chief Justice Rehnquist, Id. at 226, 119 S. Ct. 636, assert that a state could constitutionally require a circulator to be a resident of the state.
Various federal courts have confronted this issue. Some have upheld state residency requirement statutes: Initiative & Referendum Institute v. Jaeger, 241 F.3d 614 (8th Cir.2001); Idaho Coalition United for Bears v. Cenarrusa, 234 F. Supp. 2d 1159 (D.Idaho 2001); Kean v. Clark, 56 F. Supp. 2d 719 (S.D.Miss.1999). Other courts have found state residency requirements a violation of the First Amendment: Krislov v. Rednour, 226 F.3d 851 (7th Cir.2000); Chou v. New York State Board of Elections, 332 F. Supp. 2d 510 (E.D.N.Y.2004); Morrill v. Weaver, 224 F. Supp. 2d 882 (E.D.Pa.2002); Young v. Illinois State Board of Elections, 116 F. Supp. 2d 977 (N.D.Ill.2000). Two courts have found a requirement for residency in a district to be a violation of the First Amendment. Lerman v. Board of Elections in the City of New York, 232 F.3d 135 (2nd Cir.2000); Frami v. Ponto, 255 F. Supp. 2d 962 (W.D.Wis.2003).[11]
In Lerman v. Board of Elections in the City of New York, 232 F.3d 135, 149 (2nd Cir.2000), the court described a state's interest in "ensuring integrity and preventing fraud in the electoral process" as "unquestionably compelling." The court also noted that if state elections officials could "establish that the use of non-resident petition circulators did in fact pose a demonstrable threat to the integrity of the signatures collection process," the state interest in restricting the qualifications of circulators would be entitled to greater weight and deference. Id., citing Schulz v. Williams, 44 F.3d 48, 57 (2nd Cir.1994) (emphasis added).
As the Supreme Court observed in Buckley v. American Constitutional Law Foundation, Inc., supra, there is no "litmus-paper test" to distinguish "valid ballot-access provisions from invalid interactive speech restrictions." 525 U.S. at 192, 119 S. Ct. 636. In short, courts addressing constitutional challenges to state ballot access requirements are called upon to make "hard judgments" but to be "vigilant in making those judgments, to guard against undue hindrances to political conversations and the exchange of ideas" which the First Amendment protects. Id.
In this case, the Ohio statute at issue, § 3503.06, requires that circulators be "registered as an elector" and "reside[] in the county and precinct where the person is registered...." In view of the Buckley v. American Constitutional Law Foundation decision, it appears clear that the requirement of Ohio law that circulators be *922 registered voters is unconstitutional.[12] Moreover, although Buckley did not address the constitutionality of a state residency requirement, the Court nevertheless has every reason to assume that the decision applies to this case.[13]
It is clear that the requirement of Ohio law that circulators must be residents is a restriction on the guarantees of the First Amendment. The Supreme Court instructs that severe burdens on speech trigger a strict standard of review in which regulations must be narrowly tailored to serve a compelling state interest. Less severe burdens on speech are subject to a more lenient standard of review in federal court. See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S. Ct. 1364, 137 L. Ed. 2d 589 (1997). The Court concludes that the Ohio law at issue should be reviewed under a strict scrutiny analysis as it clearly infringes on the extent of ballot-related activity protected by the First Amendment. As the Supreme Court observed in Buckley v. Valeo, 424 U.S. 1, 15, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976), "it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office." As further explained in Buckley v. American Constitutional Law Foundation, supra, "[p]etition circulation ... is core political speech" during which "First Amendment protection ... is at its zenith." 525 U.S. at 186-87, 119 S. Ct. 636.
The Defendant contends that the law serves a compelling interest of the state "to protect the integrity of the petition process." (Defendant's Memorandum contra at 5). The Supreme Court has recognized that the state's interest in protecting the integrity and fairness of the electoral process is paramount. In Burson v. Freeman, 504 U.S. 191, 112 S. Ct. 1846, 119 L.Ed.2d 5(1992), the Court expressed this interest in the following way:
[T]he "right to vote freely for the candidate of one's choice is of the essence of a democratic society." Reynolds v. Sims, 377 U.S. 533, 555, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964). Indeed, "[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U.S. 1, 17, 84 S. Ct. 526, 11 L. Ed. 2d 481 (1964). Accordingly, this Court has concluded that a State has a compelling interest in protecting voters from confusion and undue influence.... The Court also has recognized that a State "indisputably has a compelling interest in preserving the integrity of its election process." The Court thus has "upheld generally applicable *923 and evenhanded restrictions that protect the integrity and reliability of the electoral process itself." Anderson v. Celebrezze, 460 U.S. 780, 788, n. 9, 103 S. Ct. 1564, 75 L.Ed.2d 547(1983) (collecting cases). In other words, it has recognized that a State has a compelling interest in ensuring that an individual's right to vote is not undermined by fraud in the election process.
Id. at 199, 112 S. Ct. 1846 (emphasis added).
Nevertheless, the Supreme Court has stated that an asserted interest by the state in preventing fraud, while "important in the abstract," does not require a court to accept the state's expressed concern. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 664, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994). The Supreme Court has thus cautioned that purported fears of fraud, rather than actual fraud in the electoral process, may not be sufficient to justify limitation on activities otherwise protected by the First Amendment.
The record in this case is replete with credible, unchallenged instances of actual fraud in the circulation of petitions. The Ohio Secretary of State has detailed numerous and substantial instances of fraud on the part of petition circulators for the Nader petition ballot. Not only were various petition circulators non-residents of this State, they engaged in outright fraud by using false addresses to purportedly satisfy Ohio law. In addition, circulators engaged in additional acts of fraud by falsely attesting that petitions were circulated when they were not and by falsely attesting to signatures. After consideration of the evidence, the Secretary of State not only decided to exclude Nader's placement on the ballot but also recommended that a criminal investigation be undertaken. (Sec. Findings at 30-31). Ohio law has long required the invalidation of all signatures on a petition if it has been found that the circulators falsely swore to any fact on the petition and the method of signing. R.C. § 3501.38; § 3501.39; State ex rel. Comm. for the Referendum of City of Lorain Ordinance No. 77-01 v. Lorain County Bd. of Elections, 96 Ohio St. 3d 308, 774 N.E.2d 239 (2002); State ex rel. Citizens for Responsible Taxation v. Scioto County Board of Elections, 65 Ohio St. 3d 167, 602 N.E.2d 615 (1992). The Plaintiffs have not asserted that these provisions of Ohio law are unconstitutional.
In reviewing the Secretary's Findings, it is clear that not only were signatures rendered invalid because petition circulators falsely attested that they were residents of the State of Ohio, but also because they engaged in other forms of fraud in obtaining the signatures. The fraud among petition circulators was widespread and took various forms. Seven hundred seventy (770) signatures were invalidated because circulators did not actually circulate petitions and could not distinguish between those actually circulated and those not circulated. As stated above, one thousand nine hundred fifty six (1,956) signatures were invalidated for false residency. An additional thirty (30) signatures were invalidated for other reasons.
In light of this fraud, the Court concludes that it is unnecessary to delve into the constitutional issue presented. Regardless of how the Court would resolve the question of whether a state law requiring circulators to be state residents is constitutional, the fact remains that the signatures would be excluded on the grounds of several forms of fraud on the part of the circulators. Thus, the Court finds that Plaintiffs have failed to meet a threshold requirement for this Court to even consider the constitutional issue.[14]
*924 Federal courts are obligated not to "decide questions of a constitutional nature unless absolutely necessary to a decision of the case." Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S. Ct. 466, 80 L. Ed. 688 (1936) (Brandeis, J. concurring). In this case, even if the residency requirement were held to be unconstitutional, Ohio law would require the invalidation of all names on petitions signed by circulators who fraudulently claimed that they lived in Ohio. As noted in Ashwander, in such circumstances, it is improper for a federal court to consider striking down as unconstitutional a state law, if such action does not effect the outcome of the case. Because the Secretary of State invalidated the challenged names on the independent basis of fraud, this Court declines to address Plaintiffs' constitutional challenge to R.C. § 3503.06.
The Court notes that the Intervenors also argue that the doctrine of "unclean hands" applies to this case. The unclean hands doctrine refers to the maxim that one who seeks equitable relief in the form of an injunction must do so with "clean hands." See Keystone Driller Co. v. General Excavator Co., et al., 290 U.S. 240, 54 S. Ct. 146, 78 L. Ed. 293 (1933). In other words, because a court may only issue an injunction if the law favors the party seeking the injunction, and fairness and equity support the relief, a wrongdoer has been traditionally denied the benefit of an injunction. This doctrine is not applied as a punishment but rather to further "the advancement of right and justice." Id. at 245, 54 S. Ct. 146.
According to the Intervenors, the Plaintiffs should not be entitled to seek equitable relief in view of the widespread fraud found by the Secretary of State. The Court agrees with this argument as an alternative basis to deny the relief sought by the Plaintiffs. As the Supreme Court long-ago observed: "`The equitable powers of this court can never be exerted in behalf of one who has acted fraudulently, or who by deceit or any unfair means has gained an advantage. To aid a party in such a case would make this court the a better of iniquity.'" Id. at 245, 54 S. Ct. 146 (emphasis added), quoting Bein v. Heath, 47 U.S. 228, 6 How. 228, 247, 12 L. Ed. 416 (1848). The magnitude of the fraud described by the Secretary of State in the Findings of Fact and Conclusions of Law are far too great for this Court to consider granting the equitable relief of an injunction in the Plaintiffs' favor.
D. Defendant Blackwell's Motion to Dismiss
In addition to opposing the Plaintiffs' requests for injunctive relief, Defendant Blackwell moves to dismiss this action for the reasons stated in his opposition memorandum. As explained above, the Court's decision rests on different grounds than those argued by the Defendant. Nevertheless, the Court finds that dismissal of this action is appropriate since Plaintiffs are not entitled to equitable relief from this Court.
III.
In light of the foregoing, the Plaintiffs' combined Application for Temporary Restraining Order and Motion for Preliminary Injunction (Doc. # 2) is DENIED. The Motion by the Individual Electors to Intervene (Doc. # 3) is GRANTED. Defendant Blackwell's Motion to Dismiss (Doc. # 6) is GRANTED.
*925 This action is hereby DISMISSED. The Clerk is DIRECTED to enter Judgment in favor of Defendant Blackwell and the Intervenors.
IT IS SO ORDERED.
NOTES
[1] Shortly after Plaintiffs' filing, the Court conducted a telephonic status conference pursuant to S.D. Ohio Local Rule 65.1. It was agreed that no discovery was necessary to resolve Plaintiffs' motion and an expedited briefing schedule on the merits was established. The Court heard argument from counsel on October 12, 2004.
[2] Plaintiffs cite R.C. § 3501.38 in this regard. As explained infra, the statute at issue is actually R.C. § 3503.06.
[3] The factual summary is taken from the Complaint as well as from the Secretary of State's Findings of Fact and Conclusions of Law, dated September 28, 2004, which both parties have agreed to make part of the record of this case.
[4] The individual electors are referred to as "protestors" and include: Benson A. Wolman, Jerilyn L. Wolman, Zachery E. Manifold, Julia E. Manifold, Bassel Korker, Rebecca S. Mosher, Barry C. Keenan, Gerald L. Robinson, Scott Austin, Mary C. Woods, Johnathon Brunner, Max Kravitz, and Daniel T. Kobil. These individuals seek to intervene in the instant action as Third-Party Defendants. The Court addresses the merits of the motion, infra.
[5] At the time the Nader petitions were being circulated in Ohio, proponents of a constitutional amendment regarding same-sex marriage were also circulating petitions to place this issue on the November 2, 2004 ballot.
[6] At oral argument, counsel for the Plaintiffs commendably acknowledged that the Plaintiffs were unable to establish the number of disqualified signatures rejected as a result of the circulators' out-of-state residence. Consequently, this Court cannot determine the validity of these signatures, since the Court cannot find that validity of these names would raise the number of signatures to over 5,000.
[7] The Court has been advised that the Defendant does not oppose intervention. The Plaintiffs do not necessarily oppose intervention but express concern that this case remain on an expedited track. The proposed intervenors have complied with the merits briefing schedule previously established by the Court, thereby negating the Plaintiffs' concern.
[8] Although the Supreme Court has extended the application of Younger to civil proceedings, for the reasons stated infra, the breadth of the extension is not as great as Defendant suggests.
[9] The Defendant and Intervenors cite this Court's decision in Chamber of Commerce of United States v. Ohio Elections Commission, 135 F. Supp. 2d 857 (S.D.Ohio 2001), in support of their argument for Younger abstention. In the Chamber of Commerce case, proceedings were commenced before the Ohio Elections Commission alleging certain television advertisements concerning candidates for judicial office in the State of Ohio violated two Ohio election statutes. The Chamber of Commerce later commenced an action in this court requesting that the two Ohio statutes, R.C. §§ 3517.21(B) and 3599.03(A), be declared unconstitutional on their face on First Amendment grounds. This Court declined to consider the constitutional issue on the basis of, inter alia, the Younger abstention doctrine. The Court found that Plaintiff failed to demonstrate that state law would clearly bar the interposition of the constitutional claim during the course of proceedings before the Ohio Elections Commission. The record in that case demonstrated that the Elections Commission was cognizant of the constitutional standards that Plaintiff in that case sought to invoke. Further, the Elections Commission proceeding was nearing completion. Thus, this Court noted that while it was "mindful of the potential high costs that abstention [could] have in First Amendment cases generally, the costs of abstention in this case do not appear potentially high." Id. at 869.
The Court finds the facts in this case sufficiently distinguishable from those in the Chamber of Commerce case. There is no doubt that the Plaintiffs have an adequate opportunity to raise the constitutional claim in the state proceedings. In the context of a Presidential election, there is at least an equal, if not paramount, federal interest in the question raised in this Court. The election in question is to occur twenty-one days from issuance of this Opinion and Order. The questions raised in this case are exclusively addressed to constitutional issues. If this Court were to abstain, there is a substantial likelihood that the election would occur without any meaningful review by the federal courts regarding an issue arising exclusively under the federal Constitution. In contrast, this Court abstained in Chamber of Commerce of United States v. Ohio Elections Commission, which involved campaign activity in a state election which had already occurred. In that case, the state had more paramount interest in a state election. The case before the Ohio Election Commission had been pending for an extended period of time. Subsequent review in both state and federal court would not be frustrated, as in this case, because of an impending election. In addition, the Chamber of Commerce case was essentially an enforcement action, making Younger abstention appropriate. In sum, the situation presented in Chamber of Commerce is entirely different from the case at bar.
[10] The First Amendment states that "Congress shall make no law... abridging the freedom of speech...." U.S. Const. Amend. 1.
[11] The Court notes that Plaintiffs rely on these two cases but the Court finds them inapposite since Ohio law has no district residency requirement, only a state residency requirement.
[12] In theory only, Plaintiffs have a strong case to challenge the voter registration requirement in view of the Buckley decision. This was not, however, the primary basis under which the Secretary of State invalidated signatures obtained by petition circulators for Nader in this state. The Secretary emphasized that the circulators were not citizens of Ohio, although some mention is made that some circulators were additionally not registered Ohio voters. Furthermore, the fact that the voter registration requirement may be unconstitutional does not invalidate the entirety of R.C. § 3503.06 as to the requirement of state residence. Under Ohio law, there is a legislative mandate in favor of severability. R.C. § 1.50 states:
If any provision of a section of the Revised Code or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the section or related sections which can be given effect without the invalid provision or application, and to this end the provisions are severable.
R.C. § 1.50.
[13] For the reasons stated infra, however, the Court declines to pass on the constitutionality of the state residency requirement in Ohio.
[14] In the Court's view, this case is wholly different from one in which out-of-state circulators, untainted by fraud, challenge a residency statute on First Amendment grounds. In such a case, the Court would consider the First Amendment issue.
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439 S.W.2d 687 (1969)
Mary Lou BUSBY, Appellant,
v.
Earl E. BUSBY, Appellee.
No. 11653.
Court of Civil Appeals of Texas, Austin.
January 29, 1969.
Rehearing Denied March 26, 1969.
Rehearing Granted March 26, 1969.
Third Motion for Rehearing Denied April 16, 1969.
*688 Mitchell, Gilbert & McLean, Phillip W. Gilbert, Charles E. Johanson, Austin, for appellant.
Jones, Blakeslee, Minton, Burton & Fitzgerald, Charles R. Burton, Austin, for appellee.
Appellee's Rehearing Denied March 26, 1969.
Appellant's Rehearing Granted March 26, 1969.
Appellee's Third Motion for Rehearing Denied April 16, 1969.
PHILLIPS, Chief Justice.
This suit was brought by a former wife against her former husband for one-half of certain Air Force retirement benefits which had become due the husband but which had not been included in the division of the property at the time of the divorce.
The trial was to the court sitting without a jury and at the conclusion thereof, judgment was entered that the wife take nothing by her suit. The trial court filed findings of fact and conclusions of law and the wife has duly perfected her appeal to this Court.
We reverse and render.
I.
The appellant wife is before this Court on three points of error, the first being that of the court in rendering judgment against her because her cause of action for a division of her husband's Air Force retirement benefits was not barred under the doctrine of res judicata by the judgment in Cause No. 117,417, Mary Lou Busby v. Earl E. Busby in the 126 District Court of Travis County, Texas; the error of the court in its conclusion of law to the effect that the wife's undivided one-half interest in appellee husband's retirement benefits could no longer be asserted because she had failed to request a division of such benefits in her prior divorce action; the error of the court in its conclusion of law to the effect that the appellant wife's cause of action for her undivided interest in her former husband's retirement benefits was barred under the doctrine of res judicata by the judgment in her prior divorce action, since that prior judgment had not awarded any interest in such benefits to either party.
We sustain these points.
Briefly summarized, the trial court's findings of fact were to the effect that the defendant had joined the Air Force on September 14, 1942; that he had married the plaintiff on March 1, 1946; that the parties remained married until June 25, 1963, at which time they were divorced by judgment of the 126th Judicial District Court of Travis County, Texas, in Cause No. 117,417; that at that time the defendant had completed more than twenty years and six months of active service with the United States Air Force, vesting him with the right to retirement at a monthly pay rate for the remainder of his life based upon his permanent rank of Major and 21 years of service; that the parties had not entered into any agreement regarding their property rights in the retirement benefits prior to their divorce; and that the divorce judgment had listed certain properties acquired by the plaintiff and defendant during their marriage, and, with the exception of the homestead, had ordered the division of the items of property so listed, but that the divorce judgment had not listed the retirement benefits of the defendant.
The trial court's conclusions of law were to the effect that the defendant's retirement benefits were the community property of the plaintiff and the defendant; that the court which had decreed their divorce had jurisdiction to partition and apportion those benefits between the plaintiff and the defendant; but that the prior judgment of divorce, which had partitioned certain other properties, made the plaintiff's cause of action a matter res judicata.
The divorce decree reads, in part, as follows:
"The Court further finds that plaintiff and defendant acquired out of community funds, during their said marriage, the following real and personal property:
A house and lot located at 4703 Round Up Trail, Austin, Travis County, in *689 which home plaintiff and defendant have an equity;
Household furniture and effects located in said home;
A 1957 Mercury automobile;
A 1956 Rambler automobile; and
Funds on deposit
And it is hereby ORDERED, ADJUDGED and DECREED by the Court that the house located at 4703 Round Up Trail, Austin, Travis County, Texas, be, and the same is hereby set aside for the use and benefit of plaintiff and the minor child until the minor child shall attain the age of twenty-one years; and that all payments made on said home at 4703 Round Up Trail, Austin, Travis County, Texas, on the mortgage of said home, and all taxes, insurance and repairs to the home, hereafter made by the plaintiff, Mary Lou Busby, are to be applied to plaintiff's separate interest in said real property; and
It is further ORDERED, ADJUDGED and DECREED by the Court that the household furniture and effects and the 1957 Mercury automobile shall be, and the same are hereby awarded to plaintiff, Mary Lou Busby, as her separate property; and
It is further ORDERED, ADJUDGED and DECREED by the Court that the 1956 Rambler automobile shall be and same is hereby awarded to the defendant, Earl E. Busby.
The Court further ORDERS that all bank accounts as of this date are to be divided equally between plaintiff and defendant."
The appellee contends that the court having partitioned the property in the divorce decree, mentioned above, the matter is res judicata and cannot be reopened, citing Ogletree v. Crates, 363 S.W.2d 431 (Tex. 1963). Ogletree is not a divorce case; however, Ladd v. Ladd, 402 S.W.2d 940 (Tex. Civ.App. Amarillo 1966, writ ref'd n.r.e.) and Foster v. Foster, 366 S.W.2d 680 (Tex. Civ.App. Amarillo 1963, writ dism'd) both cited by appellee, are divorce cases wherein the Courts refused to allow litigants in former divorce actions to bring alleged community property into litigation that had not been included in the former divorce decrees. In each of these latter cases the Court held that the moving parties were barred by the doctrine of res judicata. These cases are not in point here.
The law controlling the property in question is, stated by the Supreme Court, through its Commission of Appeals, in Kirberg v. Worrell, 44 S.W.2d 940 (Tex.1932), which states the rule that where a divorce decree purports to partition only certain property, the district court may in a later suit partition other property not included in the divorce decree.
In the case at bar the decree sought only to partition certain property. It did not undertake to partition the homestead but left this to be done at a future date. In Kirberg the Court said:
"* * * but, when we come to examine and construe the judgment as a whole, and especially the decreeing part, we find that it partitions and divides to Mrs. Kirberg, then Mrs. Worrell, certain particular and specified property. It then partitions and divides to the defendant, R. G. Worrell, certain particular and specified property. The judgment proceeds no further with reference to such matters, and contains no general clause awarding property not specifically awarded to either party. We are therefore at a loss to understand how it can be said that this judgment has awarded the property here involved to the husband, since it is neither specifically nor generally awarded to him in the judgment. In other words, if the judgment is held to completely partition the community estate, how can it be said that such judgment has operated to give the husband any better title to the property here in dispute than it gives the *690 wife? The judgment when considered as a whole simply does not partition, nor purport to partition, anything except the property particularly awarded to each of the parties. Where such is the case, the judgment cannot be held to preclude either party from demanding a partition of community property not therein included."
We hold that here appellant is seeking the determination of a property interest that was not actually awarded to either party by the divorce decree; and further, that the above mentioned decree did not purport to divide all of the community. This latter aspect of the decree distinguishes this case from Ladd and Foster, above, where, in the former all of the community property was divided by the Court and, in the latter, where the community property was divided by agreement. See Ex Parte Joy Williams, 160 Tex. 314, 330 S.W.2d 605 (1960).
II.
Appellee brings four cross points which we shall consider together. The first is that the trial court has no jurisdiction to partition and apportion the Air Force retirement benefits of appellee as between him and appellant since those benefits are vested in appellee by federal law and no state court can determine ownership of the benefits in conflict with such federal law; the second is that the trial court erred in its conclusion of law that the retirement benefits of the appellee were community property at the time of the divorce of appellant and appellee since appellee never possessed a "property right" in such benefits during marriage; the third is that the trial court erred in its conclusion of law that the retirement benefits of appellee were community property at the time of the divorce since any property right acquired by appellee had its inception prior to his marriage to appellant; the fourth is that appellant has shown no satisfactory method of determining the extent of her interest in the retirement benefits.
We overrule these points.
Herring v. Blakeley, 385 S.W.2d 843 (Tex.1965) in holding that a profit sharing plan and an annuity contract in existence at the time of the marriage but not payable until after the divorce was community property to be considered and divided at the time of divorce, cited with approval Lee v. Lee, 112 Tex. 392, 247 S.W. 828 (1923), wherein it was argued that the benefits under a plan to which the employer made all the contributions were gifts to the employee, hence his separate property. The Commission of Appeals rejected the argument saying:
"It was in no sense a donation to the employe for individual merit, but was manifestly additional compensation for faithful and continuous service. It was as much a fruit of his labors as his regular wages or salary. It was in the strictest sense a `gain' added to the common acquests of the marital partnership, as the direct result and fruit of his labor and services."
In further support, the decision of the Court in Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App. San Antonio 1968, writ dism'd), held that the husband's interest in an armed services retirement plan was "an earned property right" which accrued by reason of military service, and under Vernon's Ann.Tex.Rev.Civ.Stat. art. 4619, and the portion thereof earned during marriage constituted community property.
The United States Court of Appeals for the ninth circuit in Commissioner of Internal Revenue v. Wilkerson, 1966, 368 F.2d 552 upheld Arizona law declaring service benefits to be community property of service man and wife residing in Arizona.
We reverse the judgment of the trial court and render judgment that appellant receive one-half of the $21,690.53 which represents payments made to Earl E. Busby in retirement pay from July 30, 1963 *691 through January 31, 1968 with 6% annual interest from the latter date, and further appellant is hereby awarded one-half of all such payments received by appellee since the date of trial together with 6% interest thereon from the date of each such payment and is further awarded judgment for one-half of all future payments as and when received.
Reversed and rendered.
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439 S.W.2d 834 (1969)
Don Eldon SMITH, Appellant,
v.
The STATE of Texas, Appellee.
No. 42030.
Court of Criminal Appeals of Texas.
April 23, 1969.
*835 Max Blankenship, Fort Worth, for appellant.
Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
BELCHER, Judge.
The conviction is for burglary with a prior conviction for burglary alleged for enhancement; the punishment, twelve years.
The appellant's first ground of error is that the trial court failed to charge the jury on the voluntariness of his written statement made in Waco and on the exculpatory statements in another written statement made by him in Dallas.
Appellant's written objections to the charge states:
"The charge of the court fails to charge all of the law applicable to and required by the facts adduced in evidence on trial and is therefore prejudicial to the rights of this defendant to a fair and impartial trial as guaranteed this said defendant by the United States of America Constitution in the 5th, 6th, and 14th amendments thereto."
This objection does not comply with the requirements of Art. 36.14, Vernon's Ann.C.C.P., that the objection be "in writing, distinctly specifying each ground of objection." The ground of error cannot be appraised.
The appellant further contends that the court's failure to charge the jury on the voluntariness of his written statement made in Waco was fundamental error and can be reviewed without objection. This contention is overruled.
However, the trial court at the conclusion of a hearing in the absence of the jury on the voluntary character of appellant's written statement made in Waco found that it was voluntarily made, and later made and filed his written findings and conclusions that the written statement was freely and voluntarily made. Further, the evidence on the main trial failed to raise any issue that the written statement was involuntarily made.
The failure of the court to charge on the exculpatory statement made by the appellant in Dallas was not error for the reason that it was introduced in evidence by him. 23 Tex.Jur.2d 165, Sec. 116.
Appellant urges as error the admission in evidence during the hearing on the issue of punishment certified copies of the indictments, judgments, and sentences in three prior convictions, one of which had been alleged in the indictment for enhancement purposes. The appellant, in support of his position, contends that he was unduly surprised, and that these instruments were hearsay and were admitted in evidence without a showing that he or his counsel had been furnished copies of the same prior to the time of trial as required by Sec. 3 of Art. 3731a, V.A.C.S.
The allegation of the prior conviction of burglary in the indictment for enhancement *836 put the appellant on notice that it would be necessary for the state to introduce evidence to support it. McCown v. State, 170 Tex. Crim. 142, 338 S.W.2d 732.
The records of the two prior convictions admitted in evidence as part of appellant's criminal record reveal that they were had on the same date in the same court on pleas of guilty for burglary with punishment assessed at three years in each case and credit for time in each case was to begin on the same date as in the prior conviction alleged for enhancement.
In Denham v. State, Tex.Cr.App., 428 S.W.2d 814, this Court said:
"Article 37.07, (V.A.C.C.P.) supra, puts every accused on notice that the State is entitled to show his prior criminal record, if any. Such statute does not limit or restrict in any way the method of showing such prior criminal record. One of the customary means of doing so, which has long been approved by this Court, has been by the use of certified copies of the prison records. Graham v. State, Tex.Cr.App., 422 S.W.2d 922; Jackson v. State, Tex.Cr.App., 402 S.W.2d 742; Broussard v. State, Tex.Cr.App., 363 S.W.2d 143.
"Therefore, when the trial judge, as in the case at bar, finds after an inquiry into the matter that the appellant was not unfairly surprised, then we perceive no violation of Section 3 of Article 3731a, supra."
See also: Johnson v. State, Tex.Cr. App., 432 S.W.2d 98.
In light of the facts and circumstances surrounding the trials at which the three prior convictions were had and the provisions of Art. 37.07, supra, it is concluded that the appellant was not unfairly surprised by the introduction of the two prior convictions as a part of his criminal record. The ground of error is overruled.
The judgment is affirmed.
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439 S.W.2d 648 (1969)
LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE, Appellant,
v.
Ronald NICHOLSON, Appellee.
No. 5-4854.
Supreme Court of Arkansas.
April 7, 1969.
Rehearing Denied May 12, 1969.
*649 Chowning, Mitchell, Hamilton & Burrow, Little Rock, for appellant.
Wilton E. Steed, Pine Bluff, for appellee.
FOGLEMAN, Justice.
This appeal is taken from a judgment rendered in favor of the mother of appellee, as his guardian. It was rendered in a suit brought by appellee upon an industrial accident insurance policy issued by appellant on April 4, 1949. The application for the policy was signed by the mother. The losses insured against were death by accidental means and losses of sight or limb. The face amount of the policy became $2,000 after it had been in force for 10 years. The suit was for the loss of the sight of appellee's right eye, for which the benefit payable was one-half the face amount of the policy. In order for the benefit for loss of sight or limb to become payable, the loss was required to have been suffered solely as "a direct and proximate result of diseases contracted after or injuries sustained after the effective date of this policy."
One of the defenses made by appellant was the contention that appellee's loss was the result of a disease which preexisted the effective date of the policy. After hearing the testimony, the circuit judge, sitting without a jury by stipulation of the parties, made the following findings:
"THE COURT: I rather think we should pay this policy Mr. Selig under the proof. The boy apparently is blind, they insured him, he was carrying it on for years, accepting the premiums. I realize there are a lots of little technicalities in those policies, there are also lots of technicalities in the taking of a man's money off of him and then when you get ready and and he is blind and you say he is blind, admit it, admit the policy says that, you say he isn't I believe. Well, Dr. Glasscock I rather think is a reputable physician, his qualifications were admitted. I don't know how to examine a fellow to tell you that properly about it except to go to doctors. I think he has waived, they waived it, whatever they might have there under the proof and I think it should be paid."
Appellant urges two grounds for reversal. The first is that the undisputed evidence shows that appellee's loss of sight in his right eye was not suffered as a result of a disease contracted or injury sustained after the effective date of the policy, but that it preexisted and manifested itself before the policy became effective. The second ground is a contention that the court erred in holding that appellant waived the defense of noncoverage for losses suffered as a result of conditions which preexisted the effective date of the policy. We agree with appellant on both points. We shall discuss them in the order set out.
In attempting to sustain his complaint, appellee offered two witnesses, Dr. Robert Earl Glasscock, an ophthalmologist and otolaryngologist, and appellee's mother. Dr. Glasscock examined appellee November 11, 1966. His examination disclosed that appellee's visual acuity in his eye was such as to indicate industrial, but not medical, blindness. He did not find anything physically *650 wrong with either of appellee's eyes. He felt that the visual loss was connected in origin to appellee's central system, i. e., with whatever was causing a convulsive disorder suffered by appellee and his obvious retardation. Dr. Glasscock took a medical history from appellee's mother. She told him that appellee was cross-eyed in his right eye since he was about five or six years old and that he had had some type of convulsive disorder since that time. Dr. Glasscock stated that such a condition remains more or less stable because the damage causing the condition does not progress. He stated that this condition would stay approximately the same if it existed in 1944 or 1945 when appellee was five or six years of age. He did not believe that either a layman or a doctor could have glanced at appellee in 1944 and said that he was mentally deficient, but stated that, on the basis of the history given by appellee's mother, the condition was diagnosable in 1944 or 1945.
Mrs. Ness, appellee's mother, stated that she advised the agent from whom she took the policy that her son Ronald had seizures for which he took mylantin sodium.[1] She said that she told the agent that these sudden seizures had been diagnosed as acute indigestion, and that Ronald would sometimes have convulsions and she would have to get the doctor to give him a shot. She admitted that the first time she saw her son's eyes show a cross was when he was about five or six years of age and asserted that she advised the agent of this. She testified that she first took her son to an eye doctor upon the recommendation of a school nurse. This doctor was identified as Dr. Louise McCammon Henry.
On the written claim submitted for this loss, the nature and cause of appellee's disability was described as epilepsy and the date disability became total was given as "lifetime."
Appellant offered the deposition of Dr. Henry, an ophthalmologist. She testified that she examined appellee on March 21, 1951, when he was thirteen years of age. The medical history for this examination was given by appellee's mother. According to Dr. Henry, the mother stated that her son had convulsions as a baby and that the crossing of his eyes began between the ages of five and six. This doctor diagnosed the condition which affected appellee's vision in his right eye as a muscular defect which generally actively manifests itself in early childhood. It was her opinion, based upon her examination, that this condition existed in appellee from early childhood, that the degree of crossing would have been obvious to her and that, assuming the medical history to be correct, an accurate diagnosis could have been made of his condition when he was five or six years of age.
We find no substantial evidence here to support appellee's claim that his loss of sight is within the coverage of the insurance policy.
Appellee relies upon the cases of Home Mutual Benefit Association v. Mayfield, 142 Ark. 240, 218 S.W. 371; State National Life Insurance Co. v. Stamper, 228 Ark. 1128, 312 S.W.2d 441; United Insurance Co. of America v. Wall, 233 Ark. 554, 345 S.W.2d 927; American Insurance Co. of Texas v. Neal, 234 Ark. 784, 354 S.W.2d 741; Old Equity Life Insurance Co. v. Crumby, 241 Ark. 982, 411 S.W.2d 292; and Lincoln Income Life Insurance Company v. Milton, 242 Ark. 124, 412 S.W.2d 291. These cases establish the proposition that a disease has its inception at the time it manifests itself or becomes active or when it is of such nature that a reasonably accurate diagnosis could have been made before the policy was issued. Even so, we cannot come to any conclusion in this case except that the disease which caused appellee's loss of sight had been sufficiently manifested before the issuance of the policy to cause a diagnosis to have been sought and that it was of such a nature as to have permitted a reasonably accurate *651 diagnosis to have been made with reasonable medical certainty.
It should be noted that the clause in question in Home Mutual Benefit Association v. Mayfield, supra, was quite different from the one involved here. The clause there required that the loss be from "disease resulting hereafter."
The findings of the circuit court here seem to have been based principally upon waiver by appellant, purportedly by reason of the acceptance of the premiums for the policy ever since its issuance. There is also testimony by appellee's mother that the soliciting agent saw appellee both when the application was made for the policy and when the policy was delivered. She also testified that she told the agent all she knew about her son's condition. We find no waiver under the facts in this case. Appellee apparently agrees with us, because he does not argue this point, nor does he rely on waiver for an affirmance.
It is well settled in this state that the doctrines of waiver and estoppel, based upon the conduct or action of the insurer, cannot be used to extend the coverage of an insurance policy to a risk not covered by its terms or expressly excluded therefrom. Hartford Fire Insurance Co. v. Smith, 200 Ark. 508, 139 S.W.2d 411; Metropolitan Life Insurance Company v. Stagg, 215 Ark. 456, 221 S.W.2d 29; Bankers Nat. Ins. Co. v. Hemby, 217 Ark. 749, 233 S.W.2d 637. This is not a case where a forfeiture is attempted by the insurance company but is a question as to the extent of the coverage of the policy. Consequently, there is no support for a finding of waiver. The result is not changed by reason of the fact that appellant accepted the payment of a premium after this claim was asserted. To have done otherwise would have been inconsistent with the contention made by appellant. Under the terms of the policy, it expires upon the occurrence of any loss covered and the payment of the amount provided by the policy for such a loss. Appellant contended that the loss suffered by appellee was not within the coverage of the policy. Consequently, if it was right in its contention the policy continued in force as to the risks of accidental death, loss of limbs and loss of sight of the left eye.
The judgment is reversed and the cause dismissed.
NOTES
[1] She testified that she later learned that this medication was for epilepsy.
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439 S.W.2d 824 (1969)
James B. JOHNSON, Petitioner,
v.
PACIFIC EMPLOYERS INDEMNITY COMPANY, Respondent.
No. B-1211.
Supreme Court of Texas.
April 9, 1969.
*825 Horace F. Brown, J. Monty Bray, Houston, for petitioner.
Bryan & Patton, E. H. Patton, Jr., Houston, for respondent.
CALVERT, Chief Justice.
In this suit for benefits under the Workmen's Compensation Law, the trial court's judgment awarded petitioner Johnson a recovery, in a lump sum, of benefits for total and permanent disability, plus medical expenses in the sum of $5,715.00. The court of civil appeals reversed the judgment of the trial court and rendered judgment that Johnson take nothing. Tex.Civ.App., 431 S.W.2d 787. The court of civil appeals held that the evidence establishes, as a matter of law, that Johnson's injuries were not sustained in the course and scope of his employment. The court's holding nullified a jury finding to the contrary. The judgment of the court of civil appeals is reversed and the cause is remanded to that court.
Johnson was employed as a member of a drilling crew by Meadows Drilling Company. The site at which the crew was working was several miles southwest of Johnson's home at Soda, Texas. His usual and most convenient route to the drill-site was southerly along a county road to its intersection with State Highway 146; thence south on State 146 to its intersection with U.S. Highway 90 at Liberty; thence west on U.S. 90 to Dayton; thence west on State Highway 1960, through Humble, to the drill-site. This route will be referred to in this opinion as the "Liberty-Dayton" route. Another route, which Johnson sometimes traveled and which he was traveling when he was injured, runs west from Soda over U.S. Highway 190 to its intersection with U.S. Highway 59 at Livingston; thence south on U.S. 59 to Cleveland; thence west on State Highway 105 to Conroe; thence south on U.S. Highway 75 to its intersection with State Highway 1960; thence west on State 1960 to the drill-site. This route will be referred to as the "Conroe" route.
The Conroe route is shorter than the Liberty-Dayton route, but the Liberty-Dayton route was the more convenient for *826 Johnson at the time because some seven miles of the Conroe route between Livingston and Cleveland was under construction. It was while traveling along the section of the road under construction on the Conroe route that Johnson was injured when his automobile skidded and turned over.
As is customary in drilling operations, the members of the drilling crew were required to obtain and transport needed water and ice to the drill-site. Meadows furnished the can used for transporting the water and ice, and reimbursed crew members at the end of the month for money expended by them for ice.
When Johnson was employed, Wiggins, who was boss of the drilling operation and lived east of Conroe on State 105, and Nelson and Hopper, two crew members who lived in Conroe, were going to and from work in a car pool. They would pick up water and ice in Conroe. For the first few days of his employment, Johnson took the Liberty-Dayton route to and from work. Then, Wiggins asked him to get into the car pool "to help them get the water and the ice out on the rig," and he agreed to do so. Wiggins had authority to hire and fire members of the crew, and, according to the testimony of one member, "If he told you to do something and you didn't do it * * * he would fire you."
The car pool arrangement was somewhat unique. It was the responsibility of the crew member whose turn it was to drive all the way to the drilling rig to buy the ice and to transport it and the water. Every fourth day was Johnson's day to drive all the way. He would pick up Wiggins east of Conroe, would stop in Conroe to get the ice and water and to pick up Nelson and Hopper, and would then drive south on U.S. 75 to its intersection with State 1960 and west on 1960 to the rig. When it was Wiggins' day to drive, Johnson would drive to Wiggins' home, leave his car there, and ride with Wiggins to Conroe and on to work. On the remaining two days, Wiggins and Johnson would alternate in driving from Wiggins' home to Conroe. On the day before the accident, Johnson had traveled the Liberty-Dayton route. On the day of the accident, it was Johnson's turn to drive all the way to the rig, and he had to make up his mind the night before to take the Conroe route or he would have lost his job. The accident happened before he reached Wiggins' home.
The jury gave an affirmative answer to Special Issue No. 11 inquiring whether it found from a preponderance of the evidence that the injury to Johnson "was sustained in the course and scope of his employment for Meadows Drilling Company." In his charge to the jury, the trial judge defined the phrase, "sustained in the course of employment," in the language used to define it in Section 1, Article 8309, Vernon's Texas Civil Statutes. Further reference will be made to this definition at a later point in this opinion. As a guide to arriving at its answer to the special issue, the court's charge also gave the jury the benefit of the limiting provisions of Section 1b, Article 8309.
The first limiting provision in Section 1b is contained in the first sentence and reads as follows:
"Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment. * * *"
Pacific argued strenuously in the court of civil appeals, and insists here, that, on the record before us, a recovery by Johnson is precluded by the foregoing statutory provision. The court of civil appeals did not reach this question.
Johnson's transportation was not furnished or paid for by his employer, and *827 was not under his employer's control. It follows that the judgment of the court of civil appeals denying a recovery can be based upon the first limiting provision unless the evidence gives rise to a reasonable inference that Johnson had been "directed in his employment to proceed from one place to another place." In Janek v. Texas Employers Insurance Association, 381 S.W.2d 176 (Tex.Sup.1964), we held that an employee, who was required to take a deviated route from his home to his place of work in order to pick up ice to cool the water to be drunk by members of a drilling crew, was, within the meaning and intention of the statute, "directed in his employment to proceed from one place to another place." In that case, we said the direction was implied. In this case, we need not concern ourselves with the matter of an implied direction inasmuch as we are of the opinion that the jury could reasonably infer from the evidence that Johnson was expressly directed by Wiggins to take a deviated route from his home to his place of work. Considering the undisputed testimony that Wiggins had authority to hire and fire members of the drilling crew, and that he would fire anyone who didn't do what he told him to do, we think the jury could reasonably infer that Wiggins' request[1] to Johnson to get into the car pool to help get the water and ice to the rig, had the force and effect of a direction.
The court of civil appeals held that a recovery by Johnson was precluded by the second limiting provision contained in the second sentence of Section 1b, which reads:
"* * * Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip."
The quoted provision articulates the so-called "dual-purpose rule." In arriving at its conclusion, the court of civil appeals held that the evidence establishes, as a matter of law, that the reason for Johnson's deviation from his regular route of travel "was personal, that is, for the benefit of the car pool, and not business for the employer, that is, to pick up the ice and water." We do not agree with that holding. Moreover, the holding seems, to some extent at least, to be based upon a misinterpretation or misapplication of the statutory provision. It is not enough to invoke the statutory dual-purpose rule that the employee may have been injured during travel which was of benefit to third persons. Nor may it be invoked when injury occurs during the course of travel which is not in furtherance of the affairs or business of the employer. By the very language of the statute, the rule can only be invoked when injury is sustained during the course of travel which furthers both the affairs or business of the employer and the personal or private affairs of the employee. The holding by the court of civil appeals that Johnson's trip to the place of injury was not for the benefit of his employer, and its failure to hold that the trip was in furtherance of Johnson's personal or private affairs, should have precluded decision of the case by that court under the dual-purpose rule. It thus becomes our duty to determine in the first instance whether the dual-purpose rule is applicable to the facts in this case.
As indicated earlier in this opinion, there is evidence in the record that Johnson's only reason for traveling on the deviated route on the day of his injury was to carry *828 out Wiggins' direction to participate in the car pool and transport ice and water to the drill-site. There is no basis in the record for saying that his personal or private affairs were being furthered by his taking the deviated route to comply with Wiggins' directions. To the contrary, the evidence strongly supports a conclusion that getting to his place of work was the only personal or private affair of concern to Johnson in making the trip to the place of his injury. Our inquiry narrows, then, to whether Johnson's personal or private affair of going to work was being "furthered" by the deviated trip. Unless it was, the dual-purpose rule is not applicable to the facts in this case. This question was not raised or discussed in Janek v. Texas Employers Insurance Association, 381 S.W.2d 176 (Tex. Sup.1964). We merely assumed in that case that the injured employee's personal or private affair of going to work was being "furthered" by the deviated travel. Upon further consideration, we are convinced that we should not have indulged the assumption.
In Shelton v. Thomson, 148 F.2d 1 (7th Cir. 1945), the court stated that "the word `furtherance' is a comprehensive term. Its periphery may be vague, but admittedly it is both large and elastic." That characterization of the word "furtherance" was quoted by Justice Minton in Reed v. Pennsylvania R. Co., 351 U.S. 502 (1956), at 507, 76 S. Ct. 958, 100 L. Ed. 1366. Webster's Third New International Dictionary defines "further" as "promote, advance," and "furtherance" as "advancement, promotion." In construing Section 1, Article 8309, Vernon's Texas Civil Statutes, the Dallas Court of Civil Appeals adopted an earlier Webster's Dictionary definition of "furtherance", i. e., "act of furthering, helping forward, promotion, advancement, or progress," Maryland Casualty Co. v. Smith, 40 S.W.2d 913 (Tex.Civ.App. Dallas, 1931, no writ). As used in the dual-purpose rule in the phrase "in furtherance of personal or private affairs of the employee," we think the word "furtherance" connotes the conferring of a benefit on the employee by helping to forward or advance his personal or private affairs; and we do not think that travel by an employee to or from work over a deviated and less convenient route, undertaken only because directed by the employer, is in "furtherance" of the employee's personal or private affair of getting to or from work.
Since Johnson's trip to the place of his injury was not in furtherance of his personal or private affairs, we cannot apply the test provided in the dual-purpose rule in determining whether the evidence supports the jury finding that his injury was sustained in the course of his employment. We yet must decide, however, whether there is evidence in the record to support the jury finding that Johnson's injury was "sustained in the course of his employment" as that phrase is defined in Section 1, Article 8309, Vernon's Texas Civil Statutes. After setting out certain specific injuries which are not included within the definition, the statute continues:
"* * * but shall include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer's premises or elsewhere."
The general rule is that injuries suffered by employees while traveling on public streets and highways in going to and returning from work are not compensable. American General Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370 (1957). The rationale of the rule is that such injuries do not grow out of the employment inasmuch as the risks of the travel do not differ from those to which the general public is exposed. Texas General Indemnity Co. v. Bottom, 365 S.W.2d 350 (Tex.Sup. 1963); Smith v. Texas Employers Insurance Association, 129 Tex. 573, 105 S.W.2d 192 (1937). There are many exceptions to *829 the general rule. See Coleman, supra. One of the exceptions is in situations when injury is sustained by an employee during a deviation from his regular or more convenient route of travel to perform a service in furtherance of the affairs or business of his employer. 1 Larson, The Law of Workmen's Compensation, 294.83. The final question to be decided, therefore, is whether there is in the record evidence of probative force that Johnson was traveling on the Conroe route to perform a service in furtherance of his employer's business. Before answering that question, certain additional evidence should be noticed.
There is testimony in the record from which a reasonable inference can be drawn that Wiggins wanted Johnson to join the car pool so that he (Wiggins) would have some advance knowledge as to whether or not Johnson would fulfill his ice and water obligation on his appointed day. If Johnson took the Liberty-Dayton route, Wiggins and the other crew members would have no way of knowing whether he would bring ice and water on his appointed day and have it at the rig at the beginning of their tour of duty at 3:00 P.M., or even whether he would come at all. We held in Janek v. Texas Employers Insurance Association, 381 S.W.2d 176 (Tex.Sup.1964), that the transporting of ice to a drilling rig is in furtherance of the employer's business. We now hold that it is also in furtherance of the employer's business that the transportation be under circumstances which will give assurance to the members of the drilling crew that the ice and water will be available at the beginning of the work day. We conclude that there is evidence of probative force in the record to support an inference that Johnson was traveling on the Conroe route at the time of his injury for the purpose of furthering his employer's business.
Summarized, our holdings are that there is evidence of probative force in the record that (1) Johnson was expressly "directed in his employment to proceed from one place to another place," and he is not, therefore, precluded from a recovery by the limiting provisions of the first sentence of Section 1b, Article 8309; (2) Johnson's only personal interest in traveling over the Conroe or deviated route was to get to his place of work, and such travel was not in furtherance of his personal or private affairs; (3) the statutory dual-purpose rule is not applicable in determining whether Johnson was injured in the course of his employment; (4) while traveling over the Conroe or deviated route, Johnson was "engaged in or about the furtherance of the affairs or business of his employer"; and (5) Johnson was injured in the course and scope of his employment.
The court of civil appeals sustained Pacific's point of error that there is no evidence in the record to support the jury's finding in answer to issue No. 11 that Johnson's injury was sustained in the course and scope of his employment. We have held the action of the court of civil appeals in that respect to be erroneous. Pacific also had a point of error before the court of civil appeals asserting that the jury's answer to issue No. 11 was contrary to the overwhelming weight and preponderance of the evidence. Ordinarily, we would assume that the court having sustained the no evidence point would also sustain the weight and preponderance point, and on that assumption, we would reverse the judgment of the court of civil appeals and remand the cause to the trial court. Barker v. Coastal Builders, 153 Tex. 540, 271 S.W.2d 798 (1954). However, where it appears, as in this case, that the court of civil appeals applied a wrong rule of law in deciding the no evidence point, it is our practice, upon reversal, to remand the cause to the court of civil appeals for consideration of the weight and preponderance point. Vasquez v. Meaders, 156 Tex. 28, 291 S.W.2d 926 (1956).
Pacific's brief in the court of civil appeals contains nine other points of error. We are not required on this appeal to consider and decide any of the questions raised by such points because none of the points, *830 if sustained, would result in affirmance of the court of civil appeals' judgment. The various points, if sustained, would result either in modification and affirmance of the trial court's judgment or reversal of the judgment and remand of the cause for retrial. No useful purpose would be served by our consideration and decision of any of these points if the court of civil appeals should later sustain the weight and preponderance point directed at the jury's answer to issue No. 11. Accordingly, we reverse the judgment of the court of civil appeals and remand the cause to that court for further proceedings not inconsistent with this opinion.
NOTES
[1] Emphasis ours throughout.
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439 S.W.2d 571 (1968)
Robert N. WALDEN, Appellant,
v.
Peter H. JONES et al., Appellees.
Court of Appeals of Kentucky.
November 22, 1968.
Rehearing Denied May 9, 1969.
Carl Miller, Frank S. Ginocchio, Wheeler B. Boone, Errol Cooper, Jr., Lexington, for appellant.
Stoll, Keenon & Park, Denney, Landrum, White & Patterson, Harbison, Kessinger, Lisle & Bush, Lexington, for appellees.
DAVIS, Commissioner.
In this malpractice action Robert H. Walden seeks to recover damages from Dr. Peter H. Jones, Dr. Leslie W. Blakey, and Dr. Colby N. Cowherd, based upon his claim that they negligently failed to diagnose his condition and thereby deprived him of the opportunity of submitting to an immediate operation to relieve a paralytic condition which he now suffers. The trial court directed a verdict for the doctors at the conclusion of the evidence in behalf of the plaintiff. This appeal challenges the ruling of the trial court in directing the verdict.
About 4:30 p. m. on Saturday, January 23, 1965, while engaged in playing a game of darts with his ten-year-old son, the then 33-year-old appellant experienced a stinging pain in his upper back. The pain soon subsided, and appellant finished the game. However, about 5 p. m. the pain recurred across his back and extended down both his arms and was quite severe. Appellant lay on his back, hoping for relief from the pain, but no relief came; and he feared that he might be suffering a heart attack. Dr. Earl Spencer, a general medical practitioner, was called and arranged to meet appellant at the Central Baptist Hospital in order to examine and treat him. Appellant met Dr. Spencer at the hospital about 6 p. m. where Dr. Spencer examined him and expressed the view that appellant was suffering from a respiratory virus. At that time it was learned that appellant's temperature was about 101 degrees. Dr. Spencer advised appellant that he could go home but directed that he should have a routine chest X ray made before leaving the hospital.
While the chest X rays were being undertaken, appellant experienced some jerking or spasticity in his legs. He also noted some loss of sensory feeling in his chest and back when he realized that he had no feeling on his bare chest for the X-ray plate nor any feeling on his bare back for a metal chair in which he was seated. It was necessary to make three exposures of the chest X ray in order to obtain a readable picture due to the appellant's inability to remain still during the filming. It should be noted that Dr. Spencer had left *572 the hospital before the chest X rays were undertaken.
Due to appellant's progressing discomforts, he decided to remain as a patient in the hospital. Between 7:30 and 8 p. m. appellant was assisted to the toilet but was unable to void. He returned to bed and realized that his thighs were becoming numb and requested that Dr. Spencer be notified of it, although it appears that no such notice was then given to Dr. Spencer. By about 8:30 p. m. the spastic condition of appellant's legs had ceased, but his legs were numb and he was unable to move them. The pain in his back and arms persisted. Under sedation, he went to sleep about 8:30 p. m. and slept until midnight when he awakened for a brief interval during which he felt that the paralysis and sensory loss and the pain were about the same as they had been at 8:30 p. m. After more sedation, appellant again went to sleep and awakened about 3 a. m. At that time the pain was gone from his arms and back. A nurse at the hospital called Dr. Spencer shortly after 3 a. m. Responding to that call, Dr. Spencer arrived about 4 a. m. on January 24, 1965. Dr. Spencer's examination of appellant at that time disclosed that appellant was unable to move his legs, and his reflexes were gone. His muscles in the affected area were flaccid. Appellant's bladder was extended with urine which condition was relieved with a catheter. Dr. Spencer's examination revealed that the respiratory muscles were not clinically impaired so that his ability to breathe was not importantly diminished. Suspecting that appellant might be suffering from poliomyelitis, Dr. Spencer procured a spinal fluid test which proved negative for poliomyelitis. Dr. Spencer was unable to make a definitive diagnosis but concluded that if the appellant's condition remained unchanged during the following few hours he should be examined by a neurologist.
When Dr. Spencer next saw appellant about noon on January 24, he noted that his condition was about the same and advised that a neurologist should be consulted. Pursuant to that advice, the appellee Dr. Leslie W. Blakey, a neurologist, was called and examined appellant about 3 p. m. on January 24. Dr. Blakey expressed the belief that appellant had a tumor in the low neck area and that surgery should be undertaken immediately. Appellant readily agreed to follow Dr. Blakey's advice, which included calling in appellee Dr. Peter H. Jones, a neurosurgeon. About 4:30 p. m. on January 24, Dr. Jones, assisted by Dr. Blakey and Dr. Cowherd, a radiologist, performed a myelogram on appellant at the conclusion of which appellant and his family were informed that no tumor had been located and no surgery would be performed. It should be noted that appellant's paraplegic condition had apparently become complete by 8:30 p. m. on January 23, although he sensed some minor sensations about his feet somewhat later.
Since the steps taken and omitted during the myelogram are critical to the decision of this case, we present in some detail the account of the myelogram, although some of the facts we shall discuss appear in discovery depositions only and were not in evidence presented before the jury at the trial. Put in oversimplified terms, the myelogram is a medical diagnostic technique used to search for and locate abnormal encroachments upon the spinal cord. A pantopaque oil or dye is injected into the spinal canal and run under fluoroscopic control throughout the spinal canal. The patient is placed upon a table which permits lowering of his head so that the oil will flow from the base of the canal toward the head by gravity. There was evidence to support the proposition that taking of X-ray films of the dye is an integral part of myelography. The view of the dye afforded by fluoroscopic means is not as detailed as that afforded by use of X ray. Additionally, the varying angles available through use of X ray of the dye afford more accurate revelation of the condition of the spinal canal than is obtained from the fluoroscopic scanning and the single-angle, spot-film X rays which *573 may be made while the fluoroscopic examination is in progress. No X-ray film was made of the oil during the course of the myelographic examination of the appellant performed by the appellees. It is proper to state, although the point is not reached in this decision, that the appellees explained their omission of X rays on account of appellant's embarrassed breathing, which caused appellees to conclude that an immediate tracheotomy must be performed so that there was no opportunity for making X rays.
Appellant's condition is described as paraplegic, which means paralysis of the lower half of the body on both sides. The medical evidence in the record is unanimous that his condition is now permanent and incurable within the present knowledge of medical science.
In July 1965, appellant consulted Dr. John S. Collis, Jr., a neurosurgeon in Cleveland, Ohio. Dr. Collis did a myelogram examination of the appellant, making X-ray pictures of the dye in addition to the fluoroscopic inspection. No abnormality of the spinal canal was detected by Dr. Collis from the fluoroscopic inspection, but an examination of the X-ray films disclosed to Dr. Collis a herniated, intervertebral disc in the C 6-7 space. Dr. Collis performed surgery and removed the disc, but no improvement in appellant's condition resulted. Dr. Collis testified that he had had little or no hope that the removal of the disc as late as July 1965 could produce a beneficial result for appellant's paralysis, but he believed that even the remote chance was worth taking. This brings into focus the critical issue at bar.
It is the contention and theory of the appellant that the appellees were guilty of negligence in failing to obtain X-ray pictures of the dye in appellant's spinal canal when the myelogram was performed on January 24, 1965. It is urged that had such films been obtained the presence of the herniated disc would have been discovered, and immediate removal of the disc could and would have relieved the paralysis. We may assume, without deciding, that the appellant presented sufficient evidence to create a submissible issue as to negligence in failing to obtain the X-ray pictures. The stubborn question of proximate cause is immediately confronted. The only medical testimony supporting appellant's position as to proximate cause was given by Dr. Collis. In view of the extreme significance of Dr. Collis' evidence in this respect, we quote pertinent portions of it. There was a long hypothetical question concluding in this language:
"* * * [Dr. Collis,] in your opinion if the same operation which you performed upon the plaintiff, Robert Walden, had been performed upon this patient within one to two days of the onset of the paralysis at 3:00 a.m. on January 24, 1965, can you state with reasonable medical certainty whether or not the patient could recover?
A. Yes, he could."
When asked to explain the basis of that opinion, Dr. Collis gave a lengthy answer including the following statements:
"I doubt that this patient would have recovered even if he had this operation immediately. Nonetheless, he would have a chance, he could have recovered."
Other excerpts from Dr. Collis' evidence include:
"Q. Is it your medical opinion that this patient would have had only a possibility of recovery?
A. That's correct.
Q. Is it also your medical opinion, assuming those facts and assuming an operative procedure had been performed at about 6:00 o'clock P.M. on the evening of January 24, 1965, to remove the assumed disc, that this patient would probably not have recovered?
A. That's correct."
It is the view of a majority of the court that the evidence in behalf of appellant *574 fails to establish a submissible jury issue on the matter of proximate cause. In 13 A.L.R. 2d 11, et seq., appears an annotation entitled "Proximate Cause in Malpractice Actions." It is said at 13 A.L.R. 2d 22:
"The courts are agreed that proof of causation must go beyond a showing of a possibility that the injuries arose from the defendant's negligence or lack of skill, since the jury will not be permitted to speculate as to the causes of the injury."
In 41 Am.Jur., Physicians and Surgeons, Section 131, page 244, it is written:
"The fact, however, that a physician may have been negligent is not sufficient to render him liable, and the complaining patient must prove that the injury complained of proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient. That the negligence of a physician was the proximate cause of injury to his patient need not be established with certainty, but probability is sufficient."
In Jarboe v. Harting, Ky., 397 S.W.2d 775, at page 778, this court said:
"There may, of course, be situations in which causation is so apparent that laymen with a general knowledge would have no difficulty in recognizing it. See Johnson v. Vaughn, Ky., 370 S.W.2d 591; Annotation, 13 A.L.R. 2d 11 at page 34. But excepting those situations we have adhered to the rule that the causal connection between an accident and an injury must be shown by medical testimony and the testimony must be that the causation is probable and not merely possible. See Kelly Contracting Company v. Robinson, Ky., 377 S.W.2d 892."
See also the authorities cited in Jarboe v. Harting, supra, supporting the views expressed there.
The appellant has called to our attention numerous decisions of this and other courts which he considers sufficient to support his contention that a submissible jury issue is presented in the evidence. We shall briefly review the authorities relied upon by the appellant.
Burk v. Foster, 114 Ky. 20, 69 S.W. 1096, 59 L.R.A. 277, was handed down in 1902 and involved the plaintiff's claim that the defendant doctor failed to discover the dislocation of the head of the humerus from the glenoid cavity. It was further charged that the failure to properly diagnose the trouble resulted in failure to treat it properly, so that the muscles atrophied, the shoulder joint became stiffened, and plaintiff's arm was rendered practically useless. The evidence showed that when the true condition was subsequently discovered it was too late to effect the cure. In reversing a judgment on the verdict for the defendant, this court condemned the third instruction which had been given, because that instruction precluded recovery "if the result is as good as is usually obtained with like cases similarly situated." In elaborating the basis for its decision, the court said in part:
"We think, when a physician undertakes to give his attention, care, and skill to a given case of injury or disease, the patient is entitled to the chance for the better results that are supposed to come from such treatment, and as are recorded by the science of his profession to a proper treatment. That the patient might have died in spite of the treatment, or that `ordinarily' they did die in such cases (as formerly in cases of cholera, smallpox, etc.), is no excuse to the physician who neglects to give his patient the benefit of the chance involved in a proper treatment of his case. That no treatment would avail, or that ordinarily careful treatment would not, might be shown, if the case so warranted. In this case the patient was entitled to an ordinarily careful and thorough examination of his injuries, such as the circumstances attending their infliction, the condition of the patient, and the surgeon's opportunities for proper examination suggested and allowed. If the dislocation *575 was discoverable by such examination, and if the physician felt that because of lack of appliances or lack of experience he was unable to treat any peculiar feature of the injury, it was at least the right of the injured man to be apprised of his condition, that he might call in more skilled attention if he desired." Id. 69 S.W. at 1098.
Some of the quoted language, when considered out of context of the factual background, lends support to appellant's position. However, it must be recalled that the decision in Burk v. Foster, supra, was rendered during the reign of the "Scintilla Rule" which was abrogated in Nugent v. Nugent's Ex'r, 281 Ky. 263, 135 S.W.2d 877, decided in 1940. In any event the quoted language from the opinion of Burk v. Foster, considered in the light of the factual background of that case, was based upon conflict in the evidence as to the manner of treatment that should have been given. We do not interpret Burk v. Foster as sustaining the argument that any chance of recovery, no matter how remote, entitles the plaintiff in a malpractice suit to have the issue of proximate cause submitted to the jury.
In Johnson v. Vaughn, Ky., 370 S.W.2d 591, it was recognized that in some cases circumstantial evidence may be sufficient to prove reasonable probability or proximate cause in a malpractice action. There, the patient had a perforated trachea. There was evidence that such a condition is not necessarily fatal and sufficient to permit the jury to find that with proper treatment and attention the patient might reasonably have recovered.
In Hicks v. United States (4 Cir.), 368 F.2d 626, there was probative proof in behalf of the plaintiff that a proper diagnosis would have enabled treatment affording a real opportunity for recovery.
Rogers v. Kee, 171 Mich. 551, 137 N.W. 260, was a case in which the doctor failed to diagnose a fracture and presented the defense that even if diagnosis had been made no satisfactory treatment could have been given. The Michigan court said in its opinion: "We think, however, there is testimony from which injury to some extent might be inferred from the treatment given." Id. 137 N.W. at 263. Again, in the course of the opinion the Michigan court wrote in summarizing medical evidence:
"Such testimony imports clearly that a patient suffering from such an injury on calling a physician is entitled to approved methods of treatment from which experience of the profession indicates beneficial results are probable and to be anticipated; and, if not an entire recovery, a better ultimate condition than if left to chance." Id. 137 N.W. 265.
Throughout the opinion in Rogers v. Kee, supra, the theme of reasonable probability of a better result by treatment is present.
In Bourgeouis v. Dade County, Fla., 99 So. 2d 575, 72 A.L.R. 391, relied on by appellant, the plaintiff's decedent was found by police about 1:50 a. m. dressed only in trunks, stretched out on a lawn in a condition which the police officer described as "unconscious." A "relatively superficial clinical examination" was made by an intern at the hospital to which the plaintiff's decedent had been taken by the police. No X ray was made. The decedent was transferred from the hospital to the jail in a patrol car at about 3 a. m. A police officer testified that decedent slumped over the seat of the automobile as if his back were broken, and when he transferred him to the elevator in the jail, the decedent could not stand but slumped to the floor. Decedent was placed in a cell on a metal cot and left to himself. At 7 a. m. he was found dead in his cell; death had been caused by air and hemorrhaging in the thoracic cavity resulting from the piercing of the cavity by broken ribs. The Florida court reversed a judgment based on a directed verdict for the defendant in which it treated the proximate cause question in this language:
"As to the existence of a causal relationship between the alleged negligence and *576 the ultimate death, the opinion of the experts was such that under the circumstances the treatment that this man received at least could have aggravated his condition and expedited his death if the jury believed them." Id. 99 So.2d at 578.
It is seen that in Bourgeouis there was evidence from medical sources presenting a basis for reasonable probability of Bourgeouis' recovery despite his injuries.
Appellant invites attention to Neal v. Welker, Ky., 426 S.W.2d 476, in which we said:
"We may concede that appellant would have had a case warranting a trial if the availability of any medical testimony had been shown to support the contention that Neal had a chance and that the chance had been obliterated by inadequate treatment by any of the appellee-defendants." Id. 426 S.W.2d 478.
However, in Neal we affirmed a summary judgment for the defendants on the basis that the record showed that Neal's injury was so grave as to preclude any hope that his life could be saved by medical science. The just quoted excerpt from the Neal opinion was made in response to the theory presented by the appellant and may not be taken as authority for the proposition that any obliterated chance for recovery, however remote, automatically establishes proximate cause.
We have also considered Shell v. Town of Evarts, 296 Ky. 602, 178 S.W.2d 32; Louisville & N. R. Co. v. Daugherty, 108 S.W. 336, 32 Ky. L. Rptr. 1392; Hopkins v. Commonwealth, 117 Ky. 941, 80 S.W. 156, 25 Ky.Law Rep. 2117; Jefferson Standard Life Insurance Company v. Hurt, 254 Ky. 603, 72 S.W.2d 20; Kentucky Cent. Life Insurance Co. v. Jones, 247 Ky. 432, 57 S.W.2d 72; Hoyberg v. Henshe, 153 Mo. 63, 55 S.W. 83; and McCahill v. N. Y. Transp. Co., 201 N.Y. 221, 94 N.E. 616, 48 L.R.A.,N.S., 131, but will not further extend this opinion in seeking to analyze and distinguish them from the case at bar. We think that none of those decisions can fairly be construed to excuse the plaintiff in a malpractice suit from the necessity of presenting evidence reflecting medical reasonable probability of proximate cause for the claimed adverse result as related to the charge of negligence.
It is to be remembered that a preliminary diagnosis of a tumor had been made by appellees Jones and Blakey and that they planned surgery looking to the removal of the tumor as a means of affording relief from the paralysis. However, there is no evidence of record to suggest that favorable results would have been probable even had a tumor been found and immediately removed. Thus, it may not be said that the preliminary plan for removal of a suspected tumor presents substantial evidence that the appellees or anyone else considered that there existed a reasonably probable medical chance of reversing or ameliorating the paralytic condition.
The appellant contends, alternatively, that even if the trial court correctly directed the verdict as to the claim of compensatory damages it was error not to permit appellant's recovery respecting special damages represented by his outlay for medical and hospital expenses for care and treatment resulting from appellees' negligent failure to diagnose and treat appellant and advise him of his true condition. We are unable to accept the reasoning advanced by appellant for this corollary contention, since the appellant has failed to show by competent proof that any acts of the appellees proximately caused his condition. He may not have recovery of them even assuming negligence on their part.
In view of the conclusions reached, we do not pass upon the separate claim of Dr. Cowherd that he was entitled to a directed verdict on other additional grounds.
The judgment is affirmed.
MONTGOMERY, C. J., and MILLIKEN, OSBORNE, PALMORE, STEINFELD, and WILLIAMS, JJ., concur.
*577 EDWARD P. HILL, J., dissents.
EDWARD P. HILL, Judge (dissenting).
The nice distinction made by this court between possibilities and probabilities as to proximate cause in workmen's compensation cases should not apply in the present case.
If appellees' negligence deprived appellant of the possibility, real or remote, to regain his health, appellees should answer in damages. I think there was a question for the jury; therefore, I respectfully dissent.
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439 S.W.2d 313 (1968)
MIDLAND GUARDIAN ACCEPTANCE CORPORATION OF CINCINNATI, OHIO, Appellant,
v.
William F. BRITT and U. D. Spann, Appellees.
William F. BRITT, Appellee,
v.
Woodrow COLLINS, Cross-Appellant.
Court of Appeals of Kentucky.
November 1, 1968.
Henry J. Potter, Jr., Francis, Potter & English, Bowling Green, for appellant.
Reginald Ayers, Bell, Orr & Reynolds, Bowling Green, for appellee William F. Britt.
*314 Aaron F. Overfelt, Bowling Green, for appellee and cross-appellant Woodrow Collins.
CLAY, Commissioner.
This is a claim and delivery action to enforce a purchase money lien under a conditional sales contract against a truck and camper sold in Indiana to one Warren. The property had been removed to Kentucky and eventually its two components tucky and eventually its two components were sold separately to appellees Britt and Spann. They were picked up by the sheriff, and subsequently Britt filed a related suit against one Collins who had sold the truck to him. The two actions were consolidated.
After the taking of extensive proof a final judgment was entered dismissing appellant's claim and awarding Britt a judgment for the amount of the purchase price against the dealer who had sold the truck to him. The ground upon which the trial court dismissed appellant's claim was that the conditional sales contract, the basis of the claim and delivery action, had been cancelled by an "adjudication" of an Indiana court. We do not find such adjudication in the record.
It appears that prior to the filing of this suit by appellant, it had sued the original buyers in Indiana to recover a personal judgment for the balance due on the purchase price. (The mortgaged property was not available for enforcement of the lien.) Such a personal judgment, by default, was entered by the Indiana court. The judge of that court wrote across the face of a copy of the original conditional sales contract the word "Cancelled", and signed his name, "John L. Niblack, Judge". We are not advised of the basis of such purported cancellation since the conditional sales contract authorized the seller to pursue successively any of its remedies thereunder. However that may be, the notation of the judge on the copy of the contract form cannot be held to have extinguished appellant's rights asserted in this lawsuit.
We assume the circuit court of Marion County, Indiana is a court of record. As stated in Equitable Trust Co. of Dover v. Bayes, 190 Ky. 91, 226 S.W. 390, 391:
"Courts of record speak only by their orders duly entered and signed in the books provided for that purpose."
See also 21 Am.Jur., Courts, sections 225 and 237.
Section 2-2517 Burns' Ind.St.1968, provides:
"The judgment must be entered on the order-book, and specify clearly the relief granted, or other determination of the action."
The adjudication of the Indiana controversy appears in the "Judgment Entry" of that court. It gives judgment for appellant in the amount of $2297.32, sustains the attachment proceedings (against property of the original buyers other than the truck and camper), and orders a sale of the attached property. It does not declare the contract cancelled. This was the only judgment in that lawsuit, and the notation on an exhibit copy was ineffective to void the contract. Notations on the docket or papers in the record are not judgments. Loper v. Hosier, Tex.Civ.App., 148 S.W.2d 889. Suppose one of the parties in that litigation wished to appeal from the alleged adjudication that the contract be cancelled? He could not appeal from the only final judgment in the case because it does not so provide. Would he appeal from the exhibit copy of the contract with the word "Cancelled" written on it?
The record did not disclose the practice in Indiana in such a case as this *315 but we do not believe Kentucky need give full faith and credit to a notation on an exhibit which bears no resemblance to a judgment, particularly when the court otherwise finally adjudicated the rights of the parties in its formal "Judgment Entry". There normally should be only one final judgment in a case, and it should be complete in itself. 49 C.J.S. Judgments §§ 62b, 65.
Appellant raises the further point that the notation by the Indiana judge was not intended to void the contract with respect to the alternative remedy of appellant to enforce its lien on the property sold, and it is plausible to construe this word as simply meaning that the right to a personal judgment for the unpaid balance had been merged in the judgment. This ambiguity is another reason we cannot construe the "Cancelled" notation as being a binding adjudication that appellant had in the Indiana suit exhausted all of its rights under the contract. From this record it does not appear that that question was even presented to the Indiana court, particularly since this was a default judgment. It is our conclusion that the Indiana proceedings did not justify dismissal of appellant's claim.
Appellee Collins has cross-appealed from so much of the judgment as awards appellee Britt the purchase price the latter paid for the truck. Our determination that appellant should not be denied relief on the ground asserted may or may not affect the rights of the other parties in these two lawsuits. We are constrained to remand this case to the circuit court for such further proceedings as may appear necessary and proper, and for the entry of a new judgment adjudicating the rights of all parties.
The judgment is reversed on the appeal and on the cross-appeal for proceedings consistent with this opinion.
MONTGOMERY, C. J., and HILL, MILLIKEN, PALMORE, STEINFELD and WILLIAMS, JJ., concur.
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439 S.W.2d 385 (1969)
ALLSTATE INSURANCE COMPANY, Appellant,
v.
UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Appellee.
No. 228.
Court of Civil Appeals of Texas, Houston (14th Dist.).
March 19, 1969.
Rehearing Denied April 16, 1969.
*386 Alice Giessel, Talbert, Giessel, Barnett & Stone, Houston, for appellant.
Russell Talbott, Stephen D. Susman, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellee.
TUNKS, Chief Justice.
On April 23, 1963, M. O. Hand was the owner of an automobile. On that date Bill McDavid Oldsmobile, Inc., (hereafter called "McDavid") at the owner's request, sent its employee to Mrs. Hand's place of employment to pick up the Hand automobile and drive it into the shop for repairs. While the employee was driving the Hand automobile to the shop it collided with another car, damaging the other car and its occupants. The owner of the other car filed suit against McDavid, its employee and Hand seeking a recovery for the damage to his car and the injuries to its occupants who were his wife and child.
At the time of the collision the appellant, Allstate Insurance Company, had in force a family automobile policy covering the automobile owned by Hand. The appellee, *387 Universal Underwriters Insurance Company, had in force a garage liability policy covering McDavid's operations. Both carriers had prompt notice of the collision. When suit was filed both McDavid and Universal demanded of Allstate that it defend McDavid and its employee. Allstate refused to do so. Allstate did, however, defend Hand, established on motion for summary judgment that he was not liable and procured the dismissal of the suit against him. Universal, on Allstate's refusal to do so, entered a defense for McDavid and its employee. It thereupon conducted an investigation of plaintiff's claims, negotiated a reasonable settlement and entered an agreed judgment disposing of the case growing out of the collision.
The Allstate policy covering Hand had an omnibus clause covering those driving his car with his permission. The policy also had a provision excluding coverage under the omnibus provision while the car was being "used in the automobile business." The policy defined "automobile business" as used therein, as "the business or occupation of selling, repairing, servicing, storing or parking automobiles." It is conceded that McDavid and its employee were covered by the Allstate policy unless such coverage was excluded by the above noted provision excluding coverage while the car was being "used in the automobile business."
The "other insurance" provision of the Allstate policy was a prorata provision. The "other insurance" provision of the Universal policy with regard to a non-owned automobile provided excess coverage. There seems to be no dispute that if the Allstate policy afforded any coverage to McDavid and its employee, Allstate had the primary coverage to the extent of its limits and Universal's liability was as to the excess. See Canal Ins. Co. v. Gensco, Inc., Tex.Civ.App., 404 S.W.2d 908, no writ hist.
After it had settled the suit against McDavid and its employee Universal filed suit against Allstate seeking to recover the amount it had paid in settlement, together with its expense of investigation and attorney fees. The settlement was for $6,257.17, an amount within the limits of the Allstate policy. The facts were stipulated and each party filed motion for summary judgment. The trial court granted the motion for summary judgment of Universal and overruled that of Allstate. Allstate perfected appeal. We affirm the judgment of the trial court.
Each of the attorneys has presented this Court with an excellent brief reflecting an exhaustive research of the relevant judicial opinions of this jurisdiction and others. The Texas case cited involving a fact situation closest in similarity to that here involved is Western Alliance Ins. Co. v. Cox, Tex.Civ.App., 394 S.W.2d 238, ref., n. r. e. In that case the automobile insurance policy involved had an omnibus clause and excluded coverage of the non-owner while the car was being "used in the automobile business." That exclusionary clause, including the definition of "automobile business," was in the same language as that in the Allstate policy here. The owner of the car took it to a service station to have it serviced. The son of the station owner was there at the time. The owner of the car asked the son of the station owner to take him to his place of employment and bring the car back for servicing. The son took the owner to work and on the way back to the station had a collision. The Court held that the car was not being used in the business of the service station at the time of the collision.
The appellant suggests distinctions between those facts and the facts here involved. There the driver of the car was not an employee of the service station and was not driving at the request or order of the station owner. However, it is to be noted that the exclusion from coverage involved in that case and this is based on the character of the use being made of the car at the time in question, not on the character of the business of the person using *388 it. Both in the Western Alliance case and here the car in question was being taken in for service at the time of the collision. That is to say, the character of the use being made at the time was the same in both cases. The identification of the driver as being or not being an employee of one engaged in the "automobile business" is, under the exclusionary clause involved in both cases, immaterial.
The language of the opinion in State Farm Mutual Automobile Ins. Co. v. Pan American Ins. Co. (Tex.Sup.Ct.), 437 S.W.2d 542, Feb. 12, 1969, is significant. The policy of insurance there involved extended coverage, other than coverage of the owner to "any other person using such automobile" with the permission of the owner. Associate Justice Walker, in a concurring opinion, said that the word "using" in the definition of an additional insured should be given a liberal construction to effect additional coverage. That policy also had a clause excluding from coverage "an owned automobile while used by any person while such person is employed or otherwise engaged in the automobile business." The Court did not find it necessary to construe that clause, but of its Judge Walker said: "The exclusion, unlike the definition of an additional insured, should be given a strict construction * * *." That language is persuasive of the conclusion that the Hand automobile was not being used in the automobile business within the meaning of the exclusionary clause in the Allstate policy when the collision here involved occurred.
Courts have recognized the distinction between language excluding coverage while the car was being used by a person engaged in the automobile business and language excluding coverage of the car while it was being used in the automobile business. (It is to be noted that the language of the concurring opinion in the State Farm Mutual case, above quoted, suggests that even the person exclusion clause should be strictly construed in favor of coverage). In Nationwide Mut. Ins. Co. v. Exchange Mut. Ins. Co., 49 Misc. 2d 707, 268 N.Y.S.2d 495, the Court had under consideration a policy that excluded coverage of a person who operated a service station with respect to any occurrence arising out of such operation. The defendant cited Goforth v. Allstate Ins. Co., D.C., 220 F. Supp. 616, which concerned a policy having the same exclusionary language as the one here involved. As to the distinction the Court said:
"* * * However, that case had different exclusionary language and the policy attempted to define what the services were in operating an automobile business. Since the policy did not say that automobile business also included `transportation', the service performed in that case was not excluded from the policy. This is a far different situation and called for a different interpretation than the exclusionary clause before this Court. There the contract itself defined the elements of an automobile business and attempted to do so by defining each and every service performed in such a business. The exclusionary language in this case merely say that coverage will be excluded to a person who operates a service station with respect to any occurrence arising out of the operation thereof."
In Wilks v. Allstate Ins. Co., La.App., 177 So. 2d 790, the Court, in discussing the distinction between the different exclusionary clauses, said:
"Plaintiff contends the Nyman case [Nyman v. MonteleoneIberville Garage, Inc., 211 La. 375, 30 So. 2d 123] is not controlling here because the wording of the exclusionary clause in the Nyman case is different from the wording of the clause in the present matter. A mere reading of the two clauses, which are quoted above, will show the difference. The clause in the Nyman case excluded certain drivers, as for example the owners or employees of repair shops, service stations, etc., as to accidents arising *389 out of the operation of such businesses. The exclusionary clause in the present case does not relate to the identity or occupation of the driver, but, instead, to the use to which the automobile is being put. Furthermore, the provision in the Nyman case excludes accidents `arising out of the operation' of the business, whereas the provision in the present case excludes automobiles `used' in the business. As will be shown hereinafter, the two exclusionary provisions are readily susceptible of different interpretations. Hence, the Nyman case is not controlling here."
7 Appleman, Insurance Law & Practice, 341, Sec. 4372, discusses the "Garage or Filling Station Exclusion" in insurance policies. At p. 158 of the 1968 pocket part to that volume it is said:
"A clause excluding automobiles used in the business of parking automobiles, or in the automobile business, is to be distinguished from clauses discussed heretofore. An automobile brought in to be parked or to be repaired is not being used in the parking or automobile business."
When McDavid's employee went to pick up Mr. Hand's car he drove a motorcycle. He attached the motorcycle to the rear of the car and was towing it back to the garage when the collision occurred. Appellant suggests that the use of Mr. Hand's car to tow the motorcycle constituted use of the car in the automobile business. We disagree. In towing the motorcycle the automobile was not being used in "selling, repairing, servicing, storing or parking" either the motorcycle or the car.
While the appellant has cited a number of out of state cases that support its position, the majority of the out of state cases, as well as the holding of the Waco Court of Civil Appeals in the Western Alliance case, supra, and the language of the Supreme Court in the concurring opinion in the State Farm Mutual case, supra, support the position of the appellee. We are of the opinion that the latter cases are based upon the better reasoning.
The judgment of the trial court is affirmed.
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439 S.W.2d 27 (1969)
ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Plaintiff-Appellant,
v.
Annie MORRISON et al., Exceptions of Clifford W. Swyers and Betty Lou Swyers, Defendants-Respondents.
No. 8801.
Springfield Court of Appeals, Missouri.
February 27, 1969.
*28 G. C. Beckham, Steelville, David Donnelly, James E. Baldwin, David E. Wilhite, Donnelly, Baldwin & Wilhite, Lebanon, for appellant.
*29 Samuel Richeson, Dearing, Richeson, Weier, Roberts & Wegmann, Hillsboro, for respondent.
TITUS, Judge.
Plaintiff St. Louis-San Francisco Railway Company (hereinafter called the Frisco) acquired by condemnation a 7.1 acre strip across the southwest corner of a 320 acre farm in Crawford County owned by defendants Clifford W. and Betty Lou Swyers. Both sides excepted to the $1,400 commissioners' award and the issue of damages was tried to a jury. Three witnesses for the condemnees testified defendants' damages ranged from $10,000 to $15,000. The two experts who testified for Frisco opined defendants had been damaged $3,000 or $3,662. The jury awarded defendants $9,000. Frisco filed a motion for new trial, and appealed when it was overruled.
Frisco's only "Points Relied On" in its brief is, "The Trial Court Erred in Overruling Appellant's Motion for New Trial in That the Verdict Is Excessive, Against the Weight of the Evidence and Is Not Supported by Substantial, Competent and Probative Evidence." This abridged abstraction demonstrates no effort to comply with Civil Rules 83.05(a) (3) and (e), V.A.M.R. Granting a new trial on the ground the verdict is excessive is equivalent to saying the verdict is against the weight of the evidence [Bell v. Bell's Estate, Mo.App., 368 S.W.2d 544, 545(1); Moore v. Glasgow, Mo.App., 366 S.W.2d 475, 481(6)], and a general assignment that the verdict is excessive and is not supported by the evidence "is meaningless" and neither preserves nor presents anything for review in a jury case. McCarthy v. Halloran, Mo., 435 S.W.2d 339, 340; Grubbs v. Myers, Mo.App., 407 S.W.2d 43, 44(2); Williams v. Kaestner, Mo.App., 332 S.W.2d 21, 25-26(5); Connor v. Temm, Mo. App., 270 S.W.2d 541, 547(6). At this juncture we could rightfully dismiss this appeal for failure to comply with the rules, but will abide the infraction because it is also necessary that we determine defendants' motion for damages on appeal which has been taken with the case.
In its brief Frisco says, "the testimony of the aforementioned witnesses with regard to damages was admitted without objection by either party to the cause." This is not technically correct, as one of defendants' experts was permitted to testify by the trial court over Frisco's objections to his qualifications. Nevertheless, there is no issue on appeal as to the qualifications of any witness because no such issue was incorporated into Frisco's motion for a new trial, and "Allegations of error, in order to be preserved for appellate review, must be presented to the trial court in a motion for a new trial" (Civil Rule 79.03, V.A.M.R.). Also, where a party fails to challenge the qualifications of expert witnesses in the trial court, it is too late for such party to successfully challenge them on appeal. Hildreth v. Key, Mo.App., 341 S.W.2d 601, 613(22); Wardin v. Quinn, Mo.App., 324 S.W.2d 151, 155(6). Furthermore, an appellate court's review is limited to the points relied on in the appellant's brief [Maxey v. General Electric Company, Mo.App., 382 S.W.2d 67, 69(1)], and as Frisco's statement of "Points Relied On" makes no mention of the qualifications of any witness, no assignment of error with respect thereto is preserved or presented for appellate review. Langdon v. Koch, Mo.App., 435 S.W.2d 730, 732(1).
Frisco's argument is interlaced with citations of authority anent prerogatives possessed by trial courts in these matters, none of which relates to the limitations placed upon the scope of our appellate review. One suggestion Frisco makes is that "this Court should invoke Rule 79.04, V.A.M.R., popularly known as the Plain Error rule, in order to determine whether or not the testimony of certain of Respondents' witnesses was based upon the requisite background and foundation by which said witnesses would be enabled to give an *30 opinion as to the before and after value of Respondents' property." This overlooks "the fact that resort may be had to the plain error rule in only those exceptional instances `when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.' * * * The rule may not be invoked to excuse mere failure to timely and properly object or to evade the primary responsibility of orderly presentation to the trial court in the first instance." Fisher v. Williams, Mo., 327 S.W.2d 256, 263; Brown v. Boyd, Mo., 422 S.W.2d 639, 641-642(3), 643(5). The qualification of an expert is a preliminary question largely for determination by the trial court whose discretion will not ordinarily be overruled unless abused or exercised in clear error of law. State ex rel. State Highway Commission v. Bloomfield Tractor Sales, Inc., Mo.App., 381 S.W.2d 20, 25(6). However, Frisco is not asking us to decide whether the trial court abused its discretion or erred in permitting the experts in this case to testify. What Frisco is asking is that we weigh the respective qualifications of the experts who testified and choose between their opinions. In other words, Frisco invites us to weigh the evidence and reverse the case for a new trial because the verdict is against the weight of the evidence. But "there is, perhaps, no more firmly established doctrine than that on appeal from a judgment rendered on a verdict of a jury an appellate court is not authorized to weigh the evidence. Whether a jury's verdict is against the weight of the evidence is a question for the trial court alone" [Kells v. Pevely Dairy Company, Mo.App., 393 S.W.2d 61, 65(4)], and a reviewing court is not authorized to reverse a case on the ground that the verdict is against the weight of the evidence. Catanzaro v. Duzer, Mo.App., 329 S.W.2d 257, 260(1).
During oral argument many references were made to the disparity between the jury's $9,000 verdict and the commissioners' award of $1,400. However, after a jury trial was obtained, the report of the commissioners became functus officio [City Water Co. of Sedalia v. Hunter, 319 Mo. (banc) 1240, 1244, 6 S.W.2d 565, 566(1)], and the amount of the commissioners' award is not relevant to any question presently considered here. State ex rel. Kansas City Power & Light Company v. Campbell, Mo.App., 433 S.W.2d 606, 622 (23).
The opinion of one qualified witness as to the extent of damages constitutes substantial evidence. State ex rel. State Highway Commission v. Eilers, Mo., 406 S.W.2d 567, 575. Two of defendants' witnesses testified without objection, and the testimony of the third who was challenged as a witness placed the damages within the range stated by the others. Even if we ignore the witness to whom Frisco objected and assume (which we do not) it was not shown the other two had the requisite qualification, still, these two witnesses "expressed an opinion without objection, and the weight to be given to the opinions expressed, as affected by the information brought out on cross-examination, is to be determined by the jury in connection with the circumstances under which they were offered." KAMO Electric Cooperative v. Baker, 365 Mo. 814, 820, 287 S.W.2d 858, 863(13). Since any objections Frisco may have to the qualifications of defendants' expert witnesses have not been preserved for appellate review, we cannot rule on their qualifications or say their testimony did not constitute substantial competent evidence
An apt summary of this cause (omitting the citations of authority) is to be found in the penultimate paragraph of State ex rel. State Highway Commission v. Grissom, Mo.App., 439 S.W.2d 13, a most recent opinion of this court prepared by Stone, J. "It was the prerogative of the jurors to resolve the evidentiary conflicts as to values and damages and, from all of the evidence before them, to determine the just compensation to which defendants were entitled. Their assessment of damages *31 having been supported by substantial evidence and having been `within the range' of the competent evidence and `within the limits of the proof', and the trial court having denied [Frisco's] motion for new trial `after the exercise of its authority to determine the relative weight of the conflicting evidence', we have no right to reweigh or reevaluate the evidence or to disturb the judgment."
Defendants have moved for an allowance of damages equal to ten per cent of the amount of the judgment because, as they say, "the appeal herein is taken for vexation and delay." The rule and statute (Civil Rule 83.13(d), V.A.M.R., and V.A. M.S. § 512.160 subd. 4, RSMo 1959) do not prescribe the conditions under which such damages may be allowed, so the award thereof rests within the sound discretion of the court. Utchen v. American Casualty Co. of Reading, Pa., Mo.App., 356 S.W.2d 102, 105; Wigger v. Consumers Cooperative Association, Mo.App., 301 S.W.2d 56, 62(6). Appellate courts apply the rule and statute with caution [Butler v. Butler, Mo. App., 379 S.W.2d 175, 181(6)], and are loath to impose the penalty in any case and do so only where it is clear the appeal is not the result of an honest mistake as to the application of the law to the facts involved. Foster v. Aetna Life Ins. Co., Mo. App., 169 S.W.2d 423, 430(8), trsfd. 352 Mo. 166, 176 S.W.2d 482; Prudential Ins. Co. v. German Mut. Fire Ins. Ass'n, Mo. App., 142 S.W.2d 500, 504(12). Each case must rest upon its own facts [Steinbaum v. Wallace, 237 Mo.App. 841, 854, 176 S.W.2d 683, 690(14)], and while we conclude the appeal is without merit, we are not disposed to say its prosecution was so meritless as to negative all reasonable theories of honest mistake regarding the application of the law to the facts and was knowingly taken in bad faith for mere vexation and delay. Appellant's counsel, both by brief and at the oral argument, urged their position with such vigor and apparent sincerity we cannot impute bad faith to their efforts. Bidleman v. Morrison Motor Freight, Mo.App., 273 S.W.2d 745, 750-751(11); Glosch v. Central Life Ins. Co. of Illinois, Mo.App., 176 S.W.2d 46, 49(8, 9).
Defendants' motion is overruled and the judgment nisi is affirmed.
HOGAN, P. J., and STONE, J., concur.
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439 S.W.2d 813 (1969)
Don H. McCLELLAN, Appellant,
v.
James H. FRENCH, Appellee.
No. 5-4776.
Supreme Court of Arkansas.
April 21, 1969.
*814 Howell, Price & Worsham, Little Rock, for appellant.
Smith, Williams, Friday & Bowen, by W. A. Eldredge, Jr., Little Rock, for appellee.
BYRD, Justice.
Appellant Don H. McClellan appeals from a jury verdict finding that appellee Dr. James H. French was not guilty of malpractice in his treatment of McClellan's perirectal wound. For reversal of the judgment, McClellan relies upon the following points:
1. The Court erred in permitting Dr. Buchman to give his opinion as to whether Dr. French was guilty of malpractice.
2. The Court erred in permitting defendant to propound hypothetical questions based on assumed facts which were not in evidence.
The record shows that McClellan suffered his perirectal wound at Lake Ouachita while skiing. He was taken by friends to a hospital in Hot Springs where he was referred to Dr. French. Dr. French observed the wound, cleansed it but did not suture it at that time. McClellan waited in Dr. French's waiting room for his friends who had returned to Lake Ouachita to pick up a boat and trailer. While waiting, McClellan began bleeding, the blood flowing down his leg and off the chair onto the floor. He was returned to Dr. French's operating table where his wound was again examined. This time Dr. French sutured the wound and placed McClellan in a Hot Springs hospital for observation. McClellan was released from the hospital the next day. He states that he was released in the afternoon. Dr. French contends that he was released during the morning. Subsequent to McClellan's release from the Hot Springs hospital, he was seen by Dr. Laurens sometime between 4:00 and 5:00 and placed in a Little Rock hospital. The allegations in the complaint were as follows:
"That said defendant did negligently and carelessly fail to apply with reasonable care the degree of skill and learning ordinarily possessed and used by members of his profession in good standing, engaged in the practice of medicine in the locality in which he practices or in a similar locality in diagnosing and treating him; that as a result of such negligence and carelessness on the part of the defendant a piece of rotten, contaminated and jagged wood remained in plaintiff's peritoneal cavity causing peritonitis, infection and putrification, requiring an exploratory laparotomy as well as a colostomy, causing great conscious pain and suffering and permanent partial disability."
POINT 1. One of the pivotal issues concerning the alleged malpractice of Dr. French was whether he should have packed the wound open to permit drainage as testified to by Dr. Laurens or whether it *815 should have been sutured as testified to by Dr. French. To support his position that that was the standard medical procedure, Dr. French called Dr. Joseph Buchman who testified as follows:
Q. Is bleeding dangerous to the patient?
A. Certainly is.
Q. Should be controlled?
A. It has to be controlled.
Q. Then I take it, doctor, in your opinion Dr. French was not guilty of malpractice in suturing?
MR. PRICE:
Your Honor, this is a question * * *
THE COURT: * * *
THE WITNESS:
A. That is standard medical procedure in this community to suture a bleeding wound.
Q. In your opinion Dr. French was not guilty of malpractice in suturing this wound?
A. He was not.
McClellan argues that Dr. Buchman should not have been permitted to testify as to whether it was "malpractice" since this was the ultimate question for the jury. He cites as authority Johnston v. Order of United Commercial Travelers, 182 Ark. 964, 33 S.W.2d 375 (1930). During oral argument counsel cited other authorities such as Hoener v. Koch, 84 Ill. 408 (1877).
In the Johnston case the issue was whether Sam C. Johnston had committed suicide. In holding that it was prejudicial error for a doctor to express an opinion that Johnston died as a result of suicide, we said:
"Opposing counsel have briefed the question of the admissibility of an expert opinion that the death in question resulted from wounds self-inflicted with suicidal intent, and there appears to be several authorities holding such testimony competent. Miller v. State, 9 Okla. Crim. 255, 131 P. 717, L.R.A.1915A, 1088. We think, however, that the better rule excludes this expert testimony. This is the point in issue; the decisive fact in the case; the question which the jury was impaneled to decide; and is an inference which one person might draw as well as another. Of course, the trained physician and surgeon might know the depth and character and consequences of cuts and wounds and the manner in which they might have been inflicted, which the lay witness might not have, and testimony of this character may be given by the expert, but, when it has been given, the jury, and not the witness, should say with what intent the wounds were inflicted."
In the Hoener case, the Supreme Court of Illinois held that it was proper for an expert to give his opinion as to whether or not the treatment the plaintiff received was proper, but that it was error for him to give his opinion as to whether, from all the evidence in the case, the doctor was guilty of malpractice.
However, in the case of Dorr, Gray & Johnston v. Headstream, 173 Ark. 1104, 295 S.W. 16 (1927), we said:
"Appellant's next contention for a reversal of the judgment is that the trial court erred in allowing appellee's witnesses Drs. Ruff and Hill to state that certain alleged facts constituted negligence on the part of appellants. They were permitted to testify that it would be negligence for an X-ray technician or practitioner to turn an X-ray of four milliamperes voltage on a patient for twenty or thirty minutes while absent from the room. The purpose for introducing expert testimony is to get the judgment or conclusion of the witness based upon facts assumed to be true. Expert witnesses could not answer a hypothetical question otherwise than by expressing *816 an opinion or announcing a conclusion. We can see no difference in saying that certain acts or omissions constitute negligence in the treatment of a disease and saying that the acts hypothetically detailed show improper treatment. The court did not err in letting the two expert witnesses testify that in their opinion it constituted negligence for appellant to turn an X-ray on appellee of the voltage described for twenty or thirty minutes during the absence of the operator of the machine from the room. This court stated, in the case of Durfee v. Dorr, 131 Ark. 375, 199 S.W. 376:
"`Objection is made by appellant also to the action of the court in permitting practicing physicians, who qualified as experts, to testify as to the character of attention a patient should receive in a hospital. We think this evidence was competent, as it related to a subject upon which the average juror would have no information or experience upon which he would be in position to formulate an intelligent conclusion unless he based his conclusion upon the opinion of one qualified to speak as an expert.'"
We find nothing in the Johnston case contrary to our holding in the Headstream case. The difference between the two cases is this in determining whether one committed suicide there is involved an element of intent, usually a matter of inference from the testimony which one person is as qualified to draw as another. On the other hand, in a malpractice case the testimony ordinarily relates to a subject upon which the average juror would have no information or experience and upon which he would not be in a position to formulate an intelligent conclusion unless he does it upon the testimony of one qualified to speak on the subject.
Since Dr. Buchman's answer to the question of whether Dr. French was guilty of malpractice shows that Dr. Buchman used and understood the word malpractice in its connotation of "standard medical procedure in the community"[1], we find no error in the use of the term malpractice.
POINT 2. ASSUMED FACTS. One of the controversial issues in the trial of this case was the time when McClellan was discharged from the Hot Springs hospital i. e., whether in the morning or in the afternoon. In contending that the trial court erred in permitting Dr. French to propound hypothetical questions based on assumed facts which were not in evidence, appellant relies upon the following proceedings:
Q. How do you tell when a foreign object sets up an infection, doctor?
A. You simply have to watch the patient and see what happens.
Q. And this takes time?
A. Times time; yes, sir.
Q. This doesn't happen in a matter overnight or a few hours?
A. No, sir.
Q. All right, Dr. Buchman, assuming these same facts to be true as already asked you, let's add the further, the further facts. I want you to assume in addition, doctor, that Mr. McClellan was not toxic nor did his wound reveal any evidence of infection at the time of his discharge from the hospital in Hot Springs. Assuming that he was discharged sometime during the morning of the day after his admission to the hospital at Hot Springs, I want you to further assume that a surgeon in Little Rock examined Mr. McClellan at around 4:00 to 5:00 o'clock that afternoon and that in this surgeon's opinion Mr. McClellan was toxic, and that his wound did *817 reveal clinical evidence of infection at the time of the examination here in Little Rock. Now, doctor, assuming all of these facts to be true, do you have an opinion as to how quickly a patient may become toxic, his symptoms may reveal he is toxic?
MR. HOWELL: Now * * *
MR. ELDREDGE:
Q. I am not through, and how quickly a wound may reveal clinical evidence of infection from that point where it did not reveal clinical evidence of infection, just answer my question yes or no to give Mr. Howell a chance to make an objection, if you have an opinion.
A. Yes, I do.
MR. HOWELL: Your Honor * * *
THE COURT: * * *
MR. ELDREDGE:
Thank you, your Honor.
Q. Now, let's see, doctor where were we. I asked you whether or not based on those assumed facts which have already been shown, or will be shown in evidence, whether or not * * *
THE COURT: * * * May I interrupt you just once more, Mr. Eldredge, and I am not clear and I am certainly not trying to suggest to the jury what the facts are, it seems to me that you gentlemen by referring to some record that you have in before you, could determine whether or not your question as to the patient's discharge at Hot Springs was in the morning or afternoon. That could be clarified.
MR. ELDREDGE: Your Honor, please, the test would be when Dr. French last examined the patient and assume, the assumed fact was he examined him in the morning before his discharge. If it wasn't I meant for it to be. I will amend my question. [Emphasis ours].
THE COURT: All right.
MR. ELDREDGE:
Q. All right, doctor, here we go. Do you have an opinion as to how quickly a patient can be examined and be non-toxic to being examined and being toxic; can be examined as far as his wound is concerned and have no clinical evidence of infection and being examined and have clinical evidence of infection?
A. Well, that can all take place in a matter of hours, three, four, five, something like that; depends entirely on the bacteria and upon the post of the patient and some bacteria grows much faster. You will have to remember that bacteria for the body multiplies 2, 4, 6, 8, 10. I mean 2, 4, 8, 16 and 32. That's the way they divide and they multiply very rapidly, if they are in any real good environment.
Appellant contends that Dr. Buchman was erroneously permitted to assume that plaintiff was discharged in the morning and that the discharge of appellant from the hospital in the morning was not sustained by the record. We need not decide whether there is any evidence in the record to support the assumed fact that appellant was discharged from the hospital in the morning because as we read the record that assumed fact was changed to have the doctor assume that the man was examined by Dr. French in the morning. After the correction there was no further objection by appellant. In Wheeler, Adm'x v. Delco Ben. & Broadway Ice Co., 237 Ark. 55, 371 S.W.2d 130 (1963), we said:
"While appellee's counsel was propounding the hypothetical question appellant's counsel objected, stating: `Mr. Lindsey says there is no evidence of contusion *818 to the chest area and I beg to differ there is evidence.' Thereupon appellee's counsel stated: `Let me rephrase that and eliminate that * * *' Since no objection was made to the hypothetical question when rephrased, we find no merit in this contention. We cannot consider an objection to a hypothetical question when raised for the first time on appeal. * * *"
For the reasons indicated we find the judgment must be affirmed.
JONES, J., dissents.
JONES, Justice (dissenting).
I do not agree with the majority in this case. In the days when strychnine poisoning was diagnosed as "locked bowels" and treated by administration of additional strychnine in some localities, (Sneed v. State, 159 Ark. 65, 255 S.W. 895), perhaps medical doctors in a malpractice case were properly held only to that degree of skill and learning ordinarily possessed and used by members of the profession in good standing engaged in the practice of medicine in that locality. In those days of patent medicines and home remedies; when bleeding was stopped by witchcraft or the application of soot and cobweb, perhaps a medical expert was the only one competent to say what was, and what was not, medical malpractice.
It is my opinion in this day of nationwide Blue Cross-Blue Shield, Medicare and sterile hospitals, and in this day of medical specialization and long internships, and closed circuit television, the same degree of skill and learning should apply in all localities and negligence in medical malpractice cases should in nowise be measured by the medical practice in the particular community where the doctor practices. In this enlightened age, when the importance of sanitation is a matter of common knowledge and the results of contamination in a closed or open wound are well known, it should not require the conclusion of a medical expert for a jury to determine whether a particular procedure in probing, cleansing, disinfecting, suturing and treating a wound, constitutes malpractice.
Dr. Buchman was permitted to testify that Dr. French was not guilty of malpractice in suturing this wound. (Emphasis supplied.) Under the majority opinion, a jury was not necessary in this case at all. Dr. Buchman was permitted to give the answer the jury was empaneled to find. If Dr. Buchman had found malpractice, a jury would have only been necessary in fixing damage, if any.
The evidence is undisputed that the appellant sustained a deep and severe puncture wound by falling or sinking down onto a sharp underwater object. The evidence is undisputed that the wound was more than a finger length in depth and actually extended into the peritoneal cavity. The evidence is undisputed that upon a second examination of the wound by Dr. French, the wound was closed with sutures sufficient to stop bleeding, and although the appellant was hospitalized by Dr. French, the full depth of the wound was never probed or ascertained and a half inch piece of wood was left deep within the wound. If we can logically assume that Dr. French obtained a history of how and where the injury occurred, then common sense would dictate the probability that the offending instrument was a highly contaminated wooden object, and that a residue from that object would be left in the wound.
It is my opinion that it was for the jury to say, under proper instructions, whether the suturing of this wound constituted malpractice under all of the evidence in this case. I would reverse and remand for a new trial.
NOTES
[1] The propriety of limiting medical standards to a particular community is not an issue in this case.
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439 S.W.2d 741 (1969)
Walter J. HUTER and Cora Huter, Plaintiffs-Respondents,
v.
Truman BIRK and Shirley Birk, Defendants-Appellants.
No. 53957.
Supreme Court of Missouri, Division No. 1.
April 14, 1969.
*742 Buerkle & Lowes, Albert C. Lowes, Kenneth L. Waldron, Jackson, for appellants.
Stephen N. Limbaugh, Limbaugh, Limbaugh & Russell, Cape Girardeau, for respondents.
WELBORN, Commissioner.
Action to determine rights of plaintiffs in a roadway across defendants' land and to enjoin interference with plaintiffs' right to use road. First count, based on claim of right by prescription, was submitted to jury which found for plaintiffs. Court entered judgment on verdict and also issued injunction. Defendants appeal.
Sometime prior to 1918, one Strong became the owner of a tract of land of unspecified acreage in Cape Girardeau County, bounded on the west by Whitewater Creek. In 1918, Strong's heirs conveyed the western 156 acres of the tract to Zeller. A public road ran to the vicinity of the northeast corner of the tract retained by Strong's heirs and lying to the east of the land conveyed to Zeller. A private road, beginning at the end of the public road, ran through the Strong tract in a westerly direction several hundred feet, when it turned in a southerly direction and ran some 1000 feet farther, through the Strong tract, to a gate in the eastern portion of the Zeller tract. This roadway, at the time of the Zeller purchase, provided access to the residence and farm buildings on the Zeller tract. The interest of plaintiffs, successors in title to Zeller, in this roadway as it runs through what was formerly the Strong property, now owned by defendants, is the subject of this litigation.
Just when this road had been built was not shown. One witness, born in 1899, remembered that it was there when he was a boy. He said: "Yes, as long as I remember the road was there in the neighborhood, *743 in the same place where it is at now." Members of the Zeller family lived on the "lower" farm until 1949 and farmed it until 1951. No one has lived on the farm since 1949. From 1951 to 1960, defendant Truman Birk rented the Zeller farm and farmed it. Plaintiff Huters acquired the "lower" farm from the Zeller family in 1960 and farmed it thereafter.
From 1919 to 1956, various tenants occupied the Strong or "upper" farm. Plaintiff Huter rented the upper farm from 1950 or 1951 until the Birks bought it in 1956. In 1956, the defendant Birk acquired the farm from the Strong family. The Birk family resided on the farm at the time of the trial. Access to their residence was by way of the road in question, to a point some 400 feet north of the southern end of the road, where a branch of the road ran to the Birk house.
All of the evidence showed that, from 1918 until 1966, when Birk built a gate across the road, the road provided the means of access to the lower farm. It was used by the owners and tenants of that farm and persons having occasion to go upon the farm. Horse-drawn vehicles, motor cars and trucks and farm machinery all reached the lower farm by this road. No witnesses in the trial knew of any other means of access to the lower farm.
There was some disagreement among the witnesses about the presence of a gate across the road on the Birk farm. Plaintiffs' witnesses testified that they never had to open a gate to get to the lower farm. Defendants' witnesses testified that there was a gate across the road not far from where it left the county road. One witness recalled seeing such a gate 30 years ago. There was some intimation that the gate was used to keep cattle off the roadway when they were driven to an area where a spring was on the north part of the Birk farm. No one testified to the presence of a gate across the road in recent years, until Birk built the gate in 1966.
After Birk bought the upper farm, he did construct two cattle guards across the road, one near the end of the county road and one near the entrance to the lower farm. The first was constructed in 1957, while he was still renting the lower farm. The second was built a year after Huter bought the lower farm. There is some indication that the difference between the parties over the use of the road arose when Huter damaged the cattle guards and refused to repair them. There also appears to have been some feeling between the parties because Huter did nothing to maintain the road between the end of the county road and the point where the roadway ran to the Birk house, Huter confining his contribution to the portion used principally only by him.
On this appeal, appellants assert that the evidence did not make a submissible case on the issue of easement by prescription and that the instruction submitting such issue was erroneous.
On the first issue here, appellants contend that the road was a "good will" road and that its use was with the owner's permission; that such use cannot ripen into an easement. To support such theory, appellants rely on the testimony of Birk that, when he was renting the lower farm, he asked permission of the Strong girls to use the road. In determining whether a submissible case was made, evidence of the defendants must be disregarded, except insofar as it may aid the plaintiffs' case. Bunch v. Missouri Pac. R. Co., Mo.Sup., 386 S.W.2d 40, 42 [1]; White v. Burkeybile, Mo.Sup., 386 S.W.2d 418, 420 [1]. Therefore, we do disregard Birk's testimony that he asked permission to use the road. We further note that his testimony actually was that he asked for permission to cut brush along the road to permit passage by a self-propelled combine. He stated that he did not ask permission for day-to-day use of the road.
By the same token, appellants' testimony as to the existence of gates some 30 years *744 ago is not to be considered in determining whether a submissible case was made.
Viewing the evidence in the light most favorable to plaintiffs, we find no evidence that the Zellers' use of the roadway was permissive in origin. In a similar situation in Dalton v. Johnson, Mo.Sup., 320 S.W.2d 569, 573 [3-6], the court stated:
"An easement may be established by use which is shown to have been continuous, uninterrupted, visible and adverse for a period of 10 years. Smith v. Santarelli, Mo.App., 207 S.W.2d 543. The evidence in the record before us is overwhelmingly to the effect that the passageway in question had been established and had been in continuous, open and uninterrupted use by plaintiffs' predecessors in title for at least 30 years before plaintiffs purchased the property in 1946. It is true that there was no specific testimony as to the adverse character of the use. However, `a use of land is adverse to the owner * * * when it is not made in subordination to him, and * * * [is] open and notorious.' 5 Restatement, Property, Section 458, p. 2924. Moreover, we have stated that `in the absence of some showing that the use was permissive in its origin it is well settled that when one claims an easement by prescription and shows an open, continuous, visible, and uninterrupted use for the period of the 10-year statute of limitation, the burden is cast upon the landowner to show that the use was permissive, rather than adverse, if he claims it to have been so.' Fassold v. Schamburg, 350 Mo. 464, 166 S.W.2d 571, 572."
To the same effect are: Benson v. Fekete, Mo.Sup., 424 S.W.2d 729, 738 [1-3]; Speer v. Carr, Mo.Sup., 429 S.W.2d 266, 268 [4]; Cramer v. Jenkins, Mo.Sup., 399 S.W.2d 15, 17 [2].
The almost 50-year use of the roadway here was, under the evidence favorable to plaintiffs, continuous, open and obvious. Plaintiffs' evidence clearly showed, under the rule above laid down, a submissible case.
Appellants argue that there was evidence of matters indicating "that appellants exercised a dominion over the road which was contrary to any acquiescence in an untrammeled right of travel by others." Appellants refer to Birk's testimony that he performed most of the maintenance of the road and that he erected cattle guards across it. They also refer to the gates which one witness for respondents and witnesses for appellants testified were, at one time, across the road. Again, on the question of submissibility, this evidence may be disregarded, particularly in view of the plaintiffs' positive evidence that since 1918, when the Zellers moved onto the farm, there had been no gates across the road. At the most, evidence to the contrary was for the jury.
Appellants assert that respondents' petition alleged that there were gates across the road. However, that reference is to the obstruction which gave rise to the lawsuit. There was no admission that, throughout the history of the use of the road, gates were employed to limit its use.
Appellants also contend that there was no evidence of continuous use for the statutory period. They argue that inasmuch as they were in possession of both tracts from 1956 to 1960, there could have been no uninterrupted possession by respondents for a 10-year period prior to institution of this action. However, under plaintiffs' evidence, the easement would have been established prior to 1956 by respondents' predecessors in title. See Speer v. Carr, Mo.Sup., 429 S.W.2d 266, 268-269 [5-6]. Defendant Birk's occupation of the dominant estate as a tenant could not have terminated the easement. There is no question of abandonment or nonuse for a period sufficient to extinguish the easement, once established.
Respondents did acknowledge that Birk had built cattle guards across the road. *745 However, such evidence was at best equivocal. The fact that cattle guards, not gates, were employed, might well indicate a recognition of the rights of others to unimpeded use of the road.
We conclude that plaintiffs' evidence made a submissible case on the theory of an easement by prescription. However, the judgment in plaintiffs' favor on Count I must be reversed because of an erroneous instruction to the jury. The plaintiffs' verdict-directing instruction told the jury that its verdict should be for plaintiffs if it found the essentials of a prescription easement or, in the alternative, if it found "that the road is the only way plaintiffs have to reach their land."
Count I of plaintiffs' petition was based upon a claim of easement by prescription. The petition did allege that the road was the only route by which plaintiffs could reach their farm. However, paragraph 6 of plaintiffs' petition stated:
"6. Plaintiffs claim title to an easement over the road described hereinbefore by prescription as a result of their use of same for a period exceeding ten years."
The petition contained a second count, invoking "Section 228.340, Revised Statutes of Missouri, 1959 as amended," for the establishment of a private way of necessity. Prior to the trial, the following colloquy took place between counsel for defendants, Mr. Lowes, and counsel for plaintiffs, Mr. Stephen N. Limbaugh:
"MR. LOWES: * * * Steve has informed me that he intends to just not put on his proof with respect to Count II and what we'll be trying before the jury today is on Count I and then you'll be hearing in addition Count III. Is that right, Steve?
"MR. STEPHEN N. LIMBAUGH: Yes. Of course, I have alleged necessity in Count I in paragraph 4.
"MR. LOWES: Yes, that is part and parcel of your adverse possession.
"MR. LIMBAUGH: That's right. Count II, however, is establishing a private road and I'm not going to go into that right now."
Under the plaintiffs' petition, there was no basis for the submission of a claim of easement by necessity. Although there was some testimony that the road afforded the only access to plaintiffs' farm, the case was not tried on the theory of an easement by necessity and that issue should not have been submitted to the jury. The error in doing so requires a reversal of the judgment on the jury's verdict under Count I. "It is elementary that the instructions submitting the plaintiff's case must be in accord with the theory of his petition, and that instructions which authorize a recovery upon a ground not relied on in the petition are fatally erroneous." White v. Thompson, Mo.App., 176 S.W.2d 53, 57 [7-10]. See also Wilt v. Waterfield, Mo. App., 310 S.W.2d 24, 28 [1, 2].
Respondents urge that we should affirm the judgment because all of the evidence showed that plaintiffs were entitled to an easement by necessity. We cannot affirm on a theory not covered by the pleadings and not actually presented to the trial court. We note, in this connection, that the surveys of both parties showed that the roadway touched plaintiffs' farm at its northeast corner, near the point where the road turned south. Certainly, insofar as way of necessity is concerned, some explanation would be called for to show why access at that point would not meet the requirement of a way of necessity. That such issue was not pursued is, of course, understandable in view of the theory of plaintiffs' petition and the theory upon which plaintiffs' counsel presented plaintiffs' cause of action.
We do not consider the specific allegations of error as to Count III, the injunction. In order to avoid the possibility of inconsistent judgments on Counts I and III, the decree of injunction must also be *746 set aside. Bramblett v. Harlow, Mo.App., 75 S.W.2d 626, 633 [17], [18]; Jackson v. Farmers Union Livestock Commission, 238 Mo.App. 449, 181 S.W.2d 211, 222 [21, 22]. Therefore, the decree and judgment on Count III is set aside and the entire cause remanded for a new trial.
HOUSER and HIGGINS, CC., concur.
PER CURIAM:
The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.
HENLEY, P. J., STORCKMAN, J., and HOLMAN, Alt. J., concur.
SEILER, J., not sitting.
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439 S.W.2d 949 (1969)
George William ABERNATHY et al., Appellants,
v.
COMMONWEALTH of Kentucky, Appellee.
Court of Appeals of Kentucky.
February 28, 1969.
Rehearing Denied May 23, 1969.
*950 Donald M. Heavrin, Charles H. Anderson, Louisville, for appellants.
John B. Breckinridge, Atty. Gen., Joseph L. Famularo, Asst. Atty. Gen., for appellee.
PALMORE, Judge.
George William Abernathy, David Lee Hodges, Frank Thomas Hollins and Julius Robinson were jointly indicted on two counts of armed robbery. KRS 433.140. Abernathy was found guilty on both counts and sentenced to 10 years on each, the terms to run consecutively. Hodges and Robinson were found guilty and sentenced to 10 years on one count. Abernathy and Hodges appeal.
We shall outline the facts the jury was authorized to believe from the Commonwealth's evidence.
Shortly before 9:00 P.M. on October 24, 1967, the four young men named above entered Miller's Pharmacy at 3234 West Broadway and ordered sandwiches and soft drinks. No one else was on the premises but Sidney Miller (the proprietor), Carol *951 Lanham (a 15-year-old soda fountain employe), and Mary Lanham (Carol's mother, who had just arrived for the purpose of taking Carol home, as the store's closing time was 9:00 P.M.). Abernathy ordered a half pint of liquor and, as Miller handed it to him, stepped around the counter with a pistol in hand and told Miller this was a hold-up. Abernathy then took Miller and Mary Lanham into the back room and robbed Miller of $39 in cash and Mrs. Lanham of $1 in cash (that being all the folding money Mrs. Lanham had with her at the time). While Abernathy was trying to persuade Miller to open a safe one of the other boys came into the back room and said, "Beat it. Somebody's coming to the door." The "somebody" turned out to be two police officers, one of whom entered the front door and the other went to a side door. The officer going to the side door arrived there just in time to meet Hodges coming out. In this abrupt confrontation Hodges dropped a new wrist watch which was still in its display case. He was arrested and searched, and the arresting officer discovered on his person another watch, $38 in cash and a short length of plastic clothesline cord.
Abernathy and the other two boys were arrested inside the store. A pistol identified as the one used by Abernathy in the robbery was found near the front of the store but not on Abernathy's person. (Abernathy admitted having the gun, but said he laid it down when he saw the police because he did not want to be charged with carrying a concealed deadly weapon.) Robinson was in possession of $22 in cash, a watch and a piece of clothesline cord. No incriminating evidence was found on the person of Abernathy or of Hollins. The pistol belonged to Hodges. (Both he and Abernathy testified that the pistol was inoperative and had been given by Hodges to Abernathy some days before for the purpose of having it repaired.)
Both of the appellants have been vigorously and diligently represented by appointed counsel. Their appeals are prosecuted separately, but on the same record.
During the voir dire the prospective jurors were asked, among other things, if they were acquainted with any of the prosecution's staff of attorneys. After the juror Price had been accepted, but before the panel had been filled, he stated that he knew Carl Ousley socially. (Mr. Ousley was the Commonwealth's Attorney's first assistant, but did not participate in this trial.) Counsel then moved to strike Price, but the trial court overruled the motion with the comment that he had already been accepted. Appellants contend this was prejudicial error.
RCr 9.36(1) provides that challenges shall be made first by the Commonwealth and then by the defense and that each side must exhaust its challenges to each juror before the other side begins. RCr 9.36(3) makes an exception in that the trial court may permit challenges until the jury is sworn. In this case the trial court could have permitted a late challenge of Price under RCr 9.36(3), and the question is whether it abused its discretion, to the prejudice of the appellants, in refusing to do so. If the information that Price knew Mr. Ousley socially were grounds for a challenge for cause, we would have to say it was a prejudicial error to deny the challenge. As it is, we are of the opinion that a peremptory challenge should have been permitted, but that its denial was a nonprejudicial error. The information was inconsequential. The appellants were willing to accept the juror except for the fact that he knew Mr. Ousley socially. The only basis of possible prejudice is that one of the jurors who heard the case was personally acquainted with Mr. Ousley. We do not think that lone circumstance is sufficiently suggestive of real prejudice to justify a new trial.
Also during voir dire, after the attorney for the Commonwealth had advised *952 the prospective jurors of the penalties that would lie in the option of the jury if the defendants were found guilty, one of the jurors asked, "Would they serve that sentence?" In response the trial court stated as follows:
"That's a matter for the Parole Board to decide. Sometimes they get out in a year, sometimes they get out in two years, it depends on how the parole board feels about his case. We have nothing whatsoever to do with that, nothing at all."
Counsel for the appellants objected at once and made timely motions that the case be withdrawn and brought before another panel.
In Ringo v. Commonwealth, Ky., 346 S.W.2d 21 (1961), the trial court in an armed robbery case inadvertently informed the jury, in reply to an inquiry, that if given a life sentence the defendant would be eligible for parole in eight years. In holding this to be a fatal irregularity this court observed, "If the jury had some doubt about the appellant's guilt the identification of him, for example it is easy to infer that it may have been influenced to find him guilty on the theory that he would serve only eight years, whereas if the jury had been confronted with the necessity of choosing between sentencing appellant to life imprisonment or death, as the statute authorizes (KRS 433.140), it might have considered its doubts to be more serious and failed to convict the appellant."
In the later case of Blanton v. Commonwealth, Ky., 429 S.W.2d 407 (1968), the trial court answered a similar question by a juror as follows:
"THE COURT: I can't go into that. That's strictly a matter for the Parole Board. That's strictly in the discretion of the Parole Board and they can parole a man any time they want to do so or deny a parole. I may say something about this, when I was Commonwealth Attorney a man was eligible for parole from a life sentence after he had served eight years but that's been changed some and the Court of Appeals won't let us say a word about parole.
"JURY FOREMAN: They won't let you say a word whatsoever. They won't let you give us any information?
"THE COURT: They won't let us give you the slightest information. It's purely and simply a matter for the Parole Board."
A judgment sentencing Blanton to 15 years in prison was affirmed. On the point in question, this court found that the error had not been duly preserved for review, but observed nevertheless "that the trial court's comments could not reasonably be held to be prejudicial in the instant case. However, as a future guide, when the trial court is asked concerning parole, we say again that the court should refrain from commenting upon it at all," etc.
In Blanton the question was asked by the foreman of the jury after the jury had reached a tentative verdict, whereas in this case the incident took place before the trial began. The Ringo opinion was not mentioned in Blanton. Each case must, however, be judged on its particular facts. We do not condone the remark made by the trial court in this case. In fact, we hold it was an error. But as in the instance of any other error, we are enjoined by RCr 9.24 and 9.26 to disregard it unless we are of the opinion that it affected the "substantial rights" of the defendants. Perhaps this is not a happy choice of words, but the expression was preserved in the Rules so that the bench and bar might have the benefit of the judicial interpretation that had been given it since 1880 under §§ 340 and 353 of the Criminal Code. What it really boils down to is that if upon a consideration of the whole case this court does not believe there is a substantial possibility that the result would have been any different, the irregularity will be held nonprejudicial.
*953 Necessarily, one important circumstance in determining whether a particular error was prejudicial is the weight of the evidence. Another is the amount of punishment fixed by the verdict, especially with regard to the allowable minimum and maximum. In this case the evidence of guilt was virtually conclusive, and the punishments were the least the jury was authorized to inflict. It could, of course, have found one or both defendants not guilty, but we do not see how a conscientious jury could honestly have done so. Our conclusion is that the error was not prejudicial.
There were certain other exchanges between court and counsel within earshot of the jurors in which it is argued that the trial court put counsel in a bad light. On one occasion, for example, the jurors may have gained the impression that they were being kept together during a recess because counsel for the defendants had not taken the initiative to authorize their separation. Again, however, we cannot believe there is any substantial possibility that in consigning a man to the penitentiary twelve decent people would be influenced in the slightest degree by so trivial a circumstance. Though sometimes an advocate may have the impression that the success of his efforts depends more on what the jury thinks of him than on what it thinks of his client, we gravely doubt that many jurors are afflicted with such myopic perception.
Hodges makes the further points that he was entitled to a separate trial and that the evidence was not sufficient to authorize a conviction. We find no substance in either. The evidence was ample. There was nothing in the evidence adduced either for or against the other defendants that would not have been admissible in a separate trial of Hodges. It seems to us that this was a typical case in which a joint trial was appropriate.
The judgment is affirmed.
All concur.
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439 S.W.2d 598 (1969)
CROMWELL GENERAL CONTRACTOR, INC., and Aetna Casualty & Surety Insurance Company, Inc., Plaintiffs in Error,
v.
Allen B. LYTLE, Defendant in Error.
Supreme Court of Tennessee.
February 14, 1969.
Rehearing Denied April 18, 1969.
*599 Smith & Sellers, Murfreesboro, for plaintiffs in error.
John R. Rucker and Michael Murphy, Murfreesboro, for defendant in error.
OPINION
CRESON, Justice.
Cromwell General Contractor, Inc. appeals to this Court from an adverse judgment of the Circuit Court of Rutherford County, granting workmen's compensation and medical expenses to Allen B. Lytle.
The parties to this cause will be designated herein as they appeared in the trial court; that is, Allen B. Lytle as plaintiff, and Cromwell General Contractor, Inc. as defendant.
The controversy presents one issue for decision whether or not plaintiff was an employee of defendant at the time of the accident; or was, as a matter of law, an independent contractor.
Although correctly described as a general contractor, the defendant corporation has specialized in masonry work for approximately twelve years. The corporation sub-contracts to do masonry work within Tennessee and within a radius of 100 miles from Shelbyville, Tennessee.
Plaintiff does both farming and construction work. He owns a small farm in Rutherford County and for three or four years prior to the accident, had worked as a "brick washer" at various construction sites. As a "brick washer," plaintiff removes stain, dirt and excess mortar from the facades of new buildings. Brushes, scrapers, acids and cleaning solutions are used in the process of cleaning brick and stone.
The accident giving rise to this action occurred December 30, 1966, at Columbia, Tennessee, when plaintiff and a helper employed by him were cleaning brick from a "hanging scaffold." The scaffold gave way, throwing plaintiff and his helper to the ground, some 24 feet below.
The work relationship between plaintiff and defendant began in May, 1966. Plaintiff approached defendant, stating that he was in "the brick cleaning business" and inquiring whether or not defendant had work of that nature to be done. Plaintiff and defendant agreed, orally, that for $600.00 plaintiff would undertake to clean all brick used in construction of a hospital at Tullahoma, Tennessee, and to furnish all required material. At or about the same time, plaintiff told defendant that he would undertake all of defendant's brick cleaning for $6.00 per thousand. Generally, the oral understanding reached in May, 1966 continued *600 to govern the relation between the parties, except as hereinafter noted.
In connection with the work done at Tullahoma for defendant, plaintiff supplied all materials, hired two workers and paid their wages. Thereafter, plaintiff also cleaned gray brick at a Junior High School in Clarksville, Tennessee. Plaintiff was paid by defendant at the rate of $6.00 per thousand brick cleaned. At Clarksville, defendant furnished scaffolding and a portion of the acid used in the cleaning process. Plaintiff furnished brushes, hose pipes, a portion of the acid, and hired a helper whose wages were paid by plaintiff. When the work on the gray brick at Clarksville was completed, plaintiff went to Portland, Tennessee, where he worked with another contractor.
While engaged at the Portland site, plaintiff was requested by defendant to return to Clarksville to wash white brick used in construction of the same Junior High School. The parties had great difficulty in cleaning the white brick and were obliged to use various chemical solutions in achieving the desired result. In connection with the cleaning of the white brick, defendant furnished lye, soda, detergent and acid. Plaintiff furnished brushes and scaffolding. Defendant apparently demonstrated the use of certain chemicals for plaintiff and two other men hired and paid by defendant. For his work, plaintiff was paid $6.00 per thousand brick cleaned.
The difficulty with the white brick used in the Clarksville School was apparently so great that a rewashing or recleaning was required. For rewashing the white brick, plaintiff was paid $3.00 an hour and furnished by defendant with materials and help.
Defendant apparently communicated frequently with plaintiff, informing him when and where brick were to be cleaned. Defendant's employees sometimes began washing brick if plaintiff failed to begin the work. Grady Cromwell, an officer of the defendant corporation, testified that he had no control over the time at which plaintiff was to be at work, and that if plaintiff were late, other men would begin cleaning brick. A building at Columbia, Tennessee was thus half cleaned before plaintiff arrived to complete the work. In that particular instance plaintiff was paid for washing half the brick.
Defendant withheld neither Social Security nor income taxes from plaintiff's checks. Plaintiff's 1965 and 1966 income tax returns stated plaintiff's business name as Lytle Contractor. However, plaintiff testified that an employee of the Farm Bureau completed his tax returns for him without his instructions.
The record reveals that plaintiff cleaned brick for a number of contractors: L.L. Poe, L & M Contractors, T.P. Martin, and a Mr. Hart. Plaintiff was paid by them on several bases: (1) Per 1,000 brick cleaned, (2) per square foot cleaned, and (3) per completed job.
The trial court concluded that plaintiff was an employee of defendant within the meaning of the workmen's compensation statutes of Tennessee. The decision in the trial court rested on reasoning (1) that defendant had the right to fire the plaintiff, (2) that defendant had the right to "dock" plaintiff's pay, (3) that, consequently, plaintiff was subject to the day to day control and supervision of defendant, and (4) that apparently the work performed by plaintiff was an integral and necessary part of the conduct of defendant's business.
The facts of this case are undisputed; consequently, characterization of plaintiff's legal status as either an employee or an independent contractor becomes a question of law. See Brademeyer v. Chickasaw Building Co. et al. (1950), 190 Tenn. 239, 229 S.W.2d 323; Seals v. Zollo (1959), 205 Tenn. 463, 327 S.W.2d 41. The case turns, not upon conflicting evidence, but, rather, upon the legal significance to be given to the facts as adduced before the trial court.
*601 T.C.A. § 50-902(b) defines an "employee":
"`Employee' shall include every person, including a minor, whether lawfully or unlawfully employed, the president, any vice-president, secretary, treasurer, or other executive officer of a corporate employer without regard to the nature of the duties of such corporate officials, in the service of an employer, as employer is defined in paragraph (a) above, under any contract of hire, apprenticeship, written or implied. * * *"
This Court has frequently stated that an independent contractor is one who contracts to perform a service or do a "piece of work" by his own methods and without control or direction by his employer, except as to the result to be achieved. See Odom v. Sanford & Treadway et al. (1927), 156 Tenn. 202, 299 S.W. 1045.
From these definitions, this Court has developed and applied a number of tests as aids in determining whether a particular work relationship is that of employer-employee, or that of independent contractor. Among these tests are (1) the right to control the conduct of the work, (2) the right of termination, (3) the method of payment between the alleged employer and employee, (4) whether or not the alleged employee furnishes his own helpers, and (5) whether or not the alleged employee furnishes his own tools.
These tests are no more than a means of analysis. They are not to be applied abstractly, nor are they absolutes which preclude examination of each work relationship as a whole. Utilization of these tests depends upon the salient facts of a particular relationship. No one test is infallible or entirely indicative of the legal characterization to be given to a particular relationship. The decisional value of any single test is commensurate with the degree of its applicability to the particular case. See Smart v. Embry et al. (1961), 208 Tenn. 686, 348 S.W.2d 322; Seals v. Zollo, supra, and Armstrong v. Spears (1965), 216 Tenn. 643, 393 S.W.2d 729.
In this class of cases, the details of the work process change somewhat, from job to job. Upon the instant record, it does not appear that defendant controlled the manner or means by which plaintiff accomplished his work. The closest approach to supervision on the part of defendant occurred in connection with the cleaning of white brick at the Clarksville School. Even that instance is indicative of no more than that plaintiff and Grady Cromwell engaged in some experimentation and mutual suggestion as to which chemical solution and cleaning method would rid the face of the white brick of obstinate foreign matter. Experimentation, or suggestive consultation, is not indicative of a right to control the mode of cleaning brick.
Plaintiff frequently hired and paid his own employees, but he also received help from defendant's employees, without charge. While plaintiff used some materials and scaffolding supplied by defendant, upon this record it is clear that plaintiff furnished a major portion of his own tools and materials.
Over the full duration of the relationship between plaintiff and defendant, plaintiff was almost entirely paid either on a contract price providing for a completed job or on a contract price per thousand brick cleaned. The oral contract between plaintiff and defendant specified payment by the job, or per thousand brick cleaned. The instance of hourly payment occurred in connection with a final recleaning of white brick at Clarksville, under entirely unusual circumstances. It was at Clarksville (1) that plaintiff was paid an hourly wage for the supplemental work, (2) that plaintiff and defendant repeatedly consulted as to what chemical solution and order of application would get the desired result, and (3) that defendant supplied plaintiff with materials and reimbursed plaintiff for materials purchased at plaintiff's suggestion. *602 Generally, the method of payments as between plaintiff and defendant indicates their relationship to be that of an employer and an independent contractor.
Plaintiff urges upon this Court yet another "test." It is vigorously contended (1) that brick washing is to be regarded as a necessary and integral part of defendant's construction business, and (2) that where an individual performs work necessarily a part of a larger business, he is to be characterized as an employee. In support, it is asserted that Brademeyer v. Chickasaw Building Co. et al., supra; Seals v. Zollo, supra; Armstrong v. Spears, supra; and Butler v. Johnson (1968), 221 Tenn. 366, 426 S.W.2d 515, indicate that this Court has adopted such "test" in determining whether an individual is an employee or an independent contractor.
Critical examination of the decisions mentioned above reveal that they stand for no such thing.
Liability under the Tennessee Workmen's Compensation law is based upon the existence of an employment relationship. Clendening v. London Assurance Co. (1960), 206 Tenn. 601, 336 S.W.2d 535, 337 S.W.2d 603. There is, however, no imposition of liability where an alleged employee is either (1) an independent contractor, or (2) a casual employee. As Mr. Justice Chattin aptly pointed out in the case of Butler v. Johnson, supra, there is a substantial difference between the determination of whether, on the one hand, an individual is an employee or an independent contractor, and whether, on the other hand, an individual is an employee or a casual employee.
It is this pivot of decision which brings into clear focus the difference between cases which determine whether an employee is "casual" or not, and those which turn upon whether or not the injured man is an employee or independent contractor when the so-called "relative nature of the work test" is injected. It becomes clear that such test is of vital significance in the solution of the question whether an individual is an employee or a casual employee. The inquiry has significance but much less when the question to be resolved is whether or not an injured man is an employee or independent contractor.
Were the characterization of an individual as either an employee or an independent contractor to depend on whether an integral or substantial part of an employer's total business has been contracted out, the status of independent contractor would be obliterated. In Armstrong v. Spears, supra, and Butler v. Johnson, supra, the argument that the individuals there involved performed an integral or substantial part of the alleged employers' businesses was primarily directed to a question absent from the instant case. Those cases uniformly pose the initial question of whether the individuals there involved were employees under T.C.A. § 50-902(b), and within the coverage of the Tennessee Workmen's Compensation law, or "casual employees" under T.C.A. § 50-906(b), and beyond the scope of the Tennessee Workmen's Compensation law.
The case of Brademeyer v. Chickasaw Building Co. et al., supra, involved a window washer who was paid by the owner of an office building to clean windows at 15¢ each. Social Security and income taxes were withheld and the building owner had the right to terminate the services of the window washer at any time. The case was brought before this Court on appeal from the holding of the lower court that the window washer (1) worked as an independent contractor, and (2) was a casual employee. The decision of the lower court was reversed and this Court held (1) that the window washer was an employee, and (2) that he was not a casual employee. With regard to the determination of whether the window washer was an independent contractor, the opinion on petition to rehear makes clear that this Court concluded, as a matter of law, that the building owner had the right to control the *603 manner in which the windows were cleaned. The nature of the employer's business, and the relation to it of the window washer, were examined primarily in determining whether or not the window washer's work was casual.
It should be readily apparent that the tests used as aids to analysis of particular employment relationships vary, not only according to the facts of each case, but according to the particular and precise issues presented by those facts.
One further point remains upon which we may helpfully comment. It is argued, or perhaps it might be more accurate to say suggested, that Mr. Lytle's work was "common labor." A relatively long life and considerable acquaintance with both physical and mental sweat, and even intellectual labor, has convinced us that there is no labor well done that is common. Rather, it is uncommon. This is the unalterable truth without regard as to how skilled the craft in the name of which the work is done.
We are thus constrained to the conclusion that the decision of the trial court must be, and is, reversed, and the cause dismissed. Costs are taxed to the defendant in error, the plaintiff below.
BURNETT, C. J., and DYER and CHATTIN, JJ., concur.
HUMPHREYS, J., dissents.
HUMPHREYS, Justice (dissenting).
I respectfully dissent in this case, because it is evident upon a consideration of its effect that it overrules much of the holding of this Court in Brademeyer v. Chickasaw Building Co. et al (1950), 190 Tenn. 239, 229 S.W.2d 323. While the opinion does not say this in so many words, and an effort is made to distinguish the cases, this is the effect of it. And because Brademeyer was sound in all of its propositions, I do not think we should depart from its holdings.
To illustrate, in the present case it is said the record does not show that the contractor controlled Lytle in the manner and means by which he accomplished his work, and from this the assumption is drawn that the vital element of right to control which characterizes a contract as one of employment rather than independent contractor is missing.
The same situation existed in Brademeyer. The record was silent with respect to control but this Court held it would assume the right to control. This holding was predicated on the proposition that, in the absence of a positive showing there was relinquishment of the right to control, the assumption would be made the right existed. This holding is consistent with the rule that the presumption is in favor of the employee relationship. Frost v. Blue Ridge Timber Corp., 158 Tenn. 18, 11 S.W.2d 860; Weeks v. McConnell, 196 Tenn. 110, 264 S.W.2d 573.
So in this very vital area the present opinion departs radically from the Brademeyer holding.
In Brademeyer, the injured employee was paid at an agreed price per window washed. In this case the primary contract was based on the per thousand brick washed. In Brademeyer we held payment for piecework was not evidence of an independent contract. In this case we hold that it is.
In this case in support of the proposition of independent contractor, reference is made to the fact that Lytle hired and paid employees to help him with the work. The same situation existed in Brademeyer and yet it was not thought to have the effect here given it.
However, my major concern with the majority opinion is that in holding that even ordinary, manual, unskilled labor, performed as a necessary part of the business of the employer, can be the subject of an independent contract, we go against the *604 overriding, overall purpose and intent of the Workmen's Compensation Law to place upon the employer of such labor the burden of looking after those who are injured doing his work, rather than to cast this burden on society.
In other words, if plain, ordinary, unskilled hand labor, involving the simplest tools, such as a scrub brush or a wire brush, in the performance of an integral, necessary part of the employer's business, can be made the subject of an independent contract, then there is no work relationship which is protected by the Workmen's Compensation Law from the effect of this device.
The writer recognizes that there must be room for the making of genuine independent contracts in which the party contracting to work does not come under the Workmen's Compensation Act. But this Court, as in Brademeyer, should reject the independent contractor defense in cases involving ordinary, unskilled manual labor, involving nothing but the physical exertion of the laborer and the simplest of tools. Such cases are clearly under the letter and purpose and intent of the statute. Since, in my judgment, the opinion in this case helps to make it easier to thwart this expressed public policy, and in so doing goes against our holding in Brademeyer, I cannot agree.
I am also in disagreement with the out-of-hand rejection of the "relative nature of the work test" in determining whether the workman is a contractor or an employee. This test is logical and reasonable. Its importance is discussed in Larson's Workmen's Compensation Law, § 43.50-43.54, and on authority of a number of cases Larson concludes as follows:
"If, then, control of the details of the work should not be the most relevant factor for compensation purposes, which of the listed factors should be?
The answer, it is submitted, should be this: the nature of the claimant's work in relation to the regular business of the employer." Sec. 43.50 (emphasis supplied).
I agree with this as sound law, because its purpose is to serve the policy served by our Workmen's Compensation Law; that of making the employer liable for the injuries suffered by those who regularly do his work from day to day as needed.
Instead of disposing, with a jolly jeer, of the "suggestion" that a common laborer doing a necessary job on a regular basis producing the product the employer is in business to produce can hardly ever be an independent contractor, this Court should adhere to it as it did in brave Brademeyer.
OPINION ON PETITION TO REHEAR
CRESON, Justice.
A petition to rehear has been filed in this cause which complains of the Court's original majority opinion in three aspects.
The first is that the assignment of errors, written brief and argument of plaintiffs in error was filed so close to the date of the hearing that it prevented opposing counsel from adequately preparing and presenting his case. The second is directed to the idea that the majority opinion considered an issue on which he had no chance to be heard; that is, "the issue of common, unskilled labor." The third is that the majority opinion conflicts with Brademeyer v. Chickasaw Building Co. et al. (1950), 190 Tenn. 239, 229 S.W.2d 323.
On re-examination of the record, briefs and arguments, we find no justification whatever for the contention that there has been denial of opportunity to present and argue any contention. In fact, the full case and every issue made therein have been fully briefed and argued.
There is assuredly no basis for contention that the element of "unskilled labor" was not fully considered. That is the main thrust of the dissenting opinion filed by one of the Justices of this Court. This very *605 issue evoked much thought and discussion and even dissent.
As to the third insistence, with respect to the prior opinion in Brademeyer v. Chickasaw Building Co. et al., supra; this, too, is without merit. That opinion was given extended and thoughtful consideration. All of the members of the Court are in complete agreement with that opinion, and were at the time of release of the original opinion in this case. It is quite apparent in the case cited (1) the parties were, in fact, employer and employee; (2) the legal relationship, as well as the factual, was that; and (3) the parties in that cause fully recognized and intended such to be their status.
Such is not the instant case, and the petition to rehear is denied.
BURNETT, C. J., and DYER and CHATTIN, JJ., concur.
HUMPHREYS, J., dissents.
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439 S.W.2d 296 (1969)
Rose Marie McCLAIN, Appellant,
v.
Glenn ANDERSON, Appellee.
Rose Marie McCLAIN, Appellant,
v.
Bill J. SHORT, Appellee.
Nos. 5-4856, 5-4857.
Supreme Court of Arkansas.
April 14, 1969.
*297 Carl M. Harness, Fayetteville, for appellant.
Putman, Davis & Bassett, Fayetteville, for appellee.
BROWN, Justice.
These are two separate slander actions instituted by Rose Marie McClain, appellant here, against appellees Glenn Anderson and Bill J. Short. The actions were consolidated on appeal. Appellant was a teacher and appellees were members of her school board. The allegedly slanderous remarks were made during the course of a meeting between the school board and appellant. The trial court granted appellees' motions for summary judgment on the grounds that the remarks in question were at least conditionally privileged and would require a showing of malice as a basis for recovery; and that there was no evidence from which a jury could find malice. Appellant contends that any privilege which existed is shown by the record to have been abused and sufficiently to make a jury question.
In ascertaining whether there is a genuine issue as to any material fact we view the proof in the same light as if it were a motion for a directed verdict. Russell v. City of Rogers, 236 Ark. 713, 368 S.W.2d 89 (1963). The deposition of Mrs. McClain was considered by the trial court and we summarize the essential contents in the light most favorable to her:
She is a graduate of the University of Arkansas and her five years teaching experience has been at Greenland, Washington County. She was discharged about April 15, 1967, and consequently missed the salary checks ordinarily due under her contract for the following three months. Superintendent Watson, Mr. McClain, and the members of the school board were present at the special meeting called for the purpose of giving appellant a hearing. There the superintendent made the statement that she was being discharged; and there followed a general discussion. Appellee Short stated Mrs. McClain had entered the superintendent's office under false pretenses and read the minutes of the previous board meeting. Appellee Anderson stated that appellant could not take orders *298 and also caused dissension and uproar among the teachers. Both men appeared to be angry and upset when they made those statements. Sometime prior to April 15 appellant asked the superintendent to permit her to read the minutes of the previous board meeting. He refused but he discussed with her the contents of the minutes insofar as they related to her. Subsequently and at a time when the superintendent was out of town, she went to his office and asked the secretary's permission to use the telephone in Watson's private office. While using the telephone she noticed the minute book on a table and read the minutes made of the March meeting. She subsequently discussed the contents with some of the teachers. It was not uncommon for teachers to read the minutes when a question of policy arose. The teachers often used the superintendent's telephone and Mrs. McClain stated that was her real reason for entry at the time mentioned. At the board meeting she asked to express her opinion as to her conduct. She concluded from the mannerisms of the board members that they did not care to hear from her. The tempers of the board members flared, as well as her own.
Other matters before the trial court on the motions for summary judgment were the pleadings in the case and the deposition of Bill Watson, the superintendent. The complaints alleged the statements of Short and Anderson to have been false and spoken with malice; and that they were uttered with the intent of impeaching Mrs. McClain's professional reputation and to expose her to public ridicule. She alleged compensatory and punitive damages. General denials were entered by both defendants; and thereafter each moved for summary judgment. The latter motions asserted that their statements were made during a regular meeting of the school board and were absolutely privileged, and further alleged that the statements as a matter of law did not contain slanderous words.
Superintendent Watson testified that he recommended appellant's discharge on grounds of insubordination and creating dissension among the teachers. He said the first charge was based on her having read the school board minutes after being instructed to the contrary; and the latter charge arose from appellant's revelation of the minutes to other teachers. It is evident that the superintendent discussed his information with the board members prior to the meeting. That fact gave rise to the statements made to Mrs. McClain by appellees. Watson conceded that the statements were made to Mrs. McClain in answer to her inquiry about the reasons for her discharge.
We agree with the trial court that the statements of the board members were conditionally privileged. They were discharging a public duty in a meeting to discuss reported incidents of misconduct by Mrs. McClain. The reported incidents were germane to a decision on the renewal of her teaching contract. The same setting is found in the facts of Thiel v. Dove, 229 Ark. 601, 317 S.W.2d 121 (1958). Thiel points out that it is a condition of the privilege that a defamatory statement should not be made by one who knows it to be untrue; also, a speaker who is motivated by malice rather than by the public interest that calls the privilege into being loses the privilege. The privilege can also be lost if the speaker goes beyond what the occasion requires. Bohlinger v. Germania Life Ins. Co., 100 Ark. 477, 140 S.W. 257, 36 L.R.A.,N.S., 449 (1911). We must examine the depositions in light of those stated principles, resolving all reasonable inferences in favor of Mrs. McClain.
It certainly cannot be said of appellees that they made statements known by them to have been false. Mrs. McClain concededly entered the superintendent's private office in his absence; her stated purpose was to use the telephone; and she read the minutes notwithstanding Mr. Watson's orders to the contrary. It was not unreasonable for Mr. Short to conclude that she entered the office under a pretense of using *299 the telephone. Mr. Anderson allegedly stated that Mrs. McClain could not take orders. The only conclusion we can reach from the evidence is that he was referring to her violation of the superintendent's direction not to examine the minutes. Anderson is said to have further stated that she "caused dissension and uproar among the teachers." Mrs. McClain conceded that she discussed the contents of the minute book in the teachers' lounge with other teachers and the record amply supports resulting dissension.
Whether the statements attributed to appellees were true in all respects is not controlling. It is not disputed that the information they repeated had been conveyed to them in their capacities as school board members. Even had their informants been actuated by malice, such fact would not evidence that the board members were acting with malice. Odgers, Libel and Slander, 6th Ed., p. 282 (1929). If it be conceded that appellees showed indignation at the alleged misconduct, that fact would not be evidence that they were acting from spite or ill will. Rest., Torts, § 603 a (1938). The most that the record discloses is that Mrs. McClain disobeyed the order of the superintendent and read the minutes of the last board meeting. With the information there obtained she discussed personnel matters with other teachers and sufficient discord resulted to justify a special board meeting. The subject of that meeting was the alleged misconduct of appellant. Having given credence to the information they possessed, appellees adopted it in substance and repeated it as their opinion. The assertions having been made on a conditionally privileged occasion, appellant must then assume the burden of proving the occasion was abused. Rest., § 613 (1) (g), f.; Prosser, Torts 3d Ed. HB, p. 823.
Finally it is argued that malice should be inferred because Superintendent Watson denied appellant her rights under the Freedom of Information Act. Ark. Stat. Ann. §§ 12-2801 to 12-2807 (Repl. 1968). Assuming that the incident showed malice on the part of Watson, that assumption would not, as pointed out by Odgers, be evidence that the board members acted with malice.
When we consider the matter-of-fact statements alleged are shown to have been based on substantial facts, coupled with a showing of conditional privilege, we hold it then became incumbent on appellant to come forward with evidence of malice. The trial court held she failed in that respect and we agree.
Affirmed.
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439 S.W.2d 68 (1969)
SECURITY INSURANCE COMPANY OF HARTFORD, Appellant,
v.
Raymond NORRIS, Administrator of the Estate of Kenneth Leon Norris, Deceased, Appellee.
Court of Appeals of Kentucky.
January 17, 1969.
Rehearing Denied April 25, 1969.
Robert H. Helton, Jr., Brown, Tooms & Helton, London, for appellant.
James E. Thompson, Shackelford, Burnam & Thompson, Richmond, for appellee.
CULLEN, Commissioner.
On this appeal a workmen's compensation insurance carrier, against whom an award had been made for the dependents of a deceased workman, is seeking to reverse a judgment which held the carrier liable for attorneys' fees and other costs incurred in a suit on behalf of the workman's dependents against a third-party tortfeasor, which suit resulted in a recovery that had the effect of relieving the carrier of liability for further payments under the award.
Kenneth Norris, an employe of Jackson County Rural Electric Cooperative Corporation, was killed in an accident arising out of and in the course of his employment. He left surviving him a widow and infant child. The latter obtained an award of workmen's compensation against Jackson's insurance carrier, Security Insurance Company of Hartford (hereinafter "Security Company"), under which $500 was paid for funeral expenses and benefits of $34 per week were to be paid for 400 weeks. In *69 addition to pursuing the workmen's compensation remedy, the widow and child sought recovery of damages for wrongful death against Kentucky Utilities Company (hereinafter "K.U."), on the allegation that Norris's death was caused by the negligence of K.U. The latter action was prosecuted through an administrator, one Raymond Norris (the widow was too young to qualify). Security Company intervened in the action and prayed for recovery of funeral expenses and compensation benefits "paid or payable," but the intervention was not made until the action was in the late stages of negotiation and the preparation of the case had substantially been completed by the administrator's attorneys. Shortly after the intervention the action was settled for $50,000. Up to the time of settlement Security Company had paid out a total of $4,240 under the workmen's compensation award, and it was agreed and understood that Security Company was entitled to that amount out of the $50,000 recovery. However, a dispute arose between Security Company on the one hand, and the widow and child on the other, on the question of the extent of Security Company's liability for the costs of the recovery, particularly attorney fees. The issue on this appeal relates to that question.
The administrator paid his attorneys, pursuant to contract, a fee of 40% of the amount recovered from K.U. for the widow and child ($45,760). Security Company was willing to pay a reasonable attorney fee to the administrator's attorneys for their services in recovery of the $4,240 which was in recoupment of the workmen's compensation benefits actually paid out by Security Company. However, the widow and child insisted that Security Company should reimburse them for the fee paid the administrator's attorneys on approximately $10,000 of the amount recovered for the widow and child, on the theory that the recovery resulted in Security Company's being relieved of liability for approximately $10,000 in future compensation payments (Security Company ceased making payments when the settlement was made with K.U.), and therefore the fee was paid for the benefit of Security Company. The widow and child also argued that the administrator's fee (of 10%) allowed by the county court on the amount received from K.U. in the settlement (the whole $50,000) was a cost of recovery of which Security Company should bear its proportionate part that being the cost on the portion of the settlement equal to the amount of past compensation payments recouped and of future payments relieved.
The circuit court agreed with the arguments of the widow and child and entered judgment accordingly. The court found that 40% was a reasonable attorneys' fee and that the 10% administrator's fee was reasonable. The judgment required Security Company to pay to the administrator's attorneys a fee of 40% on the $4,240 of past compensation payments recouped, and to pay to the administrator (as reimbursement for attorneys' fees paid by him) an amount equal to 40% of the amount of future compensation payments of which Security Company was relieved. The judgment also required Security Company to pay to the widow and child an amount equal to 10% of the amount of compensation payments (both past recouped and future relieved), as reimbursement for administrator's fee paid by them.
Security Company has appealed, complaining of error as to the payments required to be made to reimburse the administrator for attorney fees and to reimburse the widow and child for administrator fees. (No question is raised as to the reasonableness of either fee; the contention is that there should be no liability for the fees.)
As to the matter of attorney fees, Security Company concedes that under the interpretation placed on KRS 342.055 by this court in such cases as Southern Quarries & Contracting Co. v. Hensley, 313 Ky. 640, 232 S.W.2d 999; Charles Seligman *70 Distributing Company v. Brown, Ky., 360 S.W.2d 509, and Stacy v. Noble, Ky., 361 S.W.2d 285, the workmen's compensation carrier properly may be held liable for attorney fees incurred by the injured employe (or a deceased employe's administrator) in recovering damages from a third-party tort-feasor, to the extent that the recovery relieves the carrier of liability for future compensation payments, if the recovery against the third party is less than the remaining unpaid amount of the compensation award. But Security Company contends that where the recovery is of more than the remaining unpaid amount of the compensating award, the compensation carrier is not liable for attorney fees on any part of the recovery by the employe or his dependents.
The statute, KRS 342.055, contains no provision as to sharing by the compensation carrier of the costs of a recovery by the employe against the third-party tort-feasor. Our decisions imposing a liability, such as Brown and Noble, supra, have based the liability on principles of equity, fairness and justice, such as are invoked in cases of unjust enrichment. Those principles apply with equal force whether the recovery relieves the compensation carrier of all future payments or only of part of them. In either case the carrier should bear the costs of the recovery to the extent it redounds to his benefit.
Actually this was the view taken by the court in Brown, supra, because the opinion in that case states that equity requires the compensation carrier to bear the costs of a recovery for his benefit, "regardless of the respective amounts recovered." It is true that the opinion in Brown speaks of the costs of recovery of the amount which the recovering employe is required to "pay over" to the carrier, and the opinion in Noble, supra, says that whoever "takes the money" is chargeable with a share of the fee. But those statements were inadvertences, because in a suit by the employe alone (or the administrator of a deceased employe) he cannot collect for the compensation carrier money that the carrier already has paid to him (that recovery can be made only by the carrier itself, Williams v. Brown, 205 Ky. 74, 265 S.W. 480); so the employe will never recover money that he is required to "pay over" to the carrier nor will the carrier "take" any money that the employe has recovered. Of course if the carrier intervenes in the employe's action and obtains a recovery directly for itself of compensation payments it has made to the employe, the carrier nevertheless may be liable to the employe's attorneys for a fee because their services secured the recovery, but that is really not what Brown and Noble were talking about. They were talking about the amount of future liability of which the carrier is relieved by virtue of the employe's recovery.
It is our opinion that the carrier in the instant case properly was held liable for the attorneys' fees on such amount of recovery by the administrator against K.U. as equaled the amount of future compensation payments of which the carrier was relieved (this liability being in addition to the carrier's admitted liability for fees on the amount of $4,240 recovered directly for the carrier).
Our opinion is in accord with the decisions in other jurisdictions. See Wall v. Conn Welding & Machine Company, 197 Pa.Super. 360, 179 A.2d 235; Caputo v. Best Foods, Inc., 17 N.J. 259, 111 A.2d 261; Knox v. Land Construction Company, Mo. App., 345 S.W.2d 244. It is true that in each of those jurisdictions there was a statute providing that the compensation carrier should bear a proportionate part of the costs of recovery against a third-party tort-feasor, but none of those statutes specifically stated that the carrier must pay costs on such amount of the recovery as relieved the carrier of liability for future compensation payments, and in each of the cited cases the court resorted to principles of justice *71 and equity in holding that the carrier must pay those costs.
This leaves us with the question of the administrator's fee. As concerns the amount of recovery for the widow and child which redounded to the benefit of Security Company by way of relieving it of liability for future compensation payments, the fee was clearly an essential cost of the recovery. The widow and child could not sue except through an administrator and the fee would not have been incurred except for the recovery. So we think Security Company properly was held liable for the administrator's fee on the amount of recovery above mentioned. As concerns the recovery of $4,240 directly for Security Company it is true that Security Company could have prosecuted the proceedings for recovery in its own name without regard to the administrator. But it did not do so; it chose to let the administrator carry the burden of the litigation and perform the work which enabled the recovery for Security Company. Strictly, the court should not have awarded an administrator's fee as such on the $4,240 recovered directly for Security Company because the administrator was not acting in the capacity of administrator as to such recovery but rather was acting as an agent for Security Company. However, we think the administrator was entitled to compensation for his services to Security Company and that the amount allowed was reasonable for those services. So it is our opinion that the judgment was proper as relates to the administrator's fee.
In closing we call attention as a matter of interest to our decision in a case companion to this one, Kentucky Utilities Company v. Jackson County Rural Electric Co-operative Corporation, Ky., 438 S.W.2d 788 (decided December 13, 1968).
The judgment is affirmed.
MONTGOMERY, C. J., and EDWARD P. HILL, MILLIKEN, PALMORE, REED and STEINFELD, JJ., concur.
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439 S.W.2d 887 (1969)
TRINITY RIVER AUTHORITY of Texas, Appellant,
v.
Marvin H. McMURREY, Jr., Trustee, et al., Appellees.
No. 7047.
Court of Civil Appeals of Texas, Beaumont.
March 13, 1969.
*888 Lloyd C. Martin, Huntsville, Clark, Thomas, Harris, Denius & Winter, Austin, Bryan, Suhr, Bering & Bailey, Houston, for appellant.
Robert F. Atkins, Coldsprings, McClain & Harrell, Conroe, for appellees.
KEITH, Justice.
The appeal is from a judgment wherein the landowners, in a condemnation proceeding, were awarded $534,377.19 as the market value of 1,303 acres of land taken for use in connection with the Livingston Dam and Reservoir in San Jacinto County. Judgment was entered upon the verdict of the jury in answer to a single issue finding the market value of the land taken, exclusive of the minerals, to be $400.00 per acre. By stipulation of the parties, all other issues, including the damages to the mineral estate caused by the inundation of the surface, were removed from dispute. There were no objections to the charge or the accompanying boiler-plate definition of market value.
Upon appeal, the condemning authority complains (a) that there was no evidence of probative value to support the jury finding of market value, and (b) the finding of *889 market value is so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust.
The first point presents a question of law and we must consider only the evidence that tends to support the findings and disregard all evidence contrary thereto. The second point presents a question of fact, and we must weigh and consider all of the evidence in the case. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); Tudor v. Tudor, 158 Tex. 559, 314 S.W.2d 793 (1958).
At the outset, we confess that there is a wide divergence in the expert opinion evidence as to the market value of the property taken, perhaps more than is customarily found in such cases. The variation in the opinions as to value, it seems clear, resulted from the fact that the experts differed as to what was the highest and best use for which the property was adapted. Appellees' only witness, Clark, based his appraisal upon the premise that the highest and best use of the land would be for rural subdivision purposes. Appellant's first witness, Holmes, emphasized the point we make when, in answer to a question as to the highest and best use of the property, he said: "I considered it to be woodland pasture suitable for grazing." He further downgraded this classification by saying that "I considered it to be below average for this general area."
Appellant's witness, Houston added that in his opinion the highest and best use of the property was "for cattle grazing purposes and for investment purposes," by which it is clear that he meant that it would be used for cattle grazing to procure some income therefrom while speculating on its appreciation in value. Appellant's third witness, Osenbaugh, was of the opinion that the highest and best use of the property was "for speculation, for buying the property, for a long-term capital gains situation of buying and holding the property until land around it is developed and when your development comes up to it, it will be more valuable land, and will sell for more."
Using their respective approaches, and in aiding the jury in arriving at the fair market value of the property, the following opinions were expressed: Clark for appellees, $400.00 per acre "average"; Houston for appellant, $200.00 per acre; Holmes for appellant, $190.00 per acre; and Osenbaugh, also for appellant a "range" between $150.00 and $200.00 per acre, which he increased to its maximum, $200.00.
The jury accepted appellees' witness, Clark's, valuation, finding $400.00 as the market value of the land taken.
There is no question as to the legal qualification of each of the witnesses to express an opinion as to the market value of the land in this suit, and no complaint is made based thereon. Each witness was qualified and many pages in the record are taken up with the parade of their qualifications before the jury. We express no opinion as to the weight to be given to the testimony of any of the witnesses, that being a matter exclusively for the jury. We remark in passing, however, that the differences of opinion might well stem from the lack of a common basis of evaluation, i. e., whether the land was best suited for rural subdivision purposes or grazing land. Sand and gravel, apples and oranges, ham and bacon all have certain traits in common, but it is common knowledge that one may or may not be worth more than the other at a particular time and place.
Many pages are taken up in the record and in the briefs to explain why appellees' property was not suitable for rural subdivision; but, as could be aptly pointed out, such was not and is not the determinative factor in the case, either before the jury or here. Presumably, if the jury had not so found, it would have taken the unanimous opinion of appellant's three witnesses over that of the lone expert testifying for the appellees. We do not consider it necessary to recount the testimony given, nor *890 the various factors entering into the question of whether or not the property was suitable for such a purpose as indicated by Clark. The fact remains is that he was qualified to testify, did so, and was believed. Whether or not the jury believed him because, as Osenbaugh said, "God is not making any more land," or for some other reason, is not the point.
Appellant complains that Clark is not credible because this is "landlocked" land in the sense that, while it has access, such is over an abandoned tram or logging railroad through property of others; that the topography, including numerous streams, etc., renders subdivision prohibitively expensive, etc. Clark was subjected to a thorough and rigorous cross examination, wherein the asserted weaknesses in his testimony were exposed; yet he remained firm in his opinion. Market value of property is of necessity a matter of opinion. 2 McCormick & Ray, Texas Law of Evidence, § 1422, p. 256, et seq., and cases therein cited. The triers of the facts, the jury in this instance, were not required to accept the opinions of the experts on either side of the controversy. If the opinions so expressed did not comport with the juror's ideas, they had a right to say so. Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62, 64 (1945).
The attack upon Clark's testimony goes to the weight to be given thereto, a question ordinarily within the exclusive province of the jury. State v. Haire, 334 S.W.2d 488, 491 (Tex.Civ.App., 1960, error ref., n. r. e.).
Appellant attacks Clark's testimony contending that the so-called "comparables" upon which he based his opinion, at least in part, were not in fact or in law comparable. We recently had occasion to write upon this very point in another case involving the reservoir for Lake Livingston, Trinity River Authority of Texas v. Hutchings, Trustee, et al., No. 7018, 437 S.W.2d 383, opinion released January 30, 1969. There, we laid down what, in our opinion, is the rule relating to the question of comparability. We do not find it necessary to repeat the summary there made. (p. 385). What was said in Hutchings applies here and the complaints with reference to the comparable sales, or lack of comparability, are overruled.
It is apparent from a review of the entire record in this case, including the others arising under substantially the same circumstances which have been brought to this court recently by the appellant, the principal difficulty which all appraisers face when seeking comparable sales in the area of Lake Livingston Dam is caused by the relatively small number of sales of any kind in the area. It appears from this record to be clear that, while values in the area generally have been rising rapidly, there have been relatively few sales which the parties can agree are "comparable". As we pointed out in Hutchings, supra, the trial court's initial determination that a prior sale is sufficiently similar to be considered comparable cannot be reviewed except to determine whether there has been an abuse of discretion. We adhere to that ruling here since we find no abuse of discretion.[1]
The absence of a number of sales in the immediate area of property identical to that involved in the case at the bar arises from no fault of appellees; and, it might be admitted, the construction of the dam and reservoir by appellant probably is one reason for the general increase in land values in the area. But, so holding, we do not reach the end result sought by appellant an absolute rejection of the comparable sales used by Clark. See in this connection the opinion of this court in Trinity River Authority v. Chain, No. 7010, 437 S.W.2d 887, pp. 894-895, opinion released January 23, 1969, wherein a similar contention *891 made by appellant was denied. See also our opinion in Trinity River Authority v. Harris, No. 7028, 439 S.W.2d 670, p. ___, this day handed down.
As was said by counsel for appellees in the brief filed herein, commenting upon our recent opinions in Hutchings and Chain, supra:
"Clearly, the jury in the case [under submission], as in the two recent cases before this court, believed the highest and best use of the condemned property was its adaptibility [sic] for rural subdivision purposes * * *"
The jury did not pass, directly, upon the highest and best use of the land; but, having chosen to follow Clark, they must have done so by finding a value based thereon. It is not for us to decide the difference of opinion between the experts.[2]
Applying the tests which we have outlined hereinbefore, it cannot be said that there is no evidence to support the finding of market value. Since the weight to be given to the opinions of the several witnesses was for the jury, our review of the evidence fails to sustain appellant's point that the finding of the jury is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Points one and two are overruled.
The third point complains of the fact that the trial judge showed obvious bias in favor of appellees in various rulings "which taken together constitute such a showing of prejudice against the appellant as to constitute reversible error." Under this point, appellant contends that the trial judge, immediately after the morning recess on the second day of trial, went out into the audience and "fraternized" with the plaintiffs in the presence of the jury. With this as a predicate, appellant contends that the action of the trial court in overruling all of its objections and sustaining all of those made by appelleesin other words, a zero batting average showed such obvious prejudice as to warrant our setting aside the judgment. We overrule this point.
As to the complaint of "fraternizing" with the individual plaintiffs, there is no record showing of any kind that any such event actually occurred, what was done, or what was said. There is a motion for mistrial found in the record followed by a "discussion off record" and the statement that the motion was overruled. There is no record proof, however, by bill of exception or otherwise, as to what went on. We are unwilling to ascribe error under these circumstances, if indeed we could find that there was ground for complaint. See: Price v. Callahan, 319 S.W.2d 347 (Tex. Civ.App., 1958, error ref., n. r. e.).
The action of the court in overruling appellant and sustaining appellees, in each instance, when no complaint is made that any single ruling of the court constituted error, discloses one thing only: Appellant was probably wrong each time or it would have made at least one such claimed incident the subject of a complaint. If no one of the ruling was erroneous, their combined effect could not be erroneous.
The third point is overruled.
The judgment of the trial court is affirmed.
NOTES
[1] Cf. Foley Bros. Dry Goods Co. v. Settegast, 133 S.W.2d 228 (Tex.Civ.App., 1939, writ ref.).
[2] See the discussion and authorities cited in City of Houston v. Raborn, 409 S.W.2d 480, 481 (Tex.Civ.App., 1966, error ref. n.r.e.).
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439 S.W.2d 418 (1969)
AMERICAN INSURANCE ASSOCIATION and Miles Smith, Appellants,
v.
Lottie SMITH, Appellee.
No. 7939.
Court of Civil Appeals of Texas, Texarkana.
March 11, 1969.
*419 J. D. McLaughlin, Fisher, McLaughlin & Harrison, Paris, for appellants.
Leighton Cornett, Paris, for appellee.
FANNING, Justice.
A venue case tried to the court without the aid of a jury. Lottie Smith sued American Insurance Association and Miles Smith in the District Court of Lamar County, Texas, seeking recovery of damages for false imprisonment. Defendants filed a plea of privilege to be sued in Dallas County, Texas, the county of their residence. Plaintiff controverted the plea and sought to maintain venue in Lamar County under Section 9 of Art. 1995, V.A.T.C.S. The trial court after hearing the evidence adduced overruled the plea of privilege and the defendants have appealed.
Appellants present two points on appeal which read as follows:
"FIRST POINT. The trial court erred in overruling Appellants' Plea of Privilege because no exception to exclusive venue in the county of appellants' residence provided by law exists in this cause.
"SECOND POINT. The trial court erred in holding in effect that appellee had established a prima facie case of false imprisonment committed by appellants so as to justify overruling appellants' plea of privilege."
The trial court overruled appellants' plea without making findings of fact or conclusions of law which is proper. Rule 385(e), Texas Rules of Civil Procedure.
Where a case is tried without a jury, and no findings of fact or conclusions of law are filed by the trial judge, the judgment should be affirmed if there is sufficient evidence to support it upon any lawful theory, and every issue sufficiently raised by the testimony must be resolved in support of the judgment. 3-B, Tex.Jur., § 873, p. 278; John F. Buckner & Sons v. Allen, Tex.Civ.App., 272 S.W.2d 929.
Section 9 of Art. 1995, V.A.T.C.S. reads as follows:
"9. Crime or trespass.A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed by the defendant, or by his agent or representative, or in the county where the defendant has his domicile. This subdivision shall not apply to any suit based upon negligence per se, negligence at common law or any form of negligence, active or passive."
Appellee, Mrs. Lottie Smith, testified to the effect as follows: She was working in a cafe in Paris, Lamar County, Texas, on April 23, 1965, when Virgil Miller and another man came in the cafe, showed her a badge and told her she had to go with them to the Fire Marshal's office and answer some questions; that she was taken to the office of the Chief of Police in Paris; that they accused her of setting fire to a house she owned north of Powderly, Texas; repeatedly told her she was lying; kept her there about 2½ hours; told her they were going to send her to the penitentiary, and she was trying to get back to the cafe because her sister (the owner of the cafe) was there by herself and it was a busy time; that Virgil Miller and defendant Miles Smith were interrogating her and that they would not let her leave; and that nobody else was in the room during this 2½ hour period of interrogation and that both Virgil Miller and defendant Miles Smith actively participated in this conduct; that she was so nervous she almost went to pieces; that as she came out of the police office, the Chief of Police asked them if they wanted to lock her up, and they stated that they did not for the time being; that after this interrogation she was crying and *420 so nervous that she could not work and she and her sister had to close up the cafe and go home; that she was sick and not able to work for several days.
With respect to her detention and interrogation, Mrs. Lottie Smith stated to the effect that she was told by a man with a badge (presumably from the evidence this was Virgil Miller, a Deputy State Fire Marshal), that, "I had to go with him over to the Fire Marshal's office and answer some questions". We quote from Mrs. Lottie Smith's testimony, in part, as follows:
"Q. And where with reference to the police station was it that they took you to?
* * * * * *
Q. Mr. Bills' office. O.K. And they did what after they got in there?
A. Well, they wanted to know where I was at on April 13th, 1965, and I told them I was working in the cafe. I had went to work at 6 o'clock at that morning. They told me that I was lying, and I said, `Well, I was working." They said, `You'll have to prove it or we can send you to the penitentiary for burning your house.' And I said, `Well, I have witnesses to prove I was working.' And then they kept me in there about 2½ hours, I imagine, approximately, asking me questions about if I knew whoif I didn't tell them who burned it they was going to send me to the pen. And every time I'd tell them I didn't know who burned it they'd tell me that I lied. And they told me I was at theon that dayit burned around noon, around 12 o'clockand that morning just before then I'd been down to the store, in a car; had drove down there to that little filling station and store. And I told him that I didn't, and they told me I was lying. And I said, `I don't drive.' And I was trying to get back, all that time to work, because my sister was by herself and it was a busy time at that time. And I didn't want to go, but they told me I had to go. And
Q. You didn't want to go from where?
A. From the cafe.
Q. And they told you you had to go?
A. That's right.
Q. Now, then why did you stay down there in the police station after you got down there?
A. Well, because they wouldn't let me leave.
Q. Now, you say `they'. Who is it that is doing this questioning and
A. Virgil Miller and Miles Smith.
Q. Miles Smith?
A. Un-huh.
Q. Now, do you recall anything else that they said to you during this period of time?
A. Yeah, they wanted to know who They told me that I had spent the night out there that night, and I told them I hadn't, and they said, `Well, there was cigarette butts all over the place,' and the people at the station had told them that I had spent the night there. And I told them I didn't, and they said, `You're, lying; you did.' And I told them that I didn't smoke. And they wanted to know who the dress belonged to that was tore up there and I told them I didn't know, and they told me I was lying, I did know. And
Q. Now, during all this period of time were both of them in the room with you?
A. That's right.
Q. Anybody else in there?
A. No, sir.
*421 Q. And you say in your conversation, `they' were doing this questioning. Would you explain to the Court what you mean by that, please.
A. Well, part of the time Virgil Miller was asking them, and Miles Smith was writing them down, and then he would ask questions about it, and every timeevery question they asked me and I answered, told me I lied. Wanted to know if I owned a car and I told them I did and they asked me when I drove it, and I told them I hadn't; it had been setting in my backyard, I didn't drive. But they kept me down there, asking me questions, until I was so nervous and upset till I just almost went to pieces.
Q. Now, Mrs. Smith, approximately, if you recall, how long did you stay in the Chief of Police's office down there?
A. Well, I'd say around 2 or 2½ hours.
Q. Now, how did this affect you?
A. Well, I just almostIt made me sick. I went back to the cafe and
* * * * * *
Q. Prior to that time, had you owned a house out in the Powderly Community?
A. Yes, I had.
Q. And did you have insurance on that house?
A. Yes, sir. With Dorcy Mackey.
* * * * * *
Q. Now, Mrs. Smith, did you ever get any money for your fire loss?
A. Yes, I think it wasI think it was around $1300, or maybeI just don't remember.
Q. Who did you get that from?
A. From the Milwaukee Insurance which didn't fix my house up in as good a shape as it was in.
Q. Mr. Smith, did you, at the time that these two men questioned you down in the Chief of Police's office on the 23rd of April, 1965, have any knowledge at that time as to who, if anybody, set fire to your house?
A. No, sir, I did not.
Q. And do you, to this day, have any such knowledge?
A. I sure don't, no, sir.
Q. Did you?
A. No, sir." (Emphasis added.)
Appellant Miles Smith testified by deposition that he was a special agent for appellant American Insurance Association, beginning work with them on January 1, 1965; that it was part of his duties to investigate fires of questionable origin; that he had authority from his company to initiate investigations on his own; that an adjuster representing the insurance company gave him information concerning the fire loss in question at Powderly, Texas; that after he got this information, he came through Greenville, Texas, and talked to the adjuster about the fire; that he first came to Paris alone on April 21, 1965, investigating the fire loss, but did not talk to Mrs. Lottie Smith on this trip; that he and Mr. Virgil Miller, an Assistant or Deputy State Fire Marshal, made a trip to Paris on April 23, 1965, that they traveled in Mr. Miles' car from Mr. Miller's home in Greenville on this trip; that Mr. Miller had not done any investigation on this Powderly fire loss prior to the time that appellant Miles Smith worked with him in interrogating Lottie Smith; that the decision to get Mr. Miller, the Assistant or Deputy State Fire Marshal, to assist him in this particular fire loss of Mrs. Lottie Smith at Powderly, Texas, was Mr. Miles Smith's decision; Mr. Miles Smith in his deposition *422 also admitted interrogating Mrs. Lottie Smith on April 23rd, 1965.
Virgil Miller, the Assistant or Deputy State Fire Marshal, did not testify in the case either in person or by deposition. There is no evidence that Miller had a warrant for the arrest of Mrs. Lottie Smith.
The essential elements of false imprisonment are a wilful detention of the person, a detention without authority of law, and a detention against the consent of the party detained. 25 Tex.Jur.2d, False Imprisonment, § 3, p. 242.
A false imprisonment is a trespass within the meaning of the venue statute so that venue properly is laid within the county where the trespass is committed. 25 Tex.Jur.2d, False Imprisonment, § 44, p. 276; Kroger Co. v. Warren, Tex.Civ.App., 420 S.W.2d 218, no writ (Houston1967).
Section 46, False Imprisonment, 25 Tex. Jur.2d, p. 278 reads in part as follows:
"When the plaintiff has made out a case to show that he was detained, a prima facie case of false imprisonment has been made out and the defendant must then show that the detention was lawful. Thus where the defendant contends that the plaintiff committed a crime for which a lawful arrest without a warrant could be made, the burden rests on the defendant to show that the acts of the plaintiff constituted a crime for which an arrest without a warrant could lawfully be made."
The record in this case is devoid of any evidence which would justify Mr. Virgil Miller, an Assistant or Deputy State Fire Marshal, to make an arrest of the person of Mrs. Lottie Smith or to detain her in the manner above outlined, and there is ample evidence in the record of probative force which would clearly authorize implied findings of the trial court to support all the necessary elements of false imprisonment of Mrs. Lottie Smith, and a trespass against her, on the part of Virgil Miller and Miles Smith under the law of principals acting together. In this connection see Kroger Co. v. Warren, supra (420 S.W.2d 218) and authorities cited therein.
It also having been shown that Miles Smith was an agent of American Insurance Association, working in the scope of his employment on the occasion in question, it follows that his principal, the association, would also be liable for the act of such agent. In this connection see § 28, False Imprisonment, 25 Tex.Jur.2d, p. 261-2, wherein it is stated in part as follows:
"A master or principal is liable to one falsely imprisoned by the act of an agent or employee acting within the scope of his employment. And the principal or employer will be liable if he authorized or ratified the act that brought about the false imprisonment; if he made it the duty of the agent or employee to act in respect to the business in which the agent or employee was engaged when the wrong was committed; or if the wrongful act was done in the course of the agency or employment, even though the agent or servant employee abused his authority, or was reckless in the performance of his duty. If the act of the agent or employee is done within the scope of his authority as an agent or employee and while acting in furtherance of the principal or employer's business, the principal or employer is liable in damages for the false imprisonment, regardless of whether the agent or employee has authority to do the particular act complained of, and regardless of whether the act is performed in the ordinary way."
We hold that there was ample evidence of probative force, and that the same was sufficient to support the trial court's implied findings in support of its order overruling defendants' plea of privilege, and that venue of this case was properly maintainable in Lamar County, Texas, under § 9 of Art. 1995, V.A.T.C.S.
*423 We hold that the trial court correctly overruled appellants' plea of privilege. Appellants' points are overruled.
The judgment of the trial court is affirmed.
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439 S.W.2d 37 (1969)
Gertrude BARNES, Appellant,
v.
Charles H. BARNES, Appellee.
No. 5-4851.
Supreme Court of Arkansas.
April 7, 1969.
*38 Woodward & Kinard, Magnolia, for appellant.
Brown, Compton, Prewett & Dickens, El Dorado, for appellee.
HOLT, Justice.
This is an appeal from a reduction of maintenance and child support payments. In 1964 the appellant was awarded $600 per month as alimony and child support in a separate maintenance action. In June 1967, the appellee was granted a divorce based upon three-years separation. The payment of $600 alimony and child support was continued. In February 1968, the appellee petitioned for a modification of this monthly payment upon the assertion of a material change in circumstances during the preceding eight months. In July 1968, after a hearing upon appellee's petition to modify and appellant's petition for a citation for contempt, the chancellor ordered a reduction of the alimony and child support from $600 to $450 per month; that the stipulated arrearage of $2100 which had accumulated the past few months be paid by alternate monthly payments of $150 and that appellee would be in contempt of court until this arrearage was fully paid; and further ordered that the appellee pay the costs and an attorney's fee.
For reversal the appellant first contends there was insufficient evidence for the lower court to modify the decree of June 1967. Upon a trial de novo, we cannot agree.
A decree for maintenance and support is always subject to modification by application of either party upon a showing of change of circumstances. Perry v. Perry, 229 Ark. 202, 313 S.W.2d 851 (1958); Ark.Stat.Ann. § 34-1213 (Repl.1962).
We review the evidence of a change of circumstances since the June 1967 decree. A month later, appellee remarried and now has two stepchildren. The arrearage of $2,100 in appellee's monthly payments appears to have accumulated since that decree. The $600 *39 monthly payment was based upon a gross annual income of approximately $11,200. There was evidence that appellee's gross income for the year 1967 was approximately $11,720 and a net taxable income (before exemptions) of $5,305.06. Appellee's indebtedness to his partners in the practice of medicine increased from $1,886.97 to $3,564.34 and his partners are now requiring him to pay $175 per month on current joint expenses and not less than $125 per month to reduce the accumulated deficit. This represents an increase in expenses of $125 per month. Before 1967, appellee had entered into an agreement with an estate to purchase the interest of a deceased partner at $200 per month. He is in arrears and offered evidence that this payment must now be increased to $400 per month to avoid eviction. According to him, since the 1967 decree it has become necessary to purchase new equipment at an expense of $2,300. He offered evidence that his net worth had been reduced to a deficit and that he had been unable to pay his 1967 federal income tax of $877.64 and state income tax of $161.90. Further, that he owes a note for $1,100 which he borrowed to pay on his alimony and child support.
The appellant offered evidence to the effect that she has suffered hardship because of appellee's arrearage in payments and that she is delinquent with her obligations. In the 1967 divorce decree she received, in addition to the $600 support payment, a property settlement which included $2,200 in cash, the house in which she presently lives, a lot in El Dorado, and a rental house in Little Rock, all of which were encumbered. The $2,200 was applied on property indebtedness. The residence and lot are still mortgaged and she is delinquent in her payments. The rental property is now free of indebtedness. She testified that she is physically unable to work at the present time. She is 52 years of age and has not worked since she and appellee moved to El Dorado in 1962. She has experience as a medical stenographer and as a psychiatric technician. Their adopted child is now 15 years of age.
In ordering a reduction in payment, the chancellor said: "I've got to exercise some common sense. You kill the goose that laid the golden egg and everyone will suffer." He observed that it might become necessary for appellant to again become employed.
There was only so much income for a division between the support of these two families. We have held that it is only realistic that remarriages happen and such an occurrence is a circumstance to be considered in determining a change in circumstances. McCutcheon v. McCutcheon, 226 Ark. 276, 289 S.W.2d 521 (1956).
Nor can we agree with the appellant's contention that appellee's arrearage precluded any consideration of his petition for a modification. We think the court's order that the $2,100 in arrearage be paid at the rate of $150 on alternate months before the appellee is purged of contempt is reasonable in the circumstances. Further, we are of the view that the appellant has demonstrated no prejudice because of appellee's failure to answer certain interrogatories which were filed a few days before the trial. These interrogatories were subjects which were sifted on cross-examination of appellee when he was a witness.
According to this record, we are of the view, upon a trial de novo, that the chancellor was correct in making a reduction of appellee's payments based upon a showing of a change in circumstances.
The appellee is ordered to pay appellant the costs on this appeal and her attorneys a fee of $300 for their services.
Affirmed.
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439 S.W.2d 342 (1969)
Neal Simpson WEBB, Appellant,
v.
The STATE of Texas, Appellee.
No. 41923.
Court of Criminal Appeals of Texas.
March 5, 1969.
*343 Kerr, Fitz-Gerald & Kerr, by Wm. Monroe Kerr, James Fitz-Gerald III, Midland, for appellant.
James A. Mashburn, Dist. Atty., Robert F. Freeman, Asst. Dist. Atty., Midland, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
MORRISON, Judge.
The offense is possession of a .38 caliber revolver in violation of Art. 489c, Vernon's Ann.P.C., with three prior convictions alleged for enhancement; the punishment, life imprisonment.
The evidence shows that on the occasion in question, appellant was found with a pistol in his hand, away from his residence. A prior conviction for burglary, for which appellant served time in the penitentiary, was also shown. In defense, appellant offered evidence that he was in fear of his life because of threats made to him and that such fear justified his possession of the pistol as an incident to his right of self-defense, and that he assaulted the person who he thought was the threatening party.
Appellant's first five grounds of error relate to the trial court's failure to charge the jury on the defensive issue of self-defense and the right to bear arms in self-defense.
Art. 489c provides, in part:
"Section 1. It shall be unlawful for any person who has been convicted of burglary or robbery, or of a felony involving an act of violence with a firearm under the laws of the United States or of the State of Texas, or of any other state, and who has served a term in the penitentiary for such conviction, to have in his possession away from the premises upon which he lives any pistol, revolver or any other firearm capable of being concealed upon the person."
The constitutionality of this article, while not challenged by appellant, has been passed upon in our recent cases of Salazar v. State, Tex.Cr.App., 423 S.W.2d 297, and Castillo v. State, Tex.Cr.App., 411 S.W.2d 741. The right of appellant to arm himself in self-defense, as secured to him by Art. 1, Section 23 of the Texas Constitution, Vernon's Ann.St., is in no way infringed by Art. 489c, supra, because appellant might have armed himself with any weapon not prohibited in the article.
While our Constitutional provision relating to the bearing of arms, Art. 1, Section 23, is not in the exact terms of the II Amendment to the United States Constitution, a review of two Federal cases is helpful. In United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206, the Supreme Court held that a Congressional act which prohibited the interstate transportation of a shotgun having a barrel of less than eighteen inches in length did not violate the II Amendment to the United States Constitution.
In Cases v. United States, 1 Cir., 131 F.2d 916, we find the following:
"The Federal Firearms Act undoubtedly curtails to some extent the right of individuals to keep and bear arms but it does not follow from this as a necessary consequence that it is bad under the Second Amendment which reads `A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed'."
And the Supreme Court of this State in State v. Duke, 42 Tex. 455 (1875), in considering *344 an Article which was a predecessor of our present Art. 483 V.A.P.C., said:
"The question for our decision is the constitutionality of the Act under which this indictment was proved. It undertakes to regulate the place where, and the circumstances under which, a pistol may be carried; and in doing so, it appears to have respected the right to carry a pistol openly when needed for self-defense or in the public service, and the right to have one at the home or place of business. We hold that the statute under consideration is valid, and that to carry a pistol under circumstances where it is forbidden by the statute, is a violation of the criminal law of this State."
It follows that appellant had no right to carry, outside his premises, the pistol with which he was found, and the possession of which formed the basis of his conviction; and the court did not err in failing to charge that he did in fact have such a right.
In his second group of errors appellant asserts that the court erred in permitting the prosecutor to tell the jury and in charging the jury what punishment might be assessed for a violation of Art. 489c, all at the guilt or innocence stage of the trial, in contravention of Art. 37.07(2) (a), as amended in 1967. This contention has been determined against appellant in our recent holding in Watts v. State, Tex. Cr.App., 430 S.W.2d 200. Grounds of error #6 and 7 are accordingly overruled.
Appellant's final ground of error is that in his charge to the jury at the guilt or innocence stage of the trial, the court equated burglary with robbery and felonies involving acts of violence with a firearm. Reliance is had upon Tracy v. State, 27 White & W. 496, 11 S.W. 484. It is obvious from such opinion that the court submitted to the jury all the ways the statute could be violated when only a pistol was charged in the information. In the case at bar, it was essential that the court define the substantive offense and then apply the law to the facts. A similar complaint as is made here was answered by this Court in Helms v. State, 112 Tex. Crim. 203, 17 S.W.2d 813, as follows:
"It is complained in substance that the court's charge makes an assault too prominent. The charge appears to be a literal quotation of articles of the statute applicable to the offense charged. We are not able to perceive how the trial court could correctly instruct the jury without giving in charge the statute upon which the prosecution was based. Such a charge being necessary, the complaint is plainly without merit."
Finding no reversible error, the judgment is affirmed.
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265 F.Supp.2d 282 (2003)
Angelo NOBILE, Plaintiff,
v.
Milton SCHWARTZ; Grant, Hermann, Schwartz & Klinger; Paul E. Kerson; and Leavitt, Kerson & Leffler, Defendants.
No. 98 Civ. 2375(RWS).
United States District Court, S.D. New York.
May 28, 2003.
*284 Jaroslawicz & Jaros, New York, NY, By: Robert J. Tolchin, for Plaintiff, of counsel.
Babchik & Young, White Plains, NY, By: Norman R. Ferren, X, for Defendants Hermann, Schwartz & Klinger, of counsel.
L'Abbate, Balkan, Colavita & Contini, Garden City, NY, By: Anthony P. Colavita, Scott E. Kossove, for Defendants Paul E. Kerson and Leavitt, Kerson & Leffler, of counsel.
OPINION
SWEET, District Judge.
The plaintiff Angelo Nobile ("Nobile") has renewed his motion for partial summary judgment with respect to his malpractice claims against individual defendants Milton Schwartz ("Schwartz") and Paul E. Kerson ("Kerson"), and law firm defendants Grant, Hermann, Schwartz & Klinger ("Grant Hermann") and Leavitt, Kerson & Leffler ("Leavitt Kerson") (collectively, the "Defendants"). For the reasons set forth below, the motion is denied, factual issues having been presented.
Prior Proceedings
This action was filed on April 2, 1998 by Nobile against Schwartz and his firm, Grant Hermann; and Kerson, and his firm, Leavitt Kerson, arising out of their representation of Nobile in his claims against Elba Lo Buono Mangiaregna ("Elba Mangiaregna"), NOL Realty Corp. ("NOL"), the Estate of Joseph Testani ("Testani Estate"), Diego Mangiaregna ("Diego Mangiaregna") and Victor Buglione ("Buglione") for five causes of action. The complaint alleged: (1) negligence by the Defendants in their *285 representation of Nobile's claims with respect to actions on his behalf in the Supreme Court of the State of New York, County of Queens (the "State Court Action"), in the Surrogate's Court, County of Queens (the "Surrogate's Court Action"); (2) negligence with respect to a mortgage note in the amount of $100,000 of July 3, 1987 (the "Mortgage Note"); (3) a breach of the Defendants' implied obligation to provide competent representation; (4) a violation of New York Judiciary Law § 487; and (5) an accounting for legal fees.
The Defendants moved for summary judgment, and Nobile cross-moved for partial summary judgment. The motion of the Defendants was granted on grounds of statute of limitations by an order and opinion of November 29, 2000.
On January 23, 2003, the Second Circuit vacated the order of dismissal, finding that the statute of limitations issue presented an issue of fact with respect to continuing representation precluding summary judgment, and remanded for further proceedings. Nobile v. Schwartz, 56 Fed.Appx. 525, 2003 U.S.App. LEXIS 1019 (Jan. 23, 2003).
Nobile renewed his motion for partial summary judgment seeking a determination that the Defendants committed malpractice in connection with the Surrogate's Court Action and the State Court Action, and to dismiss the Defendants' evidentiary defenses involving the Federal Bureau of Investigation ("FBI") and the proof of the payment of funds by Nobile.
The motion was heard and marked fully submitted on April 30, 2003.
The Facts
The facts are set forth in the Local Rule 56.1 Statements of the parties and in affidavits subsequently submitted.
Nobile is a successful real estate developer and businessman in Argentina. In 1984, he became interested in investing money in real estate in the United States and met Elba Mangiaregna, a real estate developer and investor in New York, and invested $634,000 in a venture formed with Elba Mangiaregna, NOL, and received fifty-five percent of its shares. In 1988, Nobile concluded that Elba Mangiaregna was cheating him and sought to end his relationship with NOL, recoup his investment, and take his profits.
Unbeknownst to Nobile, Elba Mangiaregna had caused valuable parcels of NOL real property to be transferred to Joseph Testani ("Testani") without proper or fair compensation being paid to NOL. Nobile believed that Elba Mangiaregna had an arrangement with Testani to share the proceeds of any property looted from NOL.
Nobile retained Schwartz and his firm Grant Hermann to advise him and to take the appropriate steps with respect to NOL and Elba Mangiaregna. Schwartz arranged for Kerson and his firm Leavitt Kerson to serve as litigation counsel.
A retainer agreement was prepared which provided for a fee of fifteen percent for any recovery pretrial and twenty-five percent for any recovery following commencement of trial preparation, and requiring that Nobile pay $15,000 up front against such contingency fees, plus disbursements. The retainer further provided that Schwartz and his firm would "supervise" the case, and that the case would be "managed" by Kerson.
Thereafter, Kerson commenced a proceeding on Nobile's behalf entitled Matter of NOL Realty Corporation, Supreme Court, Queens County, Index Number 11025/88, which sought and obtained the judicial dissolution of NOL (the "Dissolution Proceeding"). The Court's decision in *286 the NOL dissolution proceeding provided that any other remedies would have to be raised in another proceeding.
Meanwhile, Testani died on February 23, 1987.
Kerson then commenced a second action on Nobile's behalf in 1989, entitled Angelo Nobile v. Estate of Joseph Testani, Elba Lobuono Mangiaregna, Diego Mangiaregna and Victor A Buglione, Esq., Supreme Court, Queens County, Index Number 16267/89.
The complaint in the State Court Action asserted three causes of action. The first cause of action sought damages for the looting of NOL. The second cause of action sought damages against Buglione, who was an attorney representing NOL who had assisted and participated in the looting of NOL, particularly by preparing the paperwork and (allegedly) authenticating forgeries of Nobile's signature. The third cause of action sought damages against Diego, Elba Mangiaregna's brother, for assault relating to his having threatened Nobile with a gun in an effort to induce Nobile to settle his claims against Elba Mangiaregna.
Simultaneously, in November 1989, Kerson appeared on behalf of Nobile in Surrogate's Court, Queens County and made a claim on Nobile's behalf against the estate of Testani with respect to the moneys looted from NOL by Elba Mangiaregna with the assistance of the decedent Testani.
The defendants in the State Court Action then moved to dismiss Nobile's claims. The Supreme Court (Graci, J.) issued an order dated February 21, 1990, which held as follows:
a. Nobile's claims regarding the looting of NOL were dismissed without prejudice to the commencement of a shareholder's derivative action, since they were essentially shareholder's derivative claims rather than individual claims.
b. Nobile's legal malpractice claims against Buglione were dismissed both because they should have been brought as shareholder's derivative claims and because the court concluded that the actions against Buglione would have been time-barred by the three-year statute of limitations for negligence actions.
c. Nobile's claims for assault against Diego Mangiaregna were not dismissed.
Neither Schwartz nor Kerson ever commenced a shareholder's derivative suit for Nobile, and the six-year statute of limitations for commencing a shareholder's derivative suit alleging fraud has lapsed. Schwartz and Kerson did not prosecute Nobile's claims against Diego Mangiaregna.
The State Court Action was marked "disposed" and "discontinued" by the clerk on June 19, 1995. According to Kerson, this course of action with respect to the State Court Action was discussed with and approved by Nobile.
In August 1990, Testani's executor wished to resign and Testani's widow wished to be appointed administratrix C.T.A. The attorney for the Testani Estate asked Kerson to enter a stipulation, which provided as follows:
1. That the supplemental intermediate accounting of N. MICHAEL LO RUSSO is allowed and approved without prejudice to the claimants CAMILLE PETITO, JOSEPH PETITO and ANGELO NOBILE continuing to assert their claims subject to further order of this Court.
On or about November 19, 1990, Queens County Surrogate's Court issued an order in accounting based in part on the August *287 stipulation appointing Testani's widow as administratrix C.T.A. of the Testani Estate. In the prefatory paragraph of that order reference is made to Nobile's claims as follows:
... and said accounting having shown normal rejections by Executor of a pending claim by one ANGELO NOBILE against decedent which is the subject of a Supreme Court action ...
On or about December 18, 1990, Schwartz wrote to Nobile advising him the Court had indicated that the State Court Action would have to be recommenced as a shareholder's derivative action, that it would be necessary for Nobile to prove how much he invested in NOL, that he and Kerson had concluded that Nobile could not offer clear proof of his investment in NOL, and advised Nobile that no shareholder's derivative action would be commenced. Schwartz also advised Nobile that with respect to the Testani Surrogate's Court proceeding, essentially the same claims were being advanced and that without better proof of Nobile's investment those claims would ultimately have to be discontinued as well.
On or about April 29, 1991, Schwartz again wrote to Nobile advising him that in order to bring a shareholder's derivative suit it would be necessary to prove Nobile's original investment, that any effort to pursue his claims without proof of his original investment could lead to a variety of detrimental consequences, including the imposition of a fine by the court, that although his claims were for the moment continuing in the Surrogate's Court proceeding, once the Surrogate's Court sought proof of Nobile's original investment in NOL those claims would have to be discontinued as well.
At a meeting on October 20, 1992 with Kerson and Schwartz's associate Sally Erikson, Esq. ("Erikson"), Nobile signed a letter previously prepared for him by Schwartz, bearing the date April 3, 1992, which instructed Kerson, Schwartz and their firms not to proceed with Nobile's claims against Elba Mangiaregna, Diego Mangiaregna or Buglione, and also stated in Spanish as follows: "[e]ntiendo que la accion por la suma de U.S. $1,200,000.00 contra la Sucesion de Testani sigue adelante," ("I understand that the claim for the sum of U.S. $1,200,000.00 against the estate of Testani is continuing ahead.") Whether or not the advice was erroneous is a contested issue of fact.
According to the Defendants, they advised Nobile not to pursue his claims because doing so would allegedly have exposed Nobile to scrutiny by the FBI, which the Defendants believed was investigating the affairs of Testani. A response by the FBI under the Freedom of Information Act ("FOIA") stated that the FBI was not investigating Testani. The FBI cautioned, however, that the letter "should not be considered an indication of whether or not records responsive to your request exist in FBI files." According to the Defendants they were advised by Testani's accountants that his records were held by the FBI.
According to Nobile, he and his son Miguel tried unsuccessfully from Argentina to call Schwartz, who on a few occasions told Nobile and his son that they had to be patient because the court cases can take a long time.
Finally, in or about October 1997, Nobile's son Marcelo visited Schwartz's offices to determine the status of his father's claims and learned that no action had been taken on Nobile's behalf for years. Upon learning this, Nobile discharged Schwartz and Kerson, and Marcelo took back the files from Schwartz.
*288 In Nobile's file turned over by the Defendants was the Mortgage Note.
The Defendants have submitted an opinion of Bertram R. Gelfand, Esq. ("Gelfand"), a former Surrogate, that the claim of Nobile in the Surrogate's Court Action is not barred by the applicable statute of limitations, as well as affidavits stating their belief that Nobile was at risk with respect to potential violations of law, including entry into the United States with undeclared cash. According to Defendants, Nobile concurred with their recommendations in connection with the State Court Action and abandoned the Surrogate's Court Action because of the problems of proof, possible exposure to liability and issues of collectability.
Discussion
I. Standard of Review
Rule 56(e) of the Federal Rules of Civil Procedure provides that a court shall grant a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits ... show that there is no genuine issue as to material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir.1991). "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir.2002).
II. Legal Malpractice Claims
The elements of legal malpractice under New York law are: (1) a duty, (2) a breach of the duty, and (3) proof that the actual damages were proximately caused by the breach of the duty. Ocean Ships, Inc. v. Stiles, 315 F.3d 111, 117 (2d Cir. 2002) (quoting Tinelli v. Redl, 199 F.3d 603, 606 (2d Cir.1999)). Nobile addresses only the second and third elements of breach and proximate cause in the instant motion.
The second element requires a showing that the defendant "failed to exercise that degree of care, skill and diligence commonly possessed and exercised by a member of the legal community." 675 Chelsea Corp. v. Lebensfeld, 1997 WL 576089, at *2 (S.D.N.Y. Sept.17, 1997) (quoting Hwang v. Bierman, 206 A.D.2d 360, 614 N.Y.S.2d 51, 52 (2d Dep't 1994)). Such showing in a summary judgment motion generally requires expert opinion evidence, Estate of Nevelson v. Carro, Spanbock, Raster & Cuiffo, 259 A.D.2d 282, 686 N.Y.S.2d 404, 405-06 (1st Dep't 1999) (citing S & D Petroleum Co. v. Tamsett, 144 A.D.2d 849, 534 N.Y.S.2d 800 (3d Dep't 1988)), but the requirement "may be dispensed with where `ordinary experience of the fact finder provides sufficient basis for judging the adequacy of the professional service.'" Id; see also Sallam v. Nolan, 116 F.3d 466, 1997 WL 311607, at *2 (2d Cir.1997) ("Unless a juror's ordinary experience provides sufficient basis to assess the adequacy of the professional service, or the attorney's conduct falls below any standard of due care, expert testimony is necessary to establish the attorney acted negligently.") (citing Greene v. Payne, Wood & Littlejohn, 197 A.D.2d 664, 602 *289 N.Y.S.2d 883, 885 (2d Dep't 1993)); Clanton v. Vagianellis, 192 A.D.2d 943, 596 N.Y.S.2d 593, 595 (3d Dep't 1993) ("[I]t is not without significance that no expert affidavit was submitted on the motion by plaintiff attesting to the standard of professional care and skill that defendant allegedly failed to meet, a showing which is necessary to the demonstration of merit in a legal malpractice case.").
To establish the third element, a plaintiff must show that but for the defendant's negligence, he or she would have prevailed in the underlying action or would not have sustained any damages. Davis v. Klein, 88 N.Y.2d 1008, 1009-10, 648 N.Y.S.2d 871, 671 N.E.2d 1268 (1996); Ashton v. Scotman, 260 A.D.2d 332, 686 N.Y.S.2d 322 (2d Dep't 1999).
Nobile seeks summary judgment on elements of his legal malpractice claims arising from the actions taken by the Defendants in relation to the Surrogate's Court Action and the State Court Action.
A. Surrogate's Court Action
As part of Count One, Nobile claims that the Defendants acted negligently in their representation of his claim with respect to actions in the Surrogate's Court Action in that they failed to prosecute the case and it is now time-barred. Nobile seeks judgment that he has satisfied the second element regarding this claim, ie. that the Defendants breached their duty because they permitted the action to become timebarred.
The statute of limitations applicable to a claim to compel a legal representative to account and pay is six years. E.g., Matter of Barabash, 31 N.Y.2d 76, 80, 334 N.Y.S.2d 890, 286 N.E.2d 268 (1972); Matter of Meyer, 757 N.Y.S.2d 98 (2d Dep't 2003); Matter of Seaman, 146 Misc.2d 563, 565-66, 551 N.Y.S.2d 454 (N.Y.Sur.1990). The statute begins to run only after the account is judicially settled or there is an open repudiation by the fiduciary of his obligation to administer the estate to the knowledge of the beneficiary. Barabash, 31 N.Y.2d at 80, 334 N.Y.S.2d 890, 286 N.E.2d 268; Seaman, 146 Misc.2d at 565, 551 N.Y.S.2d 454 (collecting cases). "The law requires proof of a repudiation by the fiduciary which is clear and made known to the beneficiary." Barabash, 31 N.Y.2d at 80, 334 N.Y.S.2d 890, 286 N.E.2d 268.
Here, there is no evidence that the account has been judicially settled. In addition, there is no evidence of repudiation by the fiduciary to administer the estate and of which Nobile is aware.[1] As a result, there is no evidence that the statute of limitations has begun to run and therefore the Surrogate's Court Action is not time-barred. Further, there is no need to refer to the Gelfand expert affidavit, or deal with Nobile's objections thereto.
Nobile has failed to establish the second element of his malpractice claim arising from the Surrogate's Court Action. His motion is therefore denied.
B. State Court Action
The second half of Count One alleges that the Defendants acted negligently in representing Nobile's claims in the State Court Action. The three claims were the following: (1) a claim against Elba Mangiaregna, the Testani Estate, Buglione and *290 Diego Mangiaregna regarding the "looting" of NOL Corp.; (2) a legal malpractice claim against Buglione; and (3) an assault claim against Diego Mangiaregna.
1. The Claim Regarding NOL Corp. and the Malpractice Claim
Nobile seeks a judgment that he has satisfied the second and third prongs of the legal malpractice standard in that the Defendants' actions were a breach of the applicable standard of care and a proximate cause of as-yet-unascertained damages.
a. Breach of the Duty
Judge Graci dismissed Nobile's claims regarding the NOL Corp. because such claims should have been brought as a shareholder's derivative action. Nobile claims that it was a per se breach of the duty of care for the Defendants not to have filed a shareholder's derivative action or not to have filed an appeal of the Order. Judge Graci also dismissed the legal malpractice case on statute of limitations grounds. Nobile contends that Judge Graci was incorrect and that it was a per se breach of the duty of care for the Defendants not to have appealed that ruling.
As an initial matter, the Defendants contend that their decision not to appeal and not to commence a shareholder's derivative action were made with Nobile's consent. In addition, they contend that Nobile refused to provide evidence necessary to pursue a shareholder's derivative suit and that he refused to authorize or pay for an appeal of the dismissal of his claims against Buglione. These contested facts at the very least raise an issue as to whether the Defendants acted appropriately.
Nobile has also failed to present any expert testimony that the failure to file a derivative suit or to appeal Judge Graci's order was a breach of the duty of due care. Further, such actions were not so egregious that a fact-finder on the current record could determine without recourse to expert testimony that they breached the applicable standard of care.
As a result, Nobile has failed to establish that the Defendants breached the applicable standard of care in failing to file a derivative suit and/or failing to appeal from Judge Graci's ruling.
b. Proximate Cause
Nobile argues in support of his argument that he has proven proximate cause in that a derivative suit could have been filed, and that Judge Graci's order would have been reversed. Yet he fails to establish the crux of the legal malpractice proximate cause question: that Nobile would have been successful in the ultimate shareholder's derivative suit and legal malpractice case. As a result, he has also failed to establish proximate cause.
For the above reasons, Nobile's motion seeking a ruling that he has established breach and proximate cause regarding these claims is denied.
2. Assault Claim
Nobile argues that he has established the breach element of legal malpractice with respect to the assault claim. Unlike the other two claims, the assault claim was not dismissed by the order discussed above. Nobile argues that the failure to prosecute the action was a per se violation of the applicable standard of care.
As above, an issue of fact is presented based on Kerson's testimony that Nobile consented to the Defendants' actions with regard to the State Court Action.
In addition, the Schwartz defendants contend that the action remains viable, as it has not yet been marked off the court's *291 post note of issue trial calendar. Nobile failed to reply to this contention in his papers. While it is unlikely that a trier of fact would determine that a failure to prosecute for approximately five and one-half years is an excusable neglect, such actions are not so beyond the pale that such decision could be arrived at on this motion. An expert's affidavit would have assisted immeasurably in reaching such a conclusion. As a result, it cannot be said that the failure to prosecute was a per se violation of the duty of care.
For the above reasons, Nobile's motion for judgment that he has satisfied the second element of his claim is denied.
III. Defenses Present Factual Issues
Nobile finally moves for summary judgment against two evidentiary defenses. The first defense alleges that the Defendants were reasonable in advising Nobile not to pursue his claims because such claims purportedly would have exposed him to the scrutiny of the FBI. Second, the Defendants contend that they did not pursue the shareholder's derivative claim because Nobile failed to prove his investment.
A. The FBI Investigation
The FBI has stated pursuant to a Freedom of Information Act request by Nobile that it was not investigating Testani, as was purportedly believed by the Defendants. In that letter, however, the FBI cautions that the letter "should not be considered an indication of whether or not records responsive to your request exist in FBI files." Thus, it remains possible that Testani was targeted and such is an issue of fact.
Even if it were established that the FBI was not investigating Testani, however, it would not vitiate this defense, as what is at issue is whether the Defendants acted within the applicable standard of due care based on the information they possessed. While it is true that the Defendants acted upon very little information, their behavior was not so unreasonable that this Court may determine that the defense should be dismissed on these grounds, particularly in the absence of any expert testimony in support of Nobile's contentions.
B. Lack of Proof of Investment
Nobile argues that there was no need for him to prove how much money he had invested in NOL in order to file a derivative suit, but that a shareholder's certificate is sufficient. Further, Nobile had a shareholder's certificate stating that he had a 55 percent interest in NOL. While such certificate may provide the means to file a shareholder's derivative suit, it does not establish the actual monies invested by Nobile and therefore failed to establish any ascertainable damages. Nor has Nobile adequately established that the Defendants' actions in light of Nobile's purported non-cooperation were unreasonable. As a result, the defense will not be dismissed.
Conclusion
For the following reasons, Nobile's motion is denied in its entirety. The parties shall attend a pretrial conference on June 11 in order to set a trial date.
It is so ordered.
NOTES
[1] The parties concur that Nobile's claims were rejected by the fiduciary of the Testani estate in 1989, although they disagree as to when in 1989 it occurred. Such rejection does not constitute a repudiation of the fiduciary's duty to administer the estate. Repudiation requires that the trustee "assert[] and exercise [ ] individual ownership over the trust property." Matter of Zilkha, 174 A.D.2d 331, 570 N.Y.S.2d 807, 810 (1st Dep't 1991).
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392 S.W.2d 725 (1965)
TEXAS LIQUOR CONTROL BOARD, Appellant,
v.
Robert E. LONGWILL, d/b/a Club Apache, Appellee.
No. 7639.
Court of Civil Appeals of Texas, Texarkana.
June 22, 1965.
Rehearing Denied July 20, 1965.
*726 Waggoner Carr, Atty. Gen., Howard M. Fender and Brady S. Coleman, Asst. Attys. Gen., Austin, for appellant.
Horace G. Goodrich, Dallas, for appellee.
CHADICK, Chief Justice.
This is an appeal from the judgment rendered by a district court in a proceeding to set aside the order of the Administrator of the Texas Liquor Control Board cancelling a private club registration permit. The Texas Liquor Control Board's second motion for rehearing is granted and both opinions of this court heretofore filed are withdrawn and the following opinion ordering reversal and rendition of the trial court judgment is substituted.
The Administrator of the Texas Liquor Control Board on the 14th day of April, 1964, following a hearing, ordered the permit of Club Apache canceled. An appeal from this action of the Administrator was perfected to a district court of Dallas County. In the course of the District Court hearing the Judge presiding said: "I am going to go with the Attorney General and rule that that part of the statute giving a Trial de novo as unconstitutional. Now, then, we have an examination into whether or not the administrator had substantial evidence before him when he made his ruling or whether he acted arbitrarily, unreasonably, or capriciously, are those the words generally used?" At the end of the hearing a decree was entered "that the Administrator's order canceling the license and privilege to do business of plaintiff * * *, is a nullity, and * * * said action of the administrator of the Liquor Control Board of the State of Texas be and it is hereby set aside and held for naught".
The Texas Legislature in 1961 created a regulatory and licensing system for private clubs where alcoholic beverages are stored and consumed by an act which is codified as Article 666-15(e) of the Texas Liquor Control Act (Vernon's Ann.Texas Penal Code). The directions pertaining to review on appeal contained in Subdivision 7a of the Article appear to be in conflict. The subdivision provides that on appeal from the Texas Liquor Control Board's (or its Administrator's)[1] order canceling a permit trial in the District Court shall be de novo under the rules regulating ordinary civil suits, that the court will consider only such evidence as would be proper if the case on appeal was one appearing in the first instance in the district court, and that the Substantial Evidence Rule shall have no application in the proceedings of the district court. These directions clearly command that "a full civil trial on the facts as well as the law" will be had in the district court, in the sense that a de novo trial is defined in such cases as Zurich General Accident & Liability Ins. Co. v. Rodgers, 128 Tex. 313, 97 S.W.2d 674 (1936); S. Shultz & Bro. v. W. S. Lempert, 55 Tex. 273 (1881); and Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681 (1941).
*727 However, paragraph (d) of Subdivision 7a reading as follows: "The order, decision or ruling of the Board of Administrator may be suspended or modified by the District Court pending a trial on the merits, but the final judgment of the District Court shall not be modified or suspended pending appeal" assumes and impliedly directs that the orders of the Board or Administrator are to continue in effect during the appeal process unless suspended or modified by the District Court pending a trial on the merits. Giving effect to this provision is inconsistent with a trial de novo as just discussed according to Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619 (1958), where Chief Justice Calvert said: "The sine qua non of a de novo trial as that term is used to describe a retrial of a matter or controversy theretofore tried by another tribunal is the nullification of the judgment or order of the first tribunal and a retrial of the issues on which the judgment or order was founded. When jurisdiction of the second tribunal attaches, the judgment or order of the first tribunal is not merely suspended, but is nullified. Examples of that type of trial are found in our statutes applicable to appeals from Justice Court judgments and from awards made by the Industrial Accident Board." Very recently in Chemical Bank & Trust Co. v. Falkner, Tex., 369 S.W.2d 427 (1963), citing Southern Canal Co. supra as authority, it was said: "An appeal under the substantial evidence rule negatives any idea that the Board's order approving the application is vacated or nullified by the filing of the appeal. Southern Canal Company v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619".
These incompatible directions of Subdivision 7a appear to be equally material and seem to require the district court when hearing the appeal to treat the order of the Board or Administrator as being simultaneously both valid and null. In this case is the de novo trial in the District Court to be one in which the district court examines the proof before it to decide whether or not the evidence reasonably supports the Administrator's order cancelling Club Apache's private club registration permit, or is the trial to be de novo as that term is defined in Zurich General Accident & Liability Ins. Co. v. Rodgers, 128 Tex. 313, 97 S.W.2d 674? A solution is to be found in the approach suggested in Scott v. Texas State Board of Medical Examiners, Tex., 384 S.W.2d 686 (1964), where it is said: "The validity of a full de novo appeal requirement turns on the nature of the act of the administrative agency contemplated by the statute to which the appeal requirement refers".
Before enactment of Art. 666-15(e) in 1961 the courts on several occasions held that cancellation of a Liquor Control Board Permit by the Board or its Administrator was an administrative function, and that on appeal from the agency proceeding to the District Court the reasonableness of the order was the question to be determined. Review of the agency order in the District Court, these cases hold, is governed by the "Substantial Evidence Rule", that is, the evidence adduced in the reviewing court is to be examined to determine if it reasonably supports the order in question. See Texas Liquor Control Board v. Warfield, 110 S.W.2d 646 (Tex.Civ.App.1937 no writ); Texas Liquor Control Board v. Jones, 112 S.W.2d 227 (Tex.Civ.App.1937 no writ); Texas Liquor Control Board v. Lanza, 129 S.W.2d 1153 (Tex.Civ.App.1939, writ dism'd, Judg. cor.); Lowe v. Texas Liquor Control Board, 255 S.W.2d 252 (Tex.Civ.App.1952 no writ); and Texas Liquor Control Board v. Raspante, 308 S.W.2d 136 (Tex.Civ.App. 1957 no writ). In State v. Bush, 151 Tex. 606, 253 S.W.2d 269 (1952), a case where application for renewal of a retailer's permit to sell wine and beer had been denied, the Supreme Court said:
"The filing of an application for a license and the hearing and action thereon is not a civil or criminal cause. The power and authority granted to the Board, Administrator and County *728 Judge with regard to issuance, denial, cancellation or supervision of such permits is merely the exercise of an administrative function and duty imposed by the Act. Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198; State v. De Silva, 105 Tex. 95, 145 S.W. 330; Bradley v. Texas Liquor Control Board, Tex.Civ.App., 108 S.W.2d 300, no writ history; Texas Liquor Control Board v. Jones, Tex.Civ.App., 112 S.W.2d 227, no writ history; Texas Liquor Control Board v. Floyd, Tex.Civ.App., 117 S.W.2d 530, no writ history." (Emphasis added).
Subdivisions 7 and 10 of Art. 666-15(e) lists the grounds upon which the Board may cancel or suspend private club registration permits. Subdivision 7 reads:
"7. The Board or Administrator may cancel or suspend for a period of time not exceeding sixty (60) days, after notice and hearing, any Private Club Registration Permit or any renewal of such Private Club Registration Permit, upon finding that the permittee club has:
"(a) Sold, offered for sale, purchased or held title to any liquor whatsoever so as to constitute an open saloon as defined in Section 3 of the Texas Liquor Control Act.
"(b) Refused to allow any authorized agent or representative of the Texas Liquor Control Board or any peace officer to come upon the club premises for the purposes of inspecting alcoholic beverages stored on said premises or investigating compliance with this Act or any provision of the Texas Liquor Control Act.
"(c) Refused to furnish the Board or its agent or representatives when requested any information pertaining to the storage, possession, serving or consumption of alcoholic beverages upon club premises.
"(d) Permitted or allowed any alcoholic beverages stored on club premises to be served or consumed at any place other than on the club premises.
"(e) Failed to maintain an adequate building at the address for which said Private Club Registration Permit was issued.
"(f) Caused, permitted or allowed any member of a club in a dry area to store any liquor on club premises except under the locker system.
"(g) Caused, permitted or allowed any person to consume or be served any alcoholic beverages on the club premises at any time on Sunday between the hours of 1:15 a. m. and 1:00 p. m., or any other day at any time between the hours of 12:15 a. m. and 7:00 a. m.
"(h) Violated any provision of the Texas Liquor Control Act or this Act."
while Subdivision 10 is in this language, to-wit:
"Any permittee who violates or assists, aids or abets any violation of this Act or any provision thereof shall subject such permit to suspension or cancellation in accordance with the provisions of the Texas Liquor Control Act."
This, Subdivision 10, can refer only to Art. 666-12 of the Texas Liquor Control Act, empowering the Board to cantrol or suspend permits when it is found that any of a long list of acts or omissions have occurred. Clearly Subdivision 10 adds all of the grounds for suspension and cancellation found in Art. 666-12 to the grounds for suspension and cancellation listed in Subdivision 7, Art. 666-15(e). Among the grounds for cancellation enumerated in Art. 666-12 are: "(6). That the place or manner in which the permittee conducts his business is of such nature which, based on the general welfare, health, peace, morals, and safety of the people and on the public *729 sense of decency, warrants the cancellation or suspension of the permit."
By the quoted paragraph in Art. 666-12 the Legislature conferred a far ranging discretionary power upon the Board. The legislative intent appears to be that the Board may cancel a permit when it finds from evidence admitted at a proper hearing that the continued operation by a permittee under a particular permit will be inimical to the public welfare, health, peace, safety, etc. The conduct, or particularities thereof, repugnant to the general welfare, etc., which will justify cancellation is not specified. The legislature delegated its authority to the Board so that the Board might use its insight and discernment in these broad fields. It is true, as reference to the Texas Liquor Control Act will disclose, that numerous acts and omissions specified by the legislature as comprising grounds for cancellation are listed in Art. 666-12 and 666-15(e), but the act does not limit cancellation to those alone, the listed acts or omissions are in addition to the grounds the Board is empowered to select by paragraph (6) of Art. 666-12 as a basis for cancellation.
The following extract from Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S. Ct. 67, 53 L. Ed. 150, was quoted in Key Western Life Ins. Co. v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839 (1961), and is referred to with approval in other opinions by the Supreme Court. In Prentis it is said: "A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power". In his Administrative Law Treatise, Vol. 1, p. 287-288, Sec. 5.01, Professor Kenneth C. Davis comments that this definition has produced unsatisfactory practical results and suggests the following as a better rule, to-wit: "These various difficulties are avoided by saying simply that adjudication resembles what courts do in deciding cases, and that rule making resembles what legislatures do in enacting statutes. Then particular problems of classification can be resolved by keeping an eye on the consequences of the particular classification." Very recently the Supreme Court of Texas in Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686 (1964), at p. 690 said: "An important consideration is whether the administrative action called for by the empowering legislative act involves public policy or is policy-making in effect, or whether the action concerns only the parties who are immediately affected". Prior to the last mentioned case the Supreme Court in Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699 (1959), said: "The authority to decide whether the continued existence of particular conditions in an area is detrimental to the public health, safety, morals or welfare of the people who inhabit it, or the community surrounding it, * * * is a legislative prerogative which may be exercised only by the Legislature itself or on its behalf by an agency to which it has delegated it."
The Board's exercise of the power conferred upon it to establish standards of conduct required of permittee is legislative in nature. This policy-making aspect of the Board's cancellation procedure stamps the function of the Board in this field as administrative rather than judicial. The conclusion that the Board's action in cancelling Club Apache's permit is an administrative act necessitates the further conclusion that a review of its order may only be made to determine whether substantial evidence supports it. And as previously suggested is in harmony with all cancellation cases decided since 1937. The legislative direction for review of a different character conflicts with the provisions of Sec. 1, Art. II, Texas Constitution, Vernon's Ann.St., dividing the functions of government and is void. Chemical Bank and Trust Company v. Falkner, *730 Tex., 369 S.W.2d 427 (1963); Kost v. Texas Real Estate Commission, 359 S.W.2d 306 (Tex.Civ.App.1962, writ refused); Southern Canal Company v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619 (1960).
The trial judge apparently attempted to apply the substantial evidence rule, as he understood it, to the evidence adduced in court, but he mistakenly concluded that the evidence would not support the Administrator's order. Substantial evidence was introduced in the district court that would reasonably and plausibly support findings that Club Apache sold beer in a dry area in violation of the Liquor Control Act and that the Club served liquor to customers for beverage purposes in such way as to constitute it an "open saloon" as that term is defined in Art. 666-3(a). The judgment of the trial court is reversed and judgment rendered that appellee take nothing by its suit.
FANNING, J., concurs in the opinion.
DAVIS, J., dissents.
DAVIS, Justice.
I dissent.
The opinions handed down on April 20, 1965, and on May 25, 1965, have been withdrawn, and I dissent.
This suit resulted in an appeal by plaintiff-appellee, Robert E. Longwill, d/b/a Club Apache, against defendant-appellant, Texas Liquor Control Board, because appellant had previously canceled the appellee's private club registration permit permanently, that was situated in a dry area in Dallas County, Texas. The appellee alleged that he was issued the private club permit for one year, which actually began on September 1, 1963, and expired on August 31, 1964. Appellee alleged that he had acquired the permit in the manner and form as prescribed by law. He further alleged that all the prerequisites required by law, including the necessary inspection and reports preliminary to the issuance of said license, or permit, had been legally obeyed. He further alleged that on February 13, 1964, a search warrant was issued to the appellant or its agent and employees to search and seize all alcoholic beverages found upon the premises of appellee; that appellant, its agents and employees, did enter the premises of appellee and search and seize a quantity of alcoholic beverages, together with all records of appellee, including tax records, records of all members' names and addresses comprising the membership of said club, payroll records, etc. That a hearing was had before the Administrator of the Texas Liquor Control Board on April 13, 1964, to cancel appellee's license; that at such hearing the Administrator proceeded to accept ex parte statements on the matter before him from persons not present or subject to cross-examination, and without giving the appellee the right to cross-examine them. After the hearing, the Administrator of appellant found that the permit issued to appellee should be permanently canceled. The appellee further alleged that the Administrator of appellant did not predicate his findings upon substantial evidence, and that he acted arbitrarily, unjustly, capriciously and illegally in permanently canceling the appellee's permit as a private club. He further alleged that the permanent cancellation of his private club permit actually injured and damaged his property rights, and that he had been irreparably injured and damaged by the acts of the appellant and was in dire peril of losing his means of livelihood by such order.
The Private Club Permit was issued under Article 666-15(e), Texas Penal Code, effective September 1, 1961. Art. 666-15 (e), Sec. 1, subd. 7 reads as follows:
"The Board or Administrator may cancel or suspend for a period of time not exceeding sixty (60) days, after notice and hearing, any Private Club Registration Permit or any renewal of such Private Club Registration Permit, *731 upon finding that the permittee club has:
"(a) Sold, offered for sale, purchased or held title to any liquor whatsoever so as to constitute an open saloon as defined in Sec. 3 of the Texas Liquor Control Act.
"(b) Refused to allow any authorized agent or representative of the Texas Liquor Control Board or any peace officer to come upon the club premises for the purposes of inspecting alcoholic beverages stored on said premises or investigating compliance with this Act or any provision of the Texas Liquor Control Act.
"(c) Refused to furnish the Board or its agent or representatives when requested any information pertaining to the storage, possession, serving or consumption of alcoholic beverages upon club premises.
"(d) Permitted or allowed any alcoholic beverages stored on club premises to be served or consumed at any place other than on the club premises.
"(e) Failed to maintain an adequate building at the address for which said Private Club Registration Permit was issued.
"(f) Caused, permitted or allowed any member of a club in a dry area to store any liquor on club premises except under the locker system.
"(g) Caused, permitted or allowed any person to consume or be served any alcoholic beverages on the club premises at any time on Sunday between the hours of 1:15 a. m. and 1:00 p. m., or any other day at any time between the hours of 12:15 a. m. and 7:00 a. m.
"(h) Violated any provision of the Texas Liquor Control Act or this Act."
There has been only one appeal from an order canceling a private club permit under Art. 666-15(e), which appeal was dismissed because the question had become moot. State v. Pool Side Club (Tex.Civ. App.), 360 S.W.2d 923, N.W.H. The record shows that the permit in this case has been renewed for another year. Since the order canceling the permit was made permanent, the rule on the points have been brought forward.
Appellant brings forward three points of error. It contends the trial court erred in holding the testimony adduced against appellee through affidavits at the administrative hearing was a denial of due process and constituted no evidence; in holding that appellant proved no violation of any statute under the Liquor Control Act in the District; and, in not holding that the order canceling the appellee's private club permit was legally supported by substantial evidence and in setting aside and holding for naught said order.
The evidence shows that the appellee owns the building in which the private club is situated, and that the same is mortgaged. It shows that he has in his employ from one to four waitresses; that he can legally make charges for mixing and serving drinks; that one of the parties who made the affidavit that was submitted to the Administrator of appellant was the guest of another member; that he returned on two or three occasions, ordered drinks, and he was charged for the mixing and serving of the drinks, on the theory that he was a guest of the other member, and just as other members were charged. The evidence shows that the other man who made the affidavit entered the club, made application for membership, and paid $5.00 for a one year membership. The evidence shows that the appellee asked him if he had a bottle of liquor, and the man told him that he did not. The evidence further shows that the man told appellee that he only intended to drink a beer. The appellee told him, in effect, that he could be his guest, and he would take a chance. The waitress waited upon him and served him a beer as a guest, and he paid her the service charge. There is no evidence that will show any violation *732 of any law whereby the appellant could permanently cancel the private club permit.
Appellee contends that he appeared before the Administrator in Austin in an effort to cross-examine his accusers, wherein they sought to cancel his private club permit. Appellant says that neither of the accusers were present at the hearing and did not submit themselves for cross-examination. It may be true that this Administrative Agency has established rules of admitting evidence by affidavit only and are not bound by the rules of evidence that govern judicial proceedings. There are cases that hold that evidence may be presented in the form of affidavit only. 1 T.J. 2d 668, Sec. 26 and the cases cited therein. In a case like the one presented to this court, such action seems to be contrary to every rule of the common law and democratic principles. If the parties who made the affidavit had appeared before the Administrator at the time of the hearing, so that appellee or his attorney could have cross-examined them, they could have shown that there was no violation of the law whatever. In 2 Davis Administrative Law Treatise 38, Sec. 11.02 entitled "Must the Deciding Officers Hear the Witnesses Testify?", is quite an interesting discussion. It points out that there are four Morgan cases that have reached the U. S. Supreme Court. In the First Morgan case, Morgan v. United States of America, 298 U.S. 468, 56 S. Ct. 906, 80 L. Ed. 1288, in an administrative proceeding, Chief Justice Hughes held that: "The one who decides must hear." In the Fourth Morgan case, United States of America v. Morgan, 313 U.S. 409, 61 S. Ct. 999, 85 L. Ed. 1429, Justice Frankfurter, in speaking of the evidence admitted at the administrative hearing, said: "Doubts and difficulties incapable of exact resolution confront judgment." The Supreme Court of the United States has consistently held that administrative proceedings have a quality resembling that of judicial proceedings.
Appellant takes the position that the license that was issued to the appellee is only a privilege and is not property or a property right. The license being issued by an agency of the state, although it may be a privilege to exercise a right that they would not be allowed to exercise without it, it is property in the sense of being a thing of value that can lawfully be acquired and held. 36 T.J.2d 589, Sec. 3, and cases cited therein. Webster's Dictionary defines a privilege as "an exceptional law made in favor of or against any individual from privus, separate, peculiar, and lex. legis, a law. A right, immunity, benefit, or advantage enjoyed by a person or body of persons beyond the common advantages of other individuals; the enjoyment of some desirable right, or an exemption from some evil or burden; a private or personal favor enjoyed; a peculiar advantage; as, the privilege of genius. Synonym: Advantage, prerogative, immunity, franchise, right, claim, liberty." (Emphasis added.) Webster further defines privilege as: "To grant some particular right or exemption to; to invest with a peculiar right or immunity; as, to privilege representatives from arrest. To exempt from censure or danger; to place in a condition of privilege." (Emphasis added.)
There is a long discussion in 2 Davis Administrative Law Treatise 250, Ch. 15 in an article entitled "Evidence". By Sec. 14.15, p. 328, it says a person shall have the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct close examination as may be required for a full and true disclosure of the facts. Such was not allowed in the case at bar.
Art. 666-15(e), subd. 7a. reads as follows:
"An appeal from any order of the Board or Administrator under this Section refusing, canceling or suspending a permit or license may be taken to the District Court of the County in which the aggrieved licensee or permittee, or the owner of involved real or personal property may reside. The proceeding *733 on appeal shall be de novo under the same rules as ordinary civil suits, with the following exceptions, which shall be considered literally, viz:
"(a) All appeals shall be perfected and filed within thirty (30) days after the effective date of the order, decision or ruling of the Board or Administrator.
"(b) Such proceedings shall have precedence over all other causes of a different nature.
"(c) All such causes shall be tried before the judge within ten (10) days from the filing thereof, and neither party shall be entitled to a jury.
"(d) The order, decision or ruling of the Board or Administrator may be suspended or modified by the District Court pending a trial on the merits, but the final judgment of the District Court shall not be modified or suspended pending appeal.
"(e) The District Court may consider any evidence and only such evidence as would be proper if the case were one appearing in the first instance in the District Court and it shall arrive at its decision independently of the proceedings below. The Substantial Evidence Rule shall have no application in the proceedings of the District Court."
Appellant undertook to sustain the permanent cancellation of appellee's permit because of the alleged sale by appellee of beer and liquor in such a manner as to constitute the club an open saloon. The suspension or cancellation of a private club permit must depend upon fact issues made by proof of actual occurrences prior to the hearing before the administrative agency. In the case of such cancellation, an appeal must be taken to the district court. In the district court, according to the statutes, the trial must be de novo and the substantial evidence rule does not apply. Scott v. Texas State Board of Medical Examiners (Tex.Sp.Ct.), 384 S.W.2d 686, citing Key Western Life Insurance Co. v. State Board of Insurance (Tex.Sp.Ct.), 350 S.W.2d 839. It seems that the Legislature by enacting the provisions of Art. 666-15(e), Subd. 7a, PC, as to trial de novo was trying to follow the mandate as laid down by Chief Justice Calvert in Southern Canal Co. v. State Board of Water Engineers (Tex.Sp. Ct.), 318 S.W.2d 619. I would hold that this provision of the Article is not unconstitutional.
The findings of fact by the trial judge are supported by the evidence. I would overrule the points of error, and the judgment of the trial court would be affirmed.
NOTES
[1] Reference hereafter to either the Texas Liquor Control Board or Administrator should be understood generally to refer to both.
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164 F. Supp. 2d 406 (2001)
Lan Lan WANG and Principal Connections, Ltd., d/b/a MLX.COM, Plaintiff,
v.
George E. PATAKI, in his official capacity as Governor of the State of New York, and Eliot Spitzer, in his official capacity as Attorney General of the State of New York, Defendants.
No. 00 CIV. 9425(RWS).
United States District Court, S.D. New York.
October 5, 2001.
*407 Abberley Kooiman LLP by Brooks Banker, Jr., New York City, for Plaintiff.
Eliot Spitzer, Attorney General of the State of New York by Martin Bienstock, Michael E. Peeples, Assistant Attorneys General, New York City, for Defendants.
OPINION
SWEET, District Judge.
The defendants George E. Pataki, in his official capacity as Governor of the State of New York (the "Governor"), and Eliot Spitzer, in his official capacity as Attorney General of the State of New York (the "Attorney General"), (collectively, "the State"), have moved under Rule 12(b)6, Fed.R.Civ.P., to dismiss the complaint of plaintiffs Lan Lan Wang ("Wang") and Principal Connections, Ltd., d/b/a MLX. COM ("MLX.Com"). For the reasons set forth below, the complaint is dismissed as to the Governor and a Pullman abstention is granted.
The propriety of the action undertaken by the Secretary of State to enforce the State's statutes by way of cancellation of Wang's real estate broker's license is peculiarly a state issue as is the application of the statute to an internet site. Since these issues are squarely before the State Court and may obviate any constitutional questions, Pullman abstention is appropriate.
Prior Proceedings
Wang and Principal Connections filed their complaint on December 12, 2000 (the "Complaint"). The complaint alleges that Principal Connection is a New York corporation and Wang is a New York resident and an officer, director and shareholder of Principal Connections.
According to the Complaint, in 1995 MLX.Com developed a website which provided *408 a visitor, an unregistered user, or a subscriber to the website with access to a portal of information concerning residential apartment listings in New York and New Jersey.
The Complaint alleges that on February 12, 1999, the Secretary of State of the State of New York commenced an administrative proceeding against Wang contending that by operating the website without a license in accordance with Real Property Law Article 12-C, §§ 446-a, et seq., the Apartment Information Vendors Law (the "AIV"), Wang breached her duties as a licensed real estate broker and that on January 31, 2000 an order was issued suspending her license as a real estate broker. The Complaint alleges that the AIV constitutes an unconstitutional statutory scheme requiring an "Apartment Information Vendor" to be registered, to obtain a license, to provide a contract for a customer setting forth the source of information conveyed, and to comply with a provision concerning any fees charged, and providing that any violation of the act constitutes a misdemeanor.
The Complaint also describes the nature and operation of the internet and the methods by which the information on the Web Site is made available.
The Complaint alleges three causes of action: that the AIV violates the Interstate Commerce Clause, U.S. Const. Art. 1, §§ 8 & 3; that it violates the First and Fourteenth Amendments of the United States Constitution because it bans constitutionally protected speech; and that it violates the First, Fifth and Fourteenth Amendments because it is unconstitutionally vague.
The Complaint refers to a decision of January 31, 2000 by the Honorable Roger Schnier, the Administrative Law Judge (the "ALJ"), which found that Wang was a licensed real estate broker, that she founded Manhattan Listing Express in 1996 and provided listing of apartments for a fee of $175, that Wang commenced an internet-based business using the Web Site and that:
When consumers access the respondent's web site they are offered, without fee, the opportunity to obtain information about various aspects of the real estate business in New York City, about taxes, and about moving, to receive discounts from certain non-affiliated businesses, to participate in an on-line bulletin board, and to access a database of apartments which are available for rent or sale. The database describes the apartments which are available for rent, but does not give their addresses or otherwise indicate how to contact the landlords. By paying a fee of $150.00 the consumer receives on-line access to the addresses of any contact information for the rental apartments, as well as increased discounts from the non-affiliated businesses.
The decision of the ALJ concluded that Wang was an Apartment Information Vendor, had not obtained a license and thus violated the AIV, and "thereby demonstrated untrustworthiness and incompetence as a Real Estate Broker" and suspended her license. On January 4, 2001, the Secretary of State, the Honorable Alexander F. Treadwell ("Secretary of State") upheld the ALJ's decision.
On May 7, 2001, Wang commenced an Article 78 proceeding in the Supreme Court of the State of New York, New York County, against the Secretary of State, Index No. 109389/2001 (the "Article 78 Proceeding") alleging that the ALJ's findings and conclusions were "arbitrary, capricious and improper, illegal and unconstitutional". Wang contended that the findings and conclusions of the ALJ should be dismissed because; 1) MLX.Com was not *409 covered by the AIV, 2) internet services are not included under the AIV, 3) the enforcement of the terms of the AIV by suspension of Wang's license was improper, 4) the AIV violates the Commerce Clause and free speech rights as interpreted, 5) notice of the hearing was inadequate, and 6) the decision of the ALJ was without authority, constituted an abuse of discretion and was not supported by substantial evidence.
The motion of the Governor and the Attorney General to dismiss the Complaint or to stay the action was marked fully submitted on June 27, 2001.
The Facts
For the purposes of the instant motion, the facts as alleged in the Complaint are taken as true. See Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir.1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (Brennan, J., dissenting)).
As set forth in the Complaint, MLX. Com provides consumers around the world with access to information related to the residential real estate markets in New York and New Jersey via the internet through the MLX.Com site, where renters, buyers, sellers, landlords and brokers with common interests can communicate with each other about their services and needs. The services and information contained on the MLX.Com website are continuously updated.
The memorandum of law submitted to the Secretary of State on behalf of Wang stated that for a payment of $150, a subscriber to the website was entitled to a number of discounts, the specifies of certain apartments, the timing of access and the identification of the offeror. It further stated that MLX.Com has invested $2 million in technology and receives a greater portion of its income from participating brokers, and that the cost of servicing each apartment seeker is twice the $150 subscription fee.
The Statute
The statute which Wang and MLX.Com seek to enjoin, the AIV, was enacted in 1975 after a public hearing in response to consumer complaints about apartment information vendors who sold lists of apartments and advertised highly appealing apartments as available for low rental payments, some of which were unsuitable, unavailable and nonexistent. The AIV sought to address this problem and required, first, that apartment information vendors operating in the State of New York be licensed by the State. RPL § 446-b. To obtain a license, AIVs must demonstrate that they are trustworthy and bear a reputation for good and fair dealing, and must pay a fee of $400, from which the State monitors and enforces the law. Id. § 446-B(2). AIVs must place $5,000 in an escrow account to insure that defrauded consumers will be able to receive reimbursement and must file quarterly statements with the New York Secretary of State. Id. §§ 446-b(6), 446-e, 446-h & 446-c(4).
The Act also regulates the fees that AIVs may charge to consumers. Although an AIV may charge an advance fee, actual fees are limited to one month's rent, and may only be paid when a consumer actually obtains an apartment referred by an AIV; in the event the consumer is unsuccessful in obtaining an apartment, the AIV may retain only a $15 administration fee. Id. § 446-c(5). The law contains a severability clause (id. § 446-j), and directs the Secretary of State to adopt appropriate regulations, which the Secretary has published at 19 NYCRR §§ 190.1-190.8
After four years of regulating the apartment information industry, the Secretary of State held hearings on the statute, *410 "which revealed that abuses continued to exist." Galaxy Rental Serv., Inc. v. State, 88 A.D.2d 99, 101, 452 N.Y.S.2d 921 (4th Dep't 1982). As a result, the Act was amended in 1980. The Act was amended again in 1998.
On February 12, 1999, the Secretary of State of the State of New York commenced an administrative proceeding against Wang contending that by operating the MLX.com website without a license in accordance with the AIV, Wang breached her duties as a licensed real estate broker and on January 31, 2000 an order was issued suspending her license as a real estate broker which was affirmed by the Secretary of State on January 4, 2001.
The Complaint Fails to State a Claim Against the Governor
Plaintiffs allege that the Governor "is vested with the executive power of the State of New York and is required to ensure that the laws of the State of New York are faithfully and fairly executed." These allegations are insufficient to state a claim against the Governor. The State Constitution does provide that "[t]he executive power shall be vested in the governor" (N.Y. Const., Art IV, § 1), who "shall take care that the laws are faithfully executed." N.Y. Const. Art. IV, § 3. It does not follow, however, that the Governor is a necessary or proper party to every suit raising a challenge to the constitutionality of a state statute. On the contrary, where the legislative enactment provides that entities other than the executive branch of the state are responsible for implementation of the statute no claim against the Governor lies. See Ex Parte Young, 209 U.S. 123, 157, 28 S. Ct. 441, 52 L. Ed. 714 (1908) ("it is plain that [a defendant state] officer must have some connection with the enforcement of the [challenged] act"); Gras v. Stevens, 415 F. Supp. 1148, 1151-52 (S.D.N.Y.1976) (general duty of governor under the State Constitution § 3 is not sufficient to make him a necessary party to an action challenging the constitutionality of a state statute that he is not charged to enforce).
Plaintiffs fail to show that the Governor has any connection with the enforcement of the AIV other than the general duty to take care that the laws be faithfully executed. Plaintiffs' reliance on Association of Am. Med. Colleges v. Carey, 482 F. Supp. 1358 (N.D.N.Y.1980) in support of their argument that the Governor's general executive duty is an adequate basis for liability is misplaced. As the Southern District, in criticizing Carey, recently noted, "the vast majority of courts to consider the issue have held ... that a state official's duty to execute the laws is not enough by itself to make that official a proper party in a suit challenging a state statute." Warden v. Pataki, 35 F. Supp. 2d 354, 359 (S.D.N.Y.), aff'd, Chan v. Pataki, 201 F.3d 430 (2d Cir.1999), cert. denied, 531 U.S. 849, 121 S. Ct. 122, 148 L. Ed. 2d 77 (2000). Since the Department of State, not the Governor, is responsible for administering the AIV, and the Attorney General, not the Governor, is responsible for enforcing its penalties, the general executive duty of the Governor does not provide a basis for a claim against him. See Gras v. Stevens, 415 F. Supp. 1148, 1151-52 (S.D.N.Y.1976).
Pullman Abstention is Appropriate
The Pullman doctrine permits this Court to abstain until the New York Courts resolve questions of state law upon which the Constitutional adjudication will depend. Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941).
Under Pullman, abstention may be appropriate in this Circuit when (1) an unclear state statute is at issue; (2) resolution *411 of the federal constitutional issue depends on the interpretation of the state law; and (3) the law is susceptible "to an interpretation by a state court that would avoid or modify the federal constitutional issue." Greater New York Metro. Food Council v. McGuire, 6 F.3d 75, 77 (2d Cir.1993). This case satisfies all three requirements for Pullman abstention.
The plaintiffs here have argued that the AIV violates the Commerce Clause and the First Amendment because it places unreasonable burdens on their internet business. To determine the extent of that burden will require an interpretation of state law and a determination not only whether the AIV applies to the business of Wang and MLX.com, but also how the various provisions apply to an internet company.
Wang has also challenged in the State Court the applicability of the AIV to the website, maintaining that the site is not an apartment information vendor but rather a method of providing access to information, not only for New Yorkers but worldwide, a so-called "bi-directional internet platform." She also has urged that the AIV as a criminal statute should be construed narrowly, as opposed to the expansive interpretation of the ALJ maintaining that the involvement of a real estate subject matter on the internet was not grounds for the application of AIV.
Were any of these grounds to be successful in the State Court, the constitutional issues, also raised in the Article 78 Proceeding, would be obviated. A the State Court may determine that the AIV does not apply to a person who sells information concerning the availability of New York apartments via the internet, and the extent of the particular requirements of the AIV apply to such a person might dispose of the constitutional issues raised here. See Tunick v. Safir, 209 F.3d 67, 74-75 (2d Cir.2000) (stating that "opacity notwithstanding", deferral is only appropriate where a single adjudication in state court could eliminate the constitutional difficulties).[1]
Wang and MLX.Com also contend that their challenge to the AIV as facially invalid on constitutional grounds cannot be resolved by the Article 78 Proceeding, citing CECOS Intern., Inc. v. Jorling, 895 F.2d 66 (2d Cir.1990) ("CECOS"). However, CECOS concluded that facial constitutional issues could be reached in the State Court setting:
Further, where all the necessary parties are present before Special Term, it [the Article 78 Proceeding] may test the constitutionality of the statute itself by treating the Article 78 petition challenging the statute on it face as a declaratory judgment action. Kovarsky, 31 N.Y.2d at 192, 335 N.Y.S.2d 383, 286 N.E.2d 882. Lakeland Water Dist. v. Onondaga County Water Auth., 24 N.Y.2d 400, 408-09, 301 N.Y.S.2d 1, 248 N.E.2d 855 (1969). In light of this, we cannot assume that New York's procedures are inadequate to provide plaintiff a forum to review its constitutional claims. See University Club, 842 F.2d at 40 (adequate opportunity to raise constitutional claims in judicial review of administrative action). Hence, contrary to the district court's conclusion, the *412 question of opportunity for judicial review should be answered in the affirmative.
The State is clearly present in the Article 78 Proceeding and, therefore, MLX. Com is the only missing party, whose interests are identical to those of Wang. Should the Court choose to do so, a declaratory judgment cause could be added to the present state proceeding. The Second Circuit, dealing with a Younger abstention based on an Article 78 Proceeding challenging the suspension of a license to practice dentistry, affirmed the abstention, stating:
The Supreme Court has clearly held that a would-be plaintiff who has been subjected to a state proceeding which he seeks to challenge in federal court must first exhaust all available state appellate remedies unless, of course, an exception to Younger applies or other Younger prerequisites are not met. See Huffman v. Pursue, Ltd., 420 U.S. 592, 608, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975).
. . . . .
The language of Huffman indicates that the question whether the state's procedural remedies could provide the relief sought does not turn on whether the state will provide the relief sought by the plaintiff before the federal court. Kirschner has made no showing that the State's laws, procedures, or practices would prevent his effective interposition of his federal contentions.
Kirschner v. Klemons, 225 F.3d 227 (2d Cir.2000).
Since the AIV is susceptible to an interpretation by a state court that would avoid constitutional adjudication and the currently pending state court proceedings are adequate to address the issue, a Pullman abstention is warranted.
Conclusion
The complaint is dismissed as to the Governor. The motion for Pullman abstention is granted, and the action is stayed pending resolution of the State proceeding.
It is so ordered.
NOTES
[1] This action is particularly appropriate for abstention because of the oblique effort of the Secretary of State to enforce the AIV. Rather than a direct action against Wang and MLX. Com for violating the AIV, the Secretary determined that Wang had violated the AIV and that such violation constituted grounds for suspension of her license as a real estate broker. By her Article 78 Proceeding, Wang has challenged this procedure and the propriety of such grounds for license revocation.
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164 F.Supp.2d 494 (2001)
James Lloyd KEPNER, Individually and as the Administrator for the Estate of Carol Sue Kepner,
v.
Feather O. HOUSTOUN, et al.
Maria Jordan, et al.,
v.
Feather O. Houstoun, et al.
Civil Action Nos. 01-2988, 01-3005.
United States District Court, E.D. Pennsylvania.
September 26, 2001.
*495 R. Erik Chizmar, Levy Angstreich Finney, Philadelphia, PA, for James Lloyd Kepner.
*496 Gerald J. Mullaney, Jr., Mullaney, Mullaney & Nikolaou, LLP, Skippack, PA, for Maria and Geoffrey Jordan.
John O.J. Shellenberger, III, Office of the Attorney General, Philadelphia, PA, for defendants.
MEMORANDUM
BARTLE, District Judge.
These two actions arise out of a tragic hostage situation that occurred at the Norristown State Hospital ("NSH") in June, 1999.
Plaintiffs Maria Jordan ("Jordan") and her husband Geoffrey Jordan, as well as James Kepner, individually and as administrator of the Estate of his late wife, Carol Kepner ("Kepner") have sued under 42 U.S.C. § 1983 twenty-seven Pennsylvania state officials and employees including the Pennsylvania Secretary of Public Welfare, various employees at NSH, the Pennsylvania State Police Commissioner, and various state police officers. Jordan and her husband also have asserted state law claims against a private detective agency and two of its employees. In addition, Geoffrey Jordan and James Kepner have each alleged loss of consortium. Before the court are the motions of all the defendants employed by the Commonwealth of Pennsylvania to dismiss the § 1983 claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. Said defendants also claim qualified immunity. The plaintiffs rely on the state-created danger theory of liability.
For purposes of the pending motions, we accept as true the well-pleaded factual allegations in the complaints and draw in plaintiffs' favor any reasonable inferences therefrom. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1391 (3d Cir.1994). Of course, we need not accept bald assertions or legal conclusions. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997).
According to the complaint, from at least August, 1997 until his termination on April 16, 1999, Denis Czajkowski was employed as a nurse at NSH, which is operated by the Pennsylvania Department of Public Welfare. Before he was hired, NSH knew that Czajkowski had abused alcohol and drugs. NSH was also informed by a physician that Czajkowski had an adjustment disorder and a drug addiction, but that if he followed his treatment program, he would be fine. In 1997, Czajkowski's father advised an NSH employee that his son was schizophrenic and believed there was a conspiracy against him.
During his term of employment, Czajkowski was given numerous warnings for tardiness and poor attendance. On August 17, 1998, he was arrested and charged with possession of heroin, an event about which NSH employees became aware. In early November, 1998, he was placed on a medical leave of absence and was instructed by the NSH Personnel Director that he was not permitted on hospital property. On two occasions, however, he appeared on the grounds, and each time he was directed to leave. On one of those occasions, he came to the office of Jordan, an NSH Assistant Superintendent for Nursing Services, who notified NSH security. Czajkowski fled. Finally, on April 16, 1999, he was terminated from his employment. Jordan was one of the persons responsible for his dismissal. On several occasions thereafter, Jordan advised the NSH Labor Coordinator and a NSH Personnel Director that she feared Czajkowski.
On June 16, 1999, at approximately 10:45 a.m., Czajkowski and a private investigator whom he had retained ostensibly to *497 serve papers, drove to NSH where they eventually made their way into Jordan's office. Czajkowski was seen on the grounds before entering the building where Jordan's office was located, and while various NSH employees called security, no one notified Jordan or Kepner of his presence. In Jordan's office, Czajkowski and the investigator encountered not only Jordan but also Kepner. Czajkowski brandished a revolver, fired it into the ceiling, and took Jordan and Kepner hostage. After allowing the investigator to leave some thirty minutes later, he immediately shot Jordan four times, causing her to bleed profusely.
Soon thereafter, Pennsylvania state police arrived. After superseding the local police, they began to negotiate with Czajkowski. Although his demands were initially rational, they became more and more grandiose and irrational as time passed. Czajkowski became agitated as well. Kepner and Jordan remained hostages in Room 163 from June 16, 1999 through the morning of June 18, 1999. Finally, on June 18, at 8:30 a.m., the state police implemented a plan that they had developed the previous day. They broke a window of Room 163 where Czajkowski held Kepner and Jordan, attempted to pull the curtains out, and unlocked the door. The state police immediately threw a "flash-bang" detonation device into the room to divert Czajkowski's attention whereupon they subdued him and removed the badly wounded Jordan to safety. Unfortunately, between the time the window was broken and the time the state police entered the room, Czajkowski shot Jordan two more times in the chest and abdomen and killed Kepner. The state police apparently never employed a psychiatrist or psychologist to aid them in dealing with Czajkowski.
Plaintiffs contend that defendants violated their substantive due process rights under the Fourteenth Amendment to be free from the arbitrary action of the state government. As noted above, plaintiffs argue that their complaints survive under the state-created danger theory of liability.
Section 1983 reads in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983.
The statute itself does not create any substantive rights. It simply provides a remedy for rights established under the Constitution or laws of the United States. Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995).
The state-created danger theory had its genesis in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). There, young Joshua DeShaney, a four year old boy, had been physically abused by his father over a prolonged period of time. The Winnebago County Department of Social Services ("DSS") had long had contact with the father and had good reason to suspect child abuse, but nonetheless it allowed the boy to remain with his father. Ultimately, the father was convicted of child abuse for so severely beating Joshua that the boy suffered permanent brain damage.
*498 Joshua's mother and guardian sued DSS under § 1983, alleging a deprivation of the boy's liberty without substantive due process for failing to intervene to protect him from his father's abuse about which it knew or should have known. While expressing great sympathy for Joshua's plight, the Supreme Court held that no cause of action existed. The Court did recognize that where special relationships are created or assumed by the state, certain constitutional rights may be implicated, and the state has an affirmative obligation to provide protective services. For example, such duties arise where a person is a prisoner or has been involuntarily committed to a mental facility.
Other than in such limited circumstances, the Court explained that "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." Id. at 195, 109 S.Ct. 998. The Court continued that the language of the Due Process Clause "cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means." Id. Simply knowing about a person's unfortunate situation does not invoke any obligation on the part of the state to come to that person's aid. The Court made it clear that "[t]he affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." Id. at 200, 109 S.Ct. 998 (citation omitted). Since no special relationship existed between Joshua and the State, it had no constitutional duty to protect him.[1]
The state-created danger theory emanates from the following sentence in DeShaney: "While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them." Id. at 201, 109 S.Ct. 998. This language has been interpreted to mean that even if no special relationship existed, state actors may face liability under § 1983 if they played a role in the creation of the danger.
Our Court of Appeals has explicitly adopted the state-created danger theory in Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996). The parents and legal guardians of Samantha Kneipp sued several Philadelphia police officers and the City of Philadelphia under § 1983. Samantha, who was obviously intoxicated, and her husband were having an altercation on a highway as they were walking home late on a cold January evening. After the police stopped them, her husband was allowed to return home to relieve a babysitter. Thereafter, the police officer sent Samantha on her way alone. She never made it. She was later found unconscious nearby, with permanent brain damage. Plaintiffs claimed that by voluntarily assuming responsibility for her protection when her husband was allowed to leave for home by himself, the police officers affirmatively created a danger and increased the risk that she might be injured when they later abandoned her. The court articulated a four prong test which must be met if a state actor is to be found liable under the state-created danger theory:
*499 (1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur.
Kneipp, 95 F.3d at 1208 (quoting Mark v. Borough of Hatboro, 51 F.3d at 1152). In reversing the District Court's grant of summary judgment in favor of the defendants, the Court of Appeals concluded that, "[w]hen viewed in the light most favorable to the legal guardians, the evidence submitted was sufficient to raise a triable issue of fact as to whether the police officers affirmatively placed Samantha in a position of danger." Id. at 1211.
In County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), decided after DeShaney and Kneipp, the Supreme Court reminded us that the Fourteenth Amendment is not "a font of tort law to be superimposed upon whatever systems may already be administered by the States." 523 U.S. at 848, 118 S.Ct. 1708 (quoting Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)). County of Sacramento was a § 1983 action involving a high speed chase in which the police patrol car skidded into and killed the passenger on the motorcycle being pursued. The Court reiterated that substantive due process only protects the individual against arbitrary action of the government and that the threshold for finding the arbitrary exercise of power will depend upon the facts of each particular case. The degree of culpability can range from deliberate indifference to "shock the conscience" requiring a purpose to cause harm. Thus, for example, the deliberate indifference standard is appropriate in a case involving the proper medical treatment for an inmate since prison officials have the time for calm reflection. On the other hand, "when unforeseen circumstances demand an officer's instant judgment" such as during a prison riot[2] or a high speed chase, "even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that implicates `the large concerns of governors and the governed.'" Id. at 853, 118 S.Ct. 1708 (citation omitted). With respect to a high speed chase, the Court concluded that no viable substantive due process claim exists unless there is an "intent to harm the suspects or to worsen their legal plight." Id. at 854, 118 S.Ct. 1708 (citation omitted).
We must determine whether the well-pleaded facts here, if true, can constitute arbitrary governmental action giving rise to a substantive due process violation. As our Court of Appeals has observed, "[t]he exact degree of wrongfulness necessary to reach the `conscience shocking' level depends upon the circumstances of a particular case." Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir.1999) (citation omitted). We believe the facts set forth in the complaints, at least as they relate to the state police, are analogous to those involving the prison riot and the high speed chase. In those scenarios, as in the hostage situation, there is significant pressure for quick decisions and little or no time for calm deliberation and reflection that usually exists when considering appropriate medical treatment for a prisoner. Even if the intent-to-cause-harm test used in the high speed chase cases raises the bar too far here, we believe nonetheless *500 that a very high degree of wrongfulness is necessary to establish liability. The appropriate level of culpability, we conclude, is whether, under the circumstances, the activity of the state police defendants shocks the conscience. White v. City of Philadelphia, 118 F.Supp.2d 564, 570 (E.D.Pa.2000).
Keeping County of Sacramento in mind, we turn to the four-prong state-created danger test articulated in Kneipp. Even assuming the plaintiffs can establish the first and third prongs that the harm ultimately caused was foreseeable and fairly direct and that some relationship existed between Jordan and Kepner and the state, plaintiffs cannot satisfy the second and fourth elements as to the state police.
Under the formulation in Kneipp, the complaints must set forth facts sufficient to establish that state actors acted in willful disregard for the safety of Jordan and Kepner. Specifically, plaintiffs contend that the action of the state police satisfied this standard when they rushed into Room 163 at NSH where the two women were being held hostage. According to the pleadings, it was between the time of the break-in and the subsequent seconds when Czajkowski was subdued that Czajkowski shot and killed Kepner and again shot Jordan. Plaintiffs maintain that had the state police not proceeded as they did, Kepner's life would have been spared and Jordan would not have suffered additional wounds.
Under County of Sacramento, the conduct of the state police must shock the conscience. While their action surely had grave risks, taking no action also had grave risks. It is important to remember that Czajkowski, with serious mental problems, had previously shot Jordan and was making demands that were becoming increasingly bizarre. In hindsight, maybe the state police were negligent and should have taken a different path, but negligence is not the applicable constitutional standard. County of Sacramento, 523 U.S. at 848-49, 118 S.Ct. 1708. It was clearly a most difficult, if not heart-wrenching decision, to attempt to rescue hostages from a demented kidnapper. We do not believe any reasonable juror could find, on the facts alleged, that the state police acted in a way that shocks the conscience. Id.; White v. City of Philadelphia, 118 F.Supp.2d 564 (E.D.Pa.2000). Furthermore, in our view, the result is the same even if we were to apply the less rigorous requirements of deliberate indifference to or willful disregard for the safety of the victims. The outcome of the hostage crisis was indeed tragic, especially for Carol Kepner, but simply because it was tragic does not mean that the Constitution was violated.
The final prong of the state-created danger test requires plaintiffs to prove that the state actors used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur. Kneipp, 95 F.3d at 1208. Again, the complaints fall short. The state police did not arrive on the scene until after Czajkowski had taken Jordan and Kepner hostage. The state police sought to apprehend Czajkowski and save the lives of these two women. They did not create the opportunity for the harm to occur. The opportunity already existed by the time they reached NSH. Indeed, as heretofore noted, Czajkowski had previously shot Jordan and, of course, had the opportunity and ability to kill both Jordan and Kepner before the state police stormed Room 163. As our Court of Appeals stated in Morse v. Lower Merion School District, 132 F.3d 902, 915 (3d Cir.1997), "the dispositive factor appears to be whether the state has in some way placed the plaintiff in a dangerous position that was foreseeable, and not *501 whether the act was more appropriately characterized as an affirmative act or an omission." The state police did not in any way place Jordan or Kepner in a dangerous position. On the contrary, they sought to extricate these two individuals from any further danger by seizing Czajkowski. In sum, it was Czajkowski, a third party, who created the dire situation. Salas v. Carpenter, 980 F.2d 299 (5th Cir.1992).
Plaintiffs have also sued the Secretary and Deputy Secretary of Public Welfare, as well as Public Welfare Department employees who worked at NSH. At most, it can be said that some of these individuals knew of Czajkowski's dangerous propensities, took no action to keep him off the grounds of NSH, and failed to warn Jordan and Kepner of his presence on June 16, 1999. These defendants, like the state police, did not create the opportunity for Czajkowski to commit his crimes or place Jordan and Kepner in a dangerous position. DeShaney, 489 U.S. at 201, 109 S.Ct. 998; Kneipp, 95 F.3d at 1209; D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1373-76 (3d Cir.1992) (en banc). In any event, substantive due process under the Fourteenth Amendment does not impose on a public employer or supervisors or fellow employees the duty to provide an even nominally safe and secure working environment. Collins v. City of Harker Heights, 503 U.S. 115, 126, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992).[3]
It goes without saying that we sympathize with the husband and family of Carol Kepner who lost her life during this tragic series of events. Likewise, we sympathize with the plight of Maria Jordan, who suffered grievous injuries. Nonetheless, we cannot allow our sympathies to prevent us from following the law.
The motion of state defendants to dismiss plaintiffs' § 1983 claims will be granted. Because we are dismissing all federal claims, we need not decide the issue of qualified immunity. In addition, we will exercise our discretion and decline jurisdiction over the supplemental state claims as to the moving defendants. See 28 U.S.C. § 1367.
The Jordan complaint also alleges state law claims against the detective agency that Czajkowski engaged and against two of its employees, one of whom accompanied Czajkowski on his fateful trip to NSH. There is no diversity of citizenship between the Jordans and these remaining defendants who are all citizens of Pennsylvania. Consequently, we will dismiss the action against these three defendants for lack of subject matter jurisdiction.
ORDER
AND NOW, this 26th day of September, 2001, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that the motion of all defendants to dismiss the complaint is GRANTED.
*502 ORDER
AND NOW, this 26th day of September, 2001, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:
(1) the motion of defendants Feather O. Houstoun, Charles G. Curie, George Kopchick, Aidan Altenor, Robert Direso, Donald Adams, Richard Sokolowski, William Stephens, Roger Stults, Bernadine West, Sandra Mitchell, Jack Davis, Mary Anne Lawler, Angela Alexander, Pat Conway, Commissioner Paul J. Evanko, Deputy Commissioner Lieutenant Colonel Thomas Courey, Major Robert G. Wertz, Captain Thomas J. LaCrosse, Captain Robert B. Titler, Captain James Gillison, Lieutenant David B. Kresier, Lieutenant Barry Sparks, Lieutenant Robert D. Queen, Sergeant Gregory W. Mitchell, Corporal David Frisk, and Trooper Martin M. Carbonell to dismiss the complaint is GRANTED; and
(2) the complaint is DISMISSED against the remaining defendants Ace Detective Agency, Inc., Dominic Farinella, and Michael Soltys for lack of subject matter jurisdiction.
NOTES
[1] In passing, in footnote 4 of his opposing brief, plaintiff Kepner contends that the state police had a special relationship with Carol Kepner which created an affirmative duty on their part to act on her behalf. This argument is clearly without merit. Kepner was not in state custody or control when she was a hostage. Rather, she was in the custody and control of Czajkowski, her kidnapper.
[2] The Supreme Court used this example, recognizing that the analysis is under the Eighth Amendment.
[3] Plaintiff in Kepner also argues that some defendants are liable for an unconstitutional policy, practice, or custom resulting in Carol Kepner's death. See Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Public officials or supervisors cannot be held liable on such a theory unless they have engaged in "some affirmative conduct ... that played a role" in the constitutional violation. Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir.1990). This standard can be satisfied either by the supervisor's direct involvement or by their "personal direction or ... actual knowledge and acquiescence." Id. (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988)). The facts set forth in the complaint do not allege any constitutional violation, much less one caused by a policy, practice, or custom.
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164 F. Supp. 2d 677 (2001)
BREDA TRANSPORTATION, INC., Plaintiff,
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.
No. CIV. A. PJM 01-551.
United States District Court, D. Maryland.
August 30, 2001.
*678 John H. Korns, Esquire, Paul M. Laurenza, Esquire, Oppenheimer Wolff & Donnelly, Mary Margaret Utterback, Esquire, Thelen Reid & Priest, Washington, D.C., for Plaintiffs.
Thomas B. Dorrier, Esquire, Donald A. Laffert, Esquire, WMATA, Washington, D.C., for Defendants.
OPINION
MESSITTE, District Judge.
The Court considers whether the present dispute involving a government procurement contract belongs in this Court or *679 whether it should be heard by the Armed Services Board of Contract Appeals ("Board"). Plaintiff Breda Transportation, Inc. ("Breda") has filed a Motion for Partial Summary Judgment arguing that the case is properly before this Court. Defendant Washington Metropolitan Area Transit Authority ("WMATA") has filed a Motion to Dismiss or, in the alternative, for Summary Judgment, contending that the Board should hear the case. For reasons the Court now undertakes to explain, it will GRANT WMATA's Motion to Dismiss and DENY Breda's Motion for Partial Summary Judgment.[1]
I.
Breda is a Delaware corporation headquartered in New York. Among other things, it assembles and rehabilitates subway cars and other transit vehicles. WMATA is the interstate compact agency of the District of Columbia, Maryland and Virginia responsible for the operation and construction of the public transit system in the metropolitan Washington, D.C. area.
On or about September 18, 1992, Breda entered into a contract ("Contract") with WMATA to install new "A/C drive traction" motors in WMATA's metro cars, presumably taking possession of the cars for purposes of installation. Between October 1994 and November 1996, Breda delivered the rehabilitated cars and, in June 1998, WMATA informed Breda that the motors had passed reliability testing. During the winter of 1999-2000, however, the cars began to repeatedly fail. Accordingly, by letters dated March 13 and April 19, 2000, WMATA notified Breda that a latent defect existed and requested a plan of action to address it. Breda apparently did little or nothing to assuage WMATA's concerns. As a result, in October of 2000, WMATA's Contracting Officer issued a "Final Decision" that the motors contained a latent defect which had caused the failure of their electrical system and that Breda had neither corrected the defect nor provided any plan of corrective action. Based on this decision, WMATA informed Breda that it was revoking its acceptance of the transit cars and that it would repair all the motors and charge Breda for the cost of the repairs estimated to be $13 million. WMATA also advised Breda that, pursuant to the Disputes Article of the Contract, any appeal of its decision would be heard by the Board.
In November 2000, Breda appealed the Contracting Officer's Final Decision to the Board, reserving, however, its objection to the Board's jurisdiction.[2] In February 2001, Breda filed a complaint for declaratory and injunctive relief in this Court, accompanied by a motion for preliminary injunction seeking to enjoin the proceedings before the Board on the grounds that the Board lacked jurisdiction over the dispute. The jurisdictional issue now comes before the Court on the parties' cross-motions for summary relief.
II.
For purposes of determining jurisdictional questions, the Court is the finder of jurisdictional facts. See Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). Whether the Board, as opposed to the *680 Court, has jurisdiction over this dispute in the first instance is essentially a question of contract interpretation. See United States v. Utah Const. & Mining Co., 384 U.S. 394, 404, 86 S. Ct. 1545, 16 L. Ed. 2d 642 (1965) (determining that the scope of administrative tribunal's jurisdiction is based on "longstanding judicial and administrative construction of the disputes clause"); Norair Eng'g Corp. v. WMATA, 33 F. Supp. 2d 422, 425 (D.Md.1998). If the Contract gives the Board jurisdiction, Breda will be required to exhaust its remedies there before coming to Court. See Utah Construction, 384 U.S. at 402, 86 S. Ct. 1545. If the Contract does not give the Board jurisdiction, Breda is entitled to a trial de novo here. Id. at 404, 86 S. Ct. 1545.
The Contract between Breda and WMATA is a standard supply and service contract containing forty-six Articles, including a Disputes Article which establishes procedures for the administrative resolution of disputes before WMATA's Contracting Officer. Pursuant to that Article, the Contractor may appeal the Contracting Officer's decision to the Board which, as indicated, has been designated by WMATA's Board of Directors as its authorized representative under the Contract.[3] The Board's decision is "final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence." (Contract § 1, Art. 11.)
Not every dispute under the Contract, however, goes before the Board based on the Disputes Article. As well-established law makes clear, some other provision of the Contract must commit the dispute to administrative resolution before the Board is authorized to act. See Utah Construction, 384 U.S. at 404-5, 86 S. Ct. 1545. As the Fourth Circuit has held:
[A]dministrative resolution of a given claim is only authorized if some other provision of the contract establishes an administrative remedy sufficient to afford full relief for the claim. Thus a Disputes clause is best understood as merely establishing an administrative procedure for resolving quarrels. Other contractual provisions, by granting a contract administrator authority to afford some remedy for the quarrel, must in effect confer jurisdiction.
WMATA v. Buchart-Horn, Inc., 886 F.2d 733, 735 (4th Cir.1989).
On that much the parties agree. They also agree that resolution of their jurisdictional dispute involves Paragraph (b) of the Inspections Article of the Contract as well as Subparagraphs (b)(1) and (b)(2). The Court considers the language of that key section[4]:
b. In case any supplies or lots of supplies are defective in material or workmanship or otherwise not in conformity with the requirements of this Contract, the Authority shall have the right either to reject them (with or without instruction as to their disposition) or to require their correction. Supplies or lots of supplies which have been rejected or required to be corrected shall be removed or, if permitted or required by the Contracting Officer, corrected in place by *681 and at the expense of the Contractor promptly after notice, and shall not thereafter be tendered for acceptance unless the former rejection or requirement of correction is disclosed. If the Contractor fails promptly to remove such supplies or lots of supplies which are required to be removed or promptly to replace or correct such supplies or lots of supplies, the Authority may either:
1. By contract or otherwise replace or correct such supplies and charge to the Contractor the cost occasioned the Authority thereby; or
2. Terminate this Contract for default as provided in the DEFAULT article of this Contract. Unless the Contractor corrects or replaces such supplies within the delivery schedule, the Contracting Officer may require the delivery of such supplies at a reduction in price which is equitable under the circumstances. Failure to agree to such reduction of price shall be a dispute concerning a question of fact within the meaning of the DISPUTES article of this Contract.
III.
Breda reads Subparagraphs (b)(1) and (b)(2) of the Inspections Article as providing WMATA with three options in the event Breda fails to promptly correct the defective parts after receiving notice from WMATA. First, under (b)(1), WMATA may "[b]y contract or otherwise replace or correct [the defective parts] and charge to [Breda] the cost occasioned the Authority thereby." Second, under (b)(2), WMATA may "terminate ... for default as provided in the DEFAULT article of this Contract." Third, under (b)(2), WMATA may "require the delivery of the defective parts at a reduction in price which is equitable under the circumstances."
Of these three, Breda argues that only (b)(1) applies. According to Breda, WMATA's revocation of its acceptance of delivery, plus its decision to correct the allegedly defective motors, plus its attempt to charge Breda the cost of that correction, combine to bring that Subparagraph into play. In consequence, Breda says, because (b)(1) does not expressly invoke the Disputes Article, jurisdiction lies not with the Board but with this Court. Breda submits that (b)(2), which contains the Inspections Article's only reference to the Disputes Article and constitutes an alternative to (b)(1), is not implicated in the present case. That Subparagraph, Breda argues, confers jurisdiction on the Board only when WMATA accepts delivery of defective or noncomplying supplies, when it does not require their correction, and when it seeks an equitable reduction in price.
Breda contends that the concept of an equitable reduction in price in (b)(2) is distinct from the cost of repair in (b)(1). It argues that an "equitable reduction in price" is identical to an "equitable price adjustment," a term of art that Breda argues is measured not by the cost incurred by WMATA in making the repairs, but by the altered cost position of Breda. See General Ry. Signal Co. v. WMATA, 875 F.2d 320, 324 (D.C.Cir.1989) ("The term `equitable adjustment' is a legal term of art ... [t]he proper measure of the adjustment is `the difference between what it would have cost to perform the work as originally required and what it cost to perform the work as changed.'") (citation omitted). To the extent WMATA has decided to repair the motors and has sought recovery based on an estimate of its cost, Breda concludes, (b)(1) remains applicable.
*682 WMATA advances two arguments in favor of Board jurisdiction. First, it contends that the explicit invocation of the Disputes Article in Subparagraph (b)(2) applies to both Subparagraphs (b)(1) and (b)(2). Its view is that the Contract merges (b)(1) and (b)(2) by reason of the common reference to "such supplies" in the final introductory sentence of Paragraph (b), and in Subparagraphs (b)(1) and (b)(2).
Alternatively, WMATA argues that the remedy it seeks falls under (b)(2) because the cost of repair, whether estimated or actual, is tantamount to a "reduction in price which is equitable under the circumstances." Therefore, it says, invocation of the Disputes Article under (b)(2) operates to create Board jurisdiction. WMATA challenges Breda's contention that a "reduction in price which is equitable under the circumstances" has the same meaning as an "equitable price adjustment," pointing to the use of the latter term in several other provisions of the Contract as evidence of the difference between the two.[5] WMATA argues that the calculation of a "reduction in price which is equitable under the circumstances" is not tethered to Breda's cost position any more than it is to WMATA's.[6]
IV.
The Court notes that the plain language of a government contract, read as a whole, must be enforced and that the contract must be interpreted in a manner that makes sense. See 64 Am.Jur.2d Public Works and Contracts § 103 (2001). Accordingly, "the language of a government contract must be given the meaning that a reasonably intelligent person acquainted with the contemporaneous circumstances would reach." Chas. H. Tompkins Co. v. United States, 43 Fed Cl. 716, 722 (1999) (citation omitted).
That said, the Court acknowledges that, organizationally, Paragraph (b) and Subparagraphs (b)(1) and (b)(2) of the Inspections Article are somewhat puzzling.[7] Subparagraph (b)(1) sets out, reasonably enough, that the cost of replacement or repair of defective supplies may be charged to the Contractor. But while Subparagraph (b)(2) talks in its first sentence about termination of the Contract for default, in its second sentence it refers to delivery of the supplies with a reduction in price which is equitable under the circumstances. The third sentence of (b)(2) triggers the Disputes Article upon failure of the parties to agree upon the equitable reduction in price. But whereas the second and third sentences of (b)(2) have a logical nexus between them, there is no apparent connection between the first sentence (termination for default) and the second *683 and third sentences (acceptance with a price reduction which is equitable). Presumably, if the Contract were terminated for default, WMATA would have no goods on hand whose price would need to be renegotiated. From a logical standpoint, one might expect the second and third sentences of (b)(2) (acceptance of supplies with a price reduction) to be part of and follow the first sentence of (b)(1) (acceptance of supplies plus cost of replacement or repair) or at least to be a separate Subparagraph, perhaps re-numbered (b)(2), with the termination for default language of the present (b)(2) becoming a new (b)(3).
Be that as it may, the Court agrees with Breda that the language of the Inspections Article effectively provides three options for WMATA in the event that Breda fails to promptly correct the defective parts after receiving notice from WMATA. The question is, which option applies in the present case.
The Court does not see the facts characterizing this dispute as fitting squarely within the terms of (b)(1). WMATA remains in possession of allegedly nonconforming goods and has decided that they require repair. But, as the Court reads Subparagraph (b)(1), it authorizes WMATA to charge Breda for replacement or repairs after they have been accomplished. It provides that WMATA may "replace or correct [the defective supplies] and charge to the Contractor the cost occasioned the Authority thereby." (Emphasis added). But replacement or repairs have yet to be accomplished, and WMATA has not incurred any costs in this regard, merely estimates.
On the other hand, the Court does not accept WMATA's argument that Subparagraph (b)(2)'s reference to the Disputes Article sends this dispute to administrative resolution regardless of whether the dispute falls under (b)(1) or (b)(2). That reading is plainly at odds with the structure of the Inspections Article. Wherever the last two sentences of (b)(2) might more logically be placed, it is clear that the Disputes Article hence Board jurisdiction applies only where defective goods are accepted, are not corrected by Breda, and the parties are unable to agree on an equitable reduction in price.
The Court concludes that it is the second and third sentences of (b)(2) that control and that any confusion that may exist as to their applicability very likely occurs as a result of failing to distinguish between the nature of the relief WMATA seeks and the measure of damages it is entitled to. As the Court sees it, the critical consideration is the nature of the relief sought. Having accepted the defective supplies, uncorrected by Breda, WMATA seeks a "reduction in price which is equitable under the circumstances." What an equitable reduction may be is, of course, an open question. But the measure of that reduction is something for the Board to decide, not the Court. It seems unlikely, under Board precedent, that Breda is correct that WMATA is precluded from receiving any sort of equitable reduction on the grounds that it has accepted the supplies and decided to correct the defective parts itself.[8]*684 On the other hand, it may well be that the cost of replacement or repair would qualify as a reduction in price which is equitable under the circumstances.[9] Whatever may be the measure of damages, it is for the Board, not the Court, to decide.
The result is that WMATA is entitled to dismissal of the case, and its Motion to Dismiss will accordingly be GRANTED. Breda's Motion for Partial Summary Judgment, as well as its Motion for Preliminary Injunction, will be DENIED.
A separate order will be entered implementing this Opinion.
ORDER
Upon consideration of Plaintiff Breda Transportation, Inc.'s Motion for Partial Summary Judgment and Defendant WMATA's Motion to Dismiss or, in the alternative, for Summary Judgment, for the reasons set forth in the accompanying Opinion, it is, this 30 day of August, 2001,
ORDERED:
1. Defendant's Motion to Dismiss (Paper # 9-1) is GRANTED;
2. Plaintiffs Motion for Partial Summary Judgment (Paper # 11) is DENIED;
3. Defendant's Motion for Summary Judgment (Paper # 9-2) is MOOT;
4. Plaintiff's Motion for Preliminary Injunction (Paper # 3) is DENIED;
5. The Clerk of the Court shall CLOSE this case.
NOTES
[1] WMATA's alternative request for summary judgment is therefore MOOT and Breda's Motion for Preliminary Injunction is DENIED.
[2] Breda contends that time constraints required it to file an appeal with the Board despite its view that the proper forum for resolution of the dispute was federal court. Although WMATA argues that, by appearing before the Board, Breda waived any right it had to go to court in the first instance, the Court finds Breda's action plausible and that Breda has waived none of its rights thereby.
[3] (See Contract § 1, Art. 11 ("The decision of the Board of Directors or its duly authorized representative for the determination of such appeals shall be final and conclusive ....") (emphasis added).) There is no dispute that the Armed Services Board of Contract Appeals is the "duly authorized representative" of WMATA's Board of Directors.
[4] "Contractor" in the quoted section refers to Breda, "Authority" to WMATA.
[5] (See, e.g., Contract § 1, Art. 2, ¶ b ("If any such change causes an increase or decrease in the cost of, or the time required for the performance of any part of the work under this Contract, ... an equitable adjustment shall be made in the Contract price ...."); Contract § 1, Art. 10, ¶ b ("If a stop work order issued under this article is cancelled or the period of the order or any extension thereof expires, the Contractor shall resume work. An equitable adjustment shall be made in the ... Contract price ....").)
[6] WMATA is presumably animated by a desire to minimize its cash outlay as well as its risk. Rather than bear the expense of making the repairs and run the risk of not recovering from Breda, it has chosen to withhold payment of part of the purchase price in the amount of its estimate of the cost of the repairs.
[7] This is not to say that the language of the Contract is ambiguous, only that the Contract's organization is somewhat puzzling. Even if the language were ambiguous, it would still be for the Court, as the finder of jurisdictional fact, to resolve the ambiguity. See Adams, 697 F.2d at 1219.
[8] See Techni Data Labs., 1977 WL 2218, ASBCA 21054, 77-2 BCA ¶ 12,667 (1977) (holding that Government was entitled to a price reduction after correcting the defective parts itself); R.C. Allen Business Machines, Inc., 1972 WL 1437, ASBCA 12932, 72-1 BCA ¶ 12,932 (1972) (holding that Government was entitled to an equitable reduction in price even though it made corrections without giving Contractor the opportunity to do so); see also John Cibinic, Jr. and Ralph C. Nash, Jr., Administration of Government Contracts at 882 (3d ed.1995) (noting that the Government may "accept work with a reduction in price if the contractor could not correct the defect within the delivery schedule. Since post-acceptance defects claims are most often asserted after the delivery date, the Government would have this alternative.").
[9] See John Lembesis Co., 1980 WL 2670, ASBCA 24100, 80-2 BCA ¶ 14,571 (1980) (holding that price adjustment based upon Government's costs was acceptable since Government had performed the corrective work); Triple "A" Machine Shop, 1972 WL 1360, ASBCA 16844, 73-1 BCA ¶ 9826 (1972) (awarding Government a downward equitable price adjustment in the amount of its costs to correct Contractor's defective work). Notwithstanding these cases, Breda still remains free to argue to the Board that "a reduction in price which is equitable under the circumstances" means the same thing as an "equitable price adjustment."
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333 S.W.2d 779 (1960)
KENTUCKY LAKE VACATION LAND, INC., et al., Appellants,
v.
STATE PROPERTY AND BUILDINGS COMMISSION et al., Appellees.
Court of Appeals of Kentucky.
March 25, 1960.
*781 Lovett, Lovett & Lovett, Benton, for appellants.
Jo M. Ferguson, Atty. Gen., David B. Sebree, Asst. Atty. Gen., for appellees.
MONTGOMERY, Chief Justice.
The State Property and Buildings Commission, by resolution, authorized a $3,500,000 revenue bond issue for the purpose of constructing improvements and facilities in certain designated state parks. The appellants, a group of businessmen and a corporation, suing in their individual capacities as citizens and taxpayers and also as owners of private vacation facilities, questioned the legality of the proposed issue in a declaratory judgment action. The Department of Conservation Division of Parks is referred to as Division of Parks. Appellees are referred to herein as the Commission. See KRS 56.440(1).
Appellees moved to dismiss the complaint for failure to state a cause of action and for lack of legal standing to bring the action. The motion was sustained on the express ground that the complaint did not state a cause of action. No question is now presented as to the capacity of the appellants to sue.
Before the court passed on the motion to dismiss, appellants' offer to file an amended complaint was refused. The offered pleading alleged additional grounds of attack on the legality and validity of the bond issue. CR 15.01 provides that a party may amend his pleading once as a matter of course at any time before a responsive pleading is served. This may be done without a court order. Clay, CR 15.01, Comment 2. A motion to dismiss is not a responsive pleading. CR 7.01 and 7.02. Ohio Casualty Insurance Co. v. Farmer's Bank of Clay, Kentucky, 6 Cir., 1949, 178 F.2d 570. The court erred in refusing to permit the amendment.
The amendment offered to the complaint will be considered in determining whether a cause of action was stated. The burden is on the one alleging error to show prejudice therefrom. Prewitt v. Wilborn, 184 Ky. 638, 212 S.W. 442. Unless the ruling is considered prejudicial, the error is not reversible. Connecticut Indemnity Co. v. Kelley, Ky., 301 S.W.2d 584.
The Commission's resolution was adopted June 23, 1958. The resolution was made in contemplation of an agreement designated as a "Contract of Lease and Rent" which was to be entered into by the Department of Finance and the Commission with the Division of Parks. The general purport of the resolution and agreement was that the Division of Parks pledged the revenue and receipts from all state parks and additions for the improvement of fourteen named state parks. The improvements were to be financed as "Revenue Bond Project No. 6" by the issuance and sale of revenue bonds by the Commission under authority of KRS 56.440-56.550.
The bonds were to be approved by the Commissioner of Finance. They were to be secured solely by pledge and first lien *782 on the gross revenue and receipts derived by the Commission from the rental of the property under the lease with the Division of Parks and such other revenues as might be available. It was provided that there was to be no lien on the physical properties involved and that the bonds did not constitute an indebtedness of the Commonwealth of Kentucky, the Commission, or Division of Parks.
The lease agreement and the resolution provided for the payment of an annual cash rental sufficient to amortize the cost of the improvements as evidenced by the revenue bonds. In the event that the annual minimum payments were not made, thereby jeopardizing the payment of the bonds and interest, the Commission obligated itself to "lease or cause to be used and occupied all or any part of said property by any other state agency or to others" for sufficient rentals to retire the indebtedness.
By the lease, the Division of Parks, in addition to the obligation of the annual amortization payment, agreed to maintain in good repair and keep the property insured at its own expense. In furtherance of the Commission's obligation to make and collect charges sufficient to retire the debt and pay the cost of operation, maintenance, repairs, and insurance, the Division of Parks bound itself in the lease to charge admission fees for entrance to the general use of the recreational facilities. These included fees to be charged for entry of persons and vehicles, as well as parking fees. These charges were to be in addition to fees charged for separate and specific recreational facilities.
Appellants contend first that the Commission is not authorized to issue revenue bonds for the purpose proposed since such authority is specifically given to the Division of Parks by Chapter 148, Kentucky Revised Statutes. KRS 148.030, enacted in 1948, provides that acquisitions and improvements of parks and facilities may be financed by the issuance of revenue bonds. Appellants' argument is based on KRS 148.030(2), which provides that in the event revenue bonds are to be issued they "shall be issued pursuant to the terms of KRS 58.010 to 58.140." It is thus contended that the authority of the Division of Parks to issue revenue bonds is confined to the issuance of such bonds as provided for in Chapter 58, Kentucky Revised Statutes, entitled "Acquisition and Development of Public Projects by Governmental Units and Agencies, Through Revenue Bonds."
The Commission contends that it is authorized to issue the revenue bonds under the provisions of Chapter 56, Kentucky Revised Statutes, specifically referred to as KRS 56.440-56.550 in the bond resolution. At this point, it should be noted that appellants' attack here is directed against the procedure for issuing revenue bonds rather than toward the method of financing. By inference, they seem to admit that the revenue bond issue in question would have been proper had it been done pursuant to provisions of Chapter 58.
Under the provisions of Chapter 56, the Commission has the power to assist various agencies of the Commonwealth in the operation, maintenance, and improvement of the property controlled by the agency. KRS 56.510 prescribes various means of financing, including the issuance and sale of revenue bonds by the Commission, a building project for any state agency. A state agency is defined as any department, board, commission, institution, division, or functional group exercising any function of the state. KRS 56.440(5).
Chapter 56 was enacted in 1949 and reenacted in 1956. The right of the Commission to issue revenue bonds for the construction of a building project and the improvement of real estate owned by the Commonwealth was upheld in Preston v. Clements, 313 Ky. 479, 232 S.W.2d 85. The right of the Legislature to confer centralized power to control real estate development by the Commonwealth in one agency, such as the Commission, was also sustained in the Preston case.
*783 The enactment and re-enactment of Chapter 56 in 1949 and 1956, respectively, were subsequent to the enactment of Chapter 148 in 1948. Though Chapter 148 gave the Division of Parks authority to finance acquisition and improvement of park property, the Commission was also given the same authority under the later provisions of Chapter 56. In effect, Chapter 56 provides an alternate procedure for financing by means of revenue bonds.
Appellants urge that KRS 56.460 (7), referred to in Section 11 of the resolution, had been repealed at the time the resolution was adopted. This statute was re-enacted in 1956 as KRS 56.463(6). The authority formerly granted the Commission by KRS 56.460(7) was given to the Department of Finance by KRS 56.463(6), which provided that any such lease should be signed by the Commissioner of Finance and the Governor, both of whom are members of the Commission, rather than by the Commission chairman as previously provided. The failure to designate the correct statute is not considered sufficient to invalidate the resolution and lease inasmuch as they were executed by the proper officials with authority under the present statute.
The proposed lease provides that so long as any of these revenue bonds are outstanding the Division of Parks will not provide, use, occupy, or operate any other detracting properties or facilities. Appellants argue that this provision, in effect, freezes the development of the state park system until the debt is paid. There is nothing in the resolution or lease which prohibits the establishment and construction of new state parks or the improvement of existing parks. The prohibition is against providing, etc., detracting properties or facilities. The object of this provision is to protect the bondholders against the Division of Parks' establishing or constructing a competing property or facility which would destroy the revenue-producing ability of the existing system.
It is insisted that the provision objected to is against public policy and that the Commission has no right to impose its will against the will of the Legislature. This argument is vague and hard to follow since the Commission is acting under legislative authority granted by Chapter 56.
Because the resolution and lease provide that the Division of Parks may charge and collect an entry fee for persons and vehicles, as well as a fee for parking, appellants contend that such charges are in violation of certain restrictive covenants in the conveyance from the Tennessee Valley Authority on the land encompassed by the borders of Kentucky Dam Village and Kentucky State Park. Appellants are not parties to the conveyance of this property; nor are they shown to have any privity with the parties to the conveyance. Hence, they have no standing to question what is now a speculative and remote possibility of breach of covenant.
For the reason last mentioned, appellants cannot question the charging of fees as being violative of a further covenant in the TVA conveyance that the property shall be "used only as a State Park for public recreation, in accordance with generally recognized standards of park operation in the Commonwealth of Kentucky, and have no other purpose or purposes." There is an additional reason why there is no merit in this argument. It has always been recognized that charges may be made for the use of certain facilities at state parks while other facilities may be free to the public. It is customary that fees are paid for the use of rooms at park hotels and cabins, for the use of golf courses, and other privileges, and that the use of certain swimming and beach facilities may be free. There is no valid reason advanced why all facilities made available to the general public should not bear a reasonable charge for their use. There is no continuing and binding obligation *784 to furnish such facilities free. See Prickett v. City of Hillsboro, 323 Ill.App. 235, 55 N.E.2d 306; and Cohen v. Samuel, 367 Pa. 268, 80 A.2d 732. The Legislature has specifically authorized the Division of Parks to "fix fees and charges for the use of said parks, and the improvements and facilities constructed therein, and provide for the collection of said fees and charges * * *." KRS 148.020(3). No exclusions are authorized.
Lastly, it is argued that the proposed bonds in reality are not revenue bonds and that they indirectly constitute a charge against the General Fund of the state. This is understood to mean the creation of an unconstitutional debt. In a similar situation dealing with construction and operation of turnpikes or toll roads, a similar contention was decided adversely. Guthrie v. Curlin, Ky., 263 S.W.2d 240. It was held in the Guthrie case that the covenant to pay the cost of maintenance, repairs, and operations of the toll road did not create a "debt" of the state in violation of Kentucky Constitution, §§ 49, 50, and 177. The cases upholding a similar provision for maintenance of toll bridges are cited in the Guthrie case.
The procurement and maintenance of public parks are governmental functions. City of Louisville v. Pirtle, 297 Ky. 553, 180 S.W.2d 303; Baker v. City of Lexington, Ky., 310 S.W.2d 555. There is no valid difference in the obligation to maintain the state park system from the obligation to maintain toll bridges and roads. Each is based on the inherent duty to perform an essential governmental function. The provision for payment of maintenance, repair, and insurance costs of the state park system does not constitute the creation of a debt in violation of the debt limitation provisions of the Kentucky Constitution.
The court's refusal to permit the filing of the amended complaint is not reversible error.
Judgment affirmed.
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333 S.W.2d 146 (1960)
Ex parte Johnnie Lee WILLIAMS.
No. 31437.
Court of Criminal Appeals of Texas.
March 16, 1960.
*147 Wardlaw, Cochran & Brown, by A. L. Wardlaw, Fort Worth, for appellant.
Doug Crouch, Criminal Dist. Atty., Albert F. Fick, Jr., Asst. Criminal Dist. Atty., Fort Worth, and Leon B. Douglas, State's Atty., Austin, for the State.
WOODLEY, Judge.
The appeal is from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition.
The warrant issued by the Governor of Texas was offered in evidence, and made a prima facie case for appellant's extradition to Ohio to answer a charge of robbery, the offense having been committed about 9:30 P.M. on March 30, 1959, in the City of Canton. Ex parte Emmons, Tex. Cr.App., 322 S.W.2d 534; Ex parte McDaniel, 76 Tex. Crim. 184, 173 S.W. 1018.
The requisition of the Governor of Ohio was not offered in evidence at the habeas corpus hearing, nor were any of the supporting papers. This Court cannot assume that such papers would reveal any facts which would enable appellant to resist extradition. Ex parte Haynes, 98 Tex.Cr. R. 609, 267 S.W. 490.
In the absence of evidence to the contrary, the presumption is that the action of the Governor of Texas in issuing his executive warrant was upon a proper and *148 legal requisition of the Governor of the demanding state. Ex parte Berry, 139 Tex. Cr.R. 67, 138 S.W.2d 813; Ex parte Anderson, Tex.Cr.App., 243 S.W.2d 169.
The issue of whether the person sought to be extradited was in the demanding state at the time of the offense may be raised in a habeas corpus proceeding. The burden of showing that he was not in the demanding state at the time of the offense, and hence not a fugitive from justice, is on the relator. Ex parte Smith, 155 Tex. Crim. 168, 232 S.W.2d 992; Ex parte Quale, Tex. Cr.App., 298 S.W.2d 174; Ex parte Shirley, 164 Tex. Crim. 447, 299 S.W.2d 701; Ex parte Hoover, 164 Tex. Crim. 251, 298 S.W.2d 579.
The like issue that the relator is not in fact the person charged in the demanding state may also be raised, the relator having the burden of overcoming the prima facie case made by the introduction of the executive warrant for his removal. Ex parte Kaufman, Tex.Cr.App., 323 S.W.2d 48, and cases cited.
No question is here presented as to the appellant being the person named in the Executive Warrant of the Governor of Texas.
To overcome the prima facie case made by the Extradition Warrant and to discharge the burden resting upon him, appellant offered evidence to the effect that he was in Waxahachie, Texas, on March 30, 1959, and in court at Ft. Worth the following morning about 8:30 A.M., Ft. Worth being some 1,200 miles from Canton, Ohio.
To meet this evidence, the respondent offered the testimony of a city detective of the City of Canton, Ohio, who had investigated the case. He testified that two witnesses to the robbery had identified appellant's photograph as that of one of the robbers, and that one Raif, who was in the penitentiary in Oklahoma, had made a written statement that Johnnie Lee Williams was his companion in the robbery.
This testimony appears to be hearsay and without probative value.
The only other evidence offered by the State was the testimony of the officer who arrested appellant on the executive warrant, in July 1959, to the effect that while under arrest, appellant said he had been in Ohio and was with a couple of fellows who had gotten in trouble and he had come back to his home in Texas. The officer testified that he did not know what period of time appellant was referring to.
There was nothing in appellant's statement suggesting a night flight beginning after 9:30 P.M. in Canton, Ohio and terminating before 8:30 A.M. in Ft. Worth.
We need not base our holding upon the fact that appellant's oral statement made while under arrest was admitted over proper objection. If it was admissible, the evidence was insufficient to overcome the evidence offered in appellant's behalf that he was not in Ohio when the robbery was committed and hence was not a fugitive from that state.
The judgment remanding appellant is reversed and he is ordered discharged.
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333 S.W.2d 359 (1960)
Manuel DE LLANO et ux., Petitioners,
v.
Alfredo A. MORAN, Respondent.
No. A-7347.
Supreme Court of Texas.
February 24, 1960.
Rehearing Denied April 6, 1960.
Hall & Hall, Laredo, Bobbitt, Brite & Bobbitt, San Antonio, for petitioners.
Arthur Mitchell, Austin, Richard G. Morales, Laredo, for respondent.
WALKER, Justice.
This is a suit for permanent custody of Sandra Judith Moran, a girl two years of *360 age. Her mother, Inez A. De Llano Moran, was killed in an automobile and freight train collision in the early hours of January 1, 1958. Alfredo A. Moran, the husband of Inez and the father of Sandra, was driving the automobile at the time and was seriously injured in the collision. About six weeks later petitioners, who are Sandra's maternal grandparents, instituted this suit against the father and the paternal grandparents of the minor, seeking a writ of habeas corpus and praying that permanent custody be awarded to petitioners. The father will be referred to herein as respondent. After a hearing the trial court awarded permanent care, custody and control of the child to petitioners. The Court of Civil Appeals reversed and rendered, holding that the findings of fact concerning respondent's fitness do not support the judgment entered and that the trial court abused its discretion in taking the child from the father and awarding its custody to petitioners. 323 S.W.2d 184.
The trial court's conclusions with reference to the father which are denominated findings of fact are largely evidentiary in nature. These are set out in the opinion of the Court of Civil Appeals and will not be repeated here. The so-called conclusions of law are, however, prefaced by the following statement: "The court having found as a fact that the father of Sandra Judith Moran is at this time not qualified to have the custody and control of Sandra Judith Moran * * *." This recital, dealing as it does with one of the ultimate and determinative fact questions in the case, is not to be disregarded simply because it appears in the conclusions of law. See McAshan v. Cavitt, 149 Tex. 147, 229 S.W.2d 1016. In our opinion it is not merely an attempt by the trial judge to state the legal effect of his other findings. Where findings of fact are subject to more than one reasonable construction, they should be given that meaning which will support the action of the court as expressed in the judgment rendered thereon. See Elder, Dempster & Co. v. Weld-Neville Cotton Co., Tex.Com.App., 231 S.W. 102. In the judgment which had previously been entered in this case, the court expressly found that respondent is not a fit person to have the care, custody and control of his child. The above mentioned recital evidently has reference to this finding and in effect confirms and reiterates the same. It must be construed, therefore, as an independent finding that respondent is unfit to have custody of the child, and when so interpreted is clearly sufficient to support the judgment in so far as that question is concerned.
There is no contention that the findings of the trial court are deficient in any other respect, or that petitioners are not suitable persons to care for and rear the child, or that the trial court abused its discretion in not awarding custody to the paternal grandparents. The only remaining question then is whether the conclusion that the respondent is not a suitable person has reasonable support in the evidence. As indicated by the findings of fact quoted in the opinion of the Court of Civil Appeals, respondent was twenty years of age at the time of the marriage and was twenty-two when this proceeding was instituted. He is inclined to be improvident and apparently has never developed a mature sense of his responsibilities either as a husband or a father. Unless there is an increase in his earnings, he will not be able to provide a home for the child. Although his father already supports some eight people on an income of about $500 a month, respondent expects his parents to rear the child for him and contribute to her support. We agree with the Court of Civil Appeals that these circumstances in themselves do not show that respondent is unfit to be entrusted with the custody and care of his daughter, but they are not all of the facts disclosed by this record.
Considering the other evidence which tends to support the ultimate finding mentioned above, it appears that throughout his marriage respondent drank to excess *361 and frequently came home drunk. Although he drove very fast and ran through red traffic lights on at least one occasion when drunk, he thought that he held his liquor well and that he was capable of driving after having had eight or ten bottles of beer. It was after having had a number of mixed drinks and several bottles of beer that he ran into the side of a freight train at a public crossing without ever seeing the train. This was the accident in which his wife lost her life. He often promised to stop drinking but did not keep his promises. Following his marriage, respondent visited the red light district of Nuevo Laredo a number of times. He regards this behavior as natural. He also stayed out late at night without letting his wife know where he was, and on one occasion left her and the child for a period of over two months. There is also evidence from which the trial judge could have concluded that respondent beat his wife because she undertook to answer him in an argument. Several witnesses testified to having seen her with a black eye and bruises on various parts of her body.
The Court of Civil Appeals evidently gave considerable weight to respondent's testimony indicating that there has been a change in his attitude and behavior since the death of his wife. The trial court was not required to believe such evidence, however, because the hearing occurred less than three months after the accident. A person's conduct during so brief a period affords no basis for saying with any assurance that there has been a permanent change in his character and habits. On the other hand, as pointed out in Anderson v. Martin, Tex.Civ.App., 257 S.W.2d 347, 356, (wr. ref. n. r. e.), "an adult person's future conduct may well be measured by his recent deliberate past conduct as it may be related to the same or a similar situation." If respondent continues to behave as he did during the marriage, and the trial court was entitled to conclude from the evidence that he will, it is reasonable to believe that he will not give his daughter the affection, care and guidance that are essential to her physical, mental and moral development or provide for her necessities and comforts of life commensurate with her needs and his ability and means. We hold that the evidence in this record supports the finding mentioned above and that the trial court did not abuse its discretion in awarding custody and control of the child to petitioners.
The judgment of the Court of Civil Appeals is reversed, and the judgment of the trial court is affirmed.
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333 S.W.2d 445 (1960)
BROTHERS DEPARTMENT STORE, INC., et al., Appellants,
v.
AI BERENZWEIG, Appellee.
No. 13572.
Court of Civil Appeals of Texas, San Antonio.
March 3, 1960.
Rehearing Denied March 30, 1960.
Levey & Goldstein, San Antonio, for appellants.
*446 Glosserman, Alter & Wadell, San Antonio, for appellee.
MURRAY, Chief Justice.
This suit was instituted by Al Berenzweig in the District Court of Bexar County, against Brothers Department Store, Inc., Harry Toubin and Hadassah Toubin, seeking to recover upon a series of notes and an alleged written contract. Defendants did not timely answer and judgment was rendered by default in favor of plaintiff against defendants in the sum of $1,845.20, together with interest and costs. A motion to set aside the default judgment was filed within ten days after date of judgment, and was overruled by the trial court. The motion was submitted to the trial court upon the following agreed statement of facts:
I.
This suit was instituted on April 27, 1959.
II.
All three defendants were served with citation on May 4, 1959, in El Campo, Wharton County, Texas, where they all resided, which citations were returnable on June 1, 1959.
III.
Immediately after the citations were served on May 4, 1959, the defendant Harry Toubin took all three citations to the office of their attorney, Adolph M. Andersen, and left them with Mr. Andersen's secretary.
IV.
Thereafter, the defendant Harry Toubin either telephoned his lawyer's office or called there in person about six or more times attempting to contact Mr. Andersen but was unable to do so.
V.
Mr. Toubin testified that Mr. Andersen's secretary told him not to worry about the matter because Mr. Andersen knew what to do and would properly handle the matter for him. This testimony was objected to by plaintiff as being hearsay evidence and the objection was sustained by the Court, to which ruling of the Court defendants excepted.
VI.
On June 5, 1959, the defendant, Harry Toubin, met his attorney, Adolph M. Andersen, on the street in El Campo where they both lived and asked Mr. Andersen about his case. Mr. Andersen promised to call Mr. Toubin as soon as he returned to his office. Mr. Andersen then called Mr. Toubin and told him that he discovered that the suit was filed in Bexar County, Texas, and that he could not conveniently handle the matter and suggested that Mr. Toubin secure a San Antonio attorney to handle the case. He also advised Mr. Toubin that the citations were returnable on June 1, 1959.
VII.
June 6, 1959, was Saturday, the Sabbath observed by Mr. Toubin, on which day he did not work but kept his store open, and he was ill on Monday, June 8. He came to San Antonio by bus on June 9 and consulted his present attorneys on the following day.
VIII.
On June 12, 1959, Levey and Goldstein filed a plea of privilege and an original answer containing a sworn denial of the justness of plaintiff's cause of action.
IX.
A default judgment was rendered on June 5, 1959, in favor of plaintiff against all defendants for the sum of $1,845.20, and defendants' motion for new trial was filed on June 15, 1959.
Defendants in open court offered to waive their plea of privilege so as not to delay the trial of this cause and announced ready on the merits.
*447 The motion to set aside the default judgment having been filed during the term at which the judgment was rendered, and within the time allowed for the filing of motions for new trial, it was addressed to the sound discretion of the court. 25 Tex. Jur. 547, § 151. The action of the trial court in overruling the motion will here be sustained, unless an abuse of discretion is shown. 3 Tex.Jur., 1086, 1087.
It is well settled law in this State that before a default judgment can properly be set aside four things must appear, to-wit:
"(1) The failure to file an answer must not have been intentional or the result of conscious indifference on the part of the defendant.
"(2) It must have been due to a mistake or an accident.
"(3) The motion must set up a meritorious defense.
"(4) The motion must be filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff." Grammar v. Hobby, Tex.Civ.App., 276 S.W.2d 311, 312. See also, Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124.
Here appellants have not shown that the failure to file an answer was due to a mistake or accident, and that they have a meritorious defense to appellee's cause of action.
The agreed statement of facts shows that while the appellants were served with citations on May 4, 1959, requiring that they answer by June 1, 1959, they did not actually contact their lawyer until June 5, 1959, four days after the return day in the citation, and after a default judgment had been rendered. Such statement does show that appellant Harry Toubin took the three citations to the office of their attorney, Adolph M. Andersen, and left them with his secretary. Thereafter Toubin telephoned to Andersen's office about six or more times but was unable to contact him. Toubin offered to prove what Mr. Andersen's secretary told him, but this testimony was excluded as being hearsay. These facts fall far short of showing that the failure to file answers herein were due to an accident or mistake.
When appellants left their citations with the secretary to be delivered to Andersen, they did not thereby employ an attorney. Failure to employ an attorney and make sure that he understands he is to file an answer, unless he expects to represent himself, is ordinarily inexcusable negligence. Grammar v. Hobby, Tex.Civ. App., 276 S.W.2d 311.
The judgment does not show whether the secretary delivered these citations to Andersen, but if she did so in time for answers to have been prepared and filed, then such failure to answer would be due to the negligence of appellants' attorney to file answers, but appellants cannot plead the negligence of their attorney as a justification for their failure to answer. Davis v. Darling, 20 Tex. 803; Hubbard v. Tallal, Tex.Civ.App., 57 S.W.2d 226, reversed and appeal dismissed, Tex.Com.App., 127 Tex. 242, 92 S.W.2d 1022; Patton v. Samuel, Tex.Civ.App., 262 S.W.2d 439; Interstate Minerals v. Schlumberger Well Surveying Corp., Tex., 219 S.W.2d 604; Dempsey v. Gibson, Tex.Civ.App., 100 S.W.2d 430; Combination Fountain Co. v. Rogers, Tex. Civ.App., 186 S.W. 407.
Appellants' motion for a new trial and to set aside the default judgment is not verified, and the only statement contained therein as to appellants having a meritorious defense is as follows:
"Defendants would further show the Court that they have a meritorious defense in that Plaintiff has taken back most of the merchandise that he sold to Defendants and in addition other merchandise which Defendants had *448 purchased from other suppliers, and that upon a proper accounting Defendants are not indebted to Plaintiff in any sum whatsoever."
It will be remembered that the suit is one based upon notes and an agreement. This unverified statement fails to show a meritorious defense to this suit based upon notes and an agreement.
After the default judgment was rendered appellants filed an answer in which they alleged certain defenses to appellee's cause of action. This answer is verified, but even the allegations in this answer are not sufficient to show prima facie a good defense to appellee's cause of action. Appellants' answer is not referred to in any way or made a part of the motion to set aside the default judgment. If it were, there would still be a failure to show a meritorious defense of appellee's cause of action based on notes and a contract. Holliday v. Holliday, 72 Tex. 581, 10 S.W. 690.
The judgment is affirmed.
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