text
stringlengths 1
1.21M
| meta
dict |
|---|---|
55 Ill. App.3d 136 (1977)
370 N.E.2d 639
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JOHNNIE MILLER, Defendant-Appellant.
No. 76-394.
Illinois Appellate Court Third District.
Opinion filed December 12, 1977.
*137 Robert Agostinelli and Verlin R. Meinz, both of State Appellate Defender's Office, of Ottawa, for appellant.
Edward Petka, State's Attorney, of Joliet (James E. Hinterlong, of Illinois State's Attorneys Association, of counsel), for the People.
Judgment affirmed.
Mr. JUSTICE ALLOY delivered the opinion of the court:
Defendant Johnnie Miller appeals from a conviction of the offense of armed violence in the Circuit Court of Will County, pursuant to which he was sentenced to a term of not less than one year nor more than three years. The only issue raised on appeal is whether the court erred in denying the defendant the opportunity to call a police officer, who was not a witness to any of the events involved in the case, but who simply headed an investigation into police conduct at the time of the incident.
In the trial of the defendant on the charge of armed violence, nine witnesses testified concerning events on July 30, 1975. Four witnesses who testified for the State were police officers Snyder, Farago, Silich and Odenthal. The police department in Joliet had received a telephone call advising that defendant Miller, who was named in a felony warrant, could be found at 808 Cardinal Lane in Joliet. The officers went to that address for the purpose of serving the arrest warrant. Each of the officers was armed with a shotgun and when they arrived at the apartment complex at Cardinal Lane, the officers surrounded the building, with officers Snyder and Odenthal, in front, and Farago and Silich in the rear. Officer Snyder saw defendant Miller appear briefly at a front window and shortly thereafter heard Farago shout that Miller was coming out the rear of the building. Snyder ran around to the rear of the building and saw Miller outside the rear of the apartment complex with officers Farago and Silich *138 in pursuit. Snyder identified Miller and shouted that Miller had a gun. The officer heard a number of cracking sounds followed by shotgun blasts. Miller had run out from between the buildings on Cardinal Lane and was running down the street. Defendant fired a shot in Snyder's direction shortly after coming onto Cardinal Lane, the officer testified, and officers Farago and Odenthal fired their shotguns at Miller. Miller disappeared from sight after running down Cardinal Lane and between two buildings and in the course of the chase Snyder testified that he had seen a black or blue gun in defendant's right hand on at least three occasions. No gun was ever found.
Officer Silich, a young officer serving a probationary period at the time, saw defendant coming out of the second story window and also stated that he appeared to have a blue steel revolver tucked in his pants. He stated that Miller was firing his gun when jumping out the window and he thought he heard shots being fired by Miller in the direction of Officer Farago. Silich chased defendant between the two buildings and testified that defendant turned and from a distance of 15 to 20 feet pointed a gun at Silich. The officer immediately fired his shotgun, tripping in the process. Silich thereafter heard a number of shotgun blasts and one more pistol shot.
Five witnesses testified for the defense. These people lived in the neighborhood of the apartment complex from which Miller left. These witnesses all testified that they saw no gun in Miller's hand or his pants.
It appeared also that a woman who was sitting in her home, was hit by fragments from a shotgun blast. The circumstance that this woman was struck by the shotgun blast caused a great deal of friction between the residents of the apartment complex and the police force. This situation came to the attention of the trial court outside of the presence of the jury and an investigation was actually demanded by a black minister in the area as to excessive use of force by the police in the incident.
Defense attempted to call Officer Widlowski, an officer who began an investigation into the shooting of the woman in the apartment complex. The court refused to permit the defendant to call Officer Widlowski on the ground that the evidence was not relevant to the issue before the court which was to determine whether or not defendant had a gun with him at the time of the incident.
While only two of the four police officers specifically put a gun in defendant's hands by their testimony, and while the five witnesses located in the area testified that they did not see such a gun in possession of defendant, the jury apparently believed the police officers and as a result the defendant was found guilty of the crime of armed violence.
On appeal in this court, defendant contends that the court erred by denying defendant the opportunity to call Officer Widlowski since the officer, in detailing an investigation into police conduct on July 30, "would *139 have suggested a motive for the police officers' testifying as they did." Defendant's claim of error is that the court was wrong in finding that defendant sought to go into collateral matters of which he was uncertain where he alleges the purpose of the evidence was to challenge credibility of the witnesses for the State.
1 Before evidence is admissible in court, it must be both relevant and material to the issue to be decided. (People ex rel. Noren v. Dempsey (1957), 10 Ill.2d 288, 139 N.E.2d 780.) Excluded evidence here, so far as the record discloses, was not shown to be relevant. The evidence simply would show that in the course of the incident a person was injured, allegedly by shotgun pellets fired from a shotgun held by a police officer. The defendant wanted to demonstrate that the injuries were caused by pellets discharged from a shotgun rather than by projectiles discharged from a pistol. It was further stated by defense counsel, that he wanted the evidence to show that the scene was not created by the defendant. In response to this, the trial court stated that there was no evidence that defendant caused the scene and that he was charged with assaulting a police officer, and that was the factual issue before the court.
In the trial of the case, defendant did not state he was seeking to introduce evidence solely to impeach the credibility of the police officer. In his argument on the motion for a new trial, defense counsel stated that he wanted the officer to testify as to the condition of one, or another, of the houses between which defendant had fled. Presumably, this was designed to show where the shotgun pellets fired by the officers ended up. The trial court saw no connection with the guilt or innocence of the defendant on the charge of armed violence which could arise from this circumstance alone.
2 It appears that, on appeal, defendant was asking the court to adopt a different theory of admissibility of such evidence than the one which was tendered and argued at trial. This being so, we must adhere to the rule that a party is not permitted to use one theory of admissibility at the trial and argue an entirely different theory on appeal. (People v. Walker (1st Dist. 1974), 22 Ill. App.3d 711, 318 N.E.2d 111; Johnson v. United States (1943), 318 U.S. 189, 87 L.Ed. 704, 63 S.Ct. 549.) It is notable that none of the officers was cross-examined as to his knowledge of any pending investigation into his conduct at the time of the occurrence. The trial court emphasized that the issue was whether defendant in fact had a gun including a determination of whether defendant pointed a gun at officer Silich.
It appears from the record that defendant did not seek at the trial, nor during the hearing on his post-trial motion, to connect up the evidence he sought to introduce, through the use of Officer Widlowski, with the assertion now raised on appeal.
On the basis of the record before the court, therefore, we conclude that *140 the trial judge did not abuse his discretion in refusing to admit uncertain evidence with no apparent connection to the fact issue in this cause (People v. York (1963), 29 Ill.2d 68, 193 N.E.2d 773; People v. Townsel (1st Dist. 1973), 14 Ill. App.3d 105, 302 N.E.2d 213; People v. Bruce (5th Dist. 1975), 32 Ill. App.3d 404, 336 N.E.2d 354).
Upon the basis of the record and for the reasons stated, therefore, the judgment of the Circuit Court of Will County and the sentence imposed therein are affirmed.
Affirmed.
STENGEL, P.J., and SCOTT, J., concur.
| {
"pile_set_name": "FreeLaw"
} |
Case: 13-14020 Date Filed: 02/07/2014 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14020
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cv-00195-GRJ
ALFRED TOWNSEND,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(February 7, 2014)
Before WILSON, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Case: 13-14020 Date Filed: 02/07/2014 Page: 2 of 8
Alfred Townsend appeals the magistrate judge’s order affirming the Social
Security Administration’s denial of disability benefits. On appeal, Townsend
claims (1) that the Administrative Law Judge (ALJ) insufficiently developed the
record to determine whether Townsend could perform his past relevant work by
failing to ask enough questions related to his residual functional capacity (RFC)
and (2) that the ALJ’s failure to sufficiently inquire into Townsend’s physical
limitations was “overtly prejudicial.” After careful review, we reject both claims
and affirm.
Prior to filing for disability benefits, Townsend had been hospitalized
several times in a nearly two year period for a severe injury to his right eye, for
pain and infections in his right foot, and for pain in his back and knee. Multiple
physicians completed RFC evaluations of Townsend, and the physicians’
conclusions varied to some extent. The most favorable portions of each report,
from Townsend’s perspective, indicate that he could at least: frequently lift ten
pounds and occasionally lift twenty pounds; sit and stand for six hours in an eight
hour work day; frequently climb, kneel, crouch, and crawl; and occasionally stoop
and balance. They further found that he had no manipulative, communicative, or
environmental limitations except that he should avoid concentrated exposure to
hazards such as working at significant heights. Finally, the physicians concluded
that he had severely limited vision in his right eye and hypertension and diabetes.
2
Case: 13-14020 Date Filed: 02/07/2014 Page: 3 of 8
At the administrative hearing before the ALJ, Townsend confirmed that he
could lift twenty pounds, but not often. Townsend also stated that his vision was
poor, that he had pain in his mouth stemming from the same incident that injured
his eye, tendinitis in his knee, and chronic back pain. When the ALJ followed up
by asking what treatment he received for this pain, Townsend’s non-attorney
representative who had been questioning Townsend stated: “Your Honor, I’m—
I’m not sure if the—if the Claimant would be able to offer any additional helpful
testimony.” Townsend and his representative stated that he was disabled based on
the loss of vision in his right eye, the above-described physical impairments, and
chronic pain.
At the time of his hearing before the ALJ, Townsend was in his mid-fifties
and had most recently worked at a carwash where he answered the phone and
washed cars. The vocational expert at the hearing classified this job as medium
work, which someone with Townsend’s limitations, as described in multiple RFC
evaluations, could perform. Townsend offered no evidence to contradict the RFC
evaluations performed by the physicians but merely claimed that he was disabled
based on the limitations described above. Faced with conflicting conclusions
about Townsend’s ability to perform past relevant work, the ALJ found the
physicians’ RFC evaluations to be more credible than Townsend’s self-assessment.
In particular, the ALJ placed significant weight on: (1) objective medical evidence
3
Case: 13-14020 Date Filed: 02/07/2014 Page: 4 of 8
that Townsend was able to perform medium work; (2) physicians’ reports of
callousing on Townsend’s extremities, which were inconsistent with the
disabilities he alleged but consistent with the ability to perform medium work; and
(3) Townsend’s poor work history, which weakened his credibility.
Ultimately, the ALJ concluded that although Townsend suffered from
several severe impairments, his RFC permitted him to perform medium work,
including his past relevant work at the carwash. In any event, Townsend had
certainly not met his burden of proving the contrary. Accordingly, the ALJ denied
benefits. Townsend challenges this finding because the ALJ did not ask enough
questions about Townsend’s impairments to fully and fairly develop the record.
Specifically, Townsend complains that the ALJ only asked about his ability to lift
but not his ability to sit, stand, or walk—all of which would be necessary to
perform his previous work. This, Townsend claims, was overtly prejudicial.
We have held that the ALJ has the “duty to develop the record fully and
fairly.” Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999) (per curiam).
Claimants have a statutory right to counsel at hearings before an ALJ, and where
the right has not been waived, the ALJ’s “obligation to develop a full and fair
record rises to a special duty.” Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.
1997) (per curiam). But even in cases involving this special duty, “a showing of
prejudice must be made before we will find that a hearing violated claimant’s
4
Case: 13-14020 Date Filed: 02/07/2014 Page: 5 of 8
rights of due process and requires a remand to the Secretary for reconsideration.”
Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985) (per curiam).
Prejudice “at least requires a showing that the ALJ did not have all of the
relevant evidence before him in the record (which would include relevant
testimony from claimant), or that the ALJ did not consider all of the evidence in
the record in reaching his decision.” Id. at 1540. In determining whether sufficient
prejudice exists to warrant remand, “[t]he court should be guided by whether the
record reveals evidentiary gaps which result in unfairness or ‘clear prejudice.’”
Graham, 129 F.3d at 1423.
In Brown v. Shalala, we found prejudice based on the ALJ’s failure to obtain
records which were the subject of testimony, to acquire a report which he stated he
would review, and to question an available witness when the claimant herself was
unable to explain how her disabilities prevented her from working. 44 F.3d 931,
935–36 (11th Cir. 1995) (per curiam). By contrast, in Kelley, we held that no
prejudice resulted when there was no suggestion that the record was incomplete or
inadequate and claimant’s assertion that he would have benefitted from a more
extensive hearing was speculative. 761 F.2d at 1540–41. Similarly, in Graham,
“the record as a whole [was] neither incomplete nor inadequate. Instead, the
record was sufficient for the ALJ to evaluate Graham’s impairments and functional
ability, and [did] not show the kind of gaps in the evidence necessary to
5
Case: 13-14020 Date Filed: 02/07/2014 Page: 6 of 8
demonstrate prejudice.” 129 F.3d at 1423. The ALJ extensively questioned
Graham, Graham was able to offer helpful explanations, the ALJ thoroughly
examined Graham’s medical history, and the ALJ’s opinion thoroughly compared
symptoms and limitations with functional requirements for previous work. Id.
Here, Townsend has not demonstrated that the record is insufficient. In
Wilson, the record, “which included the opinions of several physicians . . . , was
sufficient for a decision and additional expert testimony was unnecessary.” 179
F.3d 1276, 1278. The record here also includes the opinions of several physicians,
and in Wilson, we found that even additional expert testimony was unnecessary.
Townsend claims the ALJ should have questioned him further. But if additional
expert testimony is unnecessary in the face of multiple physicians’ opinions,
additional lay testimony from a witness the ALJ has already concluded lacks
credibility would be even less necessary.
Even if we assume the record was insufficient, however, Townsend has not
shown prejudice from the ALJ’s decision not to ask Townsend about his ability to
sit, stand, and walk. To the extent that Townsend is basing his “overt prejudice”
claim on Graham, which recognized that extensive questioning undermines a claim
of prejudice, Townsend misunderstands that case. In Graham, the ALJ found
questioning to be helpful, as claimant was able to provide useful information.
Here, by contrast, Townsend presumably would have asserted a more limited
6
Case: 13-14020 Date Filed: 02/07/2014 Page: 7 of 8
ability to work than the physicians’ RFC reports—though he does not even assert
this point on appeal. But the ALJ clearly found Townsend’s bare assertions of his
disability to be less credible than multiple physicians’ reports. Therefore, to the
extent questioning was less extensive than in Graham, it was brief because it
would not have been helpful or credible, and even now, Townsend has not
suggested what more the ALJ might have learned from further questioning. In
fact, Townsend’s representative stated that he had no further helpful testimony.
Not only was further testimony from Townsend unlikely to help his cause,
but unlike in Brown, there is no suggestion that other available witnesses would
have helped Townsend’s case. In fact, the opposite is true, as the physicians would
have provided evidence undermining Townsend’s claim, had they been called to
testify. It was unnecessary to call them because their reports were available to the
ALJ. Therefore, the ALJ had all the relevant evidence before him such that there
were no evidentiary gaps when he made his decision. And while the ALJ did not
extensively question Townsend, Townsend had nothing else to offer. Just as in
Graham and Kelley, we find no prejudice here because the ALJ reviewed the
relevant medical information and prepared a thorough opinion explaining how
Townsend could perform his past relevant work despite his symptoms.
In short, the record was sufficiently developed, and even if it was not, no
prejudice resulted from any deficiencies that may have existed.
7
Case: 13-14020 Date Filed: 02/07/2014 Page: 8 of 8
AFFIRMED.
8
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 21, 2004
Charles R. Fulbruge III
Clerk
No. 03-40559
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REYNALDO HINOJOSA-AGUIRRE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1700-1
--------------------
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Reynaldo Hinojosa-Aguirre appeals his guilty plea conviction
for possession with intent to distribute 3,4-Methylenedioxy
Methamphetmine. Hinojosa-Aguirre argues that 21 U.S.C. § 841(a)
and (b) were rendered facially unconstitutional by Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000). Hinojosa-Aguirre concedes
that his argument is foreclosed by our opinion in United States
v. Slaughter, 238 F.3d 580, 581-82 (5th Cir. 2000), which
rejected a broad Apprendi-based attack on the constitutionality
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 03-40559
-2-
of that statute. He raises the issue only to preserve it for
Supreme Court review. A panel of this court cannot overrule a
prior panel’s decision in the absence of an intervening contrary
or superseding decision by this court sitting en banc or by the
United States Supreme Court. Burge v. Parish of St. Tammany, 187
F.3d 452, 466 (5th Cir. 1999). No such decision overruling
Slaughter exists. Accordingly, Hinojosa-Aguirre’s argument is
foreclosed.
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 200
September Term, 2016
RENE MITCHELL
v.
KEITH YACKO, et al.
Nazarian,
Leahy,
Friedman,
JJ.
Opinion by Leahy, J.
Filed: May 31, 2017
The unscrupulous mortgage transaction in this case unfolded when Rene Mitchell
(“Appellant”) sought a fixed rate loan for the purchase of a residential property and
executed a sales contract specifying the same. At the closing a month later, Ms. Mitchell,
to her surprise, realized that the loan documents she had just executed were actually for an
adjustable rate mortgage. She halted the closing, had the word “VOID” stamped on all
executed documents, and informed the lender of the error and requested acknowledgment
of cancellation in writing. Several days and notices later, the lender sent Ms. Mitchell a
notice stating that her loan had been modified to a fixed rate loan at 6.2% interest. Ms.
Mitchell was apparently satisfied with this and made payments on the loan for nearly eight
years after moving into the residence. No new loan documents were executed.
Ms. Mitchell defaulted in January 2013, and in August 2015, substitute trustees for
the current loan servicer, Keith M. Yacko, Robert E. Frazier, Thomas J. Gartner, Jason L.
Hamlin, Glen H. Tschirgi, and Gene Jung (“Appellees” or “Substitute Trustees”), filed an
order to docket a foreclosure in the Circuit Court for Prince George’s County. Ms. Mitchell
filed a motion to stay the sale and dismiss the action, arguing, inter alia, that the order to
docket did not contain copies of a valid and enforceable note or deed of trust. After her
motion was denied without a hearing, Ms. Mitchell appealed.
A close examination of the documents in the record reveals that on July 14, 2005—
three days after Ms. Mitchell terminated the closing—the adjustable rate deed of trust was
filed in the land records for Prince George’s County with the “VOID” marks excised. This
document, devoid of all “VOID” marks, was attached as an exhibit to the 2015 order to
docket filed 10 years later. Also, appearing for the first time was a copy of the Adjustable
1
Rate Note that Ms. Mitchell signed at the closing, with the “VOID” stamps removed. In
place of the “VOID” stamps, both documents donned new stamps reading simply
“REDACTED.”
Ms. Mitchell raises four questions in her appeal, but the first is dispositive: “Did the
Circuit Court err in failing to dismiss the foreclosure action because the Note and Deed of
Trust in the Order to Docket are not valid and enforceable?” 1 We hold that a foreclosure
proceeding cannot be instituted upon forged documents. The aforementioned
documents—clearly false and materially altered to look genuine—suggest forgery, 2 and
equitable relief is not available to a party with unclean hands. Ms. Mitchell’s Rule 14-211
motion to stay the sale and dismiss the action stated a facially valid defense to the
foreclosure. As such, the circuit court erred in denying the motion without a hearing. We
vacate the court’s order and remand for a hearing.
1
The other questions Ms. Mitchell presents are as follows:
2. “Did the Circuit Court err in failing to dismiss the foreclosure action
because the certification that the Note was true and accurate and owned
by the foreclosing party was invalid?”
3. “Did the Circuit Court err in failing to dismiss the foreclosure action
because the endorsement in blank of the Note was invalid?”
4. “Did the Circuit Court err in failing to dismiss the foreclosure action
because service of the Order to Docket was never properly effected?”
2
A forgery is “[a] false or altered document made to look genuine by someone
with the intent to deceive.” Black’s Law Dictionary 766 (10th ed. 2014).
2
BACKGROUND
A. Closing the Closing
In June 2005, Rene Mitchell decided to purchase residential property located at 9003
Harness Way in the City of Bowie, Maryland (“the Property”) from Maria and Harold J.
Moxley. On June 8, 2005, Ms. Mitchell signed a sales contract, listing the purchase price
at $555,900.00.
Ms. Mitchell desired to finance the purchase with a fixed rate 30-year mortgage
from Fremont Investment and Loan (“Fremont”). 3 According to an affidavit she filed in
the underlying foreclosure action, Ms. Mitchell and Fremont had agreed to a conventional
fixed rate loan, as documented by the terms of the sales contract. However, at the closing
on July 11, 2005, Ms. Mitchell noticed, contrary to her expectations and much to her
surprise, that the promissory note contained an adjustable interest rate and the deed of trust
contained an adjustable rate rider.
Ms. Mitchell then informed her realtor and the settlement agents of the error,
requested that the closing be terminated, and refused to sign any further documents. She
also requested the return of all documents that she had signed up to that point. E. 34.
3
The sales contract lists a first loan of $444,720.00, and a second loan valued at
$111,180.00—both secured by deeds of trust. The sales contract states that both deeds of
trust to purchase the Property will have fixed rates. The settlement statement Ms. Mitchell
signed at the closing lists a first mortgage with a 6.2% fixed interest rate and a second
mortgage with a 9.125% interest rate. At oral argument before this Court, Ms. Mitchell’s
counsel said that the second deed of trust was executed, but that it has never been enforced.
The record does not contain a copy of a second deed of trust or note. All references
in this opinion to the “deed of trust” or “note” refer to the first deed of trust and note which
are at issue in this case.
3
Although the settlement agents, Barbara Licon and Philip Sardelis, agreed to terminate the
closing, they told Ms. Mitchell that they had to keep the documents and shred them.
Consequently, Ms. Mitchell requested that they stamp a “VOID” mark on each page of
each document that she signed. Ms. Licon complied. Ms. Mitchell also wrote a note on
the adjustable rate note which read: “I requested this copy of Voided documents with
Barbara Licon signature of Void [sic]. My Realtor is present to witness. We are to come
back tomorrow to execute corrected documents. I have requested Fremont provide me a
letter acknowledging cancellation of this debt loan, Deed + promissory note. RM[.]”
Ms. Mitchell followed-up on the same day with the following letter to Fremont:
I am requesting that you immediately cancel my loan and return all
monies due back to me based on the Loan Documents, executed by Sandler
Title & Escrow, LLC on behalf of Fremont Investment & Loan, not reflecting
my sales contract[.]
Upon my review of the signed loan documents prepared by Barbara
Licon from Sandler Title & Escrow, LLC . . . [t]he loan package was not
explained very well and was rushed. I saw many errors in the loan package
mid way through the closing and stopped the closing. Ms. Licon stated that
they would correct the documents and I must immediately contact Fremont
Investment & Loan directly and cancel the original loan documents, which
she kept in her possession, claiming she would have to shred. I kept the blank
documents and requested her to draw a void line across each one. None of
the second copy documents have my signature and I am very uncomfortable
with leaving the original documents for her to shred but she states this is a
normal procedure. My realtor Paula Haynes was a witness to this
conversation between Ms. Licon and me as was the notary Mr. Phillip
Sardelis who also signed the documents as we went through them. Both can
also verify that I requested the documents to this loan be destroyed.
. . . The loan terms are:
1st Mortgage 30 year conventional firm fixed at an interest rate of
6.200%
2nd Mortgage 30 year conventional firm fixed at an interest rate of
9.125%
Please advise me on what the next course of action is to provide new
accurate loan documents for review and signatures.
4
Again, this is my official notice to cancel the original Adjustable Rate
loan documents that I did not agree to purchase and were not accurate based
on the attached documents for the property at 9003 Harness Way, Bowie[.]
Fremont responded by letter on July 12, 2005, acknowledging receipt of Ms.
Mitchell’s request to cancel her loan. Fremont agreed to cancel the loan “transaction,” and
indicated there was a “new transaction” that was adjusted to provide the “proper loan
requirements.” 4
On the same day, Fremont issued two notices to Ms. Mitchell. The first affirmed
that, “[a]s of the date of this Notice, the principal loan balance that is owed to Fremont
Investment & Loan for 444,728.00 AT 8.6770% ANNUAL PERCENTAGE RATE AS
REFLECTED ON THE FEDERAL TRUTH-IN-LENDING DISCLOSURE
4
The text of this letter read in pertinent part:
After review of your loan and our acknowledgement of:
ERRORS AND OMISSIONS IN PROCESSING YOUR LOANS,
REVIEW OF YOUR SALES CONTRACT, FIRST COMMUNITY
MORTGAGE UNIFORM RESIDENTIAL LOAN APPLICATION, HUD-1
AND YOUR INTENTION TO OBTAIN A CONVENTIONAL 30 YEAR
FIXED RATE LOAN.
WE HAVE CANCELLED THIS TRANSACTION, THE
MORTGAGE, LIEN OF SECURITY INTEREST IS ALSO CANCELLED
AND WE HAVE ADJUSTED THE NEW TRANSACTION TO REFLECT
THE PROPER LOAN REQUIREMENTS.
Within 20 calendar days we must take the steps necessary to reflect
that fact that the mortgage/lien/security interest on your home has been
cancelled. You may keep any money or property we have given you until
we have done the things we mentioned above, but you must then offer to
return the money or property. If it is impractical or unfair for you to return
the property, you must offer its reasonable value. You may offer to return
the property at your home or at the location of the property. Money must be
returned at the address below. If we do not take possession of the money or
property within 20 calendar days of your offer, you ma[]y keep it without
further obligation.
5
STATEMENT IS CANCELLED AS OF THE ABOVE REFERENCED DATE.”
(Emphasis in original).
The second notice stated that Ms. Mitchell’s loan would henceforth be a
conventional fixed rate loan, and provided that:
As of the date of this Notice, the principal loan balance that is owed
to Fremont Investment & Loan for 444,728.00 AT 6.200% 360 MONTHS
CONVENTIONAL FIXED RATE FULLY AMORTIZING LOAN.
In addition, we would like to advise you that you have thirty (30) days
after receipt of this Notice to dispute the validity of the above debt, or any
portion thereof. If you do not do so, the debt will be assumed to be valid. If
you canceled notify us in writing within this thirty (30) day period that you
dispute the debt, or any portion thereof, we will obtain and mail to you
verification of the debt.
Furthermore, you have thirty (30) days after the receipt of this Notice
to request the name and address of the original creditor, if different from the
current creditor. Upon receipt of a written request from you within the thirty
(30) day period, we will provide you with the name and address of your
original creditor.
(Emphasis in original).
No new loan documents were executed. On July 15, 2005, Fremont returned the
cancelled documents—the deed of trust and note, bearing the “VOID” marks and Ms.
Mitchell’s handwritten note—to Ms. Mitchell. Significantly, the first pages of the deed
and note sent to Ms. Mitchell contain stamps reading “CANCELLED AND SATISFIED
IN FULL without recourse” followed by a signature line dated July 15, 2005. Although it
takes some deciphering, the signature line on the stamp reads “Fremont Investment &
Loan, Lizbeth Stokes, Vice President.”
B. Foreclosure Proceedings
Ms. Mitchell lived at the Property and made consistent payments for almost eight
6
years. On January 1, 2013, Ms. Mitchell first failed to make a payment on the loan and
continued to miss installment payments each month thereafter, according to the affidavit
of default and indebtedness executed by an agent for the loan servicing company. 5
On October 10, 2014, the Substitute Trustees, acting for U.S. Bank, sent a notice of
intent to foreclose to Ms. Mitchell. Then, on August 24, 2015, the Substitute Trustees filed
an order to docket foreclosure in the Circuit Court for Prince George’s County.
As required by Maryland Rule 14-207, the order to docket foreclosure contained
copies of a note and deed of trust as exhibits revealing that 10 years earlier a deed of trust
was filed in the land records for Prince George’s County on July 14, 2005—just three days
after the terminated closing. 6 These documents were apparently doctored, because they do
5
On December 1, 2005, Fremont transferred the servicing of the loan to HomeEq
Servicing Corporation (“HomeEq”). In 2008, Fremont filed for bankruptcy, and it sold
some of its assets to CapitalSource. On September 1, 2010, HomeEq transferred the loan’s
servicing rights to Ocwen Loan Servicing, LLC (“Ocwen”), and Ocwen became the loan’s
servicing agent. On June 3, 2013, Mortgage Electronic Registration Systems (“MERS”),
as nominee for Fremont, assigned the deed of trust to a securitized trust in which U.S. Bank
National Association (“U.S. Bank”) served as Trustee under a Pooling and Servicing
Agreement as of November 1, 2005 (“Mastr Asset-Backed Securities Trust 2005-FRE1
Mortgage Pass-Through Certificates, Series 2005-FRE1”).
The record is equivocal as to whether any loan servicer actually charged an interest
rate higher than 6.2% (and Ms. Mitchell does not contend that any entity did, either in her
circuit court motions or in her brief before this court). What is clear is that the current
servicing agent, Ocwen, sent Ms. Mitchell a letter on June 24, 2015, describing the loan as
an “Adjustable-Rate Mortgage” and stating that the interest rate could be changed every
six months. Thus, in 2015, Ocwen treated the loan as if it had an adjustable rate.
Apparently, something was lost in translation between what Fremont had agreed to in its
letters to Ms. Mitchell and the multiple servicers and noteholders along the way.
6
The deed of trust was attached an exhibit to the order to docket and bears a stamp
indicating that it was filed in the land records of Prince George’s County on July 14, 2005.
Given that “[a] deed of trust is a security device” that “secures repayment of the loan[,]”
Springhill Lake Investors LP v. Prince George’s Cnty., 114 Md. App. 420, 428 (1997), the
7
not bear the “VOID” marks. Instead, the copy of the deed of trust filed with the order to
docket bears the marking “REDACTED” on each page, and contains an adjustable rate
rider. Similarly, each page of the adjustable rate note bears the marking “REDACTED.”
The note does not contain the “VOID” marks, Ms. Mitchell’s handwritten note, or the
lender’s cancellation mark. 7
As further required by Maryland Rule 14-207, the order to docket contains an
affidavit, executed by the servicing agent, stating that the note is a “true and accurate
copy.” 8 Another affidavit, this one executed by Robert E. Frazier, affirms, in pertinent
part, “[t]hat [] attached hereto is a true and accurate copy of the Deed of Trust that is the
lender typically files the deed of trust in the land records to protect its security interest.
There is, however, no information in the record on appeal verifying who filed the deed of
trust in this case in 2005.
7
For comparison, this opinion contains an appendix with the first pages of (1) the
original note and deed of trust that Ms. Mitchell executed bearing the “VOID” stamps,
handwritten note and cancellation stamp, and (2) the “REDACTED” note and deed of trust
filed with the order to docket. These documents raise numerous questions, including:
Who filed the deed of trust in the land records on July 14, 2005?
Because Fremont sent Ms. Mitchell a note and deed of trust with the
“Cancelled and satisfied and full” stamp and “VOID” marks the day after the
deed of trust was filed in the land records, why doesn’t the copy of the deed
of trust sent to Ms. Mitchell show the stamp indicating that the same
document had been filed in the land records?
Were the “REDACTED” marks placed on the deed of trust when it was filed
in the land records in 2005, or were they were added to the document when
the order to docket was filed in 2015?
8
This affidavit also states that U.S. Bank is the owner of the note and that Ocwen
is the servicer for US Bank.
8
lien instrument subject to this foreclosure action. If applicable, any personal and/or private
information has been redacted as noted on the document.” The Substitute Trustees also
filed an affidavit of default and indebtedness, stating that, as of June 25, 2015, Ms. Mitchell
owed $478,879.94.
On September 25, 2015, before the Substitute Trustees filed the final loss mitigation
affidavit, Ms. Mitchell filed, under Maryland Rule 14-211, a “Motion to Dismiss for
Improper Service and Motion to Stay Sale and Dismiss Action for Failure to State a Claim.”
In her pro se motion, she argued that she was not served properly and that the action should,
as a result, be dismissed. On the merits she argued that: (1) the order to docket did not
provide a copy of a valid and enforceable note or deed of trust because the note and deed
of trust were voided; (2) the Substitute Trustees and U.S. Bank had failed to plead that they
owned or held the note and deed of trust; and (3) the note was non-negotiable and the
indorsement was invalid.
On November 6, 2015, the Substitute Trustees filed an opposition, arguing that Ms.
Mitchell was served properly. In addition, the Substitute Trustees contended that the note
and deed of trust were valid and had not been cancelled, but that only the loan’s interest
rate had been adjusted, and that this was consistent with the fact that Ms. Mitchell never
returned the proceeds of the loan and made consistent payments for almost eight years.
The Substitute Trustees further maintained that they included an affidavit certifying
ownership and proper indorsement of the note in their order to docket foreclosure and that
the note was negotiable.
On February 11, 2016, the circuit court, without a hearing, entered an order denying
9
Ms. Mitchell’s motion to stay the sale and dismiss the action. On March 14, 2016, Ms.
Mitchell timely noted an appeal to this Court.
DISCUSSION
I.
The Voided Note and Deed
Before this Court, Ms. Mitchell argues that the note was voided before the closing
was completed, and that she cancelled the transaction properly, as acknowledged by
Fremont in their cancellation notices. She contends that the note and deed of trust included
in the order to docket are fraudulent because someone had removed the “VOID” marks and
other information.
The Substitute Trustees respond by claiming that Ms. Mitchell and Fremont
modified the interest rate, and that they did not cancel the loan. They observe that Ms.
Mitchell’s actions in keeping the loan proceeds and making consistent payments on the
note as if it were a fixed rate loan for almost eight years are inconsistent with the
cancellation of the note and deed of trust. Indeed, they point out that Ms. Mitchell moved
into the house and made payments to the bank without demanding a new note or deed of
trust—a beguiling argument, until we examine the evidence and see that it is beside the
point.
We open our analysis with Maryland Rule 14-207, which addresses the pleadings
and exhibits that must be filed to commence a foreclosure, and Rule 14-211, which
addresses a borrower’s ability to file a motion to stay a foreclosure sale. Maryland Rule
14-207 (a) provides that “[a]n action to foreclose a lien pursuant to a power of sale shall be
10
commenced by filing an order to docket.” Maryland Rule 14-207(a)(1). Then, subsection
(b) specifies which exhibits must be filed with the order to docket. Relevant to the present
case, an order to docket must “include or be accompanied by:”
(1) a copy of the lien instrument supported by an affidavit that it is a
true and accurate copy, or, in an action to foreclose a statutory lien, a copy
of a notice of the existence of the lien supported by an affidavit that it is a
true and accurate copy;
(2) an affidavit by the secured party, the plaintiff, or the agent or attorney of
either that the plaintiff has the right to foreclose and a statement of the debt
remaining due and payable;
(3) a copy of any separate note or other debt instrument supported by
an affidavit that it is a true and accurate copy and certifying ownership of
the debt instrument;
(4) a copy of any assignment of the lien instrument for purposes of
foreclosure or deed of appointment of a substitute trustee supported by an
affidavit that it is a true and accurate copy of the assignment or deed of
appointment.
Md. Rule 14-207(b) (emphasis added). The law is clear then, that in order to commence a
foreclosure action pursuant to a power of sale, as in the present case, one must file an order
to docket a foreclosure accompanied by copies of the lien instrument (the deed of trust)
and the debt instrument (the note), supported by affidavits stating that they are “true and
accurate cop[ies.]” 9
Before we turn to Maryland Rule 14-211, we consider Wells Fargo Home
Mortgage, Inc. v. Neal, 398 Md. 705 (2007), a foreclosure case that guides our analysis.
In that case, Wells Fargo, the mortgagee by assignment, instituted foreclosure proceedings
9
A provision in the Real Property Article governing foreclosure procedures also
requires that a copy of the debt instrument and a certified copy of the note instrument must
be filed with the order to docket. Maryland Code (1974, 2015 Repl. Vol.), Real Property
Article (“RP”), § 7-105.1.
11
against Neal, the homeowner, after Neal fell behind on his mortgage payments. 398 Md.
at 711-12. Neal then filed a complaint against Wells Fargo, instituting a new action and
alleging that Wells Fargo breached the terms of the underlying deed of trust by not
participating in pre-foreclosure loss mitigation prescribed by the Department of Housing
and Urban Development. Id. at 712. His complaint argued that Wells Fargo’s failure to
engage in loss mitigation was a breach of contract that would entitle him to money
damages, and requested declaratory and injunctive relief preventing Wells Fargo from
foreclosing on the property. Id. at 712-13 & n.4. The circuit court granted summary
judgment to Wells Fargo after a hearing. Id. at 713.
The Court of Appeals held, first, that Neal could not advance, as an affirmative
claim, a breach of contract claim based on Wells Fargo’s alleged violation of the HUD
regulations mentioned in the deed of trust. Id. at 711. Nonetheless, the Court also held
that Neal could raise a violation of the HUD regulations as a defense in a motion to stay
the sale and dismiss the foreclosure. Id.
The Court’s reasoning is applicable to the present case. The Court observed that a
foreclosure involving a power of sale—as we have in the present case—is “‘intended to be
a summary in rem proceeding’ which carries out “‘the policy of Maryland law to expedite
mortgage foreclosures.’” Id. at 726 (quoting G.E. Capital Mortg. Servs., Inc. v. Levenson,
338 Md. 227, 245 (1995)). Nonetheless, the Court stated that former Maryland Rule 14-
204, governing the commencement of foreclosure actions, 10 did not “prohibit mortgagors
10
In 2007, the year of the Neal case, former Maryland Rule 14-204 governed both
commencement of a foreclosure action and the pleadings and exhibits that must be filed in
12
from raising viable defenses to a foreclosure to which the mortgagee is not entitled.” Id.
(citing Bachrach v. Washington United Coop., 181 Md. 315, 319 (1943)). The Court then
stated that a mortgagor could combat a foreclosure in three ways: a pre-sale injunction, a
post-sale exception, and an exception to the auditor’s statement of account. Id.
Importantly, the Court then specified that Maryland’s foreclosure procedure was
“equitable in nature.” Id. at 728 (citations omitted). Therefore, the Court explained that
the venerated equity doctrine of clean hands which requires that “he
who comes into equity must come with clean hands,” Hlista v. Altevogt,
239 Md. 43, 48, 210 A.2d 153, 156 (1965), is applicable in foreclosure
proceedings such as the one implicated in the present case.
The clean hands doctrine states that “courts of equity will not lend
their aid to anyone seeking their active interposition, who has been guilty
of fraudulent, illegal, or inequitable conduct in the matter with relation
to which he seeks assistance.” Hlista, 239 Md. at 48, 210 A.2d at 156; see
also Hicks v. Gilbert, 135 Md. App. 394, 400, 762 A.2d 986, 989–90 (2000).
The doctrine does not mandate that those seeking equitable relief must have
exhibited unblemished conduct in every transaction to which they have ever
been a party, but rather that the particular matter for which a litigant
seeks equitable relief must not be marred by any fraudulent, illegal, or
inequitable conduct. Hlista, 239 Md. at 48, 210 A.2d at 156; Hicks, 135
Md. App. at 400–01, 762 A.2d at 990 (“There must be a nexus between the
misconduct and the transaction, because ‘[w]hat is material is not that the
plaintiff’s hands are dirty, but that he dirties them in acquiring the right he
now asserts.’”) (quoting Adams v. Manown, 328 Md. 463, 476, 615 A.2d 611,
617 (1992)).
Id. at 729-30 (emphasis added). Thus, in order to seek relief through foreclosure, the matter
order to institute a foreclosure action. See Maryland Rule 14-204 (2007 Repl. Vol.). In
2009, Maryland Rule 14-204 was divided into two Rules: Rule 14-204 and Rule 14-207.
Former Rule 14-204 continued to govern the institution of an action, i.e., the appropriate
persons who may institute a foreclosure, whereas Rule 14-207 governed the required
pleadings and exhibits that one must file to institute a foreclosure action, e.g., the order to
docket and copies of the note and deed of trust. See Maryland Rules 14-204 and 14-207
(2010 Repl. Vol.). The two Rules retain this structure today. See Maryland Rules 14-204
and 14-207.
13
“must not be marred by any fraudulent, illegal, or inequitable conduct.” Id. at 730.
As the Neal opinion observed, a party may combat a foreclosure before the sale by
filing what is currently called a motion to stay the sale and dismiss the action (what the
Neal Court called a “pre-sale injunction”).
Now we turn to Maryland Rule 14-211, which governs motions to stay and dismiss
and which begins by defining who may file:
(a) Motion to Stay and Dismiss.
(1) Who May File. The borrower, a record owner, a party to the lien
instrument, a person who claims under the borrower a right to or
interest in the property that is subordinate to the lien being foreclosed,
or a person who claims an equitable interest in the property may file
in the action a motion to stay the sale of the property and dismiss the
foreclosure action.
After stating the timing requirements for filing the motion, Maryland Rule 14-211(a) lists
the substantive requirements of the motion:
(3) Contents. A motion to stay and dismiss shall:
(A) be under oath or supported by affidavit;
(B) state with particularity the factual and legal basis of each
defense that the moving party has to the validity of the lien or
the lien instrument or to the right of the plaintiff to foreclose in
the pending action;
(C) be accompanied by any supporting documents or other
material in the possession or control of the moving party and
any request for the discovery of any specific supporting
documents in the possession or control of the plaintiff or the
secured party;
(D) state whether there are any collateral actions involving the
property and, to the extent known, the nature of each action,
the name of the court in which it is pending, and the caption
and docket number of the case;
(E) state the date the moving party was served or, if not served,
when and how the moving party first became aware of the
action; and
(F) if the motion was not filed within the time set forth in
14
subsection (a)(2) of this Rule, state with particularity the
reasons why the motion was not filed timely.
Subsection (b) of the Rule then states that the circuit court may deny the motion without a
hearing if the motion (1) was not timely filed and there is no good cause for this lack of
compliance; (2) does not substantially comply with the Rule’s requirements; or (3) does
not state a valid defense on its face. If the motion fulfills these three requirements,
however, the Rule goes on to say that the court must hold a hearing on the motion.
Maryland Rule 14-211(b)(2). See also Fishman v. Murphy ex rel. Estate of Urban, 433
Md. 534, 543 n.5 (2013). Subsections (c) and (d) of the Rule address stays of sales pending
hearings and scheduling orders, respectively. Finally, subsection (e), governing the court’s
final determination on the motion, provides:
(e) Final Determination. After the hearing on the merits, if the court finds
that the moving party has established that the lien or the lien instrument is
invalid or that the plaintiff has no right to foreclose in the pending action, it
shall grant the motion and, unless it finds good cause to the contrary, dismiss
the foreclosure action. If the court finds otherwise, it shall deny the motion.
In Buckingham v. Fisher, 223 Md. App. 82 (2015), this Court analyzed the proper
pleading standard for stating a facially valid defense under Rule 14-211, and whether a
hearing on the merits is required to make a determination on the motion once a defense is
properly pleaded. In that case, as in the instant case, the appellants filed a Rule 14-211
motion to stay or dismiss a foreclosure action filed against them. Id. at 85-86. The
appellants there raised two defenses: one challenging the validity of the lien based on
forgery and the other challenging the right of the trustees to foreclose based on defects in
the notice of sale. Id. at 88.
15
Judge Friedman, writing for this Court, explained that “[i]t is clear from this
provision[, Rule 14-211(a)(3),] that the factual and legal bases of a defense must be stated
‘with particularity’ and that any available supporting documents or material must be
provided.” Id. at 89. And, we recognized that a “[f]ailure to state a facially valid defense
is one of the three grounds for denial at the initial determination phase[,]” but that,
nonetheless, “Section 14-211(b)(2) [] requires that the court hold an evidentiary hearing on
the merits if none of the three grounds for denial provided in subsection (b)(1) are present.”
Id. at 90.
The Court further stated that forgery is a valid defense under Rule 14-211, and set
out the three elements of forgery as a defense under Rule 14-211: “‘[1] a false making or
material alteration, [2] with intent to defraud, [3] of any writing which, if genuine, might
apparently be of legal efficacy or the foundation of a legal liability.’” Id. at 93 (quoting
Harding v. Ja Laur Corp., 20 Md. App. 209, 212 (1974)).
Returning to the present case, we first recognize that the denial of a motion to stay
a foreclosure sale and dismiss the action under Maryland Rule 14-211 “lies generally
within the sound discretion of the trial court.” Anderson v. Burson, 424 Md. 232, 243
(2011) (citing Wincopia Farm, LP v. Goozman, 188 Md. App. 519, 528 (2009)). Although
we generally review the circuit court’s denial of Ms. Mitchell’s Rule 14-211 motion for an
abuse of discretion, Svrcek v. Rosenberg, 203 Md. App. 705, 720 (2012), “[w]e review the
trial court’s legal conclusions de novo.” Id. (citing Wincopia Farm, 188 Md. App. at 528).
Further, we review the circuit court’s decision to deny Ms. Mitchell’s motion without a
hearing for legal correctness. Buckingham, 223 Md. App. at 92-93.
16
We hold that a party cannot institute a foreclosure upon forged documents.
Foreclosure is an equitable procedure, and the Substitute Trustees must demonstrate, upon
remand, that this particular foreclosure has not “be[en] marred by [] fraudulent, illegal, or
inequitable conduct.” 11 Neal, 398 Md. at 730.
When Ms. Mitchell discovered at the July 11, 2005 closing that the deed of trust and
the note contained an adjustable rate, she terminated the closing and had “VOID” stamped
on the documents. The record contains no other deed of trust or note executed by the
parties, nor is there any evidence that a valid deed or note exists. Nonetheless, the order to
docket foreclosure was filed with copies of a deed of trust and note—materially altered to
look genuine—accompanied by an affidavit stating that they are each “[a] true and accurate
copy[.]” But a “true and accurate copy” of the deed of trust would have had “VOID”
displayed on each page, and the note that Ms. Mitchell signed would have contained her
notations indicating that it had been voided along with the cancellation stamp signed by
Fremont’s representative.
Ms. Mitchell’s pro se Rule 14-211 motion sufficiently pleaded her defense. Her
motion stated:
Attached to the Plaintiff’s Order to Docket is what is alleged to be
a “Redacted” copy of the canceled Adjustable Rate Promissory Note and
Deed of Trust. However, the alleged “Redacted” copy of the canceled
11
We note that the facts of this case begin in 2005 and that there have been several
different secured parties, trustees, and substitute trustees—as well as counsel representing
these entities—along the way. We cannot tell from this record just who knew what and
when, or what person committed a potentially fraudulent act. It is, however, pellucid that
the materially altered deed of trust should not have been filed in the land records for Prince
George’s County, nor should the materially altered note and deed of trust have been passed
off as “true and accurate copies” in the order to docket foreclosure.
17
Adjustable Rate Promissory Note and Deed of Trust are exactly the
same as the cancelled Adjustable Rate Promissory Note and Deed of
Trust returned by the lender Fremont to the Defendant with the
exception of the missing signed “Cancellation and Satisfaction in Full”
stamp placed by the lender Fremont and the “Void” stamps and initials
placed by the settlement agent Barbara Licon and the Defendant.
At no time has the lender Fremont presented to the Defendant the
opportunity to execute any new documents constituting the new
Conventional Fixed Rate 30-year Note and Deed of Trust as agreed. The
Defendant has stood ready to execute such documents but none have been
issued. Further the defendant has taken numerous steps to resolve the issues
with the note and security instrument including making consistent payments
but was frustrated at every turn by an ever changing cast of characters
and entities each fraudulently attempting to assert rights that they did
not possess or could not prove with any certainty they had the right to assert.
(Emphasis added; citations omitted). Ms. Mitchell further stated that the order to docket
did not contain true and accurate copies of the note and deed of trust because those
documents had been voided. Ms. Mitchell supported her allegations with exhibits,
attaching the deed of trust and note with “VOID” marks and the deed of trust and note
without the “VOID” marks (filed with the order to docket) to her motion. Construing this
pleading liberally, 12 we determine that Ms. Mitchell has pleaded with particularity the
elements of forgery and that her motion, “states on its face a valid defense to the validity
of the lien instrument[.]” See Maryland Rule 14-211(b). In this case, Ms. Mitchell in her
motion not only asserted that the lender and its successors “fraudulently attempt[ed] to
assert rights that they did not possess,” but she also attached the materially altered
documents that demonstrate “the fraudulent making of a false writing having apparent legal
significance.” Smith v. State, 7 Md. App. 457, 460 (1969). We conclude, therefore, that
12
We observe that “we generally liberally construe pleadings filed by pro se
litigants[.]” Simms v. Shearin, 221 Md. App. 460, 480 (2015).
18
the circuit court erred in denying Ms. Mitchell’s motion to stay the sale and dismiss the
foreclosure action without a hearing. 13
JUDGMENT VACATED;
CASE REMANDED TO THE
CIRCUIT COURT FOR
PRINCE GEORGE’S COUNTY
FOR PROCEEDINGS
CONSISTENT WITH THIS
OPINION.
COSTS TO BE PAID BY
APPELLEES.
13
We do not fault the circuit court because the significance of the alterations in the
documents is not immediately obvious. Only when the documents are placed next to each
other and compared can one observe how the material alterations unfold like a Magic Eye
stereogram.
19
| {
"pile_set_name": "FreeLaw"
} |
834 F.2d 416
ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Plaintiff-Appellant,v.BRANCH BANK AND TRUST COMPANY, Defendant-Appellee.
No. 86-3627.
United States Court of Appeals,Fourth Circuit.
Argued March 5, 1987.Decided Dec. 9, 1987.
Roger Arlin Milam (Milam & Strain, Nashville, Tenn., George W. Miller, Jr.; Haywood, Denny, Miller, Johnson, Sessoms & Haywood, Durham, N.C., on brief) for plaintiff-appellant.
Arch T. Allen, III (William D. Dannelly; Moore & Van Allen, Raleigh, N.C., on brief), for defendant-appellee.
Before WIDENER and HALL, Circuit Judges, and KISER, United States District Judge for the Western District of Virginia, sitting by designation.
K.K. HALL, Circuit Judge:
1
St. Paul Fire and Marine Insurance Company ("St. Paul") appeals from the district court's order granting the defendant's motion for summary judgment in this diversity action. We affirm.
I.
2
In April of 1982, St. Paul, an insurance company incorporated in Minnesota, issued a Banker's Blanket Bond insuring Branch Banking and Trust Company ("BB & T"), a bank incorporated in North Carolina. Pursuant to insuring clause (A) of that contract, St. Paul agreed to indemnify BB & T for any "[l]oss resulting directly from dishonest or fraudulent acts of an Employee committed alone or in collusion with others."
3
Ten years before the parties entered into this contract, one of BB & T's employees, Thomas O. Riley, launched a scheme to defraud BB & T. The scheme continued from 1972 to the end of 1984. As part of his scheme, Riley issued loans to fictitious persons and deposited the loan proceeds into checking accounts established under corresponding fictitious names. When one of the loans matured, Riley either renewed the loan or created another fictitious loan and applied part of the proceeds to pay principal and interest on the mature loan.
4
In 1984, several of the loans reached high dollar figures, prompting BB & T to request additional credit information from the borrowers. Riley failed to furnish the necessary information and on December 12, 1984, admitted his guilt to the Federal Bureau of Investigation. At the time of his confession, twelve of Riley's fraudulent loans were outstanding. The total principal due on these loans was $781,500.
5
BB & T filed a proof of loss with St. Paul, claiming a loss of $750,131.60.1 St. Paul concluded that $534,206.64 of the proceeds from the outstanding loans had been paid to BB & T by Riley as interest due on earlier loans, and relying on Exclusion (t) of the insurance contract, paid BB & T only $215,924.96. Exclusion (t), commonly known as a potential income exclusion, prohibited recovery of "potential income, including but not limited to interest and dividends, not realized by the Insured."
6
St. Paul filed suit in the district court seeking a declaratory judgment that the contract's potential income exclusion prevented BB & T from recovering the remaining $534,206.64 from the plaintiff. Both parties filed motions for summary judgment. On August 27, 1986, the district court granted summary judgment for BB & T, awarding it $383,950.53, the difference between the $534,206.64 claimed due and the sum of $150,256.11 which Riley had paid as restitution. 643 F.Supp. 648. This appeal followed.
II.
7
On appeal, St. Paul contends that the district court committed reversible error in holding that the potential income provision did not bar recovery in this action. According to St. Paul, BB & T is not entitled to recover the entire principal outstanding on the loans because a portion of the principal from later loans had been used by Riley to pay interest due on earlier fraudulent loans. Because the potential income exclusion prohibits recovery of interest "not realized," St. Paul insists that BB & T cannot recover for this portion of the principal on outstanding loans. St. Paul maintains that these interest payments are "not realized," because they were derived from new loan proceeds and therefore cannot constitute a net gain for BB & T. We disagree.
8
This issue is one of first impression in this Circuit. Only one case has squarely addressed the question. That case, Bank of Huntingdon v. Smothers, 626 S.W.2d 267 (Tenn.App.1981), involved a bank employee who engaged in a scheme almost identical to the one involved in the instant case and an insurance company which, as here, refused to pay the bank the entire principal outstanding on the loans on the ground that the contract's potential income exclusion prevented recovery for any portion of the outstanding principal which had been used to make interest payments. The Huntingdon court rejected the argument, reasoning that the payments at issue were not interest to the bank:
9
[w]hen those funds reenter the bank as payment of an old note, even though such payments may represent an interest payment on the old note, it reenters the bank's general fund and loses any interest character it may have had at the time of payment.... [I]t should be clear that money advanced ... for whatever purpose from the general funds of the bank cannot be considered as "potential income."
10
We are persuaded by the Tennessee appellate court's holding. However, even if we were inclined to believe that the principal outstanding constituted interest, it could not be construed as unrealized interest within the meaning of the potential income exclusion. Both the testimony of the defendant's accounting expert2 and common sense support the conclusion that payments that have already been received by BB & T have been realized by them.
11
We also find no merit in St. Paul's argument that the Huntingdon decision is inequitable and that the district court's judgment in this case unfairly permits BB & T to recover profits. The contract at issue here was entered into by consenting, sophisticated business entities and was drafted by St. Paul. It is undisputed that had BB & T not made the loans to Riley, it would have allocated the funds to honest borrowers who would have repaid the principal with interest. Moreover, BB & T has lost more than the $215,924.96 voluntarily paid by St. Paul, because it was required to pay income tax on the interest payments and was unable to recover $50,000 of the outstanding principal due to the policy's $50,000 deductible. In addition, as Judge Kiser, one of the panel members, noted from the bench at oral argument, interest payments cannot be categorized solely as profit, because the real interest rate is only 3% while the remaining interest charged represents inflation, not profits.
12
Nor can we accept appellant's argument that the district court decision inequitably permits the same recovery for insurees whose contract includes a potential income exclusion as for those whose contract does not contain such a provision. Although the district court held that BB & T was entitled to a recovery for principal that had been used to make interest payments, it also held that the provision did exclude the recovery of interest which had accrued but had not yet been paid. In the instant case, that sum amounted to $21,317.78, which cannot be considered an insignificant amount. Clearly, the recovery allowed under a policy with a potential income exclusion is not identical to the recovery possible under a policy without such an exclusion.
III.
13
In conclusion, we find no error in the district court's award of summary judgment to BB & T. For the foregoing reasons, we accordingly affirm.
14
AFFIRMED.
WIDENER, Circuit Judge, concurring:
15
I concur in the result.
16
I do so because the defalcation of Riley amounted to a dishonest conversion of the bank's funds when he placed the false notes in the bank. My reasoning is thus akin to that of the Tennessee court in Smothers. The fact that the money from the notes was used to pay other false notes at the same bank should be only coincidental. Had Riley previously obtained funds on false notes to other banks and paid the other banks with BB & T's funds, there would be no doubt of liability on the bond. Thus, I would not find it necessary to, nor hold, as does the majority, that the exclusion does not apply because the interest was realized rather than not realized.
17
I also do not agree with that part of the opinion at the end of page 5 which relies upon an economic theory that "interest payments cannot be categorized solely as profit because the real interest rate is only 3 per cent while the remaining interest charged represents inflation, not profits."
18
There are two reasons not to rely on this theory. The first is that the man who pays interest at a bank is simply disinterested in economic theories. He pays the bank at the rate of 10 per cent per annum, for example, and the fact that an economist would say he is only paying 3 per cent because of inflation is an economic theory he will find difficult to grasp, as do I. After all, a bank calculates its profits on the 10 per cent charged, not the 3 per cent theoretical level.
19
The second reason is that we allow recovery on embezzled funds used to pay interest which has never been as low as 3 per cent per annum from the beginning of this scheme in 1972 until its termination in 1984. Without referring back to public sources of data, I suggest that the prime rate during this period has varied from not less than about 5 per cent to about 20 per cent. If we are going to base our opinion on a 3 per cent "real interest rate", then I suggest that not limiting the bank's recovery to the lower rate deserves explanation.
1
Although $781,500 was outstanding on Riley's loans when his scheme was discovered, BB & T claimed a loss of only $750,131.60. That sum was calculated by subtracting from its claimed loss a $50,000 deductible and $829.30 in funds recovered from the fraudulent checking accounts and adding $19,460.90 in research expenses
2
Harold Q. Langenderger, professor of accounting at the University of North Carolina at Chapel Hill opined that generally accepted accounting principles required BB & T to report the interest payments as income pursuant to the accrual basis of accounting and that the interest payments, although later determined to have been made from the proceeds of fraudulent loans, nevertheless represented realized income to BB & T
| {
"pile_set_name": "FreeLaw"
} |
IN THE COURT OF APPEALS OF IOWA
No. 16-1609
Filed December 21, 2016
IN THE INTEREST OF T.M.,
Minor child,
E.H., Mother,
Appellant,
M.M., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Charles D.
Fagan, District Associate Judge.
A mother and a father separately appeal termination of their parental
rights to their child. AFFIRMED ON BOTH APPEALS.
Roberta J. Megel, State Public Defender, Council Bluffs, for appellant
mother.
Scott D. Strait, Council Bluffs, for appellant father.
Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant
Attorney General, for appellee State.
Phil Caniglia, Council Bluffs, guardian ad litem for minor child.
Considered by Danilson, C.J., and Doyle and McDonald, JJ.
2
DOYLE, Judge.
The mother and the father separately appeal the termination of their
parental rights to their child, T.M. They claim the State failed to prove the
statutory grounds for termination, and termination is not in the child’s best
interests because of their bonds with the child.
We review termination-of-parental-rights proceedings de novo. See In re
A.M., 843 N.W.2d 100, 110 (Iowa 2014). The three-step statutory framework
governing the termination of parental rights is well established and need not be
repeated here. See In re P.L., 778 N.W.2d 33, 40-41 (Iowa 2010).
The child was born in 2012. The family came to the attention of the Iowa
Department of Human Services (DHS) in May 2015 after the DHS received a
report indicating that the father was using methamphetamine while caring for the
child, and both parents were reported to be homeless. The child was removed
from the parents’ custody and placed with the paternal grandparents, where the
child has resided ever since.
By the time of the September 2016 termination-of-parental-rights hearing,
the parents were living in an efficiency apartment and the mother was employed
at a McDonald’s restaurant. In its order terminating parental rights, the juvenile
court found:
The family has been ordered to do various services, and the
parents have not complied with the services offered. The [child in
need of assistance (CINA)] case for this child has proceeded for an
extended period of time considering [the child’s] young age with
little improvement towards reunification between the child and the
family. The child has been out of the parents’ care for sixteen of
the last twenty-two months. [Since birth, the child] has waited for
the parents to engage in services. This child needs and deserves
permanency . . . .
3
At the time of the termination-of-parental-rights hearing the
father . . . argues to the court that the efficiency apartment that they
have is adequate and the child can be returned to the home. The
apartment, which had a bed bug infestation, now has little if any
furniture and no beds. The family repeatedly indicated they would
be moving into a large residence but have not done so, which they
now blame as a failure by the DHS. [The father] also blames the
DHS for his failure to follow through with his drug screens,
substance abuse and mental health evaluations. [The father] failed
to complete any drug testing, not even offering a reason why he
failed to give the requested sample. He denies drug use but
continually fails to sign releases or provide the court any proof to
take this issue off the table. He is unemployed and would be
homeless but for the job [the mother] has managed to hold during
their involvement with the court and the DHS. [The father] refuses
to discuss any issues regarding his incarceration for a probation
violation or any other topic that he deems is irrelevant.
[The mother] also argues to the court that the efficiency
apartment that they have is adequate and the child can be returned
to the home. [The mother] has failed to complete any drug testing.
She flat out states that she does not have a drug problem and has
made a decision not to provide any drug screens or follow through
with any recommendations of her substance abuse evaluation.
She started therapy but was discharged for lack of compliance. If
she is not using she still fails to recognize the danger [the father]
presents when allowed to care for this child as it is almost certain
that he is still an active user. She has not followed through with the
recommendations of her psychological evaluation arguing they
were suggestions only and that she could choose to do them or not.
She does all of this knowing that to provide even a modicum of
proof and compliance would likely have resulted in the DHS and the
court continuing the efforts towards reunification with her.
Both parents have missed over half of the visits scheduled
with their child and the visits they made often ended early. [The
mother] initially said [the father] was using drugs and then later
recanted. [The mother] admitted to domestic violence and
controlling behavior by [the father] and again recanted. If [the
father] did any evaluations he refused to sign any releases and
then blamed the DHS for not having them. Time and time again
[the father] has been caught in lie after lie to the court and the DHS.
Both parents have attempted to obfuscate, delay and run out
the clock on this case in the irrational belief or hope that they would
gain custody of [the child] by default. The court offered services to
both parents during the entirety of the CINA case. Both parents
have failed to participate in services to correct the conditions which
led to the removal of the child and have been outright indifferent to
the court and DHS recommendations.
4
[The DHS] offered, or the court ordered, the following
services to assist the family with reunification: chemical
dependency evaluations and treatment, random drug screens,
mental health evaluations and treatment, psychological evaluations,
family, safety, risk and permanency services, relative care, family
team meetings, visitations, and social work/case management.
The parents have had sixteen months since the child was
removed to establish themselves as trustworthy, stable, and
capable of caring for their child. They have failed to do so, despite
the repeated offer and receipt of many services. There is no reason
to keep the child from having a secure, adoptive relationship with
parents who are able to meet these minimum requirements.
To return the child to the parents’ custody would subject [the
child] to adjudicatory harms of abuse or neglect. The same
problems that precipitated the child’s removal from the parents’
care—untreated chemical dependency, untreated mental health
problems, lack of appropriate housing and employment, minimal
compliance, criminal activity, incarceration, and lack of verification
or commitment—exist after over sixteen months of services. The
parents have shown that they are not prepared to care for their
child. There was no evidence that giving them additional time to
address their problems would be fruitful in the near future. There is
no bond between this child and the parents that would warrant the
court allowing for more time to reunify.
Reasonable, but unsuccessful, efforts were made to reunify
the child with the parents. The child cannot be returned to either
parent as of today’s hearing nor in the foreseeable future.
The court terminated the mother’s and the father’s parental rights pursuant
to Iowa Code section 232.116(1)(e), (f), (i), and (l) (2015), and concluded
termination of parental rights was in the best interest of the child. When the
juvenile court terminates parental rights on more than one ground, we may affirm
the order on any ground we find supported by clear and convincing evidence in
the record. See In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). We choose to
address the ground for termination under section 232.116(1)(f).
To terminate parental rights under section 232.116(1)(f), the State must
show the child is four years of age or older, has been adjudicated a CINA, has
been removed from the home for a requisite period of time, and the juvenile court
5
could not return the child to the parent’s custody at the present time pursuant to
section 232.102. See Iowa Code § 232.116(1)(f). T.M. is of the requisite age,
has been adjudicated CINA, and has been removed from the parents’ home for
at least twelve of the last eighteen months. At issue is whether the State
presented clear and convincing evidence T.M. could not be returned to the
parents’ care pursuant to section 232.102. See id. § 232.116(1)(f)(4).
We agree with the juvenile court that the father’s unresolved substance-
abuse issues place the child at risk for the adjudicatory harms of abuse or
neglect. The record contains clear and convincing evidence that T.M. cannot be
safely returned to the father’s care at the present time. Throughout this case, the
mother has chosen to maintain her relationship with the father, and they were
living together at the time of the termination hearing. She believed the father
could care for the child while she was working. She has put her own interests
ahead of the safety of the child. We agree with the juvenile court’s finding that if
the mother is not using illicit drugs, “she still fails to recognize the danger [the
father] presents when allowed to care for this child as it is most certain that he is
still an active user.” The record contains clear and convincing evidence that T.M.
cannot be safely returned to the mother’s care at the present time.
The parents also argue that termination is not in the best interests of the
child due to the bond between the child and the parents. While the record
discloses a bond between the child and the parents, the record indicates
termination is in the child’s best interests. The child is in need of a permanent
placement and parents who can provide for the child’s health, safety, and welfare
6
as the child grows to adulthood. These parents have not demonstrated an ability
to provide that.
The father argues the State failed to provide sufficient evidence necessary
to establish the DHS provided reasonable reunification efforts. See id.
§ 232.102(7) (stating the DHS “shall make every reasonable effort to return the
child to the child’s home as quickly as possible consistent with the best interests
of the child.”). The father did not preserve error for appeal on this issue. When a
parent alleging inadequate services fails to demand services other than those
provided, the issue of whether services were adequate is not preserved for
review. See In re C.H., 652 N.W.2d 144, 148 (Iowa 2002). He made no demand
for services prior to the termination of parental rights hearing. Furthermore,
when a parent alleges inadequate services, the parent should specify which
services should have been provided and what effect receipt of those services
would have had on the proceedings. Cf. Dunbar v. State, 515 N.W.2d 12, 15
(Iowa 1994) (noting a defendant claiming ineffective assistance of counsel must
state specific ways in which counsel’s performance was inadequate and identify
how competent representation probably would have changed the outcome). The
father has not specified which services should have been provided. His
argument is too general to address. Cf. id. (finding claim of ineffective assistance
of counsel too general to address where defendant did not explain how
competent representation would have changed the result). In any event, a
plethora of services were offered to the father. He simply chose to not participate
in such services. We reject his argument.
7
The father also argues the juvenile court erroneously admitted “numerous”
exhibits, but he does not specify which exhibits he refers to. The father’s
attorney had no objection to the juvenile court taking judicial notice of the CINA
court file,1 but claimed “numerous” objections were made to the exhibits
contained in that file, and he renewed those objections at the termination of
parental rights hearing. As to the CINA exhibits, the father’s claim is barred by
res judicata. See In re J.D.B., 584 N.W.2d 577, 582 (Iowa Ct. App. 1998). The
father also objected to two of the State’s exhibits offered at the termination of
parental rights hearing: exhibit 2, a list of offered/attended visits, and exhibit 3, an
August 26, 2016 DHS report to the court. The father objected on hearsay,
foundation, and reliability grounds. Reports and other writings by the DHS are
admissible in termination-of-parental-rights proceedings, notwithstanding hearsay
contained within them. See In re N.N., 692 N.W.2d 51, 54 (Iowa Ct. App. 2004).
We conclude the court did not abuse its discretion in admitting the exhibits.
After reviewing all the evidence, we agree with the juvenile court that the
State proved by clear and convincing evidence that grounds for termination exist
under section 232.116(1)(f) and termination of the parents’ parental rights is in
the child’s best interests. Accordingly, we affirm the juvenile court’s order
terminating both the mother’s and the father’s parental rights.
AFFIRMED ON BOTH APPEALS.
1
The juvenile court is authorized to judicially notice the pleadings and exhibits from
previous CINA proceedings. See In re T.C., 492 N.W.2d 425, 429 (Iowa 1992).
| {
"pile_set_name": "FreeLaw"
} |
20 Cal.App.3d 1085 (1971)
98 Cal. Rptr. 161
THE PEOPLE, Petitioner,
v.
THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; RICHARD DUNBAR ACOSTA, Real Party in Interest.
Docket No. 30142.
Court of Appeals of California, First District, Division One.
November 9, 1971.
*1087 COUNSEL
Evelle J. Younger, Attorney General, Robert R. Granucci and Michael Buzzell, Deputy Attorneys General, for Petitioner.
No appearance for Respondent.
John F. Marshall for Real Party in Interest.
OPINION
ELKINGTON, J.
We issued an alternative writ of mandate to inquire into the Fourth Amendment reasonableness of police conduct which led to the discovery of restricted dangerous drugs, and a consequent charge against Richard Acosta of transportation of such drugs. (Health & Saf. Code, § 11912.) The superior court in Penal Code section 1538.5 proceedings had suppressed the subject drugs as evidence.
While his car was stopped at a traffic light at 1:45 a.m., a police officer observed the front seat passenger of a following vehicle pick up what appeared to be a beer can, drink from it, and then put the can out of view. A few moments later the police car's red light was activated, causing the other automobile to stop. The purpose was to see if there was an open container, or drinking, of an alcoholic beverage in violation of Vehicle Code section 23121 or section 23122.[1] The driver of each vehicle left his car. Asked by the police officer what his passenger was drinking the driver said that it was an "orange drink." The officer testified. "He said that he would like to show me. He walked back to the vehicle, opened the left front door and said, `Officer, come here, look for yourself.' At that point I did approach the left front door that was open. I looked inside and observed the person in the right front seat, which was Padgett, holding a Fanta brand name orange can in his left hand; and also on the seat next to his left leg was what appeared to be a six-inch .38 revolver."[2]
*1088 Obviously considering the probability that the gun was loaded the officer "backed up, and pulled [his] service revolver [and] advised [his] partner, Officer Lansdowne, that there was a gun in the car. [They] ordered the occupants to get out." An examination of the weapon disclosed four live rounds in its cylinder. The car's occupants, three in number including defendant Richard Acosta who was seated on the rear seat, were arrested. On the rear seat the officers observed another loaded revolver. A search disclosed a loaded sawed-off shotgun under the rear seat's left arm rest and 49 white scored tablets. From the officer's training and experience he assumed the tablets to be, as they were in fact, amphetamine, a restricted dangerous drug. These tablets were the subject of the action below against Acosta. At the Penal Code section 1538.5 hearing below the superior court ruled that they were the product of a search and seizure that was void under the Fourth Amendment.
(1a) The issue before the lower court was whether the police had a right to stop the car and question the front seat passenger, or at least obtain a closer look at the container that had been in his hands. The court found constitutional fault in the detention, concluding that in taking possession of the guns and contraband drugs the police had seized forbidden "fruit of the poisonous tree."
(2a) In the superior court, and here, Acosta has relied heavily on certain language of Irwin v. Superior Court, 1 Cal.3d 423, 427 [82 Cal. Rptr. 484, 362 P.2d 12] "Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful. ..."[3] (Italics added.)
We note initially that four cases are cited by Irwin as support for this proposition: People v. Moore, 69 Cal.2d 674 [72 Cal. Rptr. 800, 446 P.2d 800]; People v. One 1960 Cadillac Coupe, 62 Cal.2d 92 [41 Cal. Rptr. 290, 396 P.2d 706]; People v. Escollias, 264 Cal. App.2d 16 [70 Cal. Rptr. 65]; and People v. Hunt, 250 Cal. App.2d 311 [58 Cal. Rptr. 385]. From our examination of this authority we find no such support.
*1089 (1b) Acosta's argument seems to be that in his case, from the officer's observation and knowledge, it was just as likely that he was drinking from a soft drink container, as from a beer can. It follows, he argues, that under Irwin's announced rule the police were prohibited from making any further inquiry.
(2b) If the statement of Irwin is to be literally construed, Acosta's argument must be accepted. Its narrow language can only mean that to justify any police detention the facts apparent to the officer, weighed against the probability of innocence, must preponderantly suggest criminal activity of the suspect. But such a construction would bring a novel concept into otherwise settled rules relating to permissible police detention. It would equate the right to so detain with reasonable or probable cause for an arrest for if the apparent facts must preponderantly tend to establish criminal activity then certainly they would "`lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime....'" (People v. Terry, 2 Cal.3d 362, 393 [85 Cal. Rptr. 409, 466 P.2d 961].) Indeed, the quantum of evidence required for police detention would also sustain a verdict of guilt, for a preponderance of evidence of criminal activity by an accused must be deemed "substantial evidence" on appellate review. (See People v. Mosher, 1 Cal.3d 379, 395 [82 Cal. Rptr. 379, 461 P.2d 659].)
So construed, the language of Irwin is in deep conflict with settled authority, both state and national.
Perhaps the best known illustration is the leading case of Terry v. Ohio, 392 U.S. 1, 8 [20 L.Ed.2d 889, 898, 88 S.Ct. 1868]. In that case a police officer without pretense of probable cause for an arrest reasonably believed "that the [three] defendants were conducting themselves suspiciously [in the vicinity of a store] and some interrogation should be made of their action...." The officer decided to detain them for questioning. In doing so he "grabbed" one of the men, "spun him around," and made a productive weapons search, after which the men were arrested. From an examination of the facts of that case, in any reasonable view it must be concluded that the conduct of the detained men was not more consistent with criminal, than with innocent, activity.
Recognizing the "governmental interests" underlying the "recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest" the court found the officer to be exercising a "legitimate investigative *1090 function" in his decision to detain and question Terry and his companions. (P. 22 [20 L.Ed.2d at pp. 906-907]; italics added.) The court then held (p. 30 [20 L.Ed.2d at p. 911]): "[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot...." he is to be permitted reasonably to detain and question the suspect. (Italics added.)
It will be noted that certain words taken from Terry have been emphasized by us. That court was careful to permit reasonable detention and investigation in the case of "possibly criminal behavior" and where the officer reasonably concludes that "criminal activity may be afoot." Nowhere does the court suggest that such detention is allowed only where the probability of criminal behavior outweighs the probability of innocence.
In People v. Mickelson, 59 Cal.2d 448, 452 [30 Cal. Rptr. 18, 38 P.2d 658], California's leading case on the subject, a robbery by "a fairly tall white man of large build with dark hair who was wearing a red sweater" was reported to police. About 20 minutes later an officer saw an automobile about six blocks from and traveling toward the robbery scene. One of its occupants appeared to be a "large white man with dark hair wearing a red sweater or jacket." (P. 453.) Although probable cause for arrest was clearly nonexistent, since obviously there "could have been more than one tall white man with dark hair wearing a red sweater abroad at night in such a metropolitan area" the court held, "It was not unreasonable for the officer to stop [the] car for investigation...." (P. 454.) Here the chances that the "tall white man" was engaged in criminal activity were slight, as compared with the probability of innocence, yet a reasonable police detention was held proper.
Some recent decisions of the Court of Appeal of this state approving police detention of an automobile under suspicious circumstances, but where beyond any doubt the apparent probability of innocence outweighed that of guilt follow: People v. Nickles, 9 Cal. App.3d 986 [88 Cal. Rptr. 763]; Anderson v. Superior Court, 9 Cal. App.3d 851 [88 Cal. Rptr. 617]; People v. Anthony, 7 Cal. App.3d 751 [86 Cal. Rptr. 767]; People v. Diamond, 2 Cal. App.3d 860 [83 Cal. Rptr. 11]; People v. Turner, 2 Cal. App.3d 632 [82 Cal. Rptr. 763]; People v. Adam, 1 Cal. App.3d 486 [81 Cal. Rptr. 738]; Jackson v. Superior Court, 274 Cal. App.2d 656 [79 Cal. Rptr. 502]; People v. Stephenson, 268 Cal. App.2d 908 [74 Cal. Rptr. 504]; People v. Singletary, 268 Cal. App.2d 41 [78 Cal. Rptr. 855]; People v. Heard, 266 Cal. App.2d 747 [72 Cal. Rptr. 374]; People v. Irvin, 264 Cal. App.2d 747 [70 Cal. Rptr. 892].
*1091 But for the language of Irwin (1 Cal.3d 423) upon which Acosta relies and the cases which have adopted, or at least quoted, that language, we have been unable to find authority holding that where one engages in equivocal conduct which is subject to inferences of lawful or criminal activity, the Fourth Amendment bans otherwise reasonable investigative detention by police officers.
We think the true rule is stated elsewhere in Irwin where the court says (at p. 427): "[A] detention based on `mere hunch' is unlawful ... even though the officer may have acted in good faith.... `There must be a "rational" suspicion by the peace officer that some activity out of the ordinary is or has taken place ... some indication to connect the person under suspicion with the unusual activity ... [and] some suggestion that the activity is related to crime.'" (See also People v. Henze, 253 Cal. App.2d 986, 988 [61 Cal. Rptr. 545].)
This latter rule comports with the pronouncement of Terry v. Ohio, supra, 392 U.S. 1, People v. Mickelson, supra, 59 Cal.2d 448, and the great bulk of authority on the subject in this state and nation. We believe it to be the intent of the Irwin court that inconsistent language, if any, found in its opinion should be disregarded.
(1c) We now apply this latter rule to the case before us. The officer observed Padgett, a passenger in a motor vehicle, drinking from what appeared to be a beer can. While the container could have been a soft drink can, there was nevertheless a credible "rational suspicion" that it was not; there was an obvious "suggestion" that the conduct was in violation of the Vehicle Code. The officer accordingly had a right (we think a duty) to investigate further by stopping and temporarily detaining Acosta's car. The detention being constitutionally permissible, it did not taint the evidence uncovered as a result of the following rapidly unfolding events. The People's application for mandate must therefore be granted.
We have considered the several cases relied upon by Acosta. Unlike the case before us, they concern factual situations supporting the courts' conclusions that the questioned police detentions rested on no rational suspicion or suggestion of criminal activity, but instead on mere "hunch" and "speculation."
Let the peremptory writ of mandate issue.
Molinari, P.J., and Sims, J., concurred.
NOTES
[1] Vehicle Code section 23121 provides: "No person shall drink any alcoholic beverage in any motor vehicle when such vehicle is upon any highway...."
Vehicle Code section 23122 provides: "No person shall have in his possession on his person, while in a motor vehicle upon a highway, any bottle, can, or other receptacle, containing any alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed."
[2] Penal Code section 12031, as relevant, provides: "(a) Except as provided in subdivision (b) [here inapplicable], every person who carries a loaded firearm on his person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory is guilty of a misdemeanor....
"(c) In order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on his person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory...."
[3] This observation has been cited in Remmers v. Superior Court, 2 Cal.3d 659, 664 [87 Cal. Rptr. 202, 470 P.2d 11]; Stern v. Superior Court, 18 Cal. App.3d 26, 29-30 [95 Cal. Rptr. 541]; Flores v. Superior Court, 17 Cal. App.3d 219, 222 [94 Cal. Rptr. 496]; Pendergraft v. Superior Court, 15 Cal. App.3d 237, 241 [93 Cal. Rptr. 155]; People v. Garcia, 7 Cal. App.3d 314, 319 [86 Cal. Rptr. 628]; People v. McLean, 6 Cal. App.3d 300, 305 [85 Cal. Rptr. 683].
| {
"pile_set_name": "FreeLaw"
} |
782 F.2d 633
FIRST AMERICAN NATIONAL BANK-EASTERN, Trustee, Plaintiff-Appellee,v.FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant-Appellant,Joseph C. Snyder, Jr., Executor of the Estate of BeulahSnyder Rose, Defendant-Appellee.
Nos. 84-6123, 85-5060.
United States Court of Appeals,Sixth Circuit.
Argued Nov. 4, 1985.Decided Feb. 4, 1986.
E. Reynold Davies, Jr., Nashville, Tenn., and Myers N. Fisher, argued, Asst. Gen. Counsel, F.D.I.C., Washington, D.C., for defendant-appellant.
J. Thomas Jones, argued, Bernstein, Susano & Stair, Knoxville, Tenn., for defendant-appellee.
Walter L. Price, argued, Johnson City, Tenn., for plaintiff-appellee.
Before LIVELY, Chief Judge, and MARTIN and JONES, Circuit Judges.
LIVELY, Circuit Judge.
1
The question for decision is whether a bank that has issued subordinated debentures may create priority for the debenture holders over depositors and other creditors of the bank by establishing a sinking fund to provide for redemption of the debentures. Construing a Tennessee statute which authorizes banks to raise capital by issuing capital notes and debentures, the district court held that the debenture holders, rather than the depositors and general creditors of the now-insolvent issuing bank, were entitled to the assets constituting the sinking fund. We conclude that the district court erred in its construction of the statute, and reverse.
I.
A.
2
At a meeting on January 14, 1969 the shareholders of First Peoples Bank of Washington County, Tennessee (First Peoples or the bank) authorized the bank to issue $700,000 in convertible debentures maturing not more than 15 years after the date of issue. The shareholder who made the motion explained that debentures were "the best method of raising the operating capital of the Bank." The debenture holders were to be given the option at maturity to receive either cash or stock in the bank at $50 per share. The board of directors of First Peoples formally authorized the debenture issue on April 8, 1969 in a resolution which contained the following provisions:
3
BE IT FURTHER RESOLVED: That following the sale of the debentures there shall be accumulated in a "Sinking Fund" on deposit in the First Peoples Bank in the name of the President as Trustee for the debenture-holders, and to be deposited without interest, the sum of $46,666.67 per annum, which sum when accumulated to the amount of $700,000.00 or any portion that is accumulated at the time of payment of the debentures, shall be issued to pay off such debentures as may demand cash at the maturity of the notes or when the notes are called.
4
BE IT FURTHER RESOLVED: That at the date of the payment of the debenture[s] there shall be issued an additional fourteen thousand (14,000) shares as a stock dividend to the then existing stockholders of the First Peoples Bank; and if any debenture-holder shall take his debentures in stock, then the $700,000.00 originally borrowed and such cash as is not required to pay debenture-holders will be placed in the capital structure of the First Peoples Bank.
5
On advice of its accountants the bank in 1971 created a segregated account in its trust department to which it transferred the current balance in the sinking fund. Thereafter the sinking fund was administered by the trust department rather than the president of the bank. Additional deposits were made annually.
6
Certificates issued to purchasers of the debentures provided:
7
The indebtedness evidence [sic] by the debentures is, to the extent and in the manner provided in the indenture, subordinate and subject in right of payment to the prior payment in full of all Senior Debt (as defined in the indenture) of the Company, whether outstanding at the date of the indenture or thereafter incurred. Each holder of this debenture, by his acceptance hereof, agrees to and shall be bound by all the provisions of the indenture relating to such subordination.
8
The statements of the bank's condition contained in the annual reports to shareholders contained notes which consistently referred to the 1969 issue as "unsecured convertible debentures."
B.
9
On July 29, 1983 the Tennessee Commissioner of Financial Institutions declared First Peoples Bank insolvent and closed it. The Federal Deposit Insurance Corporation (FDIC) was appointed receiver and took possession of the bank's assets. FDIC then entered into a "purchase and assumption agreement" with the plaintiff, First American National Bank-Eastern (First American). The agreement provided that First American would assume First Peoples' trust obligations, but excepted liability on the debenture sinking fund trust. However, the assets purchased by First American included a balance of $672,779 in the sinking fund. FDIC claimed these funds in its corporate capacity as assignee of the receiver and as subrogee to the rights of First Peoples' former depositors.
10
When liquidation of First Peoples was complete, First American, as successor trustee of the sinking fund, brought this action for a declaratory judgment and direction by the court as to payment and distribution of the sinking fund assets. First American requested the district court to hold that these funds, after payment of costs and fees in the declaratory judgment proceedings, should be paid to the debenture holders in proportion to the face value of the debentures held by each.
C.
11
The district court recognized that "[d]ebentures issued by a bank are ordinarily unsecured indebtedness of the bank and are subordinate to the claims of general creditors." First American National Bank v. Federal Deposit Insurance Corp., 600 F.Supp. 383, 387 (E.D.Tenn.1984). However, relying upon a single sentence in the Tennessee statute which authorizes banks to increase their capital by issuing debentures, and the action of First Peoples' directors in establishing a sinking fund and segregating its assets, the district court held that after payment of reasonable fees to First American's attorneys and costs of the action "the debenture holders are entitled to recover their pro rata share of the remaining fund." Id. at 389. The "remaining fund" did not include the last payment by First Peoples into the sinking fund, made at a time when the bank's capital was impaired. The court directed that this amount and certain accruals of interest be paid to FDIC. The district court also awarded attorney fees to counsel for First American. FDIC appealed the declaratory judgment and the award of fees. First American did not cross-appeal.
II.
12
Our task is one of statutory construction. Title 45 of Tennessee Code Annotated (T.C.A.) contains a comprehensive banking code in chapters 1 and 2, entitled "Tennessee Banking Act." Included in the Act is T.C.A. Sec. 45-2-208:
13
Capital notes and debentures.--(a) Any bank after obtaining the prior approval of the shareholders owning two-thirds ( 2/3) of the stock of the bank entitled to vote and after obtaining the prior approval of the commissioner, may issue and sell its convertible or nonconvertible capital notes or debentures. Capital notes or debentures which are by their terms convertible into stock may be converted into shares of common or preferred stock in accordance with such provisions therefor as may be made in such capital notes or debentures with the approval of the commissioner.
14
(b) Capital notes and debentures issued by banks shall be unsecured indebtedness of the bank and shall be subordinate to the claims of all depositors and of all other creditors of the bank, regardless of whether the claims of such depositors arose before or after the issuance of such capital notes or debentures. In order to secure the payment of any such capital notes or debentures, however, provisions for sinking funds may be made. In the event of liquidation, all depositors and all other creditors of the bank shall be entitled to be paid in full before payment shall be made on account of principal or interest on such capital notes or debentures. No payment shall be made at any time on account of the principal thereof unless following such payment the aggregate of the capital, surplus and undivided profits and capital notes or debentures thereafter outstanding shall be at least equal to such aggregate immediately before the original issuance of such capital notes or debentures, or as may otherwise be expressly authorized by the commissioner. The claims of holders of capital notes or debentures shall, however, be superior to the claims of stockholders for dividends or other claims on account of shares of capital stock held by them.
15
(c) The amount of outstanding capital notes and debentures issued and outstanding by any bank shall be, subject to the approval of the commissioner, treated as capital for the purpose of computing the loan limits prescribed by Sec. 45-2-1102(a) and for the purpose of computing investment limits prescribed by 45-2-607(a)(9).
16
The district court relied on the second sentence of T.C.A. Sec. 45-2-208(b): "In order to secure the payment of any such capital notes or debentures, however, provisions for sinking funds may be made." The district court stated that it assumed the legislature "used each word purposefully so that no statutory expression becomes superfluous or without meaning. So construed, ... T.C.A. Sec. 45-2-208 must be read to provide that debentures [sic] holders may become secured through provisions for sinking funds." 600 F.Supp. at 388.
17
FDIC pointed to the fourth sentence in T.C.A. Sec. 45-2-208(b) as prohibiting distributions to the debenture holders after First Peoples became insolvent. That sentence states, "No payment shall be made at any time on account of the principal thereof unless following such payment the aggregate of the capital, surplus and undivided profits and capital notes or debentures thereafter outstanding shall be at least equal to such aggregate immediately before the original issuance of such capital notes or debentures...." FDIC argued that the debentures could not have been paid if they had matured in 1983 because First People's capital was impaired. The district court construed the fourth sentence "to prohibit payment into the principal account of a sinking fund while the capital of the bank is impaired, not payment out of the principal to the debenture holders while the capital of the bank is impaired." 600 F.Supp. at 388 (emphasis added). This was the basis of its order to pay the last deposit to FDIC rather than the debenture holders.
III.
A.
18
The district court relied on only one rule of statutory construction. As stated by this court, that rule requires that "[u]nder Tennessee law a court should construe a statute so that no part will be inoperative, superfluous, void or insignificant and that one section will not destroy another." Owen of Georgia, Inc. v. Shelby County, 648 F.2d 1084, 1091 (6th Cir.1981). The district court overlooked a more fundamental rule of statutory construction. The Supreme Court of Tennessee stated in Tidwell v. Collins, 522 S.W.2d 674, 676 (Tenn.1975), "The premier rule of statutory construction is to ascertain and give effect to the legislative intent.... In doing this we look to the general purpose to be accomplished." (Citations omitted). This "premier rule" was expounded by the Supreme Court of the United States in Helvering v. New York Trust Co., 292 U.S. 455, 464, 54 S.Ct. 806, 808, 78 L.Ed. 1361 (1934):
19
The rule that where the statute contains no ambiguity, it must be taken literally and given effect according to its language is a sound one not to be put aside to avoid hardships that may sometimes result from giving effect to the legislative purpose. Commissioner of Immigration v. Gottlieb, 265 U.S. 310, 313 [44 S.Ct. 528, 529, 68 L.Ed. 1031]. Bate Refrigerating Co. v. Sulzberger, 157 U.S. 1, 37 [15 S.Ct. 508, 516, 39 L.Ed. 601]. But the expounding of a statutory provision strictly according to the letter without regard to other parts of the Act and legislative history would often defeat the object intended to be accomplished. Speaking through Chief Justice Taney in Brown v. Duchesne, 19 How. 183, this court said (p. 194): "It is well settled that, in interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute (or statutes on the same subject) and the objects and policy of the law, as indicated by its various provisions, and give to it such a construction as will carry into execution the will of the Legislature, as thus ascertained, according to its true intent and meaning."
B.
20
The purpose of the Tennessee Banking Act is set forth in T.C.A. Sec. 45-1-102(a):
21
It is the underlying purpose of chapters 1 and 2 of this title to provide the citizens of Tennessee with a sound system of state chartered banks by providing for and encouraging the development of such banks while restricting their activities to the extent necessary to safeguard the interests of depositors.
22
The district court's construction of T.C.A. Sec. 45-2-208(b) does not further this underlying purpose. That reading gives those who contribute to the capital of a bank priority over depositors rather than restricting the activities of banks as necessary to safeguard the interests of depositors. The underlying purpose is served, however, by giving effect to the sentences that bracket the second sentence. The district court virtually ignored the bracketing language. The first sentence states that all debentures "shall be unsecured indebtedness of the bank and shall be subordinate to the claims of all depositors and of all other creditors of the bank...." The third sentence provides, "In the event of liquidation, all depositors and all other creditors of the bank shall be entitled to be paid in full before payment shall be made on account of principal or interest on such capital notes or debentures."
23
It is hard to imagine how the legislature could have made it more clear that debentures are both unsecured and subordinated in payment to the claims of depositors and other creditors. These conditions are consistent with the purpose of safeguarding the interest of depositors. It is true that the second sentence, read literally and given its technical meaning, contradicts the clear meaning of the first and third sentences. Generally, when a debtor makes payments into a sinking fund under a bond mortgage, title passes from the debtor to the trustee who holds the fund for the benefit of the bondholders. Warder v. Brady, 115 F.2d 89, 96 (4th Cir.1940). And ordinarily, once deposits are made into a sinking fund, they cannot be withdrawn. LaSalle Hotel Realty Co. v. Taft, 85 F.2d 339, 341 (7th Cir.1936).
24
We reconcile the apparently conflicting provisions of T.C.A. Sec. 45-2-208(b) by reading the entire subsection in such a way as to further the intent of the legislature. To give it meaning without doing violence to the intent of the legislature, the second sentence must be read merely to permit the establishment of a fund to provide for the redemption of the debentures at maturity rather than a true sinking fund. Under this construction, if the debentures had matured while the bank was still solvent, there would have been a ready source for payment to those debenture holders who elected to receive cash rather than stock, but the fund would be treated the same as any other asset in the event of liquidation. This construction is consistent with the requirement of the third sentence, which comes into play when there is a liquidation. The district court's construction would nullify the third sentence completely.
IV.
25
The construction we have given T.C.A. Sec. 45-2-208(b) does not render the second sentence "inoperative, superfluous, void or insignificant"; neither does it permit one sentence--the second--to "destroy another" --the third. Thus, it follows both facets of the rule propounded in Owen of Georgia, Inc. v. Shelby County, 648 F.2d at 1091. Unlike the district court, we have not looked "merely to a particular clause in which general words may be used," Helvering v. New York Trust Co., 292 U.S. at 464, 54 S.Ct. at 808, but have read the second sentence in harmony with the entire section of which it is a part and with the underlying purpose of the Banking Act. This is necessary in order to carry out what we perceive as the clear legislative will. It is not possible to give every word used in a statute its precise technical meaning. We recognized this fact in Wirtz v. Allen Green & Associates, Inc., 379 F.2d 198, 200 (6th Cir.1967), where Judge Weick wrote for the court:
26
An examination of the many cases dealing with statutory construction reveals that legislatures do not always use apt words to express their intent. The Court will look to the legislative purpose of the Act and follow that purpose even though a literal reading of the language used would suggest a different conclusion.
27
(Citations omitted).
28
Every debenture holder in this case had clear notice from the conditions printed on the debenture certificates that "in right of payment" the debentures were subordinate. The certificates made no reference to the sinking fund or security. The public was advised consistently in First Peoples' statements of condition that the debentures were unsecured. To make an after-the-fact determination that the debentures were secured and entitled to priority in payment over claims of depositors and other creditors would deprive those persons of a liquidation position they had every right to expect and would provide the debenture holders with an unexpected and undeserved windfall.
29
We are not unmindful of the rule that the court of appeals ordinarily will defer to the view of a district judge on questions of unsettled local law. Louisville & Jefferson County Metropolitan Sewer District v. Travelers Insurance Co., 753 F.2d 533, 540 (6th Cir.1985). Nevertheless, an appellant is entitled to the same review of a district court's decision interpreting local law as of any other legal question. Roberts v. Berry, 541 F.2d 607, 609 (6th Cir.1976). Where the application of settled rules of statutory construction leads us to the firm conviction that the interpretation given a statute by a district court is erroneous, it is our duty to reverse.
30
The judgment in No. 85-5060 allowing a fee to counsel for First American National Bank is affirmed. The judgment in No. 84-6123, determining that the debenture holders are entitled to pro rata distribution of the remaining assets in the sinking fund, is reversed with directions to enter judgment providing for the distribution of those assets to FDIC.
| {
"pile_set_name": "FreeLaw"
} |
398 F.2d 661
Louis FAMIANO, Plaintiff-Appellant,v.Gerald ENYEART, also known as Gerry Enyeart, and Charles Enyeart, Defendants-Appellees.
No. 16592.
United States Court of Appeals Seventh Circuit.
July 30, 1968.
Rehearing Denied August 29, 1968.
Anthony W. Rosinia, Chicago, Ill., Benjamin Piser, Dempsey A. Cox, South Bend, Ind., Levisohn, Taring, Arrigo & Rosinia, Chicago, Ill., Piser & Cox, South Bend, Ind., for plaintiff-appellant Louis Famiano.
Arthur A. May, George N. Beamer, Jr., Crumpacker, May, Levy & Searer, South Bend, Ind., for defendants-appellees.
Before SCHNACKENBERG, SWYGERT and CUMMINGS, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
1
Louis Famiano, plaintiff, has appealed from the district court's order dismissing for want of prosecution this diversity action, brought to recover damages for personal injuries claimed to have been suffered when he fell from water skis, while being towed behind a motor boat then being operated on Lake Michigan by Charles Enyeart, defendant. The motor boat was owned by his father, Gerald Enyeart, another defendant. The court's order was entered pursuant to Rule 41(b), Federal Rules of Civil Procedure, when on the day fixed for trial, plaintiff refused to proceed with trial by jury.
2
Plaintiff filed his complaint at law alleging negligence on the part of both defendants, and requested trial by jury. Defendant Gerald Enyeart filed a joint answer with defendant Charles Enyeart and then moved for summary judgment. That motion was denied. Thereafter, plaintiff filed an amended complaint at law which requested trial by jury. Defendants filed separate answers which denied negligence and pleaded affirmative defenses. The answer of defendant Gerald Enyeart, also raised the admiralty defense of limitation of liability.1 Plaintiff's motion to strike this defense was denied by the court, which then listed the defense as a contested issue of law in its pretrial order. A date for trial by jury was set. Plaintiff argued in his pretrial brief that he was entitled to jury trial as to both defendants under the "saving to suitors" clause, 28 U.S.C. § 1333. Thereafter, plaintiff moved that all issues be tried by the court in admiralty. The court's ruling on this motion was on the scheduled first day of trial, at which time the motion was denied. Plaintiff requested an appeal which was denied, and upon his refusal to proceed to trial, the court granted defendant's motion to dismiss.
3
The error relied upon in this appeal is that the district court denied plaintiff the right to full relief in admiralty by declining to hear all issues in admiralty other than the limitation of liability defense. Counsel for plaintiff contends that the admiralty defense drew his entire action at law into admiralty. He asserts that he was the one to determine whether full relief from admiralty was desired and had the right to insist upon the exercise of such jurisdiction. Further, he contends the court's ruling was appealable as a final order, an interlocutory order modifying or dissolving an injunction [28 U.S.C. § 1292(a) (1)], or as an order involving a controlling question of law [28 U.S.C. § 1292(b)].
4
Defendant's counsel asserts that plaintiff's request for trial by jury cannot be waived over objection and that when the admiralty defense is raised, as here, the question of liability is tried to a jury and questions relative to the defense are reserved to the court.
5
The issues raised are whether the admiralty defense asserted by defendant Gerald Enyeart, excludes plaintiff's right to trial by jury, and whether that ruling may be appealed as (1) a final decision denying admiralty jurisdiction, (2) an interlocutory order modifying or dissolving an injunction, or (3) as permitted by the court under 28 U.S.C. § 1292(b), an order involving a controlling question of law. However, the question as to an appeal involving a controlling question of law has been waived by plaintiff's failure to comply with 28 U.S.C. § 1292(b), pertaining to interlocutory appeals.
6
1. The statute which provides the admiralty defense, 46 U.S.C. § 183, reads in part as follows:
7
(a) The liability of the owner of any vessel, * * * for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall not, * * * exceed the amount or value of the interest of such owner in such vessel, * * *.
8
The determination of this limitation must be made by the district court according to principles of admiralty, whether raised by separate petition or by answer to a complaint for damages. Langnes v. Green, 282 U.S. 531, 51 S.Ct. 243, 75 L.Ed. 520 (1931) and Ex Parte Green, 286 U.S. 437, 52 S.Ct. 602, 76 L. Ed. 1212 (1932). In both Langnes and Green, Green had sought his remedy in a state court for damages alleged to have been incurred when he was injured while employed on Langnes' boat. Langnes petitioned the district court for limitation of liability. The district court enjoined further proceedings in the state court and, though it soon appeared that Green was the sole claimant, the court disallowed his motion to dissolve the injunction. Holding that this ruling was an abuse of judicial discretion, the Supreme Court remanded the cause to the district court for it to permit further proceedings in the state court while reserving its jurisdiction of exclusively admiralty issues. Thereafter, in the state court, the admiralty issue was contested resulting in the return of the case to the Supreme Court. In Green at 438-440, 52 S.Ct. at 603, the Court said:
9
"We held [in Langnes v. Green, supra] that the action was properly brought in the state court under § 24 (3) of the Judicial Code, U.S.C., Title 28, § 41(3), which saves to suitors in all cases of admiralty `the right of a common-law remedy where the common law is competent to give it,' and that the petition for a limitation of liability also was properly brought in the federal District Court. * * * we said that a case was presented for the exercise of the sound discretion of the District Court whether to dissolve the restraining order and permit the state court to proceed, or to retain complete jurisdiction; and, upon consideration of the matter, we held that such discretion should have been exercised so as to permit the state court to proceed.
10
"But we also said * * * that the right of petitioner to a limited liability might be brought into question in the state court, or the case otherwise assumed such form in that court as to bring it within the exclusive power of a court of admiralty.
11
* * * * * *
12
"It is clear from our opinion that the state court has no jurisdiction to determine the question of the owner's right to a limited liability, and that if the value of the vessel be not accepted as the limit of the owner's liability, the federal court is authorized to resume jurisdiction and dispose of the whole case."
13
Thus, when in the exercise of its diversity powers a district court has jurisdiction of a common law cause of action for trial by jury in which the limit of liability is contested according to admiralty law, the rights of the parties may be determined by the jury except for the right to the defense in admiralty which must be determined by the court in admiralty. This is limited as the court states in Langnes, supra, at 540, 51 S.Ct. at 246:
14
"Needless to say that if the case for a limitation of liability assumes such a form that only a federal court is competent to afford relief, the jurisdiction of that court is exclusive and must be exerted to dispose of the entire cause; and the action in the state court may not be further prosecuted."
15
In the case at bar, the limitation was raised by defendant's answer so that it was necessary for the court, having jurisdiction in admiralty and in common law actions in diversity, to rule in terms of the "saving to suitors" clause, 28 U. S.C. § 1333.2 This it did. In view of the principles announced in Langnes and Green, we hold that ruling was correct.
16
Plaintiff's action was in diversity for trial by a common-law jury except for defendant's defense limiting liability. The court had taken jurisdiction of that question on plaintiff's motion to strike, and, denying that motion, held the question as a contested issue of law. Therefore, the case had not assumed such form as to exclude the right to trial by jury. If the merits of the defense were contested, according to its pretrial order the court, upon hearing the evidence, had exclusive jurisdiction to determine the question.
17
Contrary to plaintiff's contention that he was the one to determine whether full relief from admiralty was desired, the right to exercise jurisdiction is a determination reserved to the court's discretion.
18
Both parties were entitled to a jury trial on all issues except the admiralty defense — which, were the court to grant plaintiff's apparent waiver of a jury by his motion to have all issues heard in admiralty, would deny the defendants the right to trial by jury contrary to Rule 38(d), Federal Rules of Civil Procedure. Thus, the ruling of the court, giving expression to the "saving to suitors" clause, was fair, just and equitable to all litigants.
19
2. With respect to the court's denial of an appeal by plaintiff from "a final order denying admiralty jurisdiction", or as an interlocutory appeal permitted by 28 U.S.C. § 1292(a) (1) as being in substance the "equivalent to the modification or dissolution of an injunction", we have examined each of the grounds advanced and find each without merit.
20
For the reasons set forth above, the order of the district court dismissing plaintiff's action for want of prosecution is affirmed.
21
Affirmed.
Notes:
1
Provided by 46 U.S.C. § 183
2
The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled
* * * * *
| {
"pile_set_name": "FreeLaw"
} |
29 Cal.3d 1 (1981)
623 P.2d 228
171 Cal. Rptr. 667
In re WAYNE E. CATALANO on Habeas Corpus. In re WILLIAM GEYER on Habeas Corpus.
Docket Nos. Crim. 21445, 21446.
Supreme Court of California.
February 11, 1981.
*3 COUNSEL
Levy & Goldman and Henry R. Fenton for Petitioners.
Michael D. Bradbury, District Attorney, Ray Sinetar, Assistant District Attorney, Robert C. Bradley, Chief Deputy District Attorney, and Robert J. Bayer, Deputy District Attorney, for Respondent.
OPINION
TOBRINER, J.
Petitioners (hereafter defendants), authorized representatives of the carpenters' union, entered a construction site to inspect safety conditions and prepare a shop steward's report. When they refused to leave upon request by an agent of the landowner, defendants were arrested and convicted of trespassing. (Pen. Code, § 602, subd. (k)(1).)[1] Maintaining that the record demonstrates that their conduct did not violate the trespass statute, defendants petition us for writs of habeas corpus.[2]
*4 We first observe that defendants, sentenced to a fine or imprisonment, are under sufficient restraint that they may seek relief by habeas corpus. Turning then to the merits of the petition, we explain that under California statutes and decisions on labor relations, union representatives who enter a jobsite to conduct lawful union activity do not violate the criminal trespass laws by refusing to leave upon an arbitrary request of the owner. Defendants' entry to perform a safety inspection and prepare a steward's report is an accepted and traditional practice in the construction industry, which does no harm to the economic or property interests of the landowner; such conduct, we conclude, is lawful union activity which does not expose the union representative to prosecution for trespass.
The district attorney here suggests that defendants were requested to leave the jobsite and subsequently convicted of trespassing only because one defendant talked to a worker who did not belong to defendants' union. As we explain, however, defendants' conviction does not rest upon any theory that either of them exceeded the scope of proper union activity, but upon the trial court's mistaken conclusion that union representatives had no right to remain on the jobsite to conduct lawful union activities.
We conclude that because defendants were engaged in lawful union activities, they did not violate section 602. We accordingly issue habeas corpus to direct their discharge from custody.
1. Proceedings in the courts below.
Defendants were charged with trespass in violation of section 602, subdivision (k)(1), which prohibits refusing to leave property upon request from the owner or his agent. Defendants admitted refusing to leave, but maintained that they had a right to remain on the property to carry out a safety inspection and complete other union activity.
Since the case presented primarily an issue of law, trial was brief.[3] The parties stipulated to the prosecution's case, that "on September 25, 1978, each of the defendants ... entered... [the] Stonecraft Homes *5 jobsite ... and refused and failed to leave such land upon being requested to do so by the owner of such land or his agent."
Defendants testified that they are business representatives and shop stewards for the Ventura District Council of Carpenters. That union had collective bargaining agreements with three subcontractors doing construction work on a jobsite in Simi Valley where Stonecraft Homes was building 30 houses. The agreements expressly provided that union representatives could enter the jobsite to conduct safety inspections, and further stipulated that union members could not work on a jobsite on which a union respresentative was not allowed. The union did not, however, have any agreement with Stonecraft Homes, the owner of the property.
Defendant Catalano, newly appointed shop steward for the Stonecraft Homes jobsite, entered the property to conduct a safety inspection and to prepare a steward's report indicating which union members were presently working at that location. Defendant Geyer, the former shop steward, accompanied Catalano to show him the project. Both had written authorization from the union to conduct safety inspections.
The defendants drove to the superintendent's shack. Finding no one there, they proceeded to the project. After defendants had inspected several houses under construction, an agent of the owner asked them to leave the property; Catalano replied they would leave when they finished the steward's report. The agent departed, threatening to call the police. Defendants completed the report, spoke for a few minutes to two workers on coffee break concerning the union health and pension program, then returned to their car to leave the property.
When defendants arrived at the gate they found John Randall, the owner of Stonecraft Homes, and two police cars blocking the exit. After the police declined to arrest defendants, Randall effected a citizen's arrest.
Defendants further testified that it was customary for union business agents to enter construction sites to conduct safety inspections and prepare steward's reports. Agents of three other unions testified they had entered the Stonecraft Homes jobsite to inspect the property and check on working conditions; they agreed that such inspections and reports were customary in the construction trades.
*6 In rebuttal, Randall claimed that on September 25 he saw defendant Catalano talking to a painter who was not a member of the carpenter's union, and had seen similar conduct by Geyer on past occasions. Catalano, recalled to the stand, denied talking to any painter. The trial court apparently considered the matter immaterial.
In an oral opinion, the court found that defendants were at the jobsite "to check on working conditions in compliance with safety regulations and to check the books of the various people on the job ... to find out whether there were union or non-union people working at the job." The court assumed, however, that defendants' failure to halt such activities and leave immediately on request violated section 602, subdivision (k)(1), unless defendants could claim the protection of section 552.1.[4] The court held, however, that section 552.1 authorized safety inspections and other lawful union activity only on industrial property subject to posting under the industrial trespass law (§§ 552-555).[5] Finding that the Stonecraft Homes jobsite was not property subject *7 to posting under that act, it concluded that the protective reach of section 552.1 did not extend to defendants' activities.[6]
The trial court accordingly found defendants guilty of trespass in violation of section 602, subdivision (k)(1), and sentenced them to a fine of $100 (plus a $30 assessment), or to county jail at a rate of one day for each $30 or fraction thereof. Defendants appealed to the appellate department of the superior court, which affirmed the conviction on the ground that "the ... construction site ... does not constitute property subject to posting within the meaning of section 554 of the Penal Code. Consequently, the exemption for union activities provided for in section 552.1 of the Penal Code is inapplicable."
Defendants asked the appellate department to certify the case for transfer to the Court of Appeal; the appellate department denied the request on the ground that it was filed one day too late.[7] Defendants individually petitioned the Court of Appeal for habeas corpus. When that court denied their petitions defendants filed for habeas corpus in this court. We issued an order to show cause and stayed execution of the sentence pending disposition of the matter.
*8 2. (1a) Habeas corpus lies to review defendants' contention that section 602, subdivision (k)(1), does not prohibit their conduct.
Our decision in In re Zerbe (1964) 60 Cal.2d 666 [36 Cal. Rptr. 286, 388 P.2d 182, 10 A.L.R.3d 840] establishes defendants' right to petition for habeas corpus. In Zerbe, a union picket was convicted of trespass under a related subdivision of section 602, and sentenced to a fine of $26.25 or five days in jail. We ordered him discharged from custody, stating that "a defendant is entitled to habeas corpus if there is no material dispute as to the facts relating to his conviction and if it appears that the statute under which he was convicted did not prohibit his conduct." (P. 668.) That principle justifies our review, on writ of habeas corpus, of defendants' contention that their conduct did not violate section 602, subdivision (k)(1).
Because our opinion in Zerbe did not explain that Zerbe was sentenced to a fine or jail in the alternative, no published California opinion now holds explicitly that a defendant so situated is under sufficient custodial constraint to qualify for the writ. Therefore we shall briefly explain here why we conclude, in accord with the implied holding of Zerbe, that such a defendant may seek relief by habeas corpus.
(2) Although the chief use of habeas corpus has been to obtain the release of persons held in actual, physical custody, "[h]istory, usage, and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on a man's liberty, restraints not shared by the public generally, which have been thought sufficient in the Englishspeaking world to support the issuance of habeas corpus." (Jones v. Cunningham (1963) 371 U.S. 236, 240 [9 L.Ed.2d 285, 289, 83 S.Ct. 373, 92 A.L.R.2d 675].) Thus a prisoner released on bail, although not actually confined, is eligible to seek habeas corpus (In re Petersen (1958) 51 Cal.2d 177 [331 P.2d 24]); similarly a parolee may apply for that writ (Jones v. Cunningham, supra, 371 U.S. 236; In re Marzec (1945) 25 Cal.2d 794, 797 [154 P.2d 873].)
Two decisions relating to prisoners at large on their own recognizance bear particularly on this issue. In In re Smiley (1967) 66 Cal.2d 606 [58 Cal. Rptr. 579, 427 P.2d 179], we rejected cases distinguishing between release on bail and release on recognizance, noting that a prisoner released without bail is nevertheless under restraints not shared by the general public. (P. 613.) Denial of the writ of habeas corpus to *9 such a prisoner, we observed, would merely postpone relief; the prisoner could upon return to actual custody immediately file his petition and seek release on his own recognizance pending decision on that petition. (P. 614.) We concluded that a person released on his own recognizance was under sufficient constructive custody to permit him to apply for habeas corpus.
In 1973 the United States Supreme Court considered the same issue. Relying in part on our decision in Smiley, the court issued habeas corpus on behalf of a prisoner at large on his own recognizance. Habeas corpus, the court stated, is not a "`static, narrow, formalistic remedy' ... but one which must retain the `ability to cut through barriers of form and procedural mazes.'" (Hensley v. Municipal Court (1973) 411 U.S. 345, 349-350 [36 L.Ed.2d 294, 299, 93 S.Ct. 1591].) A prisoner released on his own recognizance, the court stated, is subject to restraint not shared by the public at large; denial of relief would be pointless since it "would do no more than postpone this habeas corpus action until petitioner had begun service of his sentence." (P. 352 [36 L.Ed.2d, p. 300].) "Plainly, we would badly serve the purposes and the history of the writ to hold that under these circumstances the petitioner's failure to spend even 10 minutes in jail is enough to deprive the [court] of power to hear his ... claim." (Pp. 352-353 [36 L.Ed.2d, p. 301].)
The reasoning of the foregoing cases leads directly to the conclusion that defendants before us are under sufficient restraint to permit them to seek relief by habeas corpus. They are, first, subject to restraints not shared by the public generally: the judgment below, stayed by order of this court, required them to pay a fine within 30 days (which has now elapsed); if they fail to do so "the court shall ... immediately order the arrest of the defendant[s]." (§ 1205.) A refusal to issue the writ, moreover, would accomplish nothing but delay; defendants could submit to arrest and immediately apply for relief. (1b) We therefore conclude that the present defendants are under sufficient custodial restraint to permit them to apply for a writ of habeas corpus.
3. (3) A union representative who remains on a jobsite to complete lawful union activity although requested to leave by the owner does not violate section 602, subdivision (k)(1).
We noted earlier that a defendant is entitled to habeas corpus if the trial record, without material factual dispute, demonstrates that the *10 statute under which he was convicted did not prohibit his conduct. (See p. 6, ante.) We therefore turn to the question whether section 602, subdivision (k)(1), prohibits the conduct of defendants.
We begin with the observation of the well known fact that most work under collective bargaining agreements in the construction industry occurs on property owned by third parties. If union representatives, attempting to police the safety and security provisions of these agreements, may be prosecuted for trespass by third party landowners, the collective bargaining agreement becomes unenforceable and a dusty dead-letter. As we shall explain, the statutory interpretation underlying these criminal convictions is both illogical and inconsistent with the view consistently expressed by the Legislature and this court: that general trespass statutes may not be used to frustrate legitimate union activities on private premises, at least in instances in which no significant property interest is threatened.
Recognizing the traditional practice in the construction industry, the parties agreed at oral argument before this court that union representatives have a right to enter a jobsite to perform safety inspections and to police the collective bargaining agreement, so long as they do not interfere with the work in progress or exceed the scope of proper union activities.[8] It follows from this agreed proposition, defendants contend, that a union representative engaged in proper union activity does not violate section 602 if he refuses to leave the jobsite until he finishes his business there. The district attorney did not dispute this contention.[9]
As we shall explain, the Legislature drafted section 602, the basic trespass statute, for general application and not specifically with union activities in mind. Specific provisions of both section 602 and related trespass statutes, however, demonstrate an overall legislative policy that the broad trespass statutes are not intended to apply to otherwise lawful union activity. Thus we cannot read each subdivision of the trespass law *11 in isolation but must apply the general principle of statutory construction that statutes are to be read in order to harmonize the statutory scheme and not to produce absurd results. Numerous decisions of this court, which we shall review, have applied that general principle to the subject of union activities on the jobsite. In accord with these decisions, we conclude that regardless of whether property is "posted industrial property," property subject to posting, or other, less sensitive property, trespass statutes do not apply to lawful union activity.
In re Zerbe, supra, 60 Cal.2d 666, the earliest of the crucial decisions establishing California labor policy on this issue, involved the relationship between section 602 and the industrial trespass law, sections 552 through 555.5. The latter act establishes a stringent trespass law to restrict entry upon industrial properties that pose an extreme danger to the casual trespasser.[10] At the same time, however, the industrial trespass law provides a specific exemption for lawful union conduct. Section 552.1 states that the industrial trespass law does not prohibit "the lawful activities of labor unions, or members thereof"; in particular, it does not prohibit "[a]ny lawful activity for the purpose of investigating the safety of working conditions on posted property by a representative of a labor union.[11]
In Zerbe, a union agent entered railroad property during a dispute with an employer served by the railroad. He was convicted of trespassing in violation of section 602, subdivision (l), which prohibits "entering and occupying real property." Although railroad property was described in section 554 as industrial property "which may be posted," the railroad had not in fact posted "no trespassing" signs. Because the property thus was not "posted industrial property" (Cotton v. Superior Court (1961) 56 Cal.2d 459, 463 [15 Cal. Rptr. 65, 364 P.2d 241]), the trial court held Zerbe was not protected by section 552.1.
We granted Zerbe's petition for habeas corpus and overturned the conviction. Although the property entered by Zerbe was not literally posted industrial property, we reasoned that it would be anomalous to impose penal liability on Zerbe because the landowner had failed to post the property against trespass. Despite the fact that section 552.1 does not on its face bar prosecution under the general trespass statute, *12 we held that "Sections 552-555.5 of the Penal Code must be read together with subdivision (l) of section 602, and that subdivision must be treated as also subject to the labor activity exception when, as here, unposted property of the type designated in the posting law is entered." (Pp. 668-669.) (Italics added.)[12]
One year later, in Schwartz-Torrance Investment Corp. v. Bakery & Confectionery Workers' Union (1964) 61 Cal.2d 766 [40 Cal. Rptr. 233, 394 P.2d 921], we considered union activity on property which was not subject to posting under the industrial trespass law. The issue before us was whether an employer could enjoin peaceful union picketing in a shopping center. Reversing the injunction, we stated that: "The Legislature has expressly declared that the public policy of California favors concerted activities of employees for the purpose of collective bargaining or other mutual aid or protection. [Citations.] Morever, the Legislature has enacted this policy into an exception to the criminal trespass law. (Pen. Code, § 552.1.) Thus recently we reversed the conviction of a labor union official for picketing on the property of a nonparticipant in the labor dispute. Construing section 552.1, which excepts from the criminal trespass statute any `lawful activity for the purpose of engaging in any organizational effort on behalf of any labor union ...' we concluded that `... the Legislature in dealing with trespasses ... has specifically subordinated the rights of the property owner to those of persons engaging in lawful labor activities.' (In re Zerbe (1964) 60 Cal.2d 666, 668.) The policy of the state as expressed *13 in the Labor Code accords with that embodied in federal legislation." (P. 769.) (Fns. omitted.)
Finally, in our recent decision in Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1979) 25 Cal.3d 317 [158 Cal. Rptr. 370, 599 P.2d 676], we again ruled that lawful union activity at the jobsite was immune from prosecution under section 602. Although the union picketing in Sears was lawful activity under the Moscone Act (Code Civ. Proc., § 527.3), Sears argued that it was entitled to enjoin that picketing on the privately owned sidewalk surrounding its store because the picketing "constituted a criminal trespass under subdivisions (j), (k), or (l) of Penal Code section 602." (P. 330, fn. 9.) In rejecting that argument, we replied that "it is unnecesary to embark upon a detailed analysis of that section, for union activity which is authorized by state labor law constitutes an exception to the criminal trespass statutes." (Id.)
At oral argument in Sears the parties called our attention to a 1978 amendment to section 602, subdivision (n), which provides that a person does not violate that subdivision by refusing to leave property on the request of the owner if the person is "engaged in lawful labor union activities which are permitted to be carried out on the property by the California Agricultural Labor Relations Act ... or by the National Labor Relations Act."[13]
When the 1978 amendment to subdivision (n) was enacted, it was already well settled that lawful union activity at the jobsite did not violate criminal trespass statutes. (See Labor Board v. Babcock & Wilcox Co., supra, 351 U.S. 105; Schwartz-Torrance Investment Corp. v. Bakery & Confectionery Workers' Union, supra, 61 Cal.2d 766; In re Zerbe, supra, 60 Cal.2d 666.) Thus we stated in Sears that the amendment to subdivision (n) "merely codifies existing law; indeed, union activity protected *14 by state or federal labor law clearly does not violate any subdivision of Penal Code section 602."[14] (P. 331, fn. 9.)
The teaching of the decisions we have reviewed is clear: the general trespass statutes do not prohibit lawful union activity at the jobsite. Consequently, the validity of defendants' convictions does not depend, as the trial court assumed, on whether the property they entered was subject to posting under the industrial trespass law. Neither does it turn on whether the conduct falls within the proscription of section 602, subdivision (k)(l), since as we have seen, that proscription does not apply to lawful union activity. Instead, the issue turns simply on whether defendants' conduct was "lawful" activity within the meaning of our decisions in Schwartz-Torrance and Sears, supra, and thus exempt from prosecution under section 602.
4. (4) Union representatives who, in accord with a collective bargaining agreement, conduct safety inspections and prepare steward's reports at a construction jobsite, are engaged in lawful union activity exempt from prosecution under section 602.
We turn to the question whether the activities for which defendants entered the jobsite to conduct a safety inspection and prepare a steward's report constituted "lawful union activity" exempt from the criminal trespass laws. To answer that question, we look to the customary and accepted practices of the construction industry, and to a balance of the respective interests of the union and the landowner. Both *15 inquiries in the present case indicate the lawfulness of defendants' actions.
Undisputed evidence shows that safety inspections and stewards' reports are customary in the industry. The carpenters' union in this case had entered into agreements with three subcontractors authorizing such inspections and reports. Representatives of the carpenters' union and other unions had visited the jobsite for such purposes on many occasions. The landowner knew of such entries and, in all probability, was aware of the custom in the construction industry of permitting such entry by union representatives.
We note, moreover, another factor which must be placed on the scales: the importance of allowing employees and their representatives to bargain for, and police, safe and healthful workplaces. Collectively bargained safety and health provisions have little meaning if employee representatives can be ousted from the jobsite.[15] Such a bar cannot be erected in an industry such as construction where working conditions may be extremely hazardous;[16] under the legislative policy as expressed in the statutes and as articulated in the cases, union agents may not be subjected to criminal liability for protecting workers against dangers such as these.
5. Defendants' conviction cannot be sustained on the theory that their conduct exceeded the scope of a lawful union activity
Only lawful union activity is exempt from prosecution for trespass. As defendants acknowledge, if a union representative goes beyond the scope of lawful union activity by interfering with the construction work or damaging the property, the owner may properly insist that he leave. Failure to leave, under these circumstances, would violate section 602, subdivision (k)(1).[17]
*16 At oral argument the district attorney emphasized the testimony of Randall, the property owner, who claimed he saw defendant Catalano talk to a painter (a nonmember of the carpenters' union). The district attorney asserted that this evidence showed that Catalano went beyond the scope of proper union activity and interfered with the construction work. As we explain, however, defendants' conviction does not rest upon that theory.
First, the prosecution presented a stipulated case in chief which did not mention the conversation with the painter, but relied solely on the fact that defendants failed to leave upon request.
Second, Randall testified only that he saw Catalano talk to a painter. He did not testify that Catalano interfered with any work in progress, that he requested defendants to leave because Catalano talked to the painter, or even that the conversation occurred before defendants were asked to leave.
Third, neither the trial court's oral opinion nor the opinion of the appellate department asserts that defendants exceeded the scope of proper union activities. Neither mentions the claimed conversation between Catalano and the painter.
Finally, both Geyer and Catalano were convicted of violating section 602, subdivision (k)(1). There is no evidence on this occasion that Geyer talked to the painter or in any way exceeded the scope of lawful union activity.
In short, the conviction cannot be sustained on the ground advanced by the district attorney. It rests instead on the mistaken premise that union representatives conducting safety inspections and other lawful union activity on "nonindustrial" property must leave that property immediately on the owner's request. We reject that premise, and hold that union representatives performing lawful union activity at the jobsite do not violate section 602 by refusing to accede to an arbitrary request by the owner. Accordingly, we conclude that defendants' conduct came within the exception to section 602 barring prosection for lawful labor activities and thus that section 602, subdivision (k)(l), did not prohibit that conduct.
*17 Thus the case coalesces into a simple but important ruling. That holding emanates from the decisions of this court and from the statutory recognition of that principle by the Legislature: a labor union representative who enters upon a jobsite to engage in lawful union activity does not illegally trespass upon the land. If, however, he does not confine himself to such lawful union activity he forfeits such protection and subjects himself to liability.
Let writs of habeas corpus issue directing that defendants be discharged from custody. (See In re Zerbe, supra, 60 Cal.2d 666, 670.)
Bird, C.J., Mosk, J., and Newman, J., concurred.
Richardson, J., concurred in the result.
CLARK, J., Concurring
I agree with the majority that Penal Code sections 552 to 555.5 and section 602 relating to trespasses on property must be harmonized and read together. Thus, exemptions for union activity in sections 552.1 and 602, subdivision (n), should be read into section 602, subdivision (k)(1). Those exemptions reflect legislative determination to permit particular labor union activity on specified business and agricultural properties. It would be unreasonable to conclude the Legislature intended such activities to be lawful by specifically exempting them from one trespass statute and at the same time intended them to be criminal under another trespass statute. (See In re Zerbe (1963) 60 Cal.2d 666, 668-669 [36 Cal. Rptr. 286, 388 P.2d 182, 10 A.L.R.3d 840].)
While I agree the exemptions must be read into section 602, subdivision (k)(1), I find no justification for expanding the exemptions beyond the legislative determination.
Section 602, subdivision (n), exempts "lawful labor union activities which are permitted to be carried out on the property by the California Agricultural Labor Relations Act ... or by the National Labor Relations Act." The exemptions are limited to permitted conduct under either of the two enactments. Subdivision (n) should not be read as exempting conduct as to which the enactments are inapplicable. The National Labor Relations Board dismissed a charge of employer unfair labor practice, and it does not appear that petitioners' conduct is protected by either enactment. Accordingly, the subdivision (n) exemption is not here applicable.
*18 Similarly, the section 552.1 exemption is inapplicable to petitioners' conduct. Sections 552-555.5 prohibit loitering near or trespassing upon posted land containing certain oil, gas, water, electrical, telephone, telegraph, radio, railroad and sewage facilities and land used as a quarry or to store or produce explosives. Section 552.1 exempts from the prohibition lawful labor activity for organizational purposes or safety investigations. The sections thus reflect legislative determination to authorize entries upon only enumerated properties for organizational and safety purposes.
The sections do not reflect a legislative intent to permit entries for organizational and safety purposes on other business properties such as offices, factories, retail establishments and residential construction sites. Had the Legislature intended that union officials should have a right to enter offices, factories, retail establishments and residential construction sites, it could have provided generally for such right. We may not reasonably conclude the Legislature intended such result by adopting an exemption applicable to other properties.
Nothing in In re Zerbe, supra, 60 Cal.2d 666, warrants extending the section 552.1 exemption to property which is not enumerated in section 554. In that case, an official of a labor union engaged in picketing a factory sought to establish a picket at the junction of a main railroad and a spur track serving the factory. After he refused to leave the property, the official was arrested and convicted of violating a general trespass statute former Penal Code section 602, subdivision (l). Granting a writ of habeas corpus, this court concluded that the exemption for union activities in section 552.1 was to be applied in prosecutions for violation of section 602, subdivision (l), and that because a railroad right-of-way was among enumerated properties on which lawful labor union activity could be conducted, the petitioner did not violate the subdivision (l). (60 Cal.2d at pp. 668-670.) There is nothing in Zerbe to suggest that the union activity exemption of section 552.1 extends to property not enumerated in section 554.
Similarly, Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1979) 25 Cal.3d 317, 330-331 [158 Cal. Rptr. 370, 599 P.2d 676], holds merely that conduct permitted under the Moscone Act (Code Civ. Proc., § 527.3) does not constitute a criminal trespass under general trespass statutes.[1]Schwartz-Torrence Investment Corp. v. Bakery *19 & Confectionary Workers' Union (1964) 61 Cal.2d 766 [40 Cal. Rptr. 233, 394 P.2d 921] and In re Lane (1969) 71 Cal.2d 872 [79 Cal. Rptr. 729, 457 P.2d 561] are premised on the ground that the union activity in those cases was protected by the First Amendment.[2]
In sum, the rule of the Sears and Schwartz-Torrence cases is that labor activities permitted by statute or constitutionally protected may not furnish a basis for conviction under general trespass law. However, those cases do not stand for a general authority for this court to make exceptions from the general trespass law for labor activities which the majority members of this court may believe should be "lawful."
OTHER POINTS
I concur with the majority insofar as they hold under the evidence in this case the union officials had a contractual right based on collective bargaining contract and practice in the industry to enter the construction site for safety inspection and steward report, and that the evidence does not establish that the union officials exceeded that right. A person who has an enforceable contractual right to be on the premises and who has not exceeded the right, does not become a trespasser in refusing a request to leave. I also concur in the majority opinion as to the availability of the writ of habeas corpus.
NOTES
[1] Penal Code section 602 provides that: "Every person who willfully commits any trespass by any of the following acts is guilty of a misdemeanor:
".... .... .... .... . .
"(k) Entering any lands under cultivation or enclosed by fence, belonging to, or occupied by, another, or entering upon uncultivated or unenclosed lands where signs forbidding trespass are displayed at intervals not less than three to the mile along all exterior boundaries and at all roads and trails entering such lands without the written permission of the owner of such land, his agent or of the person in lawful possession, and
"(1) Refusing or failing to leave such lands immediately upon being requested by the owner of such land, his agent or by the person in lawful possession to leave such lands, or
"(2) Tearing down, mutilating or destroying any sign, signboard, or notice forbidding trespass or hunting on such lands, or
"(3) Removing, injuring, unlocking, or tampering with any lock on any gate on or leading into such lands, or
"(4) Discharging any firearm."
Except as otherwise indicated, all statutory references in this opinion are to the Penal Code.
[2] Although convicted in a joint trial in municipal court, defendants have filed separate petitions for habeas corpus. We have consolidated the cases for oral argument and opinion.
[3] The parties recorded the municipal court trial and submitted that recording as a settled statement in the appellate department of the superior court. The settled statement is part of the record submitted by defendants in support of their petition for habeas corpus.
[4] Section 552.1 states that "This article [the industrial trespass law] does not prohibit:
"(a) Any lawful activity for the purpose of engaging in any organizational effort on behalf of any labor union, agent, or member thereof, employed or formerly employed in any place of business or manufacturing establishment described in this article, or for the purpose of carrying on the lawful activities of labor unions, or members thereof.
"(b) Any lawful activity for the purpose of investigation of the safety of working conditions on posted property by a representative of a labor union or other employee group who has upon his person written evidence of due authorization by his labor union or employee group to make such investigation."
[5] Section 554 describes the property subject to posting under the industrial trespass law. It reads as follows:
"Any property, except that portion of such property to which the general public is accorded access, may be posted against trespassing and loitering in the manner provided in Section 554.1, and thereby become posted property subject to the provisions of this article applicable to posted property, if such property consists of or is used, or is designed to be used, for any one or more of the following:
"(a) An oil well, oil field, tank farm, refinery, compressor plant, absorption plant, bulk plant, marine terminal, pipeline, pipeline pumping station, or reservoir, or any other plant, structure, or works, used for the production, extraction, treatment, handling, storage, or transportation, of oil, gas, gasoline, petroleum, or any product or products thereof.
"(b) A gas plant, gas storage station, gas meter, gas valve, or regulator station, gas odorant station, gas pipeline, or appurtenances, or any other property used in the transmission or distribution of gas.
"(c) A reservoir, dam, generating plant, receiving station, distributing station, transformer, transmission line, or any appurtenances, used for the storage of water for the generation of hydroelectric power, or for the generation of electricity by water or steam or by any other apparatus or method suitable for the generation of electricity, or for the handling, transmission, reception, or distribution of electric energy.
"(d) Plant, structures or facilities used for or in connection with the rendering of telephone or telegraph service or for radio-broadcasting.
"(e) A water well, dam, reservoir, pumping plant, aqueduct, canal, tunnel, siphon, conduit, or any other structure, facility, or conductor for producing, storing, diverting, conserving, treating, or conveying water.
"(f) The production, storage or manufacture of munitions, dynamite, black blasting powder, gunpowder, or other explosives.
"(g) A railroad right-of-way, railroad bridge, railroad shop, railroad yard, or other railroad facility.
"(h) A plant and facility for the collection, pumping, transmission, treatment, outfall, and disposal of sanitary sewerage or storm and waste water, including a water pollution or quality control facility.
"(i) A quarry used for the purpose of extracting surface or subsurface material or where explosives are stored or used for that purpose."
[6] Defendants argued that the construction site falls within section 554 because it contains electrical wires, telephone wires, and gas pipelines. The section, however, refers to property which is "used" for the purpose of electrical transmission, telephone service, and gas distribution. We believe that language indicates that the section applies to property in which the enumerated use is a primary purpose of the property, as in the case of high voltage transmission wires, distribution stations, etc. It cannot reasonably be applied to property used primarily for other purposes merely because that property had electrical and telephone service, and perhaps gas and water service. Under defendants' interpretation, virtually all commercial and residential property in the state would fall within the scope of the industrial trespass law.
[7] Defendants' failure to file a timely request for certification does not bar relief by petition for habeas corpus. See In re Wallace (1970) 3 Cal.3d 289, 292-293 [90 Cal. Rptr. 176, 475 P.2d 208], granting habeas corpus although defendants failed to request certification by the appellate department.
[8] The district attorney at one point did suggest that defendants could have been charged with violating section 602, subdivision (l), which declares it a misdemeanor unlawfully to "enter and occupy real property." A violation of this subdivision, however, requires occupation of the property, a "nontransient, continuous type of possession." (People v. Wilkinson (1967) 248 Cal. App.2d Supp. 906, 910 [56 Cal. Rptr. 261].) Defendants' conduct does not fall within this definition. (Compare People v. Wilkinson, supra, which held overnight camping insufficient occupation to violate subdivision (l).)
[9] The district attorney confined his argument to claiming that defendants exceeded the scope of proper union activity, an argument we reject in part 5 of this opinion.
[10] Section 554, which lists the properties which may be posted under the industrial trespass law, is quoted in full in footnote 5, ante.
[11] Section 552.1 is quoted in full in footnote 4, ante.
[12] The trial court interpreted Zerbe to signify that section 552.1 grants union representatives immunity from prosecution under section 602 only when they entered industrial property subject to posting, an interpretation which would create the anomaly that union representatives would have greater freedom of action when they enter dangerous industrial property than when they enter other property. Attempting to divine why the Legislature would permit "lawful union activity" only on dangerous industrial property, he surmised that the Legislature thought access to such property was so limited that the union would have no reasonable alternative way to communicate with the employees.
This reasoning appears erroneous. The issue of reasonable alternative means of communication turns on questions such as union access to off-premise parking areas, the proximity of the worksite to employees' residences, the difficulty of contacting employees at home, and similar matters. (See Labor Board v. Babcock & Wilcox Co. (1956) 351 U.S. 105 [100 L.Ed. 975, 76 S.Ct. 679].) There is no reason to believe that employees working on posted industrial property are harder to reach than workers on a construction site or other property not subject to posting under the industrial labor act. Moreover, the exemption of section 552.1 is clearly not intended solely to facilitate union-employee communication. Section 552.1 authorizes safety inspections, and such inspections require access to the jobsite regardless of the case of communicating with workers at their homes.
[13] Section 602, subdivision (n), as amended in 1978 prohibits: "Refusing or failing to leave land, real property, or structures belonging to or lawfully occupied by another and not open to the general public, upon being requested to leave by (1) a peace officer and the owner, his agent, or the person in lawful possession thereof, or (2) the owner, his agent, or the person in lawful possession thereof; provided, however, that clause (2) of this subdivision shall not be applicable to persons engaged in lawful labor union activities which are permitted to be carried out on the property by the California Agricultural Labor Relations Act, Part 3.5 (commencing with Section 1140) of Division 2 of the Labor Code, or by the National Labor Relations Act."
We note that defendants in the present case were charged with a violation of subdivision (n), but acquitted of that charge. It is not clear whether subdivision (n)'s express exemption for lawful union activity led to the acquittal.
[14] Defendants in the present case were convicted under subdivision (k)(l) which, like subdivision (n), makes refusal to leave property on the request of the owner unlawful, but unlike (n) was not amended to provide an express exemption for lawful union activity. The relationship between subdivisions (k) and (n) is not entirely clear. Subdivision (k) applies to "any lands under cultivation or enclosed by fence" or any "uncultivated or unenclosed lands where signs forbidding trespass are displayed...." Subdivision (n) applies to "land, real property, or structures." Thus both sections appear to apply to fenced real property such as the jobsite involved in the present case. A comparison of the language of subdivisions (k) and (n), however, suggests that the former was intended to apply to rangeland, farmland, and similar open property, and that subdivision (n) might be the more appropriate provision to apply to the construction jobsite at issue in the present case.
In any case, the exception for lawful union activities cannot be confined to prosecutions under subdivision (n). Whether the 1978 amendment to that subdivision codified existing law, as we stated in Sears, or created new law, it would clearly defeat the legislative purpose if union activities immunized from prosecution under that amendment could still be prosecuted under the many other subdivisions of section 602.
[15] At trial, the judge suggested that union access was unnecessary because "if they thought there was something wrong there, why didn't they pull their people off the job and strike the place." While the union may or may not have been legally entitled to strike the subcontractors, it seems to us that this is the alternative that our labor laws are constructed to avoid. One of the principal reasons for fostering collective bargaining is to avoid the public disruption, inconvenience, and expense associated with labor disputes.
[16] Section 552.1 implicitly recognizes that inspection of dangerous property by authorized union inspectors is lawful union activity.
[17] The representative would also violate subdivision (n) since such conduct is not protected by national or state labor law. Moreover, by damaging the property or interfering with its use, the representative might violate other subdivisions of section 602 regardless of whether he left upon request.
[1] While I dissented in Sears, my dissent was directed to the issue whether the conduct involved was protected by the Moscone Act, and I agreed with the majority that if the conduct was protected, it would not constitute a trespass. (25 Cal.3d at p. 335.)
[2] The constitutional doctrine enunciated by those cases was repudiated in Hudgens v. NLRB (1976) 424 U.S. 507, 517, 521 [47 L.Ed.2d 196, 205, 207-208, 96 S.Ct. 1029].
| {
"pile_set_name": "FreeLaw"
} |
952 F.2d 399
U.S.v.Nelson*
NO. 91-1214
United States Court of Appeals,Fifth Circuit.
Jan 07, 1992
1
Appeal From: N.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
| {
"pile_set_name": "FreeLaw"
} |
231 F.3d 43 (D.C. Cir. 2000)
UNITED STATES OF AMERICA, APPELLEEv.SPENCER L. JOHNSON, APPELLANT
No. 98-3111
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 6, 2000.Decided November 14, 2000.
[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Columbia. (No. 98cr00062-01).
Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A. J. Kramer, Federal Public Defender.
Valinda Jones, Assistant United States Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, United States Attorney, John R. Fisher and Darrell C. Valdez, Assistant United States Attorneys.
Before: EDWARDS, Chief Judge, GINSBURG and TATEL, Circuit Judges.
Opinion for the Court filed by Chief Judge EDWARDS.
EDWARDS, Chief Judge:
1
A jury convicted Spencer L. Johnson of possession with intent to distribute over 50 grams of cocaine base, in violation of 21 U.S.C. 841(a)(1) & (b)(1)(A)(iii) (1994), and simple possession of marijuana, in violation of 21 U.S.C. 844(a) (1994). Judge Harold H. Greene sentenced Johnson to 121 months in prison and five years of supervised release on count one, and concurrent terms of 12 months in prison and one year of supervised release on count two.
2
Johnson appeals and requests a new trial. He asserts that the prosecutor substantially prejudiced the verdict by arguing to the jurors that their function included protecting the community from drugs. Defense counsel raised a timely objection to the prosecutor's comments at trial. Johnson is correct that the prosecutor's comments were error. However, the error was harmless. The improper comments did not substantially or injuriously affect the determination of the jury's verdict. As a result, we affirm the judgment.
3
In the alternative, Johnson argues that this court should remand the case for resentencing. Johnson has not been provided with a transcript of his sentencing proceedings in violation of the Court Reporter Act, 28 U.S.C. 753(b) (1994). The Miller Reporting Company lost the stenomask tape and any transcript that might have been prepared. Johnson asserts that without resentencing there can be no meaningful review. The Government argues that the likelihood of a lower sentence is small, but concedes that it is not out of the realm of possibility.
4
This case presents a highly unusual circumstance. Ordinarily, if a sentencing record is lost, the judge who sentenced the defendant makes definitive findings as to the content of the sentencing proceedings pursuant to Rule 10(c) of the Federal Rules of Appellate Procedure. In this case, however, the judge who sentenced Johnson became seriously ill before the record could be reconstructed. The judge who succeeded the original trial judge issued an order stating that the record could not be reconstructed. Given what is known here about the sentencing proceedings before the original trial judge, it is possible that Johnson was entitled to a lesser sentence. In light of these unusual circumstances, and to ensure that all appropriate possibilities are considered, we remand the case for resentencing.
I. BACKGROUND
A. Trial
5
On February 24, 1998, a federal grand jury indicted Johnson for possession with intent to distribute over 50 grams of cocaine base, in violation of 21 U.S.C. 841(a)(1) & (b)(1)(A)(iii), and simple possession of marijuana, in violation of 21 U.S.C. 844(a). Johnson's first trial ended in a mistrial when certain jurors became unavailable entering the fourth day of deliberations. During Johnson's second trial, the Government presented the testimony of five police officers involved in appellant's arrest: Investigator Tommy Miller, Sergeant Curt Sloan, and Officers John Branch, Devinci Wooden, and Andre Wright. The Government also presented the testimony of a chemist and a police detective with expertise in narcotics. The defense presented the testimony of Johnson, and Johnson's friend, Larry Holmes, who witnessed the arrest.
6
The officers testified to the following. On February 6, 1998, they were patrolling the neighborhood surrounding Clifton Street, N.W., Washington D.C. Around 5:00 p.m., Officer Tommy Miller, sitting with his partner in a police car, noticed a broken light on Johnson's car. They radioed the other officers that they were going to make a traffic stop. See Trial Transcript ("Tr.") 6/17/98 at 17. When they reached Johnson, he had driven around the corner, parked his car, and started walking towards an alley. See id. at 18-19.
7
Officer Branch pursued Johnson through the alley. Officer Branch wore a black police raid jacket with "Police" written on front. He wore a badge at his waistband and a gun on his hip. Officer Branch did not identify himself, but believed Johnson realized he was a police officer. See id. at 83-84. In the alley, Sergeant Sloan saw Johnson use a hook-shot twice to toss objects onto the roof. See Tr. 6/18/98 at 57. Officers Wooden and Wright saw Johnson throw two objects onto the roof. See id. at 95-96; Tr. 6/19/98 at 12. Officer Branch saw one of Johnson's throws. See Tr. 6/17/98 at 49-50. After the police reached Johnson, Officer Miller heard Johnson say he ran because he did not have his driver's license. See id. at 27. Officer Branch recovered two plastic bags from the roof containing 64 grams of cocaine. See id. at 51. A police detective with expertise in narcotics testified that this was more than an individual would normally possess for personal use. See Tr. 6/19/98 at 69. The officers also found a bag in Johnson's coat containing 26.5 grams of marijuana. See Tr. 6/17/98 at 62-63; Tr. 6/19/98 at 47.
8
Johnson's story was quite different from the testimony of the officers. He testified that on February 6, 1998, he parked near his former home on Chapin Street. See Tr. 6/19/98 at 105, 108-09. As he walked away from his car, a man jumped out of another car and chased him. Because his brother had been killed recently in crossfire in a drive-by shooting in the same area, Johnson feared for his life and ran instinctively. See id. at 106. He did not know the man chasing him was a police officer. See id. at 106-07. After he was stopped by the police in the alley, an officer told him the police were going to say he threw illegal drugs onto the roof. See id. at 118. Johnson testified that he could not have made a hookshot motion because of an injury to his right shoulder. See id. at 104. He testified that he did not possess any drugs. See id. at 112. Larry Holmes testified that he saw Johnson run down an alley before being stopped by police. He did not see Johnson throw anything. See id. at 86.
B. Prosecutor's Statement
9
In his rebuttal argument to the jury, the prosecutor stated:
10
You heard in his closing defense counsel make a lot about truth and justice and the Pledge of Allegiance. Well, ladies and gentlemen, justice does not have one eye; it's got two eyes. Justice protects not only the person who is accused, but it also protects persons like those individuals who--those 400-plus individuals that the crack cocaine were intended for. That is another person justice is intended to serve.
11
Tr. 6/22/98 at 48. Defense counsel requested curative instructions. Initially, Judge Greene did not remember the statement. After being reminded of the comment by both defense counsel and the prosecutor, Judge Greene denied the request explaining:
12
I don't think that is improper. It is a little of pressure on the jury, which is probably what Mr. Jones objected to, but I don't think it is improper enough that I should now tell the jury to forget about that. That is what you want me to do, right? That is reserved for a future time, for the third and fourth and fifth time.
13
Id. at 71. The jury subsequently returned guilty verdicts on all charges.
C. Sentencing
14
Judge Greene sentenced Johnson to 121 months in prison and five years of supervised release on count one, and concurrent terms of 12 months in prison and one year of supervised release on count two. Unfortunately, the official court reporter, Miller Reporting Company, lost the stenomask tape of the sentencing proceedings, so no transcript of the proceedings could be prepared. Subsequently, Johnson, pursuant to Rule 10(c) of the Federal Rules of Appellate Procedure, served a statement of proceedings on the Government in which Johnson, his trial attorney, and his mother, attempted to reconstruct the sentencing proceedings. In response, the Government elected not to contest or supplement Johnson's statement.
15
Ordinarily the judge who presides at sentencing makes definitive findings regarding the content of the sentencing proceedings. Judge Greene, however, as a result of serious illness, was not available. In his absence, Chief Judge Norma Holloway Johnson entered an order finding that complete reconstruction and settlement of the sentencing record was not possible. See United States v. Johnson, Crim. No. 98-062, Order (D.D.C. Dec. 23, 1999) ("Order"), reprinted in Appellant's Appendix ("Appellant's App.") at 40.
II. Analysis
A. Prosecutor's Statement
16
Johnson raised a timely objection to the prosecutor's rebuttal argument to the jury; therefore, we review the contested remarks for harmless error. See United States v. Saro, 306 U.S. App. D.C. 277, 24 F.3d 283, 287 (D.C. Cir. 1994). In any invocation of the harmless error standard, the Government carries the burden of proof; and the measure of "harm" under the standard is whether the error had substantial and injurious effect or influence in determining the jury's verdict, not merely whether the record evidence is sufficient absent the error to warrant a verdict of guilt. See United States v. Smart, 321 U.S. App. D.C. 216, 98 F.3d 1379, 1390 (D.C. Cir. 1996).
17
In assessing claims of prosecutorial misstatements, the court is required to determine whether the disputed remarks constituted error and whether they substantially prejudiced the defendant's trial. See United States v. Childress, 313 U.S. App. D.C. 133, 58 F.3d 693, 715 (D.C. Cir. 1995). We typically consider several factors in this analysis: the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error. See Gaither v. United States, 134 U.S. App. D.C. 154, 413 F.2d 1061, 1079 (D.C. Cir. 1969).
18
There is no doubt here that the prosecutor's rebuttal argument to the jury was impermissible. A prosecutor may not make comments designed to inflame the passions or prejudices of the jury. See Childress, 58 F.3d at 715. And a prosecutor may not ask jurors to find a defendant guilty as a means of promoting community values, maintaining order, or discouraging future crime. See United States v. Monaghan, 239 U.S. App. D.C. 275, 741 F.2d 1434, 1441 (D.C. Cir. 1984). On its face, the prosecutor's argument in this case improperly suggested that the jury should convict the defendant in order to protect others from drugs.
19
The Government argues that the prosecutor's comments were a moderate response to defense counsel's allegations that the police employed Nazi tactics to frame the defendant. See Appellee's Br.at 15-16. It is undoubtedly correct that, in assessing the severity of impermissible arguments, a court must consider whether prosecutorial comments were offered in response to inflammatory statements by defense counsel. See United States v. Burnett, 281 U.S. App. D.C. 428, 890 F.2d 1233, 1241-42 (1989). In this case, defense counsel did indeed invoke Nazi practices in discussing police tactics. See Tr. 6/22/98 at 42. However, read in context, the prosecutor was not responding directly to allegations of police misconduct. Rather, the prosecutor was responding to defense counsel's legitimate statement that the promise of liberty and justice for all in the Pledge of Allegiance applies to Johnson. See id. at 28.
20
The Government further argues that the prosecutor implied that the police, not the jury, had a duty to protect the community from drugs. See Appellee's Br. at 16. Despite this claim, the prosecutor's comments give no explicit indication that their subject is the police. The plain meaning of the prosecutor's comments is that the jury should give justice not only to Johnson, but also to the individuals the drugs were intended to reach. See id. at 48.
21
There is no claim here that precise measures were taken to cure the prosecutor's misconduct. However, the absence of curative instructions is not dispositive of the question of prejudice. See Monaghan, 741 F.2d at 1443 n.43. Rather, an appellate court generally defers to the District Court's judgment as to "whether the prosecutor has struck a foul blow instead of just a hard one." United States v. Dean, 312 U.S. App. D.C. 75, 55 F.3d 640, 665 (D.C. Cir. 1995). We also consider the jurors' common sense in assessing the effect of a prosecutor's statement. See Monaghan, 741 F.2d at 1440. In the judgment of Judge Greene, the prosecutor's comments would have merited judicial intervention had they been repeated a "third and fourth and fifth time." Tr. 6/22/98 at 71. Although he did not issue a curative instruction, Judge Greene urged the jurors in his general instructions to convict based only on the evidence and reminded the jury that the lawyers' arguments were not evidence. See id. at 53-54.
22
The final thing that we must consider in assessing a claim of prosecutorial misstatement is the likely impact of the improper remarks on the verdict. See United States v. Williams-Davis, 319 U.S. App. D.C. 267, 90 F.3d 490, 507 (D.C. Cir. 1996). Johnson argues that his conviction was uncertain. He points out that the first trial ended in a mistrial after three and one-half days of jury deliberations. See Appellant's Br. at 16-17. Though complete certainty is not to be had in this circumstance, we do not think it plausible, in light of the formidable evidence arrayed against Johnson, that the prosecutor's remarks are what account for Johnson's relatively speedy conviction at the second trial.
23
Johnson also argues that the Government's evidence was infected with the aura of collusion. In support of this claim, Johnson points out that two police officers, along with the prosecutor, admitted they revisited the crime scene during the trial. See Tr. 6/18/99 at 61, 71. Furthermore, Johnson alleges that a photograph the officers used to illustrate their testimony contained markings that enabled them to coordinate their testimony. See 6/22/98 at 35. Finally, Johnson argues that the odd consistency of the testimony among the officers, such as repetition of the term "hook-shot" and references to eye contact with Johnson, indicates collusion. See Tr. 6/17/98 at 16, 84; Tr. 6/18/98 at 16-17, 92, 125; Tr. 6/19/98 at 9-10, 37; Tr. 6/22/98 at 37.
24
Despite Johnson's assertions, we find that the great weight of the evidence strongly supports Johnson's conviction. Five police officers testified that Johnson possessed drugs. Their eyewitness accounts were corroborated by physical evidence. The only challenge to their testimony came from the defendant and the defendant's friend. Furthermore, at issue in Johnson's collusion argument is thecredibility of the Government's witnesses versus the credibility of Johnson and his witness. If the prosecutor improperly addressed the issue of witness credibility, Johnson's argument might have more force. Instead, the prosecutor urged the jury to convict Johnson in order to protect the community from drugs. Given the content of the prosecutor's misstatement, it was not likely to have affected the outcome of the case. Regardless of the prosecutor's statement, the evidence clearly supported the jury's verdict. Having considered these factors, we hold that, although the prosecutor's comments were impermissible, the error was harmless. Accordingly, the jury's verdict must stand.
B. Loss of Sentencing Record
25
The Court Reporter Act, 28 U.S.C. 753(b), requires that court reporters record verbatim all proceedings in criminal cases held in open court. However, failure to record a proceeding or make a whole transcript available does not per se require reversal. See United States v. Carrazana, 315 U.S. App. D.C. 127, 70 F.3d 1339, 1342 (D.C. Cir. 1995). We evaluate the burdens and benefits of remand on a case-by-case basis and consider "(1) the goal of deterring violations of the Court Reporter Act; (2) the ability (and reasonable efforts of the parties) to correct for violations of the Act by reconstructing the record; and (3) the likelihood that reversible error occurred." Id.
26
In this case, Miller Reporting Company defaulted on its responsibilities by losing the transcript. There is no mitigating evidence that the transcript was lost as a result of inadvertent mechanical error. See, e.g., United States v. Winstead, 316 U.S. App. D.C. 52, 74 F.3d 1313, 1321 (D.C. Cir. 1996). Appellant asserts that Miller Reporting Company has engaged in a pattern of negligence. The Assistant Federal Public Defender in this case attests that this is the fifth case she has handled in six years in which the Miller Reporting Company has lost a transcript. See Appellant's Br. at 21. The Government admits that it has "been frustrated from time to time by lapses in the performance of this reporting company." Appellee's Br. at 25 n.15. In light of this record, our interest in deterring violations of the Court Reporter Act weighs heavily in favor of remanding this case for resentencing.
27
An additional consideration here is the confluence of circumstances which prevented the parties from reconstructing the record. Appellant made a good faith effort to reconstruct the record pursuant to Rule 10(c) of the Federal Rules of Appellate Procedure. However, due to the unavailability of the transcript, the inability of the parties to recall everything that occurred at sentencing, and the illness of the presiding District Court Judge, Chief Judge Norma Holloway Johnson determined that complete reconstruction of the sentencing record was not possible. See Order, reprinted in Appellant's App. at 40. As a result, there is no reconstructed record in this case.
28
Finally, we must consider whether Johnson was prejudiced by the violation of the Court Reporter Act. In particular, we must consider
29
the ability of the defendant to allege specific prejudice arising out of an event in the missing portions [of the transcript]; the extent of the missing portions; the significance of the missing portions in a typical trial (e.g., final jury instructions are presumptively more significant than a bench conference); the likely significance of the missing portions in the context of the specific trial in question; and the use of new counsel on appeal.
30
Carrazana, 70 F.3d at 1343. In this context, since the burden of resentencing is comparatively light, these factors need not weigh as heavily in favor of remand as when a new trial is at stake. See Saro, 24 F.3d at 288. We thus consider the Carrazana factors in light of this lower burden.
31
First, appellant does not allege specific prejudice arising out of an event in the sentencing proceedings. This is not dispositive, however. We have found reversible error where a crucial stage of trial was missing even though the defendant could not allege specific prejudice. See United States v. Workcuff, 137 U.S. App. D.C. 263, 422 F.2d 700, 702 (1970) (per curiam).
32
Second, in this case, the extent of the missing transcript of the sentencing proceedings is significant, as the entire transcript was lost. In both Carrazana and Winstead, we concluded that the context of the missing transcripts, such as the absence of select bench conferences, suggested that the missing portions related mainly to housekeeping matters. In other words, the subject matter of the missing transcripts in those cases was not crucial; as a result, it was held that reversible errors were unlikely. See Carrazana, 70 F.3d at 1344; Winstead, 74 F.3d at 1322. In contrast, in Workcuff, the court reporter was absent from a crucial stage of the trial--a jury instruction given after jury deliberations had begun--and, as a result, the court could not determine that no substantial right of the appellant had been violated. See Workcuff, 422 F.2d at 702. Similarly, in this case, although Johnson cannot point to prejudice arising out of a particular event, the loss of the transcript of the entire sentencing proceedings constitutes the absence of a crucial stage and itself increases the likelihood of error. The Government does not dispute the significance of this phase of the analysis.
33
Third, in evaluating the significance of the missing portions of the transcript in the context of the specific trial in question, the court considers whether the gaps are suggestive of probable error. See Carrazana, 70 F.3d at 1343. The Government argues that the gap is not suggestive of probable error, because we can determine that Judge Greene properly calculated Johnson's sentence based on the Presentence Investigation Report ("PSR"). The parties agree that the statutory mandatory minimum for the crime was 120 months. See 21 U.S.C. 841(b)(1)(A)(iii). The Presentence Investigation Report recommended a base offense level of 32, which triggers an imprisonment range of 121-151 months. See PSR at 4. In addition, the Presentence Investigation Report recommended a 2-level enhancement for obstruction of justice, for a total of 34 points, which triggers an imprisonment range of 151-188 months. See PSR at 4-5. Judge Greene sentenced Johnson to 121 months. By implication, the Government asserts, Judge Greene rejected the obstruction of justice recommendation, but accepted the remainder of the Presentence Investigation Report. The Government further argues that Johnson did not raise any grounds for downward departure in his objections to the Presentence Investigation Report. See Appellee's Br. at 30-31. Nevertheless, the Government concedes that if there were grounds for downward departure, Judge Greene could have sentenced appellant to 120 months, the statutory mandatory minimum, rather than 121 months, the minimum guidelines recommendation. The Government argues this one-month discrepancy is not an appreciable difference. See id.
34
Johnson argues that, contrary to the Government's claims, the Presentence Investigation Report does not demonstrate that there was no error in the District Court's sentencing. Johnson presents the following example. The Presentence Investigation Report made it clear that Johnson met the first four criteria for the 2-level safety valve adjustment in U.S. Sentencing Guidelines Manual 5C1.2 (1997), specifically, no criminal history points, no violence or weapon possession in the offense, no death or serious bodily injury, and no leadership role. However, only the District Court Judge could determine whether Johnson met the fifth criteria, i.e., truthfully providing all information and evidence about the offense. See U.S.S.G. 5C1.2.
35
If Judge Greene found that Johnson met the fifth criteria, and he also rejected the enhancement for obstruction of justice as the Government suggests, Judge Greene could have sentenced Johnson to less than 120 months. See U.S.S.G. 2D1.1(b)(6). The Presentence Investigation Report provides no assessment of this, and without a sentencing transcript, there is no record of Judge Greene's analysis of this provision. See Appellant's Reply Br. at 9. In addition, according to the uncontested account that Johnson submitted in his attempt to reconstruct the record, during sentencing Judge Greene spoke about how harsh the sentencing guidelines were, and stated that if he could sentence Johnson below the guidelines range, he would. See Appellant's Statement of Proceedings Prepared Pursuant to FED. R. APP. P. 10(c), reprinted in Appellant's App. 33-35. This further supports the possibility that Judge Greene would have granted Johnson a lesser sentence, had the safety valve been brought to his attention.
36
This court has not specifically ruled on whether a defendant who testified at trial and was disbelieved by the jury, but subsequently truthfully provided the Government with all information and evidence, is eligible for the safety valve. See United States v. Schreiber, 191 F.3d 103, 106 (2d Cir. 1999) (holding that despite previous fabrications and obstruction defendant was eligible for safety valve). Under the plain language of U.S.S.G. 5C1.2, a defendant has until "not later than the time of the sentencing hearing" to truthfully provide the Government with all information and evidence concerning the offense. Johnson bore the burden of persuading the District Court that he was eligible for the safety valve. See United States v. Mathis, 342 U.S. App. D.C. 127, 216 F.3d 18, 29 (D.C. Cir. 2000), cert. denied, 121 S. Ct. 414, (2000). We are not in a position to weigh these factors and we cannot be certain what the trial judge's assessment might have been in this case.
37
Finally, in this case original counsel was available in the attempted reconstruction. As a result, the use of new counsel is not a significant factor in the likelihood of reversible error. See Carrazana, 70 F.3d at 1344-45.
38
As we discussed in Carrazana, we consider the foregoing factors in assessing the likelihood that reversible error occurred. We then weigh the likelihood that reversible error occurred, along with deterrence and the ability and efforts of the parties to reconstruct the record. See Carrazana, 70 F.3d at 1342-43. On balance, we find that this case presents a circumstance which qualifies for remand and resentencing. Johnson and the Government both acknowledge repeated loss of transcripts by Miller Reporting Company. Despite Johnson's good faith effort to reconstruct the record, the District Court found that no reconstruction was possible. Both parties recognize that it is possible that Judge Greene could have sentenced Johnson to a lesser sentence. In addition, the loss of the entire transcript of the sentencing proceedings further supports resentencing. Based on these concerns, justice requires that the case be remanded for resentencing.
IV. CONCLUSION
39
For the reasons given above, we affirm the judgment, but remand the case for resentencing.
| {
"pile_set_name": "FreeLaw"
} |
596 F.Supp. 224 (1984)
David SCHWINDLIG, Plaintiff,
v.
Melba SMITH, Records Supervision, Cummins Unit, Arkansas Department of Correction, and Steven Clark, Attorney General, State of Arkansas, Defendants.
No. PB-C-84-269.
United States District Court, E.D. Arkansas, Pine Bluff Division.
October 12, 1984.
*225 David Schwindlig, pro se.
Randall Miller, Asst. Atty. Gen., State of Ark., Little Rock, Ark., for defendants.
ORDER
HENRY WOODS, District Judge.
This case comes before the Court on defendants' motion to dismiss. Defendants contend that the proper avenue for plaintiff to challenge his parole eligibility classification is a petition for habeas corpus, rather than suit under 42 U.S.C. § 1983. Defendants further contend that plaintiff is not being deprived of his civil rights, and therefore has failed to state a claim upon which relief can be granted. These two arguments must be addressed separately.
It is true that when a state prisoner challenges the fact or duration of his physical imprisonment, and seeks immediate release or a speedier release, his sole remedy is by writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Here, however, the issue is one of classification for parole eligibility. The fact that one is classified as eligible for parole does not necessarily mean that he will be released from prison before his sentence is served. Release is therefore not the issue. The issue is plaintiff's claim that he is being denied due process of law and/or is being subjected to ex post facto punishment by being classified as a fourth offender for parole eligibility purposes, when he was tried, convicted, and sentenced as a first offender. Suit under 42 U.S.C. § 1983 is the proper avenue to seek redress of a deprivation of civil rights such as is alleged here.
Defendants argue that even if 42 U.S.C. § 1983 is the proper avenue for relief in a case such as this, plaintiff is not being deprived of his civil rights. Plaintiff takes the position that it is a violation of due process, and of the prohibition against ex post facto laws, for him to be classified as a fourth offender for purposes of parole eligibility, when he was tried, convicted and sentenced as a first offender for the offense for which he is presently incarcerated.
Plaintiff first argues that it is a denial of due process for Act 93 (codified at Ark.Stat.Ann. §§ 43-2828 2830 (Repl. *226 1977)) to be applied to him when he has not been judicially determined to be a habitual offender. Nothing in Act 93 requires that a prisoner have been adjudicated a habitual offender before the Act is applicable. Fourth offenders (plaintiff's classification) are defined as "inmates convicted of four or more felonies and who have been incarcerated in some correctional institution in the United States, whether local, state or federal, three or more times, for a crime which was a felony under the laws of the jurisdiction in which the offender was incarcerated, prior to being sentenced to a correctional institution in this State for the offense or offenses for which they are being classified." Ark.Stat.Ann. § 43-2828(4) (Repl.1977). Plaintiff does not deny that he fits the classification of fourth offender; he only denies that a judge has so determined. This does not invalidate his classification as a fourth offender for parole eligibility purposes.
Plaintiff next argues that Act 93 is a sentencing law, rather than merely a parole classification law. Such a position is clearly erroneous. Sentencing is the domain of the trial court. Parole is entirely within the control of the Parole Board, which is allowed to order parole "only for the best interest of society, not as an award of clemency; it shall not be considered a reduction of sentence or pardon." Ark.Stat.Ann. § 43-2808 (Repl.1977). A decision on parole eligibility does not affect sentencing. Such a decision can neither enlarge nor reduce the sentence determined by the trial court. Act 93 is a parole law, not a sentencing law.
Plaintiff next contends that Act 93 was intended to deal only with the offense for which a prisoner is presently incarcerated, not taking into account previous incarcerations. This argument is patently in error. The emergency clause enacted with Act 93 states that it is necessary to give Act 93 immediate effect, because "the present system of parole eligibility does not adequately deter crime, especially the habitual offenders, and ... such habitual offenders should have their parole eligibility bear a direct relationship to the number of times they have been incarcerated" Ark. Stat.Ann. § 43-2830 note (Repl.1977). This Court can imagine no clearer expression of an intent to apply Act 93 to situations such as plaintiff's.
Plaintiff's final argument against the application of Act 93 to his situation is that his previous incarcerations were all prior to April 1, 1977, the date on which Act 93 became effective. Section 3 of the Act states that "It is the purpose and intent of this Act to establish the parole eligibility for persons who are convicted of felonies committed on and after April 1, 1977." Ark.Stat.Ann. § 43-2830 (Repl. 1977). Plaintiff is currently incarcerated for a felony committed after April 1, 1977. The fact that his previous incarcerations were before the effective date of Act 93 is irrelevant.
Plaintiff has established no constitutional violation sufficient to support an action under 42 U.S.C. § 1983. The motion to dismiss is therefore granted.
| {
"pile_set_name": "FreeLaw"
} |
Filed 10/15/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
HAROLD GRIFFITH, H038087
(Santa Cruz County
Plaintiff and Appellant, Super. Ct. Nos. CV168936, CV168080)
v.
PAJARO VALLEY WATER
MANAGEMENT AGENCY,
Defendant and Respondent.
JOSEPH P. PENDRY et al., H038264
(Santa Cruz County
Plaintiffs and Appellants, Super. Ct. Nos. CV168936, CV168080)
v.
PAJARO VALLEY WATER
MANAGEMENT AGENCY,
Defendant and Respondent.
After defendant Pajaro Valley Water Management Agency enacted ordinance No.
2010-02 that increased groundwater augmentation charges for the operation of wells
within defendant‟s jurisdiction, plaintiff Harold Griffith challenged the ordinance on the
grounds that the increase (1) was procedurally flawed because it was not approved in an
election required by Proposition 218 (Cal. Const., art. XIII D, § 6),1 (2) did not conform
to certain substantive requirements of Proposition 218, and (3) was to be used for a
1
Further unspecified section references are to the California Constitution, article
XIII D.
purpose not authorized by the law under which defendant was formed. Thereafter,
plaintiffs Joseph Pendry, James Spain, Yuet-Ming Chu, William J. McGrath, and Henry
Schepeler (Pendry) challenged the ordinance on similar grounds and on the ground that it
was void because one of the directors who voted for the ordinance had a disqualifying
conflict of interest within the meaning of the Political Reform Act (PRA) (Gov. Code, §
87100 et seq.).2 They also challenged an ordinance passed in 2002, which imposed an
augmentation charge, and a 1993 management-fee ordinance. The trial court rendered
judgments for defendant. Plaintiffs have appealed and reiterate their challenges. We are
considering the two appeals together for purposes of briefing, oral argument, and
disposition. After conducting an independent review of the record (Silicon Valley
Taxpayers Assn., Inc. v. Santa Clara County Open Space Authority (2008) 44 Cal.4th
431, 448 (Silicon Valley)), we affirm the judgments.
GENERAL BACKGROUND
We have previously detailed an historical background to this case in Pajaro Valley
Water Management Agency v. Amrhein (2007) 150 Cal.App.4th 1364, 1370-1375
(Amrhein). We therefore decline to repeat it and will instead begin with the trial court‟s
succinct summary.
“The Pajaro Valley Groundwater Basin supplies most of the water used in the
Pajaro Valley. The water is being extracted faster than it is being replenished by natural
forces, which leads to saltwater intrusion, especially near the coast. Once the water table
drops below sea level, seawater seeps into the groundwater basin. [Defendant] was
created [in 1984 by the Pajaro Valley Water Management Agency Act (Stats. 1984, ch.
257, § 1 et seq., p. 798 et seq., Deering‟s Wat.--Uncod. Acts (2008) Act 760, p. 681
(Act))] to deal with this issue. At present, the strategy is to use recycled wastewater,
supplemental wells, captured storm runoff, and a coastal distribution system. The
2
Plaintiffs also asserted other grounds that they do not advance on appeal.
2
purpose is to reduce the amount of water taken from the groundwater basin (for example,
the amount taken from wells), by supplying water to some [coastal] users. The cost of
this process is borne by all users, on the theory that even those taking water from [inland]
wells benefit from the delivery of water to [coastal users], as that reduces the amount of
groundwater those [coastal users] will extract [from their own wells], thereby keeping the
water in [all] wells from becoming too salty.”
Ordinance No. 2010-02 describes “three supplemental water projects that work
together to provide supplemental water to reduce overdraft, retard seawater intrusion, and
improve and protect the groundwater basin supply: (1) Watsonville Recycled Water
Project, which provides tertiary treated recycled water for agricultural use and includes
inland wells that are used to provide cleaner well water that is blended with the treated
water in order to improve the water quality so that it may be used for agricultural
purposes; (2) Harkins Slough Project, which diverts excess wet-weather flows from
Harkins Slough to a basin that recharges the groundwater, which then is available to be
extracted and delivered for agricultural use; and (3) Coastal Distribution System („CDS‟),
which consists of pipelines that deliver the blended recycled water and Harkins Slough
Project water for agricultural use along the coast.”
“The Act specifically empowers [defendant] to adopt ordinances levying
„groundwater augmentation charges on the extraction of groundwater from all extraction
facilities within the agency for the purposes of paying the costs of purchasing, capturing,
storing, and distributing supplemental water for use within [defendant‟s] boundaries.‟ ”
(Amrhein, supra, 150 Cal.App.4th at p. 1372; see Act, § 1001.)
Ordinance No. 2010-02 describes that the augmentation charge is necessary to
cover the costs of “supplemental water service” described as follows: “(a) the
purchase/acquisition, capture, storage and distribution of supplemental water through the
supplemental water projects [Watsonville Recycled Water Project; Harkins Slough
Project; CDS] and including the planning, design, financing, construction, operation,
3
maintenance, repair, replacement and management of these project facilities, and (b)
basin management monitoring and planning to manage the existing projects and to
identify and determine future water projects that would further reduce groundwater
overdraft and retard seawater intrusion. The cost of the service also includes ongoing
debt payments related to the design and construction of the completed supplemental
water projects.”
PROCEDURAL BACKGROUND
In 2002, defendant approved ordinance No. 2002-02, which established an
augmentation charge of $80 per acre-foot. Several citizens challenged the ordinance on
the ground that the approval procedure did not comply with the notice, hearing, and
voting requirements of Proposition 218. The trial court dismissed the case on the ground
of a special statute of limitations, and the plaintiffs appealed to this court. We reversed
the judgment after finding that part of the augmentation charge was not subject to the
statute of limitations. (Scurich v. Pajaro Valley Water Management Agency (May 27,
2004, H025776) [nonpub. opn.] (Scurich); see Eiskamp v. Pajaro Valley Water
Management Agency (2012) 203 Cal.App.4th 97, 100-101 (Eiskamp).) We remanded the
case for trial.
In 2003, defendant approved ordinance No. 2003-01, which increased the
augmentation charge to $120 per acre-foot. It did not comply with the notice, hearing,
and voting requirements of Proposition 218. But it filed Amrhein as a validation
proceeding3 seeking a declaration as to the validity of the ordinance. The trial court
declared the ordinance valid, and citizens who had objected appealed to this court.
In 2004, defendant approved ordinance No. 2004-02, which increased the
augmentation charge to $160 per acre-foot. It did not comply with the notice, hearing,
3
In rem proceeding by public agency against all persons interested in validity of
matter determined. (Code Civ. Proc., § 860 et seq.)
4
and voting requirements of Proposition 218. Griffith challenged the ordinance and a
1993 management-fee ordinance. San Andreas Mutual Water Company and others also
challenged the ordinance. The two actions were consolidated with Scurich (Consolidated
Lawsuits) and the Consolidated Lawsuits were stayed pending our decision in Amrhein.
In May 2007, we reversed the judgment in Amrhein after holding that “the
augmentation fee is a fee or charge „imposed . . . as an incident of property ownership‟
and thus subject to [the Proposition 218] preconditions for the imposition of such
charges.” (Amrhein, supra, 150 Cal.App.4th at p. 1370.)
In October 2007, defendant repealed ordinance Nos. 2003-01 and 2004-02.
“In January 2008, the Scurich plaintiffs, the San Andreas plaintiffs, Harold
Griffith, and the Amrhein defendants wanted to resolve all disputes in the Amrhein
Lawsuit and the Consolidated Lawsuits. They and [defendant] then entered into a
stipulated agreement for entry of judgment (stipulated agreement). The stipulated
agreement provided: „all matters raised in the Consolidated Lawsuits and the Amrhein
Lawsuit (collectively the “Pending Litigation”) as to [defendant‟s] actions shall be
resolved by entry of judgment in the Pending Litigation‟; [defendant] would pay $1.8
million to the Scurich plaintiffs, the San Andreas plaintiffs, Harold Griffith, and the
Amrhein defendants for legal fees, costs, and expenses; and the augmentation charges
collected pursuant to ordinance Nos. 2003-01 and 2004-02 would be refunded. It also
stated that the „settlement extinguishes any and all claims arising out of the Pending
Litigation all issues, transactions and/or related claims or actions including all claims that
the parties have made or could have made with respect to the validity of any
Augmentation Charge or Management Fee ordinances currently in effect . . . .‟ The
stipulated agreement did not provide for either the repeal of [ordinance No. 2002-02] or
the refund of augmentation charges imposed under [that] Ordinance.
“In February 2008, judgment was entered pursuant to the terms of the stipulated
agreement.” (Eiskamp, supra, 203 Cal.App.4th at p. 102.)
5
In May 2010, defendant mailed notice of a public hearing on a proposed three-tier
augmentation charge increase to all parcel owners.4 At the hearing, defendant tallied 291
written protests from 1,930 eligible parcel owners. Defendant then enacted ordinance
No. 2010-02, which imposed the increased augmentation charges.
In June 2010, defendant began an all-mail election on the ordinance. It mailed
ballots to all owners of land parcels served by a well who would be subject to the
augmentation charge. Each ballot was accorded weighted votes proportional to the
parcel‟s financial obligation as measured by average annual water use over the prior five
years. And each ballot stated its number of votes. The weighted votes approved the
ordinance 72 percent to 28 percent. But, if counted one vote per parcel, 324 votes were
in favor of the ordinance and 608 votes were against the ordinance.5 Plaintiffs then filed
the instant actions to challenge ordinance No. 2010-02.
CHALLENGES TO ORDINANCE NO. 2010-02
“Proposition 218 was passed in 1996 by the electorate to plug certain perceived
loopholes in Proposition 13. [Citations.] Specifically, by increasing assessments, fees,
and charges, local governments tried to raise revenues without triggering the voter
approval requirements in Proposition 13.” (Silicon Valley Taxpayers‟ Assn. v. Garner
(2013) 216 Cal.App.4th 402, 405-406.)
Relevant here is the component of Proposition 218 that undertakes to constrain the
imposition by local governments of “assessments, fees and charges.” (§ 1.)
4
Defendant proposed $195 per acre-foot for metered wells inside the coastal
delivered-water zone, $162 per acre-foot for metered wells outside the delivered-water
zone (primarily municipal, industrial, and agricultural users), and $156 per acre-foot for
unmetered wells (primarily rural residential). It also proposed $306 per acre-foot for
delivered water charges.
5
The parties differ immaterially on the one-for-one vote count.
6
Proposition 218 restricts “the power of public agencies to impose a „ “[f]ee” or
“charge,” ‟ defined as any „levy other than an ad valorem tax, a special tax, or an
assessment, imposed by an agency upon a parcel or upon a person as an incident of
property ownership, including a user fee or charge for a property related service.‟
[Citation.] The phrase „[p]roperty-related service‟ is defined to mean „a public service
having a direct relationship to property ownership.‟ [Citation.] „Property ownership‟ is
defined to „include tenancies of real property where tenants are directly liable to pay the
assessment, fee, or charge in question.‟ [Citation.]
“Where a proposed fee or charge comes within this definition, [Proposition 218]
requires the proposing agency to identify parcels upon which it will be imposed, and to
conduct a public hearing. [Citation.] The hearing must be preceded by written notice to
affected owners setting forth, among other things, a „calculat[ion]‟ of „[t]he amount of the
fee or charge proposed to be imposed upon each parcel . . . .‟ [Citation.] If a majority of
affected owners file written protests at the public hearing, „the agency shall not impose
the fee or charge.‟ [Citation.] Moreover, unless the charge is for „sewer, water, [or]
refuse collection services,‟ „no property related fee or charge shall be imposed or
increased unless and [it] is submitted and approved by a majority vote of the property
owners of the property subject to the fee or charge or, at the option of the agency, by a
two-thirds vote of the electorate residing in the affected area.‟ ” (Amrhein, supra, 150
Cal.App.4th at pp. 1384-1385.)
As mentioned, we have determined that a groundwater augmentation charge such
as the one imposed by ordinance No. 2010-02 “is indeed imposed as an incident of
property ownership [and] that it is subject to the restrictions imposed on such charges by
[Proposition 218].” (Amrhein, supra, 150 Cal.App.4th at p. 1393.) We cautioned in
Amrhein, however, that “We should not be understood to imply that the charge is
necessarily subject to all of the restrictions imposed by [Proposition 218] on charges
incidental to property ownership. [Amrhein] presents no occasion to determine whether
7
this or a similar charge may fall within any of the express exemptions or partial
exemptions set forth in that measure.” (Ibid. & fn. 21.)
This case, however, presents such an occasion.
Boiled to its essence, plaintiffs‟ challenge to the election is that the weighted vote
was improper. But the challenge necessarily fails if the augmentation charge falls within
the express exemption set forth in Proposition 218 for sewer, water, and refuse collection
services. (§ 6, subd. (c) [vote required to impose or increase property-related fee “Except
for . . . sewer, water, and refuse collection services.”].)6
Plaintiffs argue that defendant does not provide “water service” as that term is
commonly understood. (See Howard Jarvis Taxpayers Assn. v. City of Salinas (2002) 98
Cal.App.4th 1351, 1358 [“The average voter would envision „water service‟ as the supply
of water for personal, household, and commercial use . . . .”] (Salinas).) They urge that
defendant provides “ „groundwater management,‟ ” which may be a service “but that
service is not „water service.‟ ” Plaintiffs, however, make a distinction without a
difference.
Domestic water delivery through a pipeline is a property-related water service
within the meaning of Proposition 218. (Bighorn-Desert View Water Agency v. Verjil
(2006) 39 Cal.4th 205, 217.) And we have held that, for purposes of Proposition 218, the
augmentation charge at issue here does not differ materially “from a charge on delivered
water.” (Amrhein, supra, 150 Cal.App.4th at pp. 1388-1389.) If the charges for water
delivery and water extraction are akin, then the services behind the charges are akin.
Moreover, the Legislature has endorsed the view that water service means more than just
supplying water. The Proposition 218 Omnibus Implementation Act, enacted specifically
6
According to defendant, the election was unnecessary but held nevertheless in an
abundance of caution “because no case has explicitly reached the issue, and because of
the near certainty of suit.”
8
to construe Proposition 218, defines “water” as “any system of public improvements
intended to provide for the production, storage, supply, treatment, or distribution of
water.” (Gov. Code, § 53750, subd. (m).) Thus, the entity who produces, stores,
supplies, treats, or distributes water necessarily provides water service. Defendant‟s
statutory mandate to purchase, capture, store, and distribute supplemental water therefore
describes water service.
Plaintiffs‟ reliance on Salinas is erroneous. In Salinas, the question was whether a
storm drainage fee was exempt from the voter-approval requirement because it was a
water or sewer service fee. Our point about the average voter envisioning water service
as meaning the supplying of water was a preface to distinguishing water service from
storm drainage rather than a definition of water service. The entire sentence reads “The
average voter would envision „water service‟ as the supply of water for personal,
household, and commercial use, not a system or program that monitors storm water for
pollutants, carries it away [from property], and discharges it into the nearby creeks, river
and ocean.” (Salinas, supra, 98 Cal.App.4th at p. 1358.)
We therefore conclude that the augmentation charge at issue here is for water
service within the meaning of Proposition 218. As such, it was expressly exempt from
the fee/charge voting requirement.
In a second procedural attack, Pendry urges that defendant transgressed
Proposition 218 by enacting ordinance No. 2010-02 without giving notice of the protest
hearing to tenants and public utility customers who indirectly pay the augmentation
charge. There is no merit to the claim.
“An agency shall follow the procedures pursuant to this section in imposing or
increasing any fee or charge as defined pursuant to this article, including, but not limited
to, the following: [¶] (1) The parcels upon which a fee or charge is proposed for
imposition shall be identified. The amount of the fee or charge proposed to be imposed
upon each parcel shall be calculated. The agency shall provide written notice by mail of
9
the proposed fee or charge to the record owner of each identified parcel upon which the
fee or charge is proposed for imposition, the amount of the fee or charge proposed to be
imposed upon each, the basis upon which the amount of the proposed fee or charge was
calculated, the reason for the fee or charge, together with the date, time, and location of a
public hearing on the proposed fee or charge.” (§ 6, subd. (a)(1), italics added.)
In short, Proposition 218 requires that notice of the protest hearing be sent to
record owners, not tenants or customers. (See Gov. Code, § 53750, subd. (j) [“For
purposes of . . . Article XIII D of the California Constitution . . . [¶] . . . [¶] (j) „Record
owner‟ means the owner of a parcel whose name and address appears on the last
equalized secured property tax assessment roll, or in the case of any public entity, the
State of California, or the United States, means the representative of that public entity at
the address of that entity known to the agency.”].)
It is true, as Pendry points out, that, in the definitions section of Proposition 218,
the term “property ownership” is defined to include “tenancies of real property where
tenants are directly liable to pay the assessment, fee, or charge in question.” (§ 2, subd.
(g).) And it is true that “when a well [is] shown to be operated by a lessee or other
occupant, that person could be billed.” (Amrhein, supra, 150 Cal.App.4th at p. 1383.)
But the notice provision of section 6, subdivision (a), requires notice to record owners,
not to those having property ownership. (Silicon Valley, supra, 44 Cal.4th at p. 444 [“
„The principles of constitutional interpretation are similar to those governing statutory
construction.‟ [Citation.] If the language is clear and unambiguous, the plain meaning
governs.”].)
“Proposition 218 also imposes substantive limitations, including restrictions on the
use of revenues derived from such charges.” (Amrhein, supra, 150 Cal.App.4th at p.
1385.)
“A fee or charge shall not be extended, imposed, or increased by any agency
unless it meets all of the following requirements:
10
“(1) Revenues derived from the fee or charge shall not exceed the funds required
to provide the property related service.
“(2) Revenues derived from the fee or charge shall not be used for any purpose
other than that for which the fee or charge was imposed.
“(3) The amount of a fee or charge imposed upon any parcel or person as an
incident of property ownership shall not exceed the proportional cost of the service
attributable to the parcel.
“(4) No fee or charge may be imposed for a service unless that service is actually
used by, or immediately available to, the owner of the property in question. Fees or
charges based on potential or future use of a service are not permitted. Standby charges,
whether characterized as charges or assessments, shall be classified as assessments and
shall not be imposed without compliance with Section 4 [procedures and requirements for
proposed assessments].
“(5) No fee or charge may be imposed for general governmental services . . .
where the service is available to the public at large in substantially the same manner as it
is to property owners. . . . In any legal action contesting the validity of a fee or charge,
the burden shall be on the agency to demonstrate compliance with this article.” (§ 6,
subd. (b).)
Plaintiffs argue that the augmentation charge transgresses each of the section 6,
subdivision (b), substantive limitations.
Revenues shall not exceed the funds required to provide the property related
service
According to Griffith,7 the revenues derived from the augmentation charge exceed
the funds required to provide supplemental water service because some of the revenue is
7
Pendry does not challenge compliance with section 6, subdivision (b)(1).
11
used to pay ongoing debt that was “incurred to build a now abandoned pipeline to bring
water into the Valley.” 8 There is no merit to the point.
As noted above, the Act allows defendant to levy groundwater augmentation
charges for the purposes of paying the costs of purchasing, capturing, storing, and
distributing supplemental water. Such costs necessarily include debt service incurred to
construct facilities to capture, store, and distribute supplemental water.
Revenues shall not be used for any purpose other than that for which the fee or
charge was imposed
According to plaintiffs, the revenues derived from the augmentation charge are
used for a purpose other than that for which the charge was imposed because some of the
revenue is used to pay debt service and defendant‟s general expenses. Again, the Act
allows an augmentation charge to cover debt service. And similar reasoning supports that
the costs of purchasing, capturing, storing, and distributing supplemental water
necessarily include general expenses to administer the purchasing, capturing, storing, and
distributing of supplemental water.
Pendry, however, expands on this theme in a separate, detailed argument to the
effect that the augmentation charge is unauthorized by the Act. He contends that
ordinance No. 2010-02 is invalid because it allows the augmentation charge to be used
for “supplemental water service,” a purpose not authorized by the Act. Without
specifically referring to the Watsonville Recycled Water Project that blends treated
recycled water with well water for agricultural use, he complains that defendant “is using
the funds generated by the augmentation charge imposed by Ordinance 2010-02 to
extract groundwater from within the watershed and deliver that water to the coast . . . .”
8
Defendant‟s Proposition 218 Service Charge Report (Rate Study), in evidence
below, explains that a previously recommended import pipeline was no longer feasible
“[d]ue to changes in the availability of Central Valley Project water supplies.”
12
Pendry relies on the Act, which authorizes defendant to levy augmentation charges
to pay the costs of purchasing, capturing, storing, and distributing supplemental water for
use within the boundaries of the agency. From there, Pendry notes that the Act states that
“ „Supplemental water‟ means surface water or groundwater imported from outside the
watershed or watersheds of the groundwater basin, flood waters that are conserved and
saved within the watershed or watersheds which would otherwise have been lost or
would not have reached the groundwater basin, and recycled water.” (Act, § 316.) From
this, Pendry concludes that the recycle/well blend is not supplemental water because the
well portion of the blend is neither imported water, flood water, nor recycled water. We
disagree with Pendry‟s analysis.
Defendant‟s Rate Study (ante, fn. 8) explains that “The [Watsonville Recycled
Water Facility] produces recycled water with salinity (Total Dissolved Solids or TDS
concentration) between approximately 700 and 900 mg/L. The concentration of TDS
varies seasonally as a result of the source water flowing into the Waste Water Treatment
Plant. In order to reduce salinity and use the recycled water for irrigation purposes, the
recycled water must be blended with higher quality (lower TDS) water. Therefore, the
recycled water project includes the construction, operation, and maintenance of blend
water from supplemental groundwater wells. The supplemental wells are described in the
BMP [Basin Management Plan] as part of the recycled water project. The wells are a
necessary component of the recycled water project, which reduces coastal pumping and
thus increases the sustainable yield of the overall groundwater basin. These wells also
off-set and reduce the adverse water quality wells located closer to the coast.”
“ „Recycled water‟ means water which, as a result of treatment of waste, is
suitable for a direct beneficial use or a controlled use that would not otherwise occur and
is therefor considered a valuable resource.” (Wat. Code, § 13050, subd. (n).)
Given this definition, it is apparent that the Watsonville Recycled Water Facility
does not produce recycled water because the water it produces is not suitable for the
13
beneficial use of coastal agriculture.9 The water only becomes recycled water when
blended with the well water. Thus, the recycle/well blend water delivered to the coast is
supplemental water.
We are constrained to add that the Act unquestionably allows defendant to extract
groundwater for the purpose of capturing recycled water. The Act generally provides that
defendant “should, in an efficient and economically feasible manner, utilize supplemental
water and available underground storage and should manage the groundwater supplies to
meet the future needs of the basin.” (Act, § 102, subd. (g).) It specifically provides that
defendant, “in order to improve and protect the quality of water supplies may treat, inject,
extract, or otherwise control water, including, but not limited to, control of extractions,
and construction of wells and drainage facilities.” (Id. § 711.) And it also provides that
defendant “shall have the power to take all affirmative steps necessary to replenish and
augment the water supply within its territory.” (Id. § 714.)
The amount imposed as an incident of property ownership shall not exceed the
proportional cost of the service attributable to the parcel
According to Griffith, the amount imposed on his parcel was disproportionate
because he uses no services. But this overlooks that “the management of the water
resources . . . for agricultural, municipal, industrial, and other beneficial uses is in the
public interest” and defendant was created to manage the resources “for the common
benefit of all water users.” (Act, § 101.) It also overlooks that the augmentation charge
pays for “the activities required to prepare or implement any groundwater management
program.” (Id. § 1002, subd. (a).)
9
“Agricultural uses shall have priority over other uses under this act within the
constraints of state law.” (Act, § 102, subd. (d).)
14
Pendry similarly grounds his argument on the erroneous premise that “The only
property owners receiving § 6(b) services from [defendant] are the coastal landowners
receiving delivered water.”
Pendry specifically complains that defendant “established the augmentation charge
by calculating the amount needed for its project, and then subtracting its sources of
revenue other than the augmentation charge, with the remainder being the amount of the
augmentation charge.” He urges that defendant improperly “worked backwards.”
According to Pendry, “the proportional cost of service must be calculated . . . before
setting the rate for the augmentation charge.”
Defendant indeed established its augmentation charge based on a revenue-
requirement model that budgeted the rates by (1) taking the total costs of chargeable
activities, (2) deducting the revenue expected from other sources, and (3) apportioning
the revenue requirement among the users. The American Water Works Association
Manual of Water Supply Practices, in evidence below and relied on by defendant‟s rate-
making consultant, recommends this methodology (“The total annual cost of providing
water service is the annual revenue requirements that apply to the particular utility”).
Pendry does not explain why this approach offends Proposition 218 proportionality. He
cites Silicon Valley, supra, 44 Cal.4th at page 457 (“ „an assessment calculation that
works backward by starting with an amount taxpayers are likely to pay, and then
determines an annual spending budget based thereon, does not comply with the law
governing assessments.‟ ”). Unlike Silicon Valley, however, this case neither involves an
assessment nor a what-will-the-market-bear methodology. Pendry also cites Howard
Jarvis Taxpayers Assn. v. City of Fresno (2005) 127 Cal.App.4th 914, 923. But that case
says nothing more than that costs should be determined and apportioned (“Together,
subdivision (b)(1) and (3) of article XIII D, section 6, makes it necessary--if Fresno
wishes to recover all of its utilities costs from user fees--that it reasonably determine
15
[citation] the unbudgeted costs of utilities enterprises and that those costs be recovered
through rates proportional to the cost of providing service to each parcel.”). (Ibid.)
Pendry acknowledges that defendant apportioned the augmentation charge among
different categories of users (metered wells, unmetered wells, wells within the delivered
water zone). But he argues that City of Palmdale v. Palmdale Water Dist. (2011) 198
Cal.App.4th 926 (Palmdale), holds that Proposition 218 proportionality compels a parcel-
by-parcel proportionality analysis. We disagree with Pendry.
In Palmdale, the court reversed a judgment that had upheld tiered categories of
water rates. It held that the water district had failed to carry its burden to justify disparate
treatment of the customer classes. The case did not hold that parcel-by-parcel analysis
was required. It held that the water district charged categories disproportionately
“without a corresponding showing in the record that such impact is justified under
[Proposition 218].” (Palmdale, supra, 198 Cal.App.4th at p. 937.)
Apportionment is not a determination that lends itself to precise calculation.
(White v. County of San Diego (1980) 26 Cal.3d 897, 903.) In the context of determining
the validity of a fee imposed upon water appropriators by the State Water Resources
Control Board, the Supreme Court has recently held that “The question of proportionality
is not measured on an individual basis. Rather, it is measured collectively, considering
all rate payers.” (California Farm Bureau Federation v. State Water Resources Control
Bd. (2011) 51 Cal.4th 421, 438.)
Given that Proposition 218 prescribes no particular method for apportioning a fee
or charge other than the amount shall not exceed the proportional cost of the service
attributable to the parcel, defendant‟s method of grouping similar users together for the
same augmentation rate and charging the users according to usage is a reasonable way to
apportion the cost of service. That there may be other methods favored by plaintiffs does
not render defendant‟s method unconstitutional. Proposition 218 does not require a more
finely calibrated apportion.
16
No fee or charge may be imposed unless it is immediately available and not for
future services
Plaintiffs argue that the augmentation charge will be used for future services
because ordinance No. 2010-02 states that the charge will be used “to identify and
determine future supplemental water projects . . . .” There is no merit to the point.
Defendant‟s water service consists of more than just delivering water. As
mentioned, the Act authorizes defendant to levy groundwater augmentation charges to
pay for purchasing, capturing, storing, and distributing supplemental water. Since one
cannot rationally purchase supplemental water without identifying and determining one‟s
needs, identifying and determining future supplemental water projects is part of
defendant‟s present-day water service.
Pendry also complains that delivered water is one of the services and delivered
water is not immediately available except to coastal properties within the delivered water
zone. But, again, Pendry‟s complaint stems from his erroneous premise that the only
property owners receiving services from defendant are the coastal landowners receiving
delivered water and his failure to acknowledge that the augmentation charge pays for the
activities required to prepare or implement the groundwater management program for the
common benefit of all water users.
Revenues may not be imposed for general governmental services where the
service is available to the public at large in substantially the same manner as it is to
property owners
Plaintiffs reason that, since everyone is a water user, everyone benefits from the
services charged to property owners via the augmentation charge. They conclude that the
augmentation charge is imposed for general governmental services. We disagree with
plaintiffs‟ analysis.
The language of article XIII D, section 6, subdivision (b)(5), concerns the purpose
of fees and charges. (Golden Hill Neighborhood Assn., Inc. v. City of San Diego (2011)
17
199 Cal.App.4th 416, 434, fn. 17.) “The key is that the revenues derived from the fee or
charge are required to provide the service, and may be used only for the service.”
(Howard Jarvis Taxpayers Assn. v. City of Roseville (2002) 97 Cal.App.4th 637, 648.)
Defendant is not using money from the augmentation charge for “general governmental
service.” (§ 6, subd. (b)(5).) Rather, it is using the money to pay for the water service
provided.
CONFLICT OF INTEREST
Pendry contends that defendant‟s board member, Michael Dobler, who voted for
ordinance No. 2010-02, had a disqualifying financial interest in the decision, and that his
participation renders the ordinance void under the PRA. He points out that defendant‟s
board of directors consists of seven members (Act, § 402) and ordinances must pass by
“the affirmative vote of the majority of the members of the board” (id. § 410). He notes
that the vote count to pass ordinance No. 2010-02 was 4 to 1 and, thus, insufficient
without Dobler‟s vote. He complains that Dobler has an interest in entities that farm in
the delivered water zone. We disagree with Pendry‟s contention.
The PRA was enacted by initiative in June 1974. It prohibits any public official
from participating in a governmental decision in which he knows or has reason to know
he has a financial interest. (Gov. Code, § 87100.) It allows a person to sue for injunctive
relief and, “If it is ultimately determined that a violation has occurred and that the official
action might not otherwise have been taken or approved, the court may set the official
action aside as void.” (Id. § 91003, subd. (b).) It also establishes the Fair Political
Practices Commission (id. § 83100), which is authorized to adopt regulations to carry out
the purposes and provisions of the PRA (id. § 83112).
“A public official has a financial interest in a decision within the meaning of
Section 87100 if it is reasonably foreseeable that the decision will have a material
financial effect, distinguishable from its effect on the public generally, on the official . . .
.” (Gov. Code, § 87103.)
18
“The financial effect of a governmental decision on the official‟s economic
interest is indistinguishable from the decision‟s effect on the public generally if . . . : [¶] .
. . [¶] (c) The decision is made by the governing board of a water, irrigation, or similar
district to establish or adjust assessments, taxes, fees, charges, or rates or other similar
decisions, such as the allocation of services, which are applied on a proportional or
„across-the-board‟ basis on the official‟s economic interests and ten percent of the
property owners or other persons receiving services from the official‟s agency.” (Cal.
Code Regs., tit. 2, § 18707.2, subd. (c) (regulation).)
Here, there is no serious question that (1) defendant is a water, irrigation, or
similar district, and (2) the decision effected an adjustment to charges or rates.
Pendry disputes that the ordinance applies the charges proportionally and across
the board to persons receiving services from defendant. He urges that the augmentation
charge is imposed upon approximately 2400 parcels located within defendant‟s
boundaries but only a handful of those properties receive the delivered water service
(Dobler included) and can expect to benefit from the greater service, reliability, improved
water quality from the delivered water supply. This, however, is merely another variant
of Pendry‟s erroneous premise that the only property owners receiving services from
defendant are the coastal landowners receiving delivered water.
The augmentation charge affects those on whom it is imposed by burdening them
with an expense they will bear proportionately to the amount of groundwater they extract
at a rate depending on which of three rate classes applies. It is imposed “across-the-
board” on all water extractors. All persons extracting water--including any coastal users
who choose to do so--will pay an augmentation charge per acre-foot extracted. All
persons extracting water and paying the charge will benefit in the continued availability
of usable groundwater. That there is a separate charge for delivered water has no
tendency to establish that the augmentation charge is applied to the interests of extractors
in a manner that is anything other than proportional and across-the-board. It is plain that
19
the ordinance satisfies the terms of regulation section 18707.2, subdivision (c), such that
the “public generally” exception in the PRA applies to Dobler‟s vote.10 (See Amrhein,
supra, 150 Cal.App.4th at pp. 1395-1396 (conc. opn. of Bamattre-Manoukian, J.).)
ORDINANCE NO. 2002-02 AND 1993 MANAGEMENT FEE
In Eiskamp, the plaintiff challenged ordinance No. 2002-02 on the ground that it
was invalid because defendant did not comply “with the notice, hearing, and voting
requirements of [Proposition 218].” (Eiskamp, supra, 203 Cal.App.4th at p. 102.) We
concluded that the challenge was barred by the doctrine of res judicata because the 2008
stipulated judgment in the Pending Litigation resolved the issue against all persons. We
specifically held that “Since the pending litigation was a validation proceeding, the
judgment entered pursuant to the stipulated agreement was „binding and conclusive . . .
against [defendant] and against all other persons‟ (Code Civ. Proc., § 870, subd. (a)),
including Eiskamp.” (Id. at p. 106.) Since Pendry raises the same claim as the plaintiff
in Eiskamp,11 his challenge is also barred.
Pendry disagrees. He asserts that Eiskamp was wrongly decided because “the in
pro per plaintiff in Eiskamp did not properly present the correct facts or law to this
Court.” According to Pendry, the Consolidated Lawsuits were not in rem validation
10
Pendry claims that the trial court did not find that the “public generally”
exception applies in this case. It is true that the trial court‟s reasoning is ambiguous. The
trial court‟s statement of decision finds against “a conflict of interest which could support
the voiding of the subject Ordinance.” The finding could be construed to mean that (1)
Dobler had no disqualifying financial interest, (2) the “public generally” exception
applied to Dobler‟s financial interest, or (3) Dobler‟s financial interest did not justify the
discretionary remedy to void the ordinance. Pendry‟s point is of no moment. The parties
argued the “public generally” exception to the trial court. The salient facts are
undisputed. And Pendry urges us to review the PRA issue de novo because it involves
statutory interpretation on undisputed facts.
11
The plaintiff in Eiskamp did not challenge the 1993 management-fee ordinance
as does Pendry, but the management-fee ordinance stands on the same footing as the
augmentation-charge ordinance since it was part of the stipulated judgment.
20
proceedings insofar as ordinance No. 2002-02 was concerned because, in Scurich (the
case that challenged that ordinance via a reverse validation action), our reversal upheld
the trial court‟s dismissal of the in rem validation cause of action and remanded for trial
an in personam declaratory-relief cause of action. From this, Pendry reasons that
ordinance No. 2002-02 was “not under attack” such that there was in rem jurisdiction in
the Consolidated Lawsuits. Pendry concludes that the stipulated judgment only binds
parties to the stipulated agreement and, since he was not a party,12 he is free to relitigate.
Pendry‟s analysis is erroneous.
The settlement agreement served to resolve “ „all matters raised in the
Consolidated Lawsuits and the Amrhein Lawsuit (collectively the “Pending Litigation”).‟
” (Eiskamp, supra, 203 Cal.App.4th at p. 102, italics added.) Specifically, the parties
extinguished “ „any and all claims arising out of the Pending Litigation all issues,
transactions and/or related claims or actions including all claims that the parties have
made or could have made with respect to the validity of any Augmentation Charge or
Management Fee ordinances currently in effect . . . .‟ ” (Ibid., italics added.)
In the Pending Litigation, the “judgment was entered pursuant to the terms of the
stipulated agreement.” (Eiskamp, supra, 203 Cal.App.4th at p. 102.) Since the Amrhein
Lawsuit was a validation proceeding and part of the Pending Litigation, all persons are
bound by the judgment. (Code Civ. Proc., § 870, subd. (a).) And since the judgment
extinguished all claims that the parties, which includes all persons given that validation
character of Amrhein, had made concerning any augmentation charge or management fee
then in effect, Pendry cannot relitigate the claims here. Pendry concedes as much by
recognizing that “the plaintiffs and defendants in Scurich and Amrhein [all persons]
12
Plaintiff McGrath was a party to the stipulated agreement but he excepted
himself from the causes of action herein that challenge ordinance No. 2002-02 and the
management fee ordinance.
21
stipulated in private settlement discussions to accept money in exchange for foregoing
their individual right to attack Ordinance 2002-02 in the future.” That ordinance No.
2002-02 was not technically under attack at the time of the judgment does not detract
from that the Pending Litigation was a validation proceeding that comprehensively
extinguished all claims that had been made, or could have been made about the validity
of any augmentation charge or management fee then in effect. This necessarily includes
claims against ordinance No. 2002-02 and the 1993 Management Fee.13
Pendry claims that applying res judicata against him transgresses due process.
However, his argument is premised on the trial court‟s conclusion that res judicata
applied because he was in privity with the parties in the Pending Litigation. Our
conclusion is that res judicata applies because, by virtue of the validation character of the
Pending Litigation, he was a party to the Pending Litigation.
DISPOSITION
The judgment in H038087 (Santa Cruz County Superior Court case No.
CV168936-Griffith) is affirmed.
The judgment in H038264 (Santa Cruz County Superior Court case No.
CV169080-Pendry) is affirmed.
13
Defendant‟s request to take judicial notice of three letters requesting
depublication of Eiskamp and four letters supporting a petition for review of Eiskamp is
denied.
22
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.
Griffith v. Pajaro Valley Water Management Agency
H038087
Pendry et al. v. Pajaro Valley Water Management Agency
H038264
Trial Court: Santa Cruz County Superior Court
Superior Court Nos. CV168936,
CV169080
Trial Judge: Hon. Timothy Volkmann
Counsel for Plaintiff/Appellant: In pro. per.
Harold Griffith
Case No: H038087
Superior Court Case No: CV168936
Counsel for Plaintiffs/Appellants: Johnson & James
Joseph P. Pendry, James Spain, Yuet- Robert K. Johnson
Ming Chu, William McGrath, Henry
Schimpeler
Case No: H038264
Superior Court Case No: CV169080
Counsel for Defendant/Respondent: Colantuono & Levin
Pajaro Valley Water Management Michael G. Colantuono
Agency Amy C. Sparrow
Michael R. Cobden
Atchison, Barisone, Condotti &
Kovacevich
George J. Kovacevich
Anthony P. Condotti
S. Adair Paterno
Amicus Curiae on behalf of Aleshire & Wynder
Respondents for Association of Patricia J. Quilizapa
California Water Agencies and
California State Association of
Counties
Griffith v. Pajaro Valley Water Management Agency
H038087
Pendry et al. v. Pajaro Valley Water Management Agency
H038264
| {
"pile_set_name": "FreeLaw"
} |
DLD-209 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-2293
___________
IN RE: EDWARD J. BROWN,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Western District of Pennsylvania
(Related to D.C. Civ. No. 3:08-cv-00203)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
May 27, 2010
Before: FUENTES, JORDAN and HARDIMAN, Circuit Judges
(Opinion filed June 2, 2010)
_________
OPINION
_________
PER CURIAM
In July 2008, Petitioner Edward James Brown, a prisoner proceeding pro se,
petitioned the District Court for a writ of habeas corpus, alleging that his due process
rights are being violated by a delay in his state parole revocation proceedings. The
District Court denied Brown’s petition, finding that Brown failed to demonstrate that he
suffered any violation of his due process rights with respect to the timing of his parole
revocation hearing. On April 20, 2010, we declined Brown’s request for a certificate of
appealability. On May 7, 2010, Brown petitioned this Court for a writ of mandamus,
requesting an order dismissing his parole detainer with prejudice.
Mandamus is a drastic remedy available only in extraordinary cases, see In re Diet
Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005), as the petitioner must
demonstrate that he has “no other adequate means” to obtain the relief desired and a
“clear and indisputable” right to issuance of the writ. Madden v. Myers, 102 F.3d 74, 79
(3d Cir. 1996). State prisoners challenging the denial of parole must proceed by filing a
habeas petition pursuant to 28 U.S.C. § 2254. See Coady v. Vaughn, 251 F.3d 480, 486
(3d Cir. 2001). As noted above, the District Court has previously denied Brown’s petition
for habeas, in which he requested the same relief he seeks now. See Brown v. Com. of
Pa. Bd. of Prob. and Parole, 2010 WL 411832 (W.D.Pa. 2010). In affirming the District
Court order, we explained that Brown failed to demonstrate “a substantial showing of the
denial of a constitutional right.” See C.A. 10-1424. Mandamus cannot be used to obtain
relief that has been sought and denied. See e.g., United States ex rel. McQueen v.
Wangelin, 527 F.2d 579, 582 (8th Cir. 1975) (holding that mandamus will not lie to
disturb a final order on a habeas petition). More fundamentally, to the extent that Brown
seeks an order directing state courts or state officials to take action, the request lies
2
outside the bounds of our mandamus jurisdiction as a federal court.1 See, e.g., In re
Tennant, 359 F.3d 523, 531 (D.C. Cir. 2004) (explaining that mandamus jurisdiction lies
with the court that has the ultimate authority to review a decision).
Because Brown has not shown a right to issuance of the writ that is “clear and
indisputable,” we shall deny his mandamus petition.
1
To the extent that Brown is claiming a violation of 37 Pa. Code § 71.4, a claim
based on an erroneous application of state law is not cognizable in federal court. See
Taylor v. Horn, 504 F.3d 416 (3d Cir. 1007). Moreover, it appears that no state law has
been violated, as Pennsylvania courts have held that the 120-day period for a parole
revocation hearing runs from the time a prisoner is returned to a Pennsylvania facility,
which in Brown’s case, has not yet happened. See Davis v. Com., 498 A.2d 6, 8 (Pa.
Commw. Ct. 1985).
3
| {
"pile_set_name": "FreeLaw"
} |
942 So.2d 980 (2006)
Sterling WATTS, Appellant,
v.
STATE of Florida, Appellee.
No. 4D02-4034.
District Court of Appeal of Florida, Fourth District.
November 29, 2006.
*981 Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, West Palm Beach, for appellee.
ON REMAND FROM THE SUPREME COURT
PER CURIAM.
In State v. Watts, 940 So.2d 1104 (Fla. 2006), the supreme court quashed our decision in Watts v. State, 912 So.2d 17 (Fla. 4th DCA 2005), and remanded for reconsideration upon application of State v. Richardson, 915 So.2d 86 (Fla.2005).
In our prior opinion we reversed appellant's habitual offender sentence because he did not have the necessary prior sequential convictions, where one of the prior "convictions" was an offense for which he was placed on probation. We relied on Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2003). However, the supreme court held in State v. Richardson that a conviction upon which the offender was placed on probation can constitute a "sentence" for purposes of habitual offender qualification, quashing our decision. 915 So.2d at 89. Based upon the supreme court's holding, we now affirm appellant's habitual felony offender sentence. In all other respects, our prior opinion remains unchanged.
WARNER, POLEN and HAZOURI, JJ., concur.
| {
"pile_set_name": "FreeLaw"
} |
82 Wn.2d 766 (1973)
514 P.2d 134
FRED E. KJELLMAN, Petitioner,
v.
WENDELL K. RICHARDS et al., Respondents. HAROLD DIGRE et al., Petitioners,
v.
WENDELL K. RICHARDS et al., Respondents.
No. 42644.
The Supreme Court of Washington, En Banc.
September 13, 1973.
UTTER, J.
Fred Kjellman, Sylvia Digre and Harold Digre appeal from a jury verdict finding Kim Richards not liable for damages they suffered in a traffic accident. A private school bus, which Sylvia Digre was driving and in which her son, Harold, was a passenger, collided with a car driven by Fred Kjellman resulting in personal injuries and property damage. All three persons brought suit against Kim Richards, a minor, and his parents, as owners of the car young Richards was driving, alleging the sole proximate cause of the Digre-Kjellman collision was the negligent manner in which Richards drove immediately prior to the collision.
The evidence demonstrates that Richards drove across the center line of the road forcing Sylvia Digre to take evasive action against the approaching Richards car. In the course of this evasion, Sylvia Digre lost control of the bus and struck the Kjellman car.
*768 All of the plaintiffs allege the trial court erred (1) in failing to give instructions covering their theory of the case, (2) in failing to instruct the jury that it is negligence per se to violate the statutory rule of the road to remain on the right half of a roadway (requested instructions Nos. 3 and 4),[1] and (3) in instructing the jury that a finding of negligence by Sylvia Digre in failing to use her seat belt could diminish but not bar a recovery if there was a verdict in her favor.
We reverse the trial court for not properly instructing the jury as to defendant's alleged negligence per se.
The first assignment of error is to the court's refusal to specifically instruct the jury on what were the claimed items of negligence of Kim Richards, and not for failing to provide instruction within which plaintiffs could argue any specific acts of negligence.
[1] We find no error in the trial court's refusal to give plaintiffs' instruction because the instructions given allowed plaintiffs to argue their specific theories on negligence.
While each party is entitled to have his theory of the case set forth in the court's instructions, it is axiomatic that the trial court has considerable discretion in how the instructions will be worded. Roberts v. Goerig, 68 Wn.2d 442, 413 P.2d 626 (1966). It is also axiomatic that the instructions must be read as a whole.
State v. Dana, 73 Wn.2d 533, 536, 439 P.2d 403 (1968). See also Laudermilk v. Carpenter, 78 Wn.2d 92, 100, 457 P.2d 1004 (1969); Myers v. Ravenna Motors, Inc., 2 Wn. App. 613, 615, 468 P.2d 1012 (1970). The instructions given, *769 when read together, set forth plaintiffs' theory and permit specific argument in furtherance of it.
[2] The second assigned error is the refusal to give plaintiffs' requested negligence per se instructions. On this issue, the court instructed:
You are instructed that the defendant driver at the time and place of the accident involved had a duty to drive his automobile to the right of the centerline of the highway.
(Italics ours.) Instruction No. 11. There is nothing in this instruction, or elsewhere, defining "duty" or explaining how the word related to the concepts of proximate cause, contributory negligence, negligence, or ordinary care. This failure could result in prejudicial confusion by permitting the jury to resolve a question of law. The court may not so abdicate its responsibility. State v. Chambers, 81 Wn.2d 929, 932, 506 P.2d 311 (1973). The word "duty" could explain in part, for example, the nature of defendant's legal relationship to the plaintiffs if it had been further defined. W. Prosser, Law of Torts at 324 (4th ed. 1971).
The court further failed to clearly state the defendant's conduct was actionable negligence, that is if it proximately contributed to the plaintiffs' injuries. White v. Peters, 52 Wn.2d 824, 329 P.2d 471 (1958).
Plaintiffs' theory is that defendant's potential liability is established by violating a positive statute prohibiting driving over the roadway's center line. They are entitled to have the legal basis of this theory clearly presented.
Plaintiffs' exceptions adequately informed the trial court of the nature of its mistake. In their exceptions to the giving of instruction No. 11, they stated:
I would only ask and request, your Honor, a further clarification that the failure or that such conduct amounts to negligence per se and that it is in violation of the state statute, specifically 46.61.100.
The exception to the court's failure to give the requested instructions Nos. 3 and 4 was: "This is a Uniform Washington Pattern Instruction covering negligence per se."
*770 [3] CR 51 (f) directs that objections "state distinctly the matter to which he [counsel] objects and the grounds of his objection ..." Exceptions to the trial court's failure to give an instruction must inform the trial judge of the points of law involved. State v. McDonald, 74 Wn.2d 141, 443 P.2d 651 (1968); Colonial Inv. Co. v. Kuhnhausen, 73 Wn.2d 861, 440 P.2d 975 (1968): Dravo Corp. v. L.W. Moses Co., 6 Wn. App. 74, 492 P.2d 1058 (1972). These exceptions, when considered together, are sufficiently definite to inform the trial court of the matter to which counsel objected and the grounds of his objection.
Inasmuch as this case must be remanded for a new trial, we do not comment on the question of the trial court's instruction to the jury that allowed the injection of the issue of whether Sylvia Digre was contributorially negligent for not wearing a seat belt. In light of our ruling in Derheim v. N. Fiorito Co., 80 Wn.2d 161, 492 P.2d 1030 (1972), rejecting the "seat belt defense", decided subsequent to the trial of this case, it is unlikely the same problem will occur again. We further assume that on retrial the plaintiffs will retain separate counsel because the fact is now apparent the respective positions of the various plaintiffs may be antagonistic to each other.
Judgment reversed.
HALE, C.J., FINLEY, ROSELLINI, HUNTER, HAMILTON, STAFFORD, and WRIGHT, JJ., concur. BRACHTENBACH, J. (concurring)
I concur in the rationale of the majority except to the extent that it fails to deal with the seat belt-contributory negligence issue.
The problem is that the trial court did not instruct on the seat belt issue in the usual "contributory negligence is a complete bar" sense, but rather that such contributory negligence, if found, would bar recovery for such injuries or damages that would not have occurred had plaintiff been wearing a seat belt.
The so-called seat belt defense has been urged not only as contributory negligence, but alternatively as falling *771 within the concept of avoidable consequences or apportionment or mitigation of damages. 53 Marquette L. Rev. 172 (1970).
A careful reading of Derheim v. N. Fiorito Co., 80 Wn.2d 161, 492 P.2d 1030 (1972), indicates to me that the court intended to reject all elements of the defense, that is, contributory negligence, avoidable consequences and apportionment or mitigation. I would dispel any doubt by so holding in this case. In addition to the cases cited in Derheim, see Lipscomb v. Diamiani, 226 A.2d 914 (Del. 1967), and Romankewiz v. Black, 16 Mich. App. 119, 167 N.W.2d 606 (1969), which discuss and reject not only the contributory negligence concept, but its subvariations.
ROSELLINI, HUNTER, and WRIGHT, JJ., concur with BRACHTENBACH, J.
NOTES
[1] `Plaintiffs' requested Instruction No. 3: "The violation, if you find any, of a statute is negligence as a matter of law. Such negligence has the same effect as any other act of negligence. Therefore, it will not render a defendant liable for damages claiming injury or damage unless you further find that it was a proximate cause of the claimed injury or damage." Plaintiffs' requested Instruction No. 4: "You are instructed that a statute provides that upon all roadways of sufficient width a vehicle is to be driven upon the right half of the roadway. There are certain exceptions to this statute, none of which is applicable to this case."
| {
"pile_set_name": "FreeLaw"
} |
206 S.W.3d 828 (2005)
Rodell AVERY, Jr., Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 04-395.
Supreme Court of Arkansas.
April 7, 2005.
*829 Alvin D. Clay, for appellant.
No response.
PER CURIAM.
Appellant Rodell Avery, Jr., by and through his attorney, has filed a motion for belated appeal. His attorney, Alvin D. Clay, states that on September 16, 2003, judgments were entered reflecting Avery's convictions for aggravated robbery, three counts of kidnapping, and escape in the second degree, following which Mr. Clay filed motions to vacate the sentences. Upon the denial of the motions, Mr. Clay filed notices of appeal that merely made reference to the order denying the motions to vacate, and not to the judgments themselves. Mr. Clay states that on appeal, this court treated the appeal as one from a denial of post-conviction relief and dismissed the appeal when Mr. Clay failed to file a substitute brief and abstract as directed by the court. See Avery v. State, 360 Ark. 595, 203 S.W.3d 109 (2005) (per curiam). Mr. Clay now admits that he erred in failing to file a timely notice of appeal from the judgments entered against Avery on September 16, 2003, and that his error prevented Avery from having his convictions reviewed by this court.
This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or, there is "good reason." 356 Ark. at 116, 146 S.W.3d at 891. We explained:
. . . Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he has erred and is responsible for the failure to perfect the appeal. See id.
This court's rules further provide that no motion for belated appeal shall be entertained unless application has been made to this court within eighteen months of the date of the entry of judgment. See Ark. R.App. P.-Crim. 2(e) (2004). While Mr. *830 Clay did not file the instant motion until the last possible day on which to do so, we note that the motion is in fact timely.
In accordance with McDonald v. State, supra, Mr. Clay has candidly admitted fault. The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Motion granted.
| {
"pile_set_name": "FreeLaw"
} |
541 U.S. 978
MOOREv.CALIFORNIA.
No. 03-8763.
Supreme Court of United States.
April 5, 2004.
1
Sup. Ct. Cal. Certiorari denied.
| {
"pile_set_name": "FreeLaw"
} |
Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00014-CR
Clinton Lee GAMBLE,
Appellant
v.
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. B17360
Honorable Rex Emerson, Judge Presiding
PER CURIAM
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Delivered and Filed: March 27, 2019
DISMISSED
The trial court’s certification in this appeal states that “this criminal case is a plea-bargain
case, and the defendant has NO right of appeal.” The clerk’s record contains a written plea bargain,
and the punishment assessed did not exceed the punishment recommended by the prosecutor and
agreed to by the defendant; Rule 25.2(a)(2) applies. See TEX. R. APP. P. 25.2(a)(2). This court
must dismiss this appeal “if a certification that shows the defendant has the right of appeal has not
been made part of the record under these rules.” Id. R. 25.2(d); see Chavez v. State, 183 S.W.3d
675, 680 (Tex. Crim. App. 2006).
04-19-00014-CR
On February 13, 2019, we notified Appellant that this appeal would be dismissed under
Rule 25.2(d) unless an amended trial court certification showing that Appellant has the right of
appeal was made part of the appellate record by March 13, 2019. See TEX. R. APP. P. 25.2(d),
37.1; see also Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005); Daniels v. State, 110
S.W.3d 174, 176 (Tex. App.—San Antonio 2003, no pet.). To date, no response has been filed.
Absent an amended trial court certification showing that Appellant has the right of appeal,
Rule 25.2(d) requires this court to dismiss this appeal. See Dears, 154 S.W.3d at 613; Daniels,
110 S.W.3d at 176. Accordingly, this appeal is dismissed.
PER CURIAM
DO NOT PUBLISH
-2-
| {
"pile_set_name": "FreeLaw"
} |
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
JUDICIAL WATCH, INC., )
)
Plaintiff, )
)
v. ) Civil Action No. 13-0949 (ESH)
)
UNITED STATES )
DEPARTMENT OF JUSTICE, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
Judicial Watch, Inc., brings this action against the United States Department of Justice
(“DOJ”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et seq. In response to
a FOIA request made by plaintiff, defendant produced some documents in full, but withheld and
redacted others pursuant to FOIA Exemptions 5 and 6. (Def.’s Mot. for Summ. J. (“Def.’s
Mot.”), Feb. 10, 2014 [ECF No. 10], at 1-2.) Plaintiff concedes that the search for responsive
documents was reasonable and that the majority of defendant’s withholdings and redactions were
justified. (Pl.’s Cross-Mot. for Partial Summ. J. (“Pl.’s Mot.”), Mar. 3, 2014 [ECF No. 12], at 4.)
Plaintiff, however, challenges the redaction of e-mails “discussing the drafting of the Attorney
General’s speech which discuss/infer the sexual orientation of certain Department employees”
under Exemption 6. (Id.) Presently before the Court are the parties’ cross-motions for summary
judgment. Based on a consideration of the pleadings, an in camera review of the e-mails at
issue, and the relevant case law, the Court will grant defendant’s motion and deny plaintiff’s
motion.
BACKGROUND
On August 27, 2012, Judicial Watch submitted a FOIA request to the DOJ Office of
Information Policy (“OIP”) seeking records related to the National LGBT (Lesbian, Gay,
Bisexual, and Transgender) Bar Association’s 2012 Lavender Law Conference and Career Fair
at which the Attorney General spoke. (Statement of Material Facts As to Which There is No
Genuine Dispute (“SUMF”), Feb. 10, 2014 [ECF No. 10], at ¶ 1.) When Judicial Watch failed
to receive a response from the government by March 18, 2013, it sent an e-mail demanding that
the requested records be provided without delay. (Pl.’s Mot. at 2.) DOJ responded by e-mail
informing Judicial Watch that the search for responsive documents had been completed and that
OIP was in the process of reviewing these documents. Judicial Watch then filed an
administrative appeal on March 21, 2013, and this lawsuit on June 21, 2013. (Id. at 2-3.) OIP
responded to plaintiff’s FOIA request on December 17, 2013. (SUMF at ¶ 3.) Of the two
hundred and thirty-five pages of responsive documents identified by OIP, it released one hundred
and sixty-six pages in redacted form, withheld sixty-six pages in full, referred two pages to the
Community Relations Service (ultimately released in full), and referred one page to the Tax
Division (ultimately released in redacted form). (Id. at ¶¶ 3-5.)
Along with its motion for summary judgment, defendant filed a sworn declaration from
Vanessa R. Brinkmann, Senior Counsel at OIP, detailing the process that OIP used to search for
responsive documents and outlining the ten categories of withheld and/or redacted documents.
(Declaration of Vanessa R. Brown (“Brown Decl.”), Feb. 10, 2014 [ECF No. 10-1].) These
categories included:
• Exemption (5)-(1): e-mails “deliberating the timing of an announcement regarding the
Attorney General’s participation in the conference”;
2
• Exemption (5)-(2): e-mails “discussing the drafting of the Attorney General’s
speech”;
• Exemption (5)-(3): “drafts of the Attorney General’s speech with substantive
revisions that were substantially different from the final version of the Attorney
General’s remarks before the Lavender Law Conference and Career Fair”;
• Exemption (5)-(4): “briefing material, including talking points, prepared for the
Attorney General regarding hate crimes prevention”;
• Exemption (6)-(1): “the e-mail address of the Attorney General”;
• Exemption (6)-(2): “the cell phone numbers of third parties associated with an LGBT
organization”;
• Exemption (6)-(3): “the cell phone and home numbers and personal e-mail addresses
of various employees of the Departments of Justice and Homeland Security”;
• Exemption (6)-(4): e-mails “discussing the drafting of the Attorney General’s speech
which discuss/infer the sexual orientation of certain Department employees”;
• Exemption (6)-(5): e-mails “discussing the personal travel of a Department
employee”; and
• Exemption (6)-(6): e-mails “among Department employees, including personal
commentary and discussions among colleagues inferring the sexual orientation of
some Department employees who would be involved at the conference.”
(Id. at ¶¶ 19-21.) In a footnote in her affidavit, Ms. Brinkmann explained that portions of the
two pages of e-mails redacted pursuant to Exemption (5)-(2) “also [had] been protected by
Exemption 6[-(4)].” (Id. at ¶ 19 n. 9.) In a second footnote, she explained that “[t]he deliberative
information in [] category [(6)-(4)] has also been protected by Exemption 5[, s]ee category
(b)(5)-(2).” (Id. at ¶ 20 n.11.)
Plaintiff does not challenge either the adequacy of defendant’s search or the redactions
and withholdings made pursuant to nine of the ten categories described above. (Pl.’s Mot. at 4.)
Plaintiff challenges only the withholding of portions of documents under Exemption (6)-(4).
Though plaintiff acknowledges that it is not requesting the names of the individuals referenced in
3
these documents, it contends that it is entitled to the “release of all other portions of these e-mails
in which DOJ employees discuss the sexual orientation of other employees.” (Id.)
Defendant argues that it is entitled to summary judgment on two independent grounds.
(See Def.’s Reply to Pl.’s Opp. to Def.’s Mot. for Summ. J. & Opp. to Pl.’s Cross Mot. for
Summ. J. (“Def.’s Opp.”), Mar. 19, 2014 [ECF No. 13], at 1.) First, it argues that the requested
information in Exemption (6)-(4) “w[as] also withheld in part pursuant to Exemption 5 as
category [Exemption] (b)(5)-(2).” (Id. at 2.) Second, it argues that parts of the documents at
issue were justifiably withheld under Exemption 6 because they “allude[] to the sexual
preference of a very small number of individuals whose identities are readily identifiable by the
specific context of the deliberations, and the redaction of names and/or their job titles would not
protect their identities.” (Id. at 4.). Plaintiff cross-moves for partial summary judgment on the
grounds that (1) defendant failed to allege that Exemption 5 applies to the e-mails in a timely
fashion and (2) no privacy interests exist which overcome the public interest in the release of
“discussions by DOJ employees of other employees’ sexual orientation [which] constitute
puerile behavior by government employees” and “the disclosure of government officials’
attempts to apply stereotypes and speculate on their colleagues’ sexual orientation.” (See Pl.’s
Mot. at 6; Pl.’s Reply in Support of Its Cross-Mot. for Partial Summ. J. (“Pl.’s Reply”), Apr. 7,
2014 [ECF No. 15], at 2-3.) On April 18, 2014, the Court issued an Order directing defendant to
produce the contested document for in camera inspection by the Court.
ANALYSIS
I. STANDARD OF REVIEW
The Court may grant summary judgment “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
4
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The
moving party bears the burden of demonstrating an absence of a genuine issue of material fact in
dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving
party’s affidavits may be accepted as true unless the opposing party submits his own affidavits or
declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C.
Cir. 1992).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citations
omitted). “In a FOIA case, summary judgment may be granted to the government if ‘the agency
proves that it has fully discharged its obligations under the FOIA, after the underlying facts and
the inferences to be drawn from them are construed in the light most favorable to the FOIA
requester.’” Fischer v. U.S. Dep’t of Justice, 596 F. Supp. 2d 34, 42 (D.D.C. 2009) (quoting
Greenberg v. U.S. Dep’t of Treasury, 10 F. Supp. 2d 3, 11 (D.D.C. 1998)). “An agency that has
withheld responsive documents pursuant to a FOIA exemption can carry its burden to prove the
applicability of the claimed exemption by affidavit.” Larson v. Dep’t of State, 565 F.3d 857, 862
(D.C. Cir. 2009) (citing Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 926
(D.C. Cir. 2003)). “Summary judgment is warranted on the basis of agency affidavits when the
affidavits describe the justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within the claimed exemption, and are
not controverted by either contrary evidence in the record nor by evidence of agency bad faith.”
Larson, 565 F.3d at 862 (quoting Miller Audit Project v. Casey, 730 F.2d 773, 776 (D.C. Cir.
1984)). Finally, “an agency’s justification for invoking a FOIA exemption is sufficient if it
5
appears ‘logical’ or ‘plausible.’ ” Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370,
374-75 (D.C. Cir. 2007)).
II. EXEMPTION 5
Defendant first argues that it properly withheld parts of the disputed e-mail chain
pursuant to the deliberative process privilege embodied in Exemption 5. (See Def.’s Opp. at 2.)
This privilege extends to intra- and inter-agency documents that are both “predecisional and
deliberative” in nature. See Mapother v. Dep’t of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993).
This category of documents includes “advisory opinions, recommendations and deliberations
comprising part of the process by which governmental decisions and policies are formulated.”
Loving v. Dep’t of Defense, 550 F.3d 32, 38 (D.C. Cir. 2008) (citing Dep’t of Interior v. Klamath
Water Users Protective Ass’n, 552 U.S. 1, 8 (2001)). Such documents are protected “because
[Congress] determined that disclosure of material that is both predecisional and deliberative does
harm [to] an agency’s decisionmaking process.” McKinley v. Bd. of Gov. of Fed. Reserve Sys.,
647 F.3d 331, 339 (D.C. Cir. 2011) (emphasis in original).
Plaintiff responds that defendant failed to raise this exemption in a timely to fashion, and
therefore, “[a]ny argument that Exemption 5 applies to the requested records has been waived.”
(Def.’s Reply at 2.) In plaintiff’s view, it specifically challenges those redactions made under
Exemption (6)-(4) and the government may not simply rely on a cross-reference to Exemption 5
in a “mere footnote in a supporting affidavit attached to its summary judgment motion.” (Id.)
Defendant argues, on the other hand, that the footnotes in the Brinkmann declaration
6
demonstrate that parts of the e-mails are protected under both Exemption (6)-(4) and Exemption
(5)-(2). 1 (Def.’s Opp. at 2-3.)
To be sure, the Court of Appeals has “plainly and repeatedly told the government that, as
a general rule, it must assert all exemptions at the same time, in the original district court
proceedings.” Maydak v. U.S. Dep’t of Justice, 218 F.3d 760, 764-65 (D.C. Cir. 2000) (collecting
cases). Here, the disputed issue is somewhat different—whether it is sufficient for defendant to
raise the objection in the supporting sworn declaration and not within the four corners of the
motion itself. The Court believes that it is. The Court of Appeals has routinely recognized that
summary judgment may be granted in FOIA cases solely based on the information provided in
affidavits or sworn declarations submitted by the agency. See Am. Civil Liberties Union, 628
F.3d 612, 619 (D.C. Cir. 2011) (“An agency withholding responsive documents from a FOIA
release bears the burden of proving the applicability of claimed exemptions [and t]ypically . . .
does so by affidavit.”) (emphasis added); Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 30
(D.C. Cir. 1998) (“To justify summary judgment, a declaration must provide detailed and
specific information demonstrating ‘that material withheld is logically within the domain of the
exemption claimed.’”) (emphasis added) (internal citations and quotation marks omitted).
Therefore, while the government certainly could have been clearer in claiming that both
Exemption (5)-(2) and Exemption (6)-(4) applied to the two-page e-mail chain at issue in this
case, and it could have referenced the relevant footnotes from the Brinkmann Declaration in its
summary judgment motion, its failure to do so is not fatal. Raising the issue in the affidavit and
1
Based on its in camera review, the Court can confirm that the only document redacted pursuant to
Exemption (6)-(4) is the document expressly identified in category Exemption (5)-(2) in the Brinkmann
Declaration in paragraph 19. (See also Pl.’s Mot. at 22 (arguing that parts of these e-mails were withheld
because “the authors of these e-mails are providing opinions and debating the best way to go about
making suggested revisions and/or deciding on courses of action that are still under consideration”).)
7
discussing Exemption (5)-(2) in the summary judgment motion sufficiently illsutrate defendant’s
reliance on Exemption 5 for redacting parts of the relevant e-mail chain in its “original
proceeding” within the meaning of Maydak. 2
Plaintiff next argues in a footnote of its own that “[e]ven if Exemption 5 had not been
waived,” as the Court concludes, “it would be a truly novel argument that the deliberative
process privilege applies to government employees’ speculation about their colleagues’ sexual
orientation.” (Pl.’s Reply at 2 n.1.) Yet, this argument is equally unconvincing. Contrary to
plaintiff’s assertion, the government’s justification for withholding parts of the e-mail chain
under Exemption 5 is not based on the content of the e-mails, but rather is based on the context
in which the comments were made. As Ms. Brinkmann’s supporting declaration and the
defendant’s motion for summary judgment explain, “[t]hese exchanges . . . reflect the various
stages of the decisionmaking process . . . [and i]f such communications are made public,
Department employees will be much more circumspect in their discussions . . . .” (Brinkmann
Decl. at ¶ 27; Def.’s Mot. at 22.) Plaintiff has presented neither “contrary evidence in the record .
. . nor evidence of bad faith” that the redacted information “logically falls within the claimed
2
This conclusion is bolstered by the fact that the “two policy goals” that support the requirement that the
government raise the exemptions upon which it seeks to rely in the “the original district court proceeding”
are: (1) “the interest in judicial finality and economy, which has special force in the FOIA context,
because the statutory goals—efficient, prompt, and full disclosure of information—can be frustrated by
agency actions that operate to delay the ultimate resolution of the disclosure request,” and (2)
preventing the government from playing cat and mouse by withholding its most powerful cannon until
after the [d]istrict [c]ourt has decided the case and then springing it on surprised opponents and the
judge.” Stonehill v. I.R.S., 558 F.3d 534, 538 (D.C. Cir. 2009) (internal citations and quotation marks
omitted). The presence of the footnotes in the Brinkmann Declaration, as well as the legal discussion
regarding the deliberative process privilege in the summary judgment motion, provided sufficient notice
to the plaintiff that the disputed documents were protected under both Exemption (5)-(2) and Exemption
(6)-(4). This case does not present any sort of gamesmanship by the government, but rather, at most a
lack of precision.
8
exemption . . . .” and therefore it is has failed to withstand its burden on defendant’s motion for
summary judgment. See Larson, 565 F.3d at 862 (quoting Miller, 730 F.2d at 776).
For these reasons, the Court is satisfied that defendant timely raised its reliance on
Exemption 5. Moreover, an in camera review of the e-mail chain at issue confirms that any
redactions made based on the deliberative process privilege were justified. Therefore, the Court
will grant defendant’s motion and deny plaintiff’s motion.
III. EXEMPTION 6
For the reasons set forth above, the Court is satisfied that parts of the e-mails at issue
were properly withheld pursuant to Exemption 5. But, even if Exemption 5 had not been
properly invoked, the Court would reach the same conclusion under Exemption 6. Exemption 6
specifically protects against the disclosure of “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(6). The D.C. Circuit has interpreted this exemption broadly to “exempt not just
files, but also bits of personal information such as names and addresses, the release of which
would ‘create[] a palpable threat to privacy.’” Judicial Watch, Inc. v. FDA, 449 F. 3d 141, 152-
53 (D.C. Cir. 2006) (citing Carter v. U.S. Dep’t of Commerce, 830 F.2d 388, 391 (D.C. Cir.
1987)). Where a requested record may be subject to Exemption 6, the Court must determine
whether the document may be withheld by “weigh[ing] the ‘privacy interest in non-disclosure
against the public interest in the release of records in order to determine whether, on balance, the
disclosure would work a clearly unwarranted invasion of personal privacy.’” Lepelletier v.
FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999) (quoting Nat’l Ass’n of Retired Fed. Emps. v. Horner,
879 F.2d 873, 874 (D.C. Cir. 1989)).
9
Plaintiff argues that because it is not seeking the release of the names of the employees
whose sexual orientation was being discussed, no privacy interest exists that would justify the
withholding of other contents of the e-mail chain in question. Moreover, assuming there “was
somehow a privacy interest in the e-mails,” plaintiff contends that the public interest would
outweigh any privacy interest because “the discussion by DOJ employees’ sexual orientation
constitute[s] puerile behavior by government employees about which the public has the right to
know” and because there is a “significant public interest [that] exists in the disclosure of
government officials’ attempts to apply stereotypes and speculate on their colleagues’ sexual
orientation.” (Pl.’s Mot. at 6; Reply at 3.) Defendant responds that redacting the names of the
employees, while generally sufficient to protect the privacy of government employees, does not
do enough to protect the identity of the individuals in this case because the e-mails “allude[] to
the sexual preference of a very small number of individuals whose identities are readily
identifiable by the specific context of the deliberations . . . [t]hus the e-mails on their face would
identify the individuals even with the redaction of names/and or their job titles . . . .” (Def.’s
Opp. at 4.)
The Court agrees with the defendant. Where information exists such that the “release of
certain portions of [documents], even with the names redacted, could easily lead to the revelation
of the documents in their entirety, including the identity of the [individuals] involved,” it is
proper to withhold these documents if it “creates a palpable threat to privacy.” Carter v. U.S.
Dep’t of Commerce, 830 F.2d 388, 391 (D.C. Cir. 1987). Based on its in camera review of the e-
mails, the Court agrees with the agency’s determination that based on the very small number of
individuals that are referenced, their identities—which plaintiff agrees can be protected—could
easily be determined based on the context of the e-mails. Balancing this privacy interest against,
10
at most, the relatively inconsequential (if not non-existent) interests identified by the plaintiff,
the Court concludes that summary judgment would be justified under Exemption 6 as well. See
Horner, 879 F.2d at 879 (“[E]ven a modest privacy interest, outweighs nothing every time.”).
IV. SEGRABILITY
Under FOIA, “even if some materials from the requested record[s] are exempt from
disclosure, any ‘reasonably segregable’ information from those documents must be disclosed
after redaction of the exempt information,” Johnson v. Executive Office for U.S. Attorneys, 310
F.3d 771, 776 (D.C. Cir. 2002) (quoting 5 U.S.C. § 552(b)), “unless [the non-exempt portions]
are inextricably intertwined with exempt portions.” Mead Data Cent., Inc. v. Dep’t of the Air
Force, 566 F.2d 242, 260 (D.C. Cir. 1977). Though plaintiff does not dispute that the
government produced all of the reasonably segregable information in this case, the Court has “an
affirmative duty to consider the segregability issue sua sponte.” Trans-Pacific Policing
Agreement v. United States Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999).
The Court is satisfied that defendant has fulfilled this burden based on Ms. Brinkmann’s
declaration. In her declaration, she classifies each of the documents redacted or withheld by OIP
in one or more of ten specific categories and, more importantly, describes the information that
was redacted or withheld in great detail.
11
CONCLUSION
Accordingly, and for the reasons stated above, defendant’s motion for summary judgment
will be GRANTED. Plaintiff’s motion for summary judgment will be DENIED. A separate
order accompanies this Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: May 12, 2014
12
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LEON A. MUSTON,
Plaintiff-Appellee,
v. No. 97-1084
MKI SYSTEMS, INCORPORATED,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge; Albert V. Bryan Jr.,
Senior District Judge; W. Curtis Sewell, Magistrate Judge.
(CA-96-299-A)
Argued: July 18, 1997
Decided: September 5, 1997
Before ERVIN, Circuit Judge, and BUTZNER and
PHILLIPS, Senior Circuit Judges.
_________________________________________________________________
Vacated and remanded by unpublished opinion. Senior Judge Phillips
wrote the opinion, in which Judge Ervin and Senior Judge Butzner
joined.
_________________________________________________________________
COUNSEL
ARGUED: Thomas Robert Folk, HAZEL & THOMAS, P.C., Falls
Church, Virginia, for Appellant. Sydney E. Rab, RICE & STALL-
KNECHT, P.C., Woodbridge, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PHILLIPS, Senior Circuit Judge:
Leon A. Muston brought this action against his former employer,
MKI Systems, Inc. (MKI), alleging pay and overtime violations under
the Fair Labor Standards Act (FLSA). The district court (Ellis, J.) in
a published opinion, Muston v. MKI Sys., Inc. , 951 F. Supp. 603 (E.D.
Va. 1997), held that because MKI's policy manual plainly and unam-
biguously permitted improper pay deductions, Muston was thereby
entitled, as a non-exempt employee, to recover unpaid overtime.
Because the Supreme Court's subsequent decision in Auer v. Robbins,
117 S. Ct. 905 (1997), mandated a different standard than that applied
by the district court for determining when employees are "subject to"
impermissible deductions, hence to non-exempt status, we vacate the
judgment of the district court and remand for reconsideration of Mus-
ton's claim under the new Auer standard.
I.
From July 1992 until May 3, 1994, Muston was employed by MKI,
a small government contractor, as a Senior Systems Analyst. During
his employment at MKI, Muston was required to record his work
hours. This record-keeping was required by the federal government
because MKI was performing cost-plus government contracts. Other-
wise, Muston was paid a preset salary for every pay period, regardless
of the quantity of his work, with one exception. This exception
occurred in January 1994, when, for personal reasons, Muston took
five days of leave without pay at his own request.
The MKI policy manual's language, as phrased at the relevant
times, by its plain terms allowed MKI to deduct pay from any MKI
employee for working less than the full amount of hours in a pay
period. However, MKI never docked Muston's salary, and claims it
never docked any other salaried employee's salary for absences,
2
except for prolonged absences of a day or more. Muston received his
regular salary when he worked less than 40 hours a week, except for
the five days of leave he voluntarily took.
Muston filed this complaint under the Fair Labor Standards Act,
claiming that because of this policy, he was not an exempt employee,
and was therefore entitled to unpaid overtime compensation. Follow-
ing discovery, Muston moved for partial summary judgment. His
motion contended that aspects of MKI's written policy manual made
Muston "subject to" deductions not permitted by the Department of
Labor's salary basis rule at 29 C.F.R. § 541.118. MKI opposed the
motion, contending that MKI's policy and practice had been not to
make any impermissible deductions, and that, in fact, MKI had not
made any impermissible deductions from the salary of Muston or any
of its salaried employees. Following oral argument on Muston's
motion, MKI made a cross-motion for partial summary judgment. The
district court entered an order granting summary judgment to Muston
and denying partial summary judgment to MKI on the issue of Mus-
ton's coverage under the FLSA overtime provisions. The court denied
summary judgment to both parties on the issue of liquidated damages,
leaving for trial whether Muston was entitled to $397.37 in overtime
pay or whether he was entitled to this amount plus an additional
$397.37 as liquidated damages.
To avoid trial expenses, the parties stipulated that the district court
could enter judgment in favor of Muston in the amount of $794.74,
provided that this did not waive the parties right to appeal. The dis-
trict court entered such a judgment which included the stipulation as
an attachment, and this appeal by MKI followed. 1
II.
To satisfy the FLSA'S "salary basis" requirement, and thereby be
exempt from the FLSA's overtime compensation provisions, an
employee must receive as compensation a pre-determined amount
_________________________________________________________________
1 One week after MKI filed its original notice of appeal, the district
court filed a memorandum opinion, which, sua sponte, reversed its ear-
lier ruling on liquidated damages, and granted summary judgment to
MKI on the issue. MKI then filed an amended notice of appeal.
3
constituting all or part of his compensation, "which amount is not
subject to reduction because of variations in the quality or quantity of
the work performed." 29 C.F.R. § 541.118(a). Furthermore, subject to
specific exceptions, "the employee must receive his full salary for any
week in which he performs any work without regard to the number
of days or hours worked." Id.
The dispositive issue before the district court was therefore simple:
was Muston's compensation in the form of salary"subject to reduc-
tion because of variations in the . . . quantity of work performed"
under MKI's written policy manual? Section 2001 of that Manual
provided at the critical time in issue that:
Each hourly employee is paid for the total hours reported on
his/her time sheet. Each salaried employee is paid his/her
semimonthly salary provided the total hours reported on
his/her time sheet equal at least the total amount of hours in
the full pay period. When an employee works less than the
full amount of hours during a particular pay period, due to
initial employment, termination, or as a result of taking
leave without pay, pay will be calculated based on the per-
centage of working hours that an employee actually worked
in that pay period.
JA 18 (emphasis added).
Following the filing of this action, MKI had amended this policy
statement to provide expressly that salaried employees' pay would
only be docked for absences exceeding a full work day. And, in the
district court MKI contended that this had always been actual prac-
tice, the old policy statement of a contrary possibility having been
simply an inadvertent misstatement. Muston countered that because
the policy manual categorically stated that deductions would occur,
this necessarily meant that he was "subject to" the deductions. Fur-
thermore, he pointed out that there had been no discovery on the mat-
ter so that the record did not reveal whether the actual practice with
respect to other employees had been as MKI asserted.
The district court, in the absence of Fourth Circuit authority, and
facing a then-existing split among other circuits, adopted and applied
4
the then current majority view which favored Muston. Under that
view, the existence of an employer's prerogative to dock pay for
absences not exceeding a full day's work period, even if the preroga-
tive was unexercised, made salaried employees to whom it applied
entitled to the overtime-pay protections of the FLSA pursuant to 29
C.F.R. § 541.118(a). See, e.g., Abshire v. County of Kern, 908 F.2d
483 (9th Cir. 1990); Kinney v. District of Columbia, 994 F.2d 6 (D.C.
Cir. 1993); Michigan Ass'n of Governmental Employees v. Michigan
Dep't of Corrections, 992 F.2d 82, 86 (6th Cir. 1993); Klein v. Rush-
Presbyterian-St. Luke's Med. Ctr., 990 F.2d 279 (7th Cir. 1993);
Martin v. Malcolm Pirnie, Inc., 949 F.2d 611 (2d Cir. 1991);
Carpenter v. City and County of Denver, 82 F.3d 353, 359 (10th Cir.
1996), vacated, 117 S. Ct. 1078 (1997). The minority view, by con-
trast, allowed any actual practice of non-docking with respect to
allowable deductions to trump the language of the policy. See Atlanta
Prof'l Firefighters Union Local 134 v. City of Atlanta, 920 F.2d 800,
805 (11th Cir. 1991); McDonnell v. City of Omaha , 999 F.2d 293,
296-97 (8th Cir. 1993).
The crux of the district court's reasoning was its interpretation of
the "subject to" requirement of 29 C.F.R.§ 541.118:
Courts considering the issue have split on whether the actual
application of an employer's policy is controlling where the
practice contradicts the policy language. The majority of cir-
cuits considering this question have held that whether the
employee is "subject to" an impermissible deduction, the
exemption is lost, regardless of whether an impermissible
deduction is ever made. In Abshire, the seminal case for this
view, the Ninth Circuit found the employer's argument that
no deductions had actually been made "both misleading and
irrelevant"; the dispositive factor in that court's view was
whether the policy made an employee's pay "subject to"
deduction. Abshire, 908 F.2d at 487. The minority view, by
contrast, allows the actual practice with respect to deduc-
tions to trump the language of the policy.
....
. . . . Thus, the better approach to the question presented, and
the approach adopted here, is that an employer loses the
5
ability to claim an FLSA exemption for any employees who
are "subject to" impermissible deductions, even if the
employer has not yet made any such deductions. In other
words, a court looks first to the policy's plain language. If
that language is unambiguous and allows impermissible
deductions, then the inquiry is complete, and the white col-
lar exemptions are lost. Only if the language of the policy
is ambiguous, will the employer's actual practice with
respect to deductions be considered to give meaning to the
terms of an ambiguous policy. See, e.g., Michigan Dep't of
Corrections, 992 F.3d at 86.
Muston, 951 F. Supp. at 608-09. Since the plain language of the MKI
Policy permitted improper deductions, the court concluded that by
those terms the Policy violated the FLSA.
In pellucidly clear language, § 2001 states that salaried
employees who take leave without pay will have their pay
calculated "based on the percentage of working hours the
employee actually worked in that pay period." Given this
plain language, it necessarily follows that in certain circum-
stances, an employee's pay can be reduced for periods of
leave without pay that involve fractional days. This is con-
trary to the definition of salaried employee in FLSA's
implementing regulations.
Id. at 607-08. In other words, "an employee's level of compensation
is not guaranteed; rather, by the plain terms of the policy language it
is `subject to reduction' for any hours the employee is absent on
unpaid leave." Id. at 607.2
On this basis, the court ruled that Muston was a non-exempt
employee entitled to overtime pay protections of the FLSA.
_________________________________________________________________
2 There is no dispute that MKI might, without consequence, reduce pay
for time not worked in the initial and terminal weeks of employment.
The dispute over MKI's policy is whether the policy subjected Muston
to fractional, or partial, day pay deductions, which are those alone which
invoke § 541.118(a)'s provisions.
6
III.
Following the district court's decision, the Supreme Court
announced its decision in Auer v. Robbins, 117 S. Ct. 905 (1997). In
that decision, the Auer Court directly held on the matter here at issue
that the controlling interpretation of the relevant regulation was that
advanced by the Department of Labor in an amicus brief. Id. at 909;
see also id. at 912 (fact that interpretation comes in form of a legal
brief does not make it unworthy of deference). Under that interpreta-
tion, which is at odds with that applied by the district court, salaried
employees such as Muston fall outside the salary-basis exemption if
they "are covered by a policy that permits disciplinary or other deduc-
tions in pay `as a practical matter.'" Id. at 911 (quoting Secretary's
amicus brief).3 This "as a practical matter" standard is met in either
of two circumstances: (1) when the employer has an actual practice
of making such deductions, or (2) when the employment policy at
issue "creates a `significant likelihood' of such deductions." Id.; see
also Stanley v. City of Tracy, ___ F.3d ___, No. 95-16242, 1997 WL
397581 (9th Cir. July 16, 1997) (applying Auer test); Childers v. City
of Eugene, ___ F.3d ___, No. 96-35443, 1997 WL 393081 (9th Cir.
July 15, 1997) (same); Ahern v. County of Nassau , ___ F.3d ___, No.
96-7742, 1997 WL 365376 (2d Cir. July 3, 1997) (same); Balgowan
v. New Jersey, 115 F.3d 214, 219 (3d Cir. 1997) (same); Carpenter
v. City and County of Denver, 115 F.3d 765 (10th Cir. 1997) (same).
A finding of "significant likelihood" of deductions in the absence
of any actual deductions "requires a clear and particularized policy--
one which `effectively communicates' that deductions will be made
in specified circumstances." Auer, 117 S. Ct. at 911. This means that
even if a policy on its face applies to both exempt and non-exempt
employees alike, it does not necessarily "effectively communicate"
that the deductions in question will apply to the exempt employees.
Id. at 911-12. As explained in Auer, a policy that nominally covers
all employees
_________________________________________________________________
3 Although Muston urges us to read this test as being limited to disci-
plinary deductions, we decline to do so. The Court made clear, as did the
amicus brief of the Department of Labor, that the interpretation applies
to "other deductions" as well. Id. at 911.
7
does not "effectively communicate" that pay deductions are
an anticipated form of punishment for [salaried] employees
. . . since it is perfectly possible to give full effect to every
aspect of the manual without drawing any inference of that
sort. If the statement of available penalties applied solely to
[salaried employees], matters would be different; but since
it applies both to [salaried employees] and to employees
who are unquestionably not paid on a salary basis, the
expressed availability of . . . deductions may have reference
only to the latter. No clear inference can be drawn as to the
likelihood of a sanction's being applied to [salaried]
employees such as petitioners.
Id. at 911-12. In other words, a written policy which is nominally
applicable to all employees, both salaried and non-salaried, and
authorizes deductions which would be proper only for non-salaried
employees, does not, without more, communicate as a practical matter
that such deductions will be made for employees who otherwise sat-
isfy the salary test.
In adopting the Department of Labor's interpretation, the Court
indicated that the "significant likelihood" test avoided "the imposition
of massive and unanticipated overtime liability . . . in situations in
which a vague or broadly worded policy is nominally applicable to a
whole range of personnel but is not `significantly likely' to be
invoked against salaried employees." Id. at 911. Under this interpreta-
tion, the existence of isolated, stray factors does not meet the burden
of establishing a "significant likelihood." For example, a "significant
likelihood" cannot be established by a one-time deduction under
unusual circumstances. Id. at 911-12.
MKI urges that on the basis of Auer's obvious rejection of the test
applied by the district court, we should simply reverse that court's
judgment. That would not be proper. Application of Auer's "as a prac-
tical matter" test requires a factual inquiry not yet undertaken and that
is properly the work of the district court on the remand we will order.
IV.
Alternatively, MKI contends that we should reverse the district
court's judgment on the basis that even if its former policy failed
8
Auer's "as a practical matter" test, it had, by amending that policy
effectively invoked the saving provisions of the"window of opportu-
nity" conferred by 29 C.F.R. § 541.118(a)(6), which provides that
[W]here a deduction not permitted by these interpretations
is inadvertent, or is made for reasons other than lack of
work, the exemption will not be considered to have been
lost if the employer reimburses the employee for such
deductions and promises to comply in the future.
The district court rejected this argument when advanced in that
court as an alternative by MKI. The issue may or may not arise again
upon the remand we will order for reconsideration of the principle
issue under Auer. That decision also dealt, in ways that could be rele-
vant to this case, with the proper interpretation and application of this
"window of opportunity" provision. In view of our remand for recon-
sideration of the principal issue, we believe it prudent also to leave
to the district court the question whether Auer also requires any
reconsideration of the "window of opportunity issue," should it again
be reached.
V.
For these reasons, we vacate the judgment of the district court and
remand the action for reconsideration on further proceedings in light
of Auer and of this opinion.
SO ORDERED
9
| {
"pile_set_name": "FreeLaw"
} |
81 S.E.2d 78 (1954)
PRETTYMAN et al.
v.
HOPKINS MOTOR CO.
No. 10614.
Supreme Court of Appeals of West Virginia.
Submitted February 2, 1954.
Decided April 2, 1954.
*79 James P. Clowes, Joseph R. Curl, Handlan, Garden, Matthews & Hess, Wheeling, for plaintiff in error.
Schmidt, Hugus & Laas, Henry S. Schrader, Wheeling, for defendant in error.
HAYMOND, Judge.
This action of assumpsit was instituted in the Circuit Court of Ohio County on October 8, 1951, by the plaintiffs Clarence W. Prettyman and Helen Marie Prettyman, doing business as Prettyman Trucking Service, to recover from the defendant Hopkins Motor Company, a corporation, damages in the amount of $2000.00 alleged to have been sustained by the plaintiffs by reason of the failure of the defendant to return, without damage or injury, a certain 1947 Model Dodge four door sedan automobile owned by the plaintiffs which had previously been delivered to the defendant to be repaired and painted by the defendant for compensation to be paid to it for performing that service.
The case was called for trial October 20, 1952. The demurrer of the defendant to the declaration was overruled and the defendant filed a special plea and a plea of non assumpsit. To those pleas the plaintiffs filed their general replication. The special plea alleged, as a defense to the claim of the plaintiffs, that after the delivery of the automobile to the defendant the automobile and the place of business of the defendant were destroyed by a fire which occurred through no fault of the defendant and that, because of the fire, the defendant did not deliver the automobile to the plaintiffs upon their demand for such delivery. A jury was impaneled and selected to determine the issues presented by the foregoing pleadings.
By written stipulation of attorneys representing the respective parties it was admitted, in lieu of evidence to that effect, that the defendant, on and prior to October 20, 1949, the day of the fire, was a West Virginia corporation; that it occupied and possessed, as tenant of the owner, a building at No. 37 Twentieth Street in Wheeling, West Virginia, in which it operated a garage business for the purpose of dealing in, repairing, and servicing automobiles for compensation; that the equipment and the facilities of the building, the garage, and the business conducted by it, were under its exclusive management and control; that two or three days before October 20, 1949, the plaintiffs, the owners, delivered to the defendant a 1947 Dodge four door sedan automobile to be repaired and painted by the defendant; and that the value of the automobile on October 20, 1949, was $1417.50.
When the plaintiffs introduced evidence that they were the owners of the automobile, that it had been delivered to the defendant at its place of business for repairs *80 to its fender, grill and light and to be painted by the defendant, and that the automobile was not returned to the plaintiffs for the reason that it was destroyed and rendered worthless by a fire which occurred in the building on October 20, 1949, and had also produced the foregoing stipulation, they concluded their proof. The defendant then moved the court to direct a verdict for the defendant. The court sustained the motion but, before directing the jury to return a verdict in favor of the defendant, permitted the plaintiffs to reopen the case and to offer evidence to establish negligence of the defendant with respect to the origin and the cause of the fire. The plaintiffs, under protest, offered evidence for that purpose and, at the conclusion of all the evidence introduced by them, the defendant again moved the court to direct a verdict in its favor. The court overruled the motion and the defendant introduced evidence to show that the fire was not caused by any fault or negligence of the defendant. At the conclusion of all the evidence the defendant renewed its motion for a directed verdict. The court overruled the motion, gave certain instructions, and submitted the case to the jury. After some consideration of the case by the jury it was unable to agree upon a verdict and, before it had finally concluded its deliberations, the court directed it to return a verdict for the defendant. The jury returned a verdict as directed. The court overruled a motion by the plaintiffs to set aside the verdict and grant a new trial and, by order entered February 10, 1953, rendered judgment in favor of the defendant and awarded costs against the plaintiffs. To that judgment this Court granted this writ of error upon the petition of the plaintiffs.
The building occupied by the defendant as a tenant, and in which its garage and the automobile of the plaintiffs were located at the time of the fire which occurred in the morning of October 20, 1949, was a four story structure situated at No. 37 Twentieth Street in the City of Wheeling, the external walls of which were of brick construction and the interior of which was of wooden construction. The first or lower story, which extended below the level of the street, was known as the subbasement of the building. The height of the subbasement between its cement floor and the ceiling was approximately eight feet. This ceiling consisted of wooden joists on top of which was located the wooden floor of the second story. This floor contained in places grease and oil which had been deposited from automobiles serviced on that floor or story of the building. An inside stairway led from the subbasement to the second story. In the northwest corner of the subbasement was a furnace room approximately ten feet wide and thirty feet long the two interior walls or partitions of which were of wooden construction and extended from the floor to the ceiling. Entrance to this furnace room from inside the subbasement was provided by a wooden door in one of the partitions and at the north end of the furnace room there was a second wooden door in the outside wall of the building which was used for the removal of ashes from the furnace room. In this section were located the furnace of the heating system of the building and a coal storage bin. The northeast section of the subbasement contained a paint booth and a wash rack and the remaining portion was used for storage.
The furnace was approximately five feet wide, seven feet long and five feet high. In the front wall of the furnace was a small door which was used in its operation. Coal of the prepared size of about one inch in thickness was supplied as fuel for the furnace by an automatic, electrically controlled stoker, in the operation of which coal from the hopper of the stoker was transmitted to the fire box at the bottom of the furnace by means of a revolving metal shaft or worm. The fire box contained holes through which air was supplied to the coal by means of a fan with which the stoker was equipped. The process of firing the furnace consisted primarily in maintaining a fire in the fire box which ignited the coal as it was carried to the bottom of the fire box by the stoker when in operation, but in starting a fire in the furnace the coal at the top of the fire box *81 was first ignited. The normal overall operation generally resembled the maintenance of a fire by means of a bellows.
When the plaintiffs, to avoid a directed verdict for the defendant, were required to offer proof to show that the fire which destroyed their automobile was caused by negligence of the defendant, they called as witnesses in their behalf an employee of the defendant who had acted as janitor of the building and had operated the stoker during a period of two and one half years preceding the fire, a consulting industrial fuel engineer of more than twenty six years' experience, two experienced municipal smoke prevention inspectors, a local fire inspector, and the chief of the local fire department. These witnesses testified with respect to the cause and the nature of the fire and the general condition of the building at and prior to its origin.
The employee of the defendant who operated the stoker testified that he came to work about fifteen minutes before seven o'clock in the morning of October 20, 1949; that he first went to a room on one of the upper floors of the building where he left his lunch; that he then went to the furnace room in the subbasement, opened the door of the furnace, and noticed "a few hot coals" in it; that he stirred them "a little bit", put a small amount of coal on the fire pot, and turned on the fan, which started the fire; that, after waiting for a few seconds and until the fire was started, he "threw about four scoop shovels on, and by that time the fire was burning good."; that the fire then "was a good fire"; that he "set the stoker up three notches"; and that he then went upstairs to do his work of cleaning the building. He further testified that there was a lead damper at the rear of the furnace which he did not adjust; that the damper was "half open" or "wide open"; that he did not clean the fire box that morning but had cleaned the furnace and the pipes a few days previously; that the fan and the stoker were working; that after he left the furnace room to clean the offices he returned about forty five minutes later at approximately eight o'clock; that when he came to the furnace he saw no reflection of light through the space between the furnace door and the front of the furnace which was noticeable "when the furnace would be burning"; that there was no such reflection that morning; that he had a large "wrecking bar"; that he opened the furnace door and that "there was no fire there and I stepped down and I was going to stick this big bar in there and stir the coal up, and I don't know whether I got the bar in or not but the blast hit me in the facea puff of smoke and blast, and burned my hand and side of my face, and I jumped up out of there and I went out in the other part and hollered for another fellow, Fred Gersting. He said I was burned, and I looked into the mirror and I saw my face was burned and my hand and my sweater was burned, and I turned back around to the furnace room and I discovered the fire coming out through the crack next to the upper floor. I come back and got the fire extinguisher and it didn't seem to be doing much good and I set the fire extinguisher down and there was a big ice cream truck setting directly over the furnace. I was going to try to move that truck off of there. It was directly over the furnace, and the fire was coming up between the wall when I got there, and I went on up through and out the front of the building and by that time the fire company was there." He further testified that on one or two previous occasions when "the flame would be low", there had been a "puff" which threw smoke and soot from the furnace but that he did not report those occurrences because "it was nothing to get excited about, a small puff of smoke."
This witness stated that he had been instructed in the operation of the furnace by a shop foreman who had told him how to regulate the water and the pressure and how to fire the furnace; that he had seen "furnaces fired" and knew "how to do it" before he went to work for the defendant; that he had been instructed to place coal on top of wood and paper in starting a fire, to turn on the fan, and then to put "a couple of more shovels on and let it get started good and that is all there was to it.", but that he had not been instructed *82 how to maintain a fire, or how to regulate the air when starting a fire, or as to how much air should go into the furnace when starting a fire; and that there was a chart in the furnace room which contained instructions concerning the regulation of the gears in supplying the proper amount of coal, but that there was no chart which contained instructions as to the manner of firing the furnace. He also stated that when he put the second shovelful of coal in the furnace he scattered the coal; that he waited a few seconds and then put "about three or four more on" which he also scattered; and that there was a "good fire burning" in the furnace and the stoker was operating when he went upstairs to do his work as janitor. He further stated that the weight of each of the shovelfuls of coal which he placed on the fire was approximately fifteen or sixteen pounds.
One of the fire inspectors testified that he had made several inspections of the building occupied by the defendant prior to October 20, 1949, the last of which was approximately five months before the fire; that there were oil spots on the floor of the story immediately above the subbasement; that there were cracks or spaces between the outer walls of the building and the floor but that none of his inspections had disclosed any conditions that were "bad from a fire standpoint"; and that he had never notified or required the occupant or the owner of the building to correct its condition. The other fire inspector, the chief of the municipal fire department, testified that he had inspected the building three or four years before the fire; that when he inspected the building the floor immediately above the furnace room was saturated with oil or drippings from automobiles; that there were some cracks of the size of a half or three quarters of an inch between the walls and the edge of the floor immediately above the furnace room; that such fire hazards as gasoline in tanks, the drippings from automobiles, and the lacquers and the enamels in the paint shop, were present in the building at the time of his inspections, but that he had made no complaint to the defendant concerning the condition of the building; that he arrived at the scene of the fire within ten or fifteen minutes after its origin; and that at that time the rear and the lower floors of the building were "fairly well inflamed" and there was more fire on the floor immediately above the subbasement than there was in the subbasement.
The testimony of the industrial fuel engineer and the two smoke provention inspectors was in large measure based upon hypothetical questions propounded to them which incorporated the facts testified to by the operator of the stoker with respect to the manner in which he operated it at and shortly before the origin of the fire. These witnesses expressed the opinion, based on those facts, that the conduct of the operator of the stoker was not reasonably proper or reasonably safe and that such conduct on his part caused the fire to the building; and they also testified that the proper method to start a fire in the furnace was to place a small amount of coal on the fire in the fire box from time to time and in that manner keep the fire "open" and prevent the accumulation of explosive gas which occurs when the top of the fire box is covered with coal.
The evidence offered by the defendant to show that the fire to the building was not the result of fault or negligence on its part consisted of the testimony of the vice president of the company which manufactured stokers of the same type as the stoker used by the defendant, who was experienced in designing and operating stokers, a stoker mechanic of fifteen years' experience, a local municipal fire inspector, and an employee of the defendant who repaired and painted automobiles in the subbasement and who was present when or immediately after the fire occurred. The vice president and the stoker mechanic expressed the opinion, based upon the facts testified to by the operator of the stoker at the time of the fire, that his conduct in its operation was safe and proper, and each of them testified, in effect, that it was common practice and proper to put coal on top of burning coal in starting a fire in a furnace operated by a stoker in order "to build up" *83 the fire. The fire inspector stated that he had made several inspections of the building prior to October 20, 1949, the last inspection having been made within one year before the fire, and that he had not found any condition in the building in connection with his inspections that "needed correction." The testimony of the employee of the defendant who painted automobiles in the paint shop in the subbasement, Fred Gersting, was that when he came to work a few minutes before eight o'clock in the morning of October 20, 1949, he saw the employee who operated the stoker come from the furnace room; that he heard no explosion; that the face of the operator of the stoker was burned and his sweater was burning; that the witness then saw flames at the top of the furnace room where the partition joined the ceiling; that he tried without success to extinguish the fire with a fire extinguisher; and that he then went upstairs and outside the building.
The principal errors assigned by the plaintiffs as grounds of reversal are the action of the circuit court (1) in requiring the plaintiffs to offer evidence to show that the destruction of the automobile was caused by the negligence of the defendant before the defendant offered evidence in explanation of its failure to return the automobile to the plaintiffs; and (2) in withdrawing the case from the jury before it completed its deliberations upon the issue of negligence upon the part of the defendant, in directing a verdict in favor of the defendant, and in entering judgment upon the verdict.
The precise questions presented by the first of the foregoing assignments of error have not been determined in any reported decision of this Court. The transaction by which the plaintiffs placed their automobile in the exclusive possession and control of the defendant to be repaired and painted for compensation to be paid to it by them when the work of repairing and painting the automobile was performed was for the mutual benefit of the respective parties and constituted a bailment for hire. The benefit to the plaintiffs was the performance of that service and the benefit to the defendant was the payment of compensation when the automobile was repaired and painted. That the bailment was of that character is conceded by the attorneys for the plaintiffs and the attorneys for the defendant.
This Court has held with respect to a gratuitous bailment for the benefit of the bailee that, when the property delivered to the bailee is lost or injured, the bailee, to relieve himself of liability, must show that the loss or injury occurred through no fault or negligence upon his part.
In Myers v. Summerville, 90 W.Va. 486, 111 S.E. 487, an employee of the defendant company became surety upon a peace bond for one year executed by the plaintiff, also an employee, who deposited with the surety two $50.00 liberty bonds, as indemnity, which were to be returned at the end of the year unless the peace bond was forfeited. The liberty bonds were deposited by the surety with other agents of the defendant and placed in its safe. In defense of the claim of the plaintiff for damages upon the failure of the defendant to return the bonds after the expiration of the year, the defendant showed that they were lost while in its possession but offered no excuse for their loss. Upon a demurrer to the evidence the trial court entered judgment against the defendant for the value of the bonds. In affirming the judgment this Court held that if the transaction should be regarded as a gratuitous bailment the bailee, after demand by the bailor for the return of the bonds, was required to show some excuse for their loss.
In Windom v. Boundy, 94 W.Va. 551, 119 S.E. 804, involving a gratuitous bailment for the sole benefit of the bailee, the plaintiffs loaned a well drilling bit owned by them to the defendant to enable him to drill a well. The defendant agreed to return the bit within a week or ten days. While in the possession of the defendant the bit was damaged. The defendant caused certain repairs to be made and returned the bit to the plaintiffs who refused to accept it and, contending that in its damaged condition the bit was worthless, sued the defendant *84 before a justice of the peace to recover its value. A judgment for the plaintiffs was reversed on appeal to the circuit court which, on the ground that the pleadings were fatally defective, directed a verdict and entered judgment for the defendant. It appears that the evidence in behalf of the plaintiffs was that the bit when loaned to the defendant had been thoroughly tested in drilling hard materials and was of good quality and adapted to such use and that the evidence in behalf of the defendant was that the bit broke while in use at a shallow depth but the evidence offered by the defendant did not detail the manner in which the bit was used at the time it broke. This Court reversed the judgment of the circuit court and held that "Where goods are loaned for the sole benefit of the borrower and are injured while in his possession, the burden of proving that such injury occurred through no fault or negligence of the borrower rests upon him; and where the evidence as to that fact is conflicting, the question is one for the jury." The statement in that case that "the burden of proving that such injury occurred through no fault or negligence of the borrower rests upon him" is held to mean that the burden of going forward with the evidence to show that the injury occurred through no fault or negligence of the borrower shifted to him for the reason that the burden of proving negligence upon the part of the borrower, the bailee in that case, does not shift but continues to rest upon the plaintiff, the bailor, throughout the trial of the action.
In Bank of Hundred v. Wetzel County Court, 94 W.Va. 733, 120 S.E. 878, involving the deposit by a bank of securities with a county court and the failure of the county court to return the securities because they were stolen by unknown persons from the custody of the depositary with which they had been placed for safekeeping, this Court expressed the view that the bailee was not relieved of liability for its failure to return the bonds by merely showing that the bonds had been stolen.
With respect to the questions of burden of proof, presumptions, and the establishment of a prima facie case, in actions involving bailments, the decisions of the courts in the various jurisdictions are conflicting. "Where the issue of the bailee's negligence is raised in an action, the question of burden of proof on that issue is complicated not only by the common difficulty that `burden of proof' is used in two senses, but also by the fact that a distinction is recognized in some jurisdictions, applied in others, and apparently neither recognized nor applied in still others, between actions in which recovery is sought on the theory of breach of contract and those in which the bailee's negligence is made an essential element of the bailor's case." 6 Am.Jur., Revised, Bailments, Section 367.
The phrase "burden of proof" is sometimes given a double meaning. It means, in some instances, that a party to litigation must in the end establish a particular proposition in order to succeed, and in other instances, that, at some stage in a trial, it is the duty of a party to go forward with the evidence. When used to express the idea that a party must establish a given proposition the burden of proof does not shift at any time during the trial; but when used to express the idea that a party, at a certain stage of the trial, has the duty of going forward with the evidence it shifts with the evidence. Hansen v. Oregon-Washington R. and N. Company, 97 Or. 190, 188 P. 963, rehearing denied, 97 Or. 190, 191 P. 655; Kohlsaat v. Parkersburg and Marietta Sand Company, 4 Cir., 266 F. 283, 11 A.L.R. 686.
In cases in which the bailor has made negligence a factor and it appears that the property, while in the possession of the bailee, was stolen or destroyed by fire, the plaintiff is not relieved of the burden of proving negligence upon the whole case merely because there may be a presumption of negligence on the part of the defendant; but the bailor is not required to show that the loss of property was caused by the negligence of the bailee until after the bailee has introduced evidence to show that such loss was due to an excusable cause. 6 Am. Jur., Revised, Bailments, Section 368.
*85 In 8 C.J.S., Bailments, § 50 c (2) dealing with presumption of negligence and burden of proof in cases involving a bailment the text is in this language:
"In some of the older decisions it was held that the loss or injury raised no presumption of negligence on the theory that, the bailee not being considered an insurer of the goods, the law which never presumes any man negligent would rather attribute the loss to excusable causes, and that it was not enough for plaintiff to prove the loss or injury, but that he must go further and must show that the same had occurred by defendant's negligence. The rule adopted in other and the more modern decisions is that the proof of loss or injury establishes a sufficient prima facie case against the bailee to put him on his defense; and hence, where chattels are delivered to a bailee in good condition and are returned in a damaged state, or are lost or not returned at all, the law presumes the bailee's negligence or other fault to be the cause, and casts on the bailee the burden of showing that the loss was due to other causes consistent with due care on his part, this rule being regarded as an application of the principle of res ipsa loquitur, and if the bailee does not sustain such burden the bailor becomes entitled as a matter of law to a verdict in his favor.
"The effect of this modern rule is not to shift the ultimate burden of proof from bailor to bailee, but merely to shift the burden of proceeding or going forward with the evidence; the ultimate burden of establishing negligence is on the bailor and remains on him throughout the trial." See also cases from many jurisdictions cited in note 87, 8 C.J.S., Bailments, § 50 c (2), page 343.
The modern rule, stated in the foregoing quotation, is supported by the great weight of authority.
In commenting upon the rule the Supreme Court of Oregon in Hansen v. Oregon-Washington R. and N. Company, 97 Or. 190, 188 P. 963, rehearing denied, 97 Or. 190, 191 P. 655, uses this language "* * * upon proof of delivery of chattels in good condition and proof of return in bad condition, or proof of failure to return, the law raises a presumption that the injury or failure to return was caused by the negligence of the bailee, and such proof plus the presumption, which because of necessity the law arbitrarily raises, make a prima facie case, which requires the bailee to go forward with evidence. This statement of the rule is, of course, made on the assumption that the bailor has done no more than to prove the naked fact of failure to return or the bare fact of injury, and that he has not attempted to account for the cause of the injury or nonreturn of the chattel. After the bailor has made a prima facie case, the bailee must assume the burden of going forward, and if he does take up the burden he may relieve himself of it and shift back to the bailor the duty or burden of going forward, by depriving the bailor's case of its prima facie quality and making a prima facie case for himself. If the bailee accounts for the injury or nondelivery of the chattel, by showing that it was stolen or that it was injured or destroyed by fire or by some other cause which is consistent with the exercise of ordinary care on his part, and does not of itself point to negligence by him, then he has established for himself a prima facie case of due care, has deprived the bailor's case of its prima facie quality, and has made it necessary for the bailor again to go forward with the evidence and affirmatively show some causal negligence on the part of the bailee. Colburn v. Washington State Art Ass'n, 80 Wash. 662 (141 P. 1153, L.R.A. 1915A, 594); Knights v. Piella, 111 Mich. 9 (69 N.W. 92, 66 Am.St.Rep. 375); Claflin v. Meyer, 75 N.Y. 260 (31 Am.Rep. 467); Yazoo & M. V. R. Co. v. Hughes, 94 Miss. 242 (47 So. 662, 22 L.R.A.,N.S., 975); Higman v. Comody, 112 Ala. 257 [267] (20 So. 480, 57 Am.St.Rep. 33); Standard Marine Ins. Co. [Limited of Liverpool] v. Traders' Compress Co., 46 Okl. 356 (148 P. 1019); Holt Ice & Cold Storage Co. v. Arthur Jordan Co., 25 Ind.App. 314 (57 N.E. 575); Schmidt v. Blood, 9 Wend. (N.Y.) 268 (24 Am.Dec. 143, and note); *86 Darby [Candy] Co. v. Hoffberger, 111 Md. 84 (73 A. 565); Lancaster Mills v. Merchants Cotton-Press Co., 89 Tenn. 1 (14 S.W. 317, 24 Am.St.Rep. 586)."
In Kohlsaat v. Parkersburg and Marietta Sand Company, 4 Cir., 266 F. 283, 11 A.L.R. 686, which involved the destruction of a derrick boat leased by Parkersburg and Marietta Sand Company, plaintiff below, to Kohlsaat and others, partners as C. Crane and Company, defendants below, the plaintiff recovered judgment for the loss of the boat caused by the negligence of the defendants. The District Court of the United States, Southern District of West Virginia, in the charge to the jury stated that the plaintiff had the duty to prove his case by a preponderance of the evidence; that the proof of the loss of the boat created a presumption that it was negligently lost; and that the burden of proof, upon the issue of negligence, was upon the defendants. The Circuit Court of Appeals of the United States, Fourth Circuit, reversed the judgment because of the error in charging the jury that the burden of proof was upon the defendants to show that the loss was not due to their negligence. In the opinion the Court used this pertinent language: "A bailee for hire is not an insurer of the property placed in his possession, and cannot be held to answer if it be lost or damaged without his fault. He contracts to take ordinary care of the property, and is liable only for loss occasioned by his own negligence. Hence the essential element of a bailor's cause of action, the fact to be established by him, is negligence on the part of the bailee. On that issue the burden of proof rests all the while on the plaintiff, and at no stage of the trial can it be passed over to the defendant. True, it is often said that when the plaintiff proves delivery of the property to the defendant, and that it has not been returned as agreed, the burden of proof shifts to the other side. These facts may make a prima facie case, or, as the court below puts it, give rise to a presumption of negligence; but, whatever the form of expression, the meaning is always the same, namely, that it then becomes the defendant's duty to go forward with the evidence and explain how the damage occurred. And this is entirely reasonable, for presumably the facts in that regard are within his knowledge. But when this has been done, and especially if it be shown that the loss resulted from a cause consistent with due care on his part, the duty of going forward has been met and the prima facie case overcome; and for the reason that the right of recovery in such case depends upon whether or not the defendant was negligent, and on that issue, as already said, the burden throughout is on the plaintiff. And this has long been the settled rule of law."
In O'Malley to Use of National Union Fire Insurance Company of Pittsburgh v. Penn Athletic Club, 119 Pa.Super. 584, 181 A. 370, in which the plaintiff recovered a judgment for damages for a coat delivered by the plaintiff to the defendant which was stolen while in the possession of the defendant, the court said:
"The rule of law, adopted in the modern jurisdictions, with respect to loss or injury to bailed articles is that `the proof of loss or injury establishes a prima facie case against the bailee to put him upon his defense. Where chattels are delivered to a bailee in good condition and * * * are lost or not returned at all, the law presumes negligence to be the cause, and casts upon the bailee the burden of showing that the loss is due to other causes consistent with due care on his part.' 6 Corpus Juris, 1158, Sec. 160, and citing in support thereof, inter alia, Safe Deposit Co. of Pittsburgh v. Pollack, 85 Pa. 391; Logan v. Mathews, 6 Pa. 417; Clark v. Spence, 10 Watts, 335; Hofford v. New York Central & Hudson River R. R. Co., 43 Pa.Super. 303; Hoyt v. Clinton Hotel Co., 35 Pa.Super. 297; Koch v. National Express, 1 Lack.Leg. 289.
"In 6 Corpus Juris (supra) the rule is thus stated: `* * * if the possession of the bailee has not been exclusive of that of the bailor the rule does not apply. In order to throw the burden of evidence upon the bailee it is sufficient that the bailor has shown damage to the bailed article that ordinarily does not happen when the requisite *87 degree of care is exercised. * * * The burden of proof of showing negligence is on the bailor and remains on him throughout the trial. The presumption arising from the injury to the goods or failure to redeliver is sufficient to satisfy this burden and make out a prima facie case against the bailee.'"
In Agricultural Insurance Company v. Constantine, 144 Ohio St. 275, 58 N.E.2d 658, in which the plaintiff sought a recovery for damage to an automobile of its insured which he delivered to the defendant and which while in the parking lot of the defendant was stolen by a third person and later delivered to its owner in a damaged condition, the court held: "* * * that in an action brought by a bailor against a bailee for hire, a prima facie case is established where the bailor proves delivery of the bailed property in good condition and the failure of the bailee to redeliver upon legal demand. Upon proof of such state of facts the burden of proceeding with the evidence shifts to the bailee to explain his failure to redeliver, and where the bailee proves loss of the bailed property by theft but attempts no explanation of the circumstances and offers no proof of facts from which an inference of due care may be drawn, he does not thereby rebut the presumption of negligence or want of due care arising from his failure to redeliver. The burden of proof remains upon the bailor to prove by a preponderance of all the evidence that the bailee was guilty of negligence or failure to exercise due care."
The additional cases now cited from many jurisdictions are in accord with the holding in the four cases just cited that when a bailor proves delivery of property to a bailee for hire and his failure to redeliver upon legal demand a prima facie case of negligence of the bailee is established; that the burden of going forward with evidence then shifts to the bailee to show that his failure to redeliver was not due to his fault or negligence; and that the burden of proof remains upon the bailor to prove by a preponderance of all the evidence that the bailee was guilty of negligence. Hornor Transfer Company v. Abrams, 150 Ark. 8, 233 S.W. 825; Hight Accessory Place v. Lam, 26 Ga.App. 163, 105 S.E. 872; Burt v. Blackfoot Motor Supply Company, 67 Idaho 548, 186 P.2d 498; Cluer v. Leahy, 44 Idaho 320, 256 P. 760; Lederer v. Railway Terminal and Warehouse Company, 346 Ill. 140, 178 N.E. 394, 77 A.L.R. 1497; Capitol Dairy Company v. All States Auto Body Builders, Inc., 339 Ill.App. 395, 90 N.E.2d 278; Brenton v. Sloan's United Storage and Van Company, 315 Ill.App. 278, 42 N.E.2d 945; Lindor v. Burns, 292 Ill.App. 201, 10 N.E.2d 686; Clemenson v. Whitney, 238 Ill.App. 308; Keenan Hotel Company v. Funk, 93 Ind.App. 677, 177 N.E. 364; Employers' Fire Insurance Company v. Consolidated Garage and Sales Company, 85 Ind.App. 674, 155 N.E. 533; Walter v. Sanders Motor Company, 229 Iowa 398, 294 N.W. 621; Strange v. Price Auto and Service Company, 169 Kan. 98, 218 P.2d 208; McDonald v. Breaux Ballard, Inc., 298 Ky. 438, 183 S.W.2d 26; Threlkeld v. Breaux Ballard, Inc., 296 Ky. 344, 177 S.W.2d 157, 151 A.L.R. 708; Berkowitz v. Pierce, 129 N.J.L. 299, 29 A.2d 552; Falls v. Goforth, 216 N.C. 501, 5 S.E.2d 554; Hutchins v. Taylor-Buick Company, 198 N.C. 777, 153 S.E. 397; Potts v. Carter-Cobb Motor Company, 191 N.C. 821, 131 S.E. 739; Trustees of Elon College v. Elon Banking and Trust Company, 182 N.C. 298, 109 S.E. 6, 17 A.L.R. 1205; Beck v. Wilkins-Ricks Company, 179 N.C. 231, 102 S.E. 313, 9 A.L.R. 554; Hanes v. Shapiro and Smith, 168 N.C. 24, 84 S.E. 33; Wheeler v. Packard Oklahoma Motor Company, 169 Okl. 272, 38 P.2d 943; English v. Traders' Compress Company, 167 Okl. 580, 31 P.2d 588; Arkwright Mills v. Clearwater Manufacturing Company, 217 S.C. 530, 61 S.E.2d 165; Fleischman, Morris and Company v. Southern Railway, 76 S.C. 237, 56 S.E. 974, 9 L.R.A., N.S., 519; Hislop v. Ordner, 28 Tex.Civ.App. 540, 67 S.W. 337; Afflerbaugh v. George Grede and Brother, 182 Wis. 217, 196 N.W. 224; Commercial Molasses Corporation v. New York Tank Barge Corporation, 314 U.S. 104, 62 S.Ct. 156, 86 L.Ed. 89.
*88 The correct rule, deduced from the foregoing authorities, is that in an action involving a bailment for hire proof by the bailor of delivery of the property to the bailee and of his failure to redeliver it upon legal demand establishes a prima facie case of negligence of the bailee and the burden of going forward with the evidence shifts to the bailee to show that his failure to redeliver was without his fault or negligence; but the burden of proof does not shift with the evidence but rests upon the bailor who must establish the negligence of the bailee by a preponderance of all the evidence. Under the law, as stated in the cited texts and cases, the circuit court erred in ruling that the plaintiffs were required to introduce proof that the destruction of their automobile was caused by the negligence of the defendant before the defendant introduced evidence to show that the fire which destroyed the automobile occurred without fault or negligence of the defendant.
The material facts relating to the manner in which the employee of the defendant operated the stoker shortly before and at the time the fire occurred and the nature and the point of origin of the fire are not disputed. The evidence introduced by the respective parties upon the issue of negligence upon the part of the employee of the defendant, in the operation of the stoker and in causing the fire which destroyed the automobile of the plaintiffs, however, is conflicting. It can not be said, as matter of law, that the jury, from the evidence, could not reasonably draw the inference that the defendant was guilty of negligence which caused the destruction of the automobile of the plaintiffs. From the evidence the jury could find that the defendant, acting by its agent and employee in the operation of the stoker, was, or was not, guilty of negligence in causing the fire. This Court has repeatedly held that when the evidence is conflicting, or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them, the question of negligence is for the jury. Davis v. Sargent, W.Va., 78 S.E.2d 217; Wilson v. Edwards, W.Va., 77 S.E.2d 164; Thrasher v. Amere Gas Utilities Company, W.Va., 75 S.E.2d 376; Daugherty v. Baltimore and Ohio R. Company, 135 W.Va. 688, 64 S.E.2d 231; Isgan v. Jenkins, 134 W.Va. 400, 59 S.E.2d 689; Davis v. Pugh, 133 W.Va. 569, 57 S.E.2d 9; Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410; Taylor v. City of Huntington, 126 W.Va. 732, 30 S.E.2d 14; Nichols v. Raleigh-Wyoming Mining Company, 116 W.Va. 163, 179 S.E. 70; Chambers v. Princeton Power Company, 93 W.Va. 598, 117 S.E. 480, 29 A.L.R. 1041; Lindsey v. Bluefield Produce and Provision Company, 91 W.Va. 118, 112 S.E. 310; Walters v. Appalachian Power Company, 75 W.Va. 676, 84 S.E. 617; Jaggie v. Davis Colliery Company, 75 W.Va. 370, 84 S.E. 941; Ewing v. Lanark Fuel Company, 65 W.Va. 726, 65 S.E. 200, 29 L.R.A.,N.S., 487; Foley v. City of Huntington, 51 W.Va. 396, 41 S.E. 113; Raines v. Chesapeake and Ohio Railway Company, 39 W.Va. 50, 19 S.E. 565, 24 L.R.A. 226; Hanley v. City of Huntington, 37 W.Va. 578, 16 S.E. 807. In Fielder v. Service Cab Company, 122 W.Va. 522, 11 S.E.2d 115, this Court held in point I of the syllabus that "Before directing a verdict in a defendant's favor, every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence." Hammersmith v. Bussey, 136 W.Va. 437, 67 S.E.2d 609; Perry v. Scott, 134 W.Va. 380, 59 S.E.2d 652; Raeder v. Sconish, 133 W.Va. 795, 58 S.E.2d 265; Arrowood v. Norfolk and Western R. Company, 127 W. Va. 310, 32 S.E.2d 634; Webb v. Harrison, 127 W.Va. 124, 31 S.E.2d 686; Boyce v. Black, 123 W.Va. 234, 15 S.E.2d 588; Nichols v. Raleigh-Wyoming Coal Company, 112 W.Va. 85, 163 S.E. 767. After submitting the case to the jury, the circuit court should have permitted the jury to determine whether, under the evidence, the defendant was guilty of negligence which caused the fire; and the action of the court, in withdrawing that question from the jury, in directing the jury to return a verdict *89 for the defendant, and in entering judgment upon the verdict constituted reversible error.
The plaintiffs complain of the action of the court in giving Instructions Nos. 4, 5, 6, 7 and 8, and in refusing to give Instructions Nos. 9, 10, 11 and 12. Inasmuch as the court withdrew the case from the jury and directed a verdict for the defendant it is unnecessary to discuss those instructions in detail or to comment upon them except to say that the question whether they do or do not correctly propound the law is controlled by the principles enunciated in this opinion.
Under the authorities cited and for the reasons stated the judgment is reversed, the verdict of the jury is set aside, and a new trial is awarded the plaintiffs.
Judgment reversed; verdict set aside; new trial awarded.
| {
"pile_set_name": "FreeLaw"
} |
60 Wn. App. 869 (1991)
809 P.2d 209
THE STATE OF WASHINGTON, Respondent,
v.
FLOYD A. BARROW, Appellant.
No. 24655-1-I.
The Court of Appeals of Washington, Division One.
April 15, 1991.
*870 Deborah A. Whipple of Washington Appellate Defender Association, for appellant.
Norm Maleng, Prosecuting Attorney, and Susan Storey, Deputy, for respondent.
COLEMAN, J.
Floyd Barrow appeals a judgment and sentence for two violations of the Uniform Controlled Substances Act. He contends that prosecutorial misconduct deprived him of a fair trial.
Barrow was arrested in the vicinity of Second and Pike in downtown Seattle for selling $20 worth of a cocaine-like substance. An undercover police officer, Donna J. O'Neal, had made the purchase and then radioed the seller's description to other officers in the vicinity. Based on Officer O'Neal's description, Officer Victor Maes apprehended Barrow. During a search incident to arrest, Officer Maes found a narcotics pipe in Barrow's pocket, but no controlled substances. Barrow had less than $1 in his possession.
Subsequent laboratory analysis revealed that the substance sold to Officer O'Neal was not cocaine, but that Barrow's pipe contained cocaine residue.[1] Barrow was charged with violating the "burn statute", RCW 69.50.401(c),[2] and with unlawful possession of a controlled substance in violation of RCW 69.50.401(d). The unlawful possession charge was based on the cocaine residue in the pipe.
The matter went to trial before a jury, where Barrow testified in his own behalf and denied having knowingly *871 possessed cocaine. Barrow explained that he had surreptitiously taken the pipe from his brother in hopes of using it to get high with somebody, and that he therefore had not known the pipe contained cocaine residue.
Barrow also denied having sold Officer O'Neal the purported cocaine and asserted that this was a case of mistaken identity. To bolster this defense, Barrow's lawyer sought during closing argument to undermine Officer O'Neal's identification testimony: he emphasized Officer O'Neal's inexperience[3] and her probable frustration on the night of Barrow's arrest.[4] He also emphasized the State's failure to provide any corroborative physical evidence of Barrow's guilt.
The jury found Barrow guilty as charged. This appeal followed.
I
Barrow first contends that his conviction on the possession charge should be overturned because the State improperly shifted the burden of proof onto him. During closing, the prosecutor questioned whether the jury believed Barrow's testimony that he had taken the pipe from his brother, and then repeatedly asked "Where is his brother" who could testify in Barrow's behalf. Barrow contends that the "Where is his brother" questions shifted onto him the burden of proof as to his lack of knowledge defense. See generally State v. Traweek, 43 Wn. App. 99, 106-08, 715 P.2d 1148, review denied, 106 Wn.2d 1007 (1986).
[1] This court recently clarified when it is permissible for a prosecutor to inquire into a defendant's failure to present evidence. In State v. Contreras, 57 Wn. App. 471, *872 788 P.2d 1114, review denied, 115 Wn.2d 1014 (1990), we considered a closing argument similar to the one at issue here in that the prosecutor asked "where is" the witness who could corroborate defendant's exculpatory testimony. Contreras, at 476. The Contreras court found no impropriety in the argument and held:
When a defendant advances a theory exculpating him, the theory is not immunized from attack. On the contrary, the evidence supporting a defendant's theory of the case is subject to the same searching examination as the State's evidence. The prosecutor may comment on the defendant's failure to call a witness so long as it is clear the defendant was able to produce the witness and the defendant's testimony unequivocally implies the uncalled witness's ability to corroborate his theory of the case.
Contreras, at 476. In other words, a prosecutor can question a defendant's failure to provide corroborative evidence if the defendant testified about an exculpatory theory that could have been corroborated by an available witness.
Other Washington cases are in accord with the Contreras decision allowing, in limited situations, prosecutorial comment on a defendant's failure to present evidence. Compare State v. Bebb, 44 Wn. App. 803, 815, 723 P.2d 512 (1986) ("[a] prosecutor can comment on the accused's failure to present evidence on a particular issue if persons other than the accused or his spouse could have testified for him on that issue"), aff'd on other grounds, 108 Wn.2d 515, 740 P.2d 829 (1987) with State v. Cleveland, 58 Wn. App. 634, 647-49, 794 P.2d 546 (error for prosecutor to generally imply that defendant had a duty to present any favorable evidence in existence), review denied, 115 Wn.2d 1029 (1990). Federal and other state courts also are generally in accord. See United States v. Baker, 855 F.2d 1353, 1362 (8th Cir.1988) (prosecutor's comment that nothing in record supported defendant's testimony was a permissible comment on the witness's testimony), cert. denied, 490 U.S. 1069 (1989); State v. Sinclair, ___ Conn. App. ___, 569 A.2d 551, 555 (1990) (prosecutor entitled to comment on defendant's failure to support his own factual theories); State v. *873 Howard, 320 N.C. 718, 360 S.E.2d 790, 796 (1987) (permissible for prosecutor to comment on defendant's failure to produce exculpatory or corroborative evidence); Commonwealth v. Yarris, 519 Pa. 571, 549 A.2d 513, 526 (1988) (no impropriety in challenging defendant's failure to produce a witness who would have corroborated his testimony), cert. denied, 491 U.S. 910 (1989).
Here, Barrow personally testified about an exculpatory theory that could have been corroborated by his brother. Nothing in the record indicates that his brother could not be produced to testify. Accordingly, pursuant to Contreras, we reject this assignment of error.
II
Barrow next asserts that the prosecutor's closing argument introduced facts not in evidence and that this deprived him of a fair trial. The argument at issue is the prosecutor's explanation, made during closing argument, of why Barrow had no money or cocaine on him when he was arrested:
You heard the officers testify they've been doing these buy busts for close to two years. Certainly the word is out on the street and people know that there are undercover buyers on the street, and the first [thing] they want to do is to get rid of the money. What do they do? They spend it. So it's left in a store and then if they have change, fine, they have change. Oftentimes they pass it off to someone else. The fact that this defendant didn't have any money is very consistent with this defendant having dealt the cocaine in this case. The same reason that the defendant didn't have any additional bindles on his person or any additional packets of cocaine. It's a criminal deal, and anybody knows that if you don't want to get caught, you don't carry more than you absolutely have to. So you carry one, you get rid of one.
(Italics ours.) Barrow objected to the italicized part of this argument; his objection was overruled on the ground that "[t]his is argument." On appeal, Barrow points out that the State offered no trial evidence that drug dealers carry limited supplies of controlled substances.
[2] We reject Barrow's contention because it mischaracterizes the prosecutor's argument. The prosecutor did not *874 purport to quote from evidence that was not admitted. Rather, she simply made an argument based on common sense. Such argument does not fall within the prohibition of State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988) (improper for prosecutor, in argument, to introduce facts not in evidence).
III
Barrow contends that the prosecutor's closing argument was inflammatory and deprived him of a fair trial. In closing, the prosecutor asserted that by giving testimony contradictory to the officers' testimony, Barrow effectively called the officers liars.[5] The prosecutor continued this line of argument even after the trial judge sustained Barrow's initial objection.
Barrow also assigns error to the part of the prosecutor's rebuttal argument in which she told the jury that "in order for you to find the defendant not guilty on either of these charges, you have to believe his testimony and you have to *875 completely disbelieve the officers' testimony. You have to believe that the officers are lying." Barrow's objection to this statement was overruled.[6]
[3] It has not been decided in this state whether it is misconduct for a prosecutor to argue that a defendant in essence called the police witnesses liars. It has been said, however, that cross examination in which the prosecutor attempts to get the defendant to call the State's witnesses liars is "argumentative, impertinent and uncalled for". State v. Green, 71 Wn.2d 372, 380-81, 428 P.2d 540 (1967) (the error was not so deliberate, flagrant, persistent, or genuinely inflammatory as to warrant a new trial). It was also "incorrect" under the particular facts of another case for a prosecutor to argue that a verdict for defendant means that the jury said the police officers are liars and perjurers. State v. Brown, 35 Wn.2d 379, 387, 213 P.2d 305 (1949) (statement although incorrect did not constitute prejudicial error).
Other courts, moreover, consistently have found liar arguments similar to those at issue here to be improper. They reason that arguments about a defendant's opinion of the government's witnesses' credibility are irrelevant and interfere with the jury's duty to make credibility determinations. See, e.g., United States v. Richter, 826 F.2d 206, 208-09 (2d Cir.1987); United States v. Davis, 328 F.2d 864, 867 (2d Cir.1964); United States v. Hestie, 439 F.2d 131 (2d Cir.1971); People v. Ochoa, 86 A.D.2d 637, 446 N.Y.S.2d 339, 340 (1982). Based upon this authority and the related Washington cases of Green and Brown, we hold the arguments at issue here to be misconduct. It was a mischaracterization to say that the defendant was calling the officers liars. The officers simply could have been mistaken about the seller's identity. Furthermore, the jurors did not need to "completely disbelieve" the officers' testimony in *876 order to acquit Barrow; all that they needed was to entertain a reasonable doubt that it was Barrow who made the sale to Officer O'Neal.
[4] We must next decide whether the prosecutor's improper closing arguments require reversal. Prosecutorial misconduct requires reversal when there is a substantial likelihood that the argument affected the jury's verdict. State v. Mak, 105 Wn.2d 692, 726, 718 P.2d 407, cert. denied, 479 U.S. 995, 93 L.Ed.2d 599, 107 S.Ct. 599 (1986). The burden of proving such prejudice rests with the defense. State v. Hughes, 106 Wn.2d 176, 195, 721 P.2d 902 (1986). Unless a defendant objected to the improper comments at trial, requested a curative instruction, or moved for a mistrial, reversal is not required unless the prosecutorial misconduct was so flagrant and ill intentioned that a curative instruction could not have obviated the resultant prejudice. State v. Ziegler, 114 Wn.2d 533, 540, 789 P.2d 79 (1990); State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988); State v. Dunaway, 109 Wn.2d 207, 221, 743 P.2d 1237, 749 P.2d 160 (1987).
Barrow did timely object to the initial improper remarks made during the prosecutor's first closing argument, as well as to her improper rebuttal argument. It is significant, however, that after the initial objection was sustained, when the prosecutor continued to argue that Barrow essentially was calling the police liars, defense counsel did not object, request that the arguments be stricken, or ask for a curative instruction.[7] Counsel clearly could have minimized the impact of this argument if he had taken any of these steps. A curative instruction particularly could have obviated any prejudice engendered by these remarks.
*877 However, because Barrow did properly object to the initial argument and to the rebuttal argument, we will examine whether there is a substantial likelihood that those comments affected the jury's verdict. "Their prejudicial or inflammatory effect must be viewed in context with the earlier evidence and the circumstances of the trial in which they were made." Green, at 381. After comparing this case to other cases involving improper comments, we conclude that it is not substantially likely that the comments affected the jury's verdict.
In State v. Brown, supra, the prosecutor warned that "this will become a city of sodomy" in response to arguments advanced on behalf of the appellant. Although the court noted that the comment was not one to be commended, it was held not to constitute prejudicial misconduct. Brown, at 386. Similarly, in State v. Baker, 30 Wn.2d 601, 607, 192 P.2d 839 (1948), the jury was told that if it did not find the defendant guilty, one of the jurors or the wife of one of them would "wake up some day and find the same thing happens to you." (Italics omitted.) This comment also was not found to constitute prejudicial error. The comments here are far less inflammatory than the comments in either Baker or Brown.
The court in United States v. Richter, supra, a case cited by Barrow, found the improper arguments to constitute reversible error. Richter, however, is distinguishable. In Richter, the prosecutor goaded the defendant into labeling the testimony of an FBI agent as false, called a second witness on rebuttal to corroborate the first agent's testimony, then emphasized the improper theme of his questions in closing. The cumulative effect of the prosecutor's comments was so prejudicial that a new trial was necessary. Richter, at 209.
In this case, the comments were not so inflammatory or prejudicial that reversal is required. On cross examination the prosecutor asked Barrow if he was telling the jury that Officer O'Neal lied. Barrow said that he was not saying that she was lying. The prosecutor tried again to get Barrow to *878 say that O'Neal was lying, but the trial court sustained defense counsel's objection to the question. When in closing the prosecutor attempted to argue that the inference to be drawn from Barrow's defense was that the police officers were lying, the trial court again sustained Barrow's objection. Despite the sustained objection, the prosecutor continued the argument but Barrow did not renew his objection. Rather, defense counsel in closing attacked the credibility and character of Officer O'Neal. In addressing the weaknesses in the State's case, defense counsel stated:
Start with Officer O'Neal's testimony.... Back in March, she would have been an officer for about nine months. She was obviously very frustrated that night because she's been made by some other Hispanics as a police officer. She was made by other black males as a police officer. She's discouraged. She's not doing her job for making buys.... And maybe she did buy this bindle from somebody, and maybe when she got up to that observation post she couldn't find that person with those binoculars. And maybe she thinks Floyd Barrow should be in jail because he's hanging around at First and Pike or Second and Pike. But that's not the question. The question is this: Is there sufficient evidence to overcome the presumption of innocence? Have they proven to you beyond a reasonable doubt that Mr. Barrow was the man?
(Italics ours.) Defense counsel argued further:
People can be just mistaken. They can be mistaken about the identity of a person. They can be mistaken in exactly what they observed. Sometimes folks can be so emotionally involved in a situation or have an interest because of their job or their family or something else that they can even convince themselves of something that's just not true. And, obviously, also, people can lie.
And police officers are no different than anyone else.
The prosecutor argues that defense counsel's comments provoked her own improper comments. We choose not to resolve this case on the basis of provocation, but, given the arguments of both counsel, it does not appear to us that the prosecutor's improper argument would have the capacity to so inflame the jury that there is a substantial likelihood that the defendant was denied a fair trial. The jury had an opportunity to hear the testimony and draw its own conclusions as to the credibility of witnesses or whether there *879 was reasonable doubt as to whether the officer was mistaken in her identification. Counsel's arguments were not of a nature to overcome the jury's ability to perform its function.
The judgment and sentence are affirmed.
GROSSE, C.J., concurs.
WINSOR, J.[*] (dissenting)
The majority holds that the prosecutor's arguments were misconduct, but that the errors are not reversible. I disagree with its conclusion that reversal is not required. When, as here, a defendant preserves error relating to prosecutorial misconduct, reversal is required if the defendant shows that there was a substantial likelihood the misconduct affected the jury's verdict. State v. Mak, 105 Wn.2d 692, 726, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986). I believe Barrow has satisfied this burden.
As Barrow points out, this is not a case in which there is abundant evidence of guilt; indeed, no physical evidence linked Barrow to the purported cocaine sale. The absence of any money or marketable quantities of drugs on his person at the time of arrest gave Barrow's mistaken identity defense plausibility. Thus, the primary question for the jury was whether it was satisfied beyond a reasonable doubt that the officers accurately identified Barrow as the seller. The prosecutor's improper arguments turned the jury's attention away from this issue, and instead called for it to decide Barrow's guilt or innocence on the basis of who was lying: Barrow or the officers. Unfortunately, this is not a question a jury is likely to decide in a defendant's favor, particularly when the defendant is a young male arrested at 2nd and Pike with a narcotics pipe in his possession. It is, therefore, all too likely that the improper argument affected the verdict.
*880 The prosecutor argues that reversal is not required because Barrow's lawyer provoked the prosecutor's liar arguments. Prosecutorial misconduct does not require reversal if the improper remarks were provoked by defense counsel and were in reply to defense counsel's statements. State v. Davenport, 100 Wn.2d 757, 760, 675 P.2d 1213 (1984); State v. La Porte, 58 Wn.2d 816, 822, 365 P.2d 24 (1961). The majority did not reach this issue because it concluded that the misconduct did not deprive Barrow of a fair trial. Because I disagree with the majority's conclusion, I must consider the prosecutor's provocation argument.
Nothing in Barrow's examination of the State's witnesses in any way called the officers' integrity into question. There simply was no provocation occurring during presentation of the State's case. Nevertheless, during her cross examination of Barrow, the prosecutor tried repeatedly, albeit unsuccessfully, to force him to declare that the police witnesses were liars.[8] Then, in her first closing argument, the prosecutor returned to the liar theme and repeatedly characterized Barrow's testimony as "calling the officers liars". This initial improper argument clearly was unprovoked.
After the State's argument, Barrow's lawyer did question the reliability of parts of the police officers' testimony. He explained that police officers can be mistaken when they identify a particular person as the individual who committed a crime. Then, in explaining the presumption of innocence and the beyond a reasonable doubt standard, defense counsel argued:
Individuals can be mistakenly charged for crimes.... People can be just mistaken. They can be mistaken about the identity of a person. They can be mistaken in exactly what they observed. Sometimes folks can be so emotionally involved in a situation or have an interest because of their job ... that they can even convince themselves of something that's just not true. And, obviously, also, people can lie.
*881 And police officers are no different than anyone else. You are to utilize the same criteria in evaluating their testimony. Police officers can be mistaken. They can be overzealous. They can feel pressures ... to make arrests.
Defense counsel later addressed weaknesses in the State's case, questioning whether the evidence was strong enough to overcome the presumption of innocence:
Start with Officer O'Neal's testimony.... Back in March, she would have been an officer for about nine months. She was obviously very frustrated that night because she's been made by some other Hispanics as a police officer. She was made by other black males as a police officer. She's discouraged. She's not doing her job for making buys.... And maybe she did buy this bindle from somebody, and maybe when she got up to that observation post she couldn't find that person with those binoculars. And maybe she thinks Floyd Barrow should be in jail because he's hanging around at First and Pike or Second and Pike. But that's not the question. The question is this: Is there sufficient evidence to overcome the presumption of innocence? Have they proven to you beyond a reasonable doubt that Mr. Barrow was the man?
The State contends that these comments provoked its rebuttal argument that in order for the jury to acquit, it had to believe the officers were lying. Although in other circumstances I might find Barrow's argument sufficiently provocative to excuse subsequent improper argument by the State, I would not do so here.
The scope of the provocation rule is limited. It does not excuse remarks that "go beyond a pertinent reply and bring before the jury extraneous matters not in the record, or are so prejudicial that an instruction would not cure them." La Porte, 58 Wn.2d at 822. It also does not excuse an incorrect statement of the law of the case. Davenport, 100 Wn.2d at 760-61 (holding that State's response clearly exceeded scope of defendant's "invitation" and was an incorrect legal statement). Here, the State's rebuttal argument went beyond a simple response to the defense argument quoted above. Instead of replying to that argument, the prosecutor misrepresented the issues, the applicable burden of proof, and the factual bases for an acquittal. Her argument is, therefore, beyond the scope of the provocation rule. In any *882 event, it would be incongruous to invoke the provocation rule on behalf of the State, when it was the State's improper cross examination and initial improper closing argument that prompted the allegedly provoking defense argument. For these reasons, I would hold that the provocation rule does not excuse the State's improper rebuttal argument.
This is not a case in which there was abundant evidence of guilt. We cannot properly rule out the likelihood the prosecutor's improper conduct affected the jury's verdict. I would, therefore, reverse.
NOTES
[1] The residue contained less than .1 gram of cocaine.
[2] RCW 69.50.401(c) makes it a crime "to offer, arrange, or negotiate for the sale, gift [or] delivery ... of a controlled substance to any person and then sell, give [or] deliver ... to that person any other liquid, substance, or material in lieu of such controlled substance."
[3] Officer O'Neal had been on the police force 9 months at the time of Barrow's arrest.
[4] Before the purchase from Barrow, Officer O'Neal had made two attempts to purchase cocaine. These attempts failed when other officers in the area happened by and were recognized by the sellers.
[5] Ladies and gentlemen, there's another interesting aspect to this case, and that is the defendant's testimony. The defendant contradicted the officers on a number of points. He wasn't willing to call the officers liars, but
"MR. MULLIGAN: Your Honor, I object to that. It was a sustained question or a sustained objection to the question about being a liar.
"JUDGE DONOHUE: All right. I'll sustain the objection.
"MS. STOREY: There is only one inference that can be drawn from the defendant's testimony which is in contradiction with the officer's testimony. And that is that the defendant was calling the officers liars. How do you draw that inference? The officer testified, Officer Maes, that the defendant had a cold wine cooler in his hand when he was arrested. Officer Maes was working, and he was paying attention to what happened, and he made note of that.
"MR. MULLIGAN: I object to that. No evidence of that.
"JUDGE DONOHUE: Overruled.
"MS. STOREY: And, yet, the defendant testified that he didn't have any wine cooler at the time. That is a direct contradiction with the officer. And by that testimony, the defendant is calling the officer a liar.
"What about defendant's testimony that he did not doesn't recall contacting officer O'Neal and he did not deliver anything to Officer O'Neal? Officer O'Neal told you that he did. Not only that he did but that she spent some time standing face to face with him. The defendant would have remembered, when he makes a cocaine transaction and makes a narcotics transaction and five to 15 minutes later is arrested. So it's not that the defendant doesn't remember. It's that he's calling Officer O'Neal a liar."
[6] "MR. MULLIGAN: Your Honor, I object to that misstatement of the beyond a reasonable doubt standard. It's certainly enough to believe not that they're lying but that they don't know."
[7] The only objection was to the statement that the defendant "had a cold wine cooler in his hand when he was arrested and that Officer Maes was working, and he was paying attention to what happened, and he made note of that period." This statement was objected to on the basis that "there was no evidence of that", not that the argument was prejudicial or inflammatory.
[*] Judge Robert W. Winsor was a member of the Court of Appeals at the time oral argument was heard on this matter. He is now serving as a judge pro tempore of the court pursuant to CAR 21(c).
[8] Barrow objected to the prosecutor's liar questions. His objections were, for the most part, sustained before Barrow could reply. The one time Barrow did answer, he said that he was not saying Officer O'Neal was lying.
| {
"pile_set_name": "FreeLaw"
} |
54 F.3d 776NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Mona HARMON, Plaintiff-Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
No. 94-6065.
United States Court of Appeals, Sixth Circuit.
May 19, 1995.
1
Before: JONES and RYAN, Circuit Judges, and MATIA, District Judge.*
ORDER
2
Mona Harmon appeals a district court judgment that affirmed the Secretary's denial of her application for social security disability benefits. The parties have waived oral argument, and the panel unanimously agrees that oral argument is not needed in this case. Fed. R. App. P. 34(a).
3
An Administrative Law Judge ("ALJ") found that Harmon had "severe cervical and lumbosacral spine degenerative arthritis and sequelae; shortness of breath; asthma; a histrionic/conversion personality disorder with somatic complaint features; and a mild depressive disorder." However, the ALJ found that Harmon's impairments did not meet or equal any of the impairments that are listed in Appendix 1 to the regulations. He found that Harmon was not disabled because she could still perform her past work as a salesperson and also because she could perform a limited but significant number of other light and sedentary jobs. The ALJ's opinion became the final decision of the Secretary on January 26, 1993, when the Appeals Council declined further review.
4
Harmon filed a timely complaint in federal district court and a magistrate judge issued a report recommending that the Secretary's motion for summary judgment be granted. After considering Harmon's sole objection to this report, the district court adopted the magistrate judge's recommendation and awarded summary judgment to the Secretary, on July 18, 1994. It is from this judgment that Harmon now appeals.
5
Harmon's arguments on appeal focus exclusively on her spinal injuries and pain. She has, therefore, abandoned any arguments that she might have regarding her other impairments. See McMurphy v. City of Flushing, 802 F.2d 191, 198-99 (6th Cir. 1986). In her objections to the magistrate judge's report, Harmon specifically argued only that sufficient deference had not been given to the report of her treating physician. She has not developed this argument on appeal, and it is also abandoned for purposes of appellate review. See id.
6
Harmon now argues that her condition is equal in severity to a listed impairment, that the ALJ improperly analyzed her complaints of disabling pain and that the ALJ's questioning of a vocational expert ("VE") was improper. Harmon has waived appellate review of these arguments by failing to raise them as specific objections to the magistrate judge's report. See Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991). Harmon attempted to incorporate her summary judgment motion into her objections, but her general objection is not sufficient to preserve these issues for appellate review. See Howard v. Secretary of Health and Human Servs., 932 F.2d 505, 508-09 (6th Cir. 1991). It would not serve the interests of justice to overlook Harmon's waiver because substantial evidence supports the Secretary's determination that she was not disabled.
7
Accordingly, the district court's judgment is affirmed.
*
The Honorable Paul R. Matia, United States District Judge for the Northern District of Ohio, sitting by designation
| {
"pile_set_name": "FreeLaw"
} |
52 F.3d 329NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.
Cornelius WEATHERS, Plaintiff-Appellant,v.BETHLEHEM STEEL CORPORATION, Defendant-Appellee.
No. 94-3158.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 15, 1995.Decided April 20, 1995.
Before WOOD, FLAUM and EASTERBROOK, Circuit Judges.
ORDER
1
On May 6, 1993, Cornelius Weathers filed suit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. and 42 U.S.C. Sec. 1981, alleging that Bethlehem Steel Corporation ("Bethlehem") failed to employ him as a combustion craft technician on account of his race and that Bethlehem retaliated against him for filing a civil rights complaint with his union. Bethlehem moved for summary judgment; the district court granted the motion and the case was dismissed. Mr. Weathers appeals and we affirm.
I.
2
Pursuant to the district court's Local Rule 56.1, Bethlehem filed a "Statement of Material Facts" in support of its motion for summary judgment. Rather than file a "Statement of Genuine Issues" to controvert Bethlehem's factual assertions, as required by Local Rule 56.1, Mr. Weathers instead filed an unsupported "Motion to Deny Defendant's Motion for Summary Judgment." After the district court struck this motion, Mr. Weathers sought, and was granted, three extensions of time to file a proper response to Bethlehem's summary judgment motion. The deadline established by the third extension was May 31, 1994. This date passed without Mr. Weathers filing a response. On June 2, 1994, Mr. Weathers moved for a fourth extension of time. The district court denied this motion, and Mr. Weathers filed two additional, unsuccessful motions for extensions of time. On June 22, 1994, the district court ruled that Mr. Weathers's dilatory conduct compelled it to find that he had waived the right to respond to Bethlehem's summary judgment motion. Therefore, per Local Rule 56.1, the district court assumed that the facts set forth in Bethlehem's Statement of Material Facts existed without controversy, to the extent that they were supported by the record.1 Thereafter, on June 28, 1994, Mr. Weathers finally filed his response. Citing its June 22, 1994 Order, the district court struck the response. Then, acting on the basis of the undisputed facts set forth by Bethlehem, the district court granted Bethlehem's motion for summary judgment.
3
The relevant facts giving rise to this litigation, as set forth in Bethlehem's motion for summary judgment and supported by the record, are as follows. In March 1989, Mr. Weathers, an African American, submitted an application for employment at Bethlehem as a combustion craft technician. At this time, Mr. Weathers understood that he would have to receive a passing score on a qualifying exam before he was eligible for the position. Mr. Weathers took and failed the qualifying exam twice before finally passing it on July 24, 1989. Pursuant to Bethlehem's application policy, applications remain active for only six months from the date that the application is initially submitted, regardless of when the applicant passes the qualifying exam. After six months, the application becomes inactive and the applicant must submit a new application at a time when Bethlehem is seeking applicants in order to be considered for future openings. Passing test scores, however, are valid indefinitely and an applicant is not required to retake the qualifying exam unless Bethlehem implements a new examination.
4
On July 19 and 20, 1989, Bethlehem made offers of employment to two white applicants, Messrs. Pfauth and Powers. These individuals had already passed the qualifying exam by this date and were thus eligible for immediate employment. As Mr. Weathers did not pass the exam until July 24, 1989, he was ineligible for employment at this time. Unfortunately for Mr. Weathers, these two hires satisfied Bethlehem's combustion craft technician requirements for the balance of the period during which his application remained active--until mid-September 1989. The applications of at least five white individuals expired in this same manner during this general time frame.
5
In August 1990, nearly a year after Mr. Weathers's application had expired, Bethlehem hired another white individual, Mr. McIntosh, as a combustion craft technician. Mr. McIntosh had previously been employed at Bethlehem and had already passed a qualifying exam. Since the time of Mr. McIntosh's employment, however, Bethlehem had revised the qualifying exam. Mr. McIntosh was thus required to take and pass the new exam before he was eligible for the 1990 position. Then, on April 1, 1991, Bethlehem again implemented a new qualifying exam for the combustion craft technician position. Everyone seeking a combustion craft technician position from this date forward was required to take the new exam, regardless of whether they had passed an older version of the exam, unless they were already employed by Bethlehem in that position.
6
Mr. Weathers later applied for a position as a general laborer at Bethlehem and he was hired in that regard in October 1991. Thereafter, in early 1992, Bethlehem posted a vacancy for a combustion craft technician position. Mr. Weathers filed a new application for the position and learned at that time that he had to take the new qualifying exam. Mr. Weathers then took and failed the new exam in February 1992. Mr. Weathers did not attempt to retake the exam after that date.
7
In August 1992, Mr. Weathers submitted a civil rights complaint with his union. Then, on October 20, 1992, Mr. Weathers filed a charge of race discrimination with the EEOC. Three months later, Mr. Weathers attempted to amend this charge to add a claim for retaliation. On May 6, 1993, after he had learned that the EEOC would not pursue his claim, Mr. Weathers filed this suit in the district court.
8
On appeal, Mr. Weathers primarily raises the following contentions: (1) the district court abused its discretion when it refused to grant his last three requests for extensions of time and also when it subsequently refused to consider his Memorandum in Opposition to Defendant's Motion for Summary Judgment; and (2) the district court erroneously granted Bethlehem's motion for summary judgment. Bethlehem, on the other hand, argues that Mr. Weathers's appeal is frivolous and that it should accordingly be awarded the costs and attorneys fees it incurred in the defense of this appeal.
II.
9
We will uphold a district court's strict enforcement of its local rules, and reverse only where it is evident that the district court has abused its discretion. Wienco, Inc. v. Katahn Assocs., Inc., 965 F.2d 565, 567-68 (7th Cir.1992) (reviewing the application of the Rules of the United States District Court for the Northern District of Illinois). We review a grant of summary judgment by considering all factual issues in the light most favorable to the nonmoving party (herein Mr. Weathers) and determining de novo whether there exists any genuine issue of material fact requiring submission of the case to the finder of fact or whether judgment as a matter of law was appropriate. Fed.R.Civ.P. 56(c); Colburn v. Trustees of Indiana Univ., 973 F.2d 581, 585 (7th Cir.1992). Moreover, "[t]his standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues." Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993) (citations omitted).
A.
10
Mr. Weathers argues that the district court abused its discretion by denying his fourth, fifth, and sixth motions for extensions of time and by subsequently refusing to consider his response to Bethlehem's summary judgment motion. Our review of this matter convinces us that the district court did not abuse its discretion in regard to any of these decisions.
11
After the district court had granted Mr. Weathers's third motion for an extension of time, a response to Bethlehem's summary judgment motion was due on May 31, 1994. Mr. Weathers missed that deadline and, instead, filed a fourth motion for an extension of time on June 2, 1994--requesting an additional five days. This motion was not granted, and the five days came and went. Then, on June 10, 1994, Mr. Weathers requested another extension--to and including June 10, 1994. The motion was not granted, and the remainder of June 10 passed without any further word from Mr. Weathers. Finally, on June 16, 1994, Mr. Weathers moved for his sixth and last extension of time--to and including June 21, 1994. This motion was not granted, and June 21 likewise passed without a response from Mr. Weathers. We find that the district court did not abuse its discretion in refusing to grant Mr. Weathers's last three motions for extensions of time. The district court had already granted three extensions and, furthermore, every one of these last three motions was filed later than the filing date requested in each preceding motion.
12
On June 28, 1994, Mr. Weathers did finally file a response to Bethlehem's motion for summary judgment. A week beforehand, however, the district court had announced in an order that it would no longer consider any response filed by Mr. Weathers in light of his "extraordinarily dilatory conduct." The district court, in an order dated August 18, 1994, accordingly decided Bethlehem's motion for summary judgment without reference to Mr. Weathers's response. We note that Local Rule 7.1(a) clearly states that the "[f]ailure to file an answer brief or reply brief within the time prescribed may subject the motion to summary ruling." Moreover, Local Rule 56.1 states that, in the context of deciding a summary judgment motion, "the court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are controverted in the 'Statement of Genuine Issues' filed in opposition to the motion." Despite the plain language of the local rules, Mr. Weathers requests that we require the district court to consider his nearly month-late response to Bethlehem's summary judgment motion.
13
We have previously held that "[t]he district court's interpretation of its own rules is, of course, due considerable deference from us." Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 n. 4 (7th Cir.1994) (citations omitted). Furthermore, the decision whether to enforce a local rule leniently or strictly is within the discretion of the district court. Schulz v. Serfilco, Ltd., 965 F.2d 516, 519 (7th Cir.1992) (addressing the application of Rule 12(n) of the Rules of the District Court for the Northern District of Illinois--a rule similar to Local Rule 56.1). Mr. Weathers makes much of the fact that almost two months passed between the date when he submitted his late response and the date when the district court granted Bethlehem's motion for summary judgment. That the district court could have feasibly considered Mr. Weathers's response in this instance is irrelevant to the issue of whether that court abused its discretion where the record so clearly demonstrates Mr. Weathers's violation of the local rules.
14
Our review of the course of Mr. Weathers's conduct in the proceedings below convinces us that the district court did not abuse its discretion in the interpretation and application of its local rules in this case.
B.
15
Mr. Weathers also argues that the district court erroneously granted Bethlehem's motion for summary judgment--in regard to both his racial discrimination claim and his retaliation claim. Turning first to Mr. Weathers's racial discrimination claim, we note initially that Title VII and 42 U.S.C. Sec. 1981 require the same methods of proof. E.g., Hong v. Children's Memorial Hosp., 993 F.2d 1257, 1266 n. 7 (7th Cir.1993), cert. denied, 114 S.Ct. 1372 (1994). Mr. Weathers's ultimate burden here is to prove that his race was a dispositive factor in Bethlehem's decision to not hire him. E.g., Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1139 (7th Cir.1992) (citations omitted).
16
Where, as here, there is no direct evidence of discrimination, Mr. Weathers must proceed under the indirect, burden-shifting method of proof first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). At the first stage of this method, the burden rests upon the plaintiff to establish the four elements of a prima facie case of race discrimination. Once the plaintiff has established a prima facie case, a rebuttable presumption of discrimination is thereby created and the burden of production shifts to the employer to offer a legitimate and nondiscriminatory reason for not hiring the plaintiff.
17
To establish his prima facie case, Mr. Weathers must show:
18
(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.
19
McDonnell Douglas, 411 U.S. at 802 (footnote omitted). The district court found that Mr. Weathers had failed to establish a prima facie case of employment discrimination in this case because Bethlehem did not seek to hire any combustion craft technicians during that period when Mr. Weathers both had an active application pending and was qualified for the position.
20
As discussed above, the relevant facts2 are as follows: Mr. Weathers first applied for a position as a combustion craft technician in March 1989. Under Bethlehem's six-month expiration policy, Mr. Weathers's application expired sometime in September 1989. Bethlehem did make two offers of employment to white individuals during this period--on July 19 and 20, 1989. Mr. Weathers, however, did not pass the qualifying exam until July 24, 1989. Bethlehem did not hire any other combustion craft technicians until August 1990. Thus, during the period when Mr. Weathers's application was valid and he was qualified, Bethlehem did not seek to hire anyone. Mr. Weathers next applied for a position as a combustion craft technician in January 1992. Bethlehem was seeking to fill a position at this time, but a new qualifying exam had since been implemented. Mr. Weathers took the new exam, but he did not pass it. Thus, at no time was Mr. Weathers qualified to fill the position on this second occasion.
21
Viewing these facts in the light most favorable to Mr. Weathers, we agree with the district court's conclusion that Mr. Weathers has failed to establish his prima facie case of race discrimination. In light of this conclusion, we need not discuss whether Mr. Weathers has succeeded in demonstrating that the reasons proffered by Bethlehem for not hiring him are a pretext.
22
Mr. Weathers also argues that the district court erred in granting Bethlehem's motion for summary judgment regarding his retaliation claim. To establish a prima facie case of retaliation under Title VII, Mr. Weathers must show that " '(1) [ ]he engaged in statutorily protected expression; (2) [ ]he suffered an adverse action by [his] employer; and (3) there is a causal link between the protected expression and the adverse action.' " Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1457 (7th Cir.1994) (quoting Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1313 (7th Cir.1989) (other citations omitted)). Mr. Weathers claims that Bethlehem retaliated against him by deciding to not hire him as a combustion craft technician after he filed a civil rights complaint with his union in August 1992.
23
It is true that filing a civil rights complaint with one's union is a protected activity, and that not being hired as a combustion craft technician is an "adverse action," but we agree with the district court's finding that Mr. Weathers has failed to produce any evidence of a causal link between the two. As detailed above, there were two occasions when Mr. Weathers unsuccessfully applied for a position as a combustion craft technician--in 1992 and 1989. Bethlehem did not hire Mr. Weathers as a combustion craft technician in 1992 because he failed the new qualifying exam that he was required to take. A causal link is also lacking between the union complaint and Bethlehem's failure to hire Mr. Weathers in 1989: We refuse to find that Bethlehem did not hire Mr. Weathers in 1989 in retaliation for a complaint he would eventually file three years later regarding Bethlehem's failure to have hired him at that time. Viewing the facts in the light most favorable to Mr. Weathers, we conclude that the district court did not err in granting Bethlehem's motion for summary judgment regarding Mr. Weathers's retaliation charge.
C.
24
Bethlehem argues that this appeal by Mr. Weathers is frivolous and that an award to cover its costs and attorneys fees is therefore justified. While we feel that all of the decisions reached by the district court were proper, we nonetheless do not find this appeal to be sufficiently frivolous to grant Bethlehem's request. Bethlehem's argument for an award of costs and attorneys fees is accordingly rejected.
25
We have also reviewed the other arguments raised in this appeal and we find them to be without merit.
III.
26
For all of the foregoing reasons, the decision of the lower court granting summary judgment in favor of the defendant is affirmed.
27
AFFIRMED.
1
Local Rule 56.1 states, in pertinent part:
In determining the motion for summary judgment, the court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are controverted in the "Statement of Genuine Issues" filed in opposition to the motion, as supported by the depositions, discovery responses, affidavits and other admissible evidence on file.
2
Pursuant to Local Rule 56.1, these facts are taken from Bethlehem's Statement of Material Facts. Before these factual claims may be assumed to exist without controversy, however, Local Rule 56.1 requires that the claims be "supported by admissible evidence." Mr. Weathers argues that the deposition testimony of Thomas Kovalcik--Bethlehem's Personnel Coordinator--is inadmissible and thus insufficient to support the existence of Bethlehem's policy of considering applications to be inactive after six months and Bethlehem's policy requiring applicants to retake the qualifying exam when a new exam is implemented. We review the district court's decision to rely upon the deposition of Mr. Kovalcik for an abuse of discretion. Zayre Corp. v. S.M. & R. Co., Inc., 882 F.2d 1145, 1149-50 (7th Cir.1989) (citation omitted). As Bethlehem's Personnel Coordinator, Mr. Kovalcik possessed personal knowledge regarding Bethlehem's employment practices; he was thus competent to testify regarding those policies. Moreover, Mr. Weathers did not properly raise his objections to the admissibility of Mr. Kovalcik's deposition in the proceedings below. Mr. Weathers elected to not file a motion to strike Mr. Kovalcik's deposition; instead Mr. Weathers waited until he filed his overdue response to Bethlehem's summary judgment motion to raise this issue. As discussed above, the district court properly refused to consider this response. Since this objection was not properly raised, we find that Mr. Weathers has waived it. See id. at 1150 ("An evidentiary objection not raised in the district court is waived on appeal, Fed.R.Evid. 103(a)(1); and this rule holds as true for a summary judgment proceeding as it does for a trial.") (citations omitted). We therefore find that the district court did not abuse its discretion when it concluded that Mr. Kovalcik's deposition supported Bethlehem's factual claims regarding its employment policies
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-3200
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Brian Moore, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: June 17, 2011
Filed: July 14, 2011
___________
Before COLLOTON and BENTON, Circuit Judges, and KOPF,1 District Judge.
___________
PER CURIAM.
A jury found Brian Moore guilty of conspiracy to distribute with intent to
distribute 50 grams or more of a mixture and substance containing cocaine base.
Because Moore had a qualifying felony drug conviction, the district court2 sentenced
him to a mandatory minimum sentence of 20 years of imprisonment under 21 U.S.C.
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska, sitting by designation.
2
The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
§ 841(b)(1)(A). Moore appeals his conviction and sentence, arguing that the
evidence at trial was insufficient to support the jury’s verdict and that his mandatory
minimum sentence violates the Eighth Amendment.
We review the sufficiency of the evidence de novo, viewing the evidence and
all reasonable inferences therefrom in a light most favorable to the verdict. United
States v. Joos, 638 F.3d 581, 588 (8th Cir. 2011). We will reverse a conviction only
if we conclude that “no reasonable jury could have found the defendant guilty beyond
a reasonable doubt.” Id.
At trial, the jury heard testimony that Isaiah Dozier sold crack cocaine from
Moore’s apartment, Moore actively assisted Dozier in distributing crack cocaine to
customers and Moore received small amounts of crack cocaine in exchange for his
assistance. Evidence also showed that items consistent with distribution were found
in Moore’s apartment. This testimony and evidence were sufficient for a reasonable
jury to conclude that Moore participated in a conspiracy to distribute with intent to
distribute 50 grams or more of a mixture and substance containing cocaine base.
Moore also argues that his mandatory minimum sentence of 20 years violates
the Eighth Amendment. However, we have repeatedly affirmed the constitutionality
of mandatory sentences under 21 U.S.C. § 841(b)(1)(A). See, e.g., United States v.
Scott, 610 F.3d 1009, 1018 (8th Cir. 2010) (explaining that circuit precedent
effectively foreclosed defendant’s Eighth Amendment argument that his mandatory
minimum life sentence was grossly disproportionate). Moore’s case “is not the rare
case in which a threshold comparison of the crime committed and the sentence
imposed leads to an inference of gross disproportionality.” Ewing v. California, 538
U.S. 11, 30 (2003) (internal quotation marks omitted).
The judgment of the district court is affirmed.
______________________________
-2-
| {
"pile_set_name": "FreeLaw"
} |
895 S.W.2d 545 (1995)
320 Ark. 231
FORD MOTOR CREDIT COMPANY, Appellant,
v.
TWIN CITY BANK, Appellee.
No. 94-1114.
Supreme Court of Arkansas.
April 3, 1995.
*546 W. Robert Nixon, Jr., Little Rock, for appellant.
Herbert C. Rule, III, Little Rock, for appellee.
BROWN, Justice.
This case involves a dispute over the cash collateral of a debtor in bankruptcy (One Moore Ford, Inc.) and the claims to that cash collateral by two secured creditorsappellant Ford Motor Credit Company and appellee Twin City Bank ("TCB"). The trial court granted summary judgment in favor of one secured creditor, TCB. We conclude, however, that a material issue of fact remains to be decided, and we reverse the order of summary judgment and remand the matter for trial.
Prior to bankruptcy, Ford Motor Credit provided a wholesale line of credit for One Moore Ford, a car dealership in North Little Rock, and advanced the purchase money for its inventory of vehicles. Under this "floor plan" arrangement, One Moore Ford was expected to repay Ford Motor Credit after the retail sale of each vehicle by sending a check to the credit company for the amount advanced for the vehicle plus accrued interest. On or about December 17, 1990, checks payable to Ford Motor Credit and drawn by One Moore Ford on its account at TCB were returned due to insufficient funds. On or about December 20, 1990, One Moore Ford and Ford Motor Credit reached an oral agreement whereby One Moore Ford would continue to sell the vehicle inventory under the floor plan arrangement with a Ford Motor Credit representative on the dealership's premises. That representative would collect the amount advanced plus accrued interest for each sale. The surplus proceeds for the sale would then be available to One Moore Ford for use as operating expenses. On December 26, 1990, One Moore Ford set up an account at Eagle Bank & Trust for the purpose of depositing the surplus proceeds. Claude Hill, former branch manager of Ford Motor Credit, stated in his deposition that the credit company agreed during December 1990 to allow One Moore Ford to retain the surplus proceeds from the sale of its vehicles. The reasons for the agreement were to provide One Moore Ford with operating capital and to prevent the liquidation of the business. *547 Stan Lockhart, the current branch manager at Ford Motor Credit, corroborated this assessment in his deposition.
On January 14, 1991, One Moore Ford filed a petition for bankruptcy relief under Chapter 11 of the U.S. Bankruptcy Code and continued to operate the dealership as a debtor-in-possession. On January 16, 1991, One Moore Ford established a new bank account at Eagle Bank as a debtor-in-possession and transferred the balance of surplus proceeds, now cash collateral for the debtor's estate, from the previous Eagle Bank account into the new account. One Moore Ford, as debtor-in-possession, continued to deposit the surplus proceeds into this new account.
On January 16, 1991, Ford Motor Credit filed a motion in bankruptcy court to limit the use of cash collateral, including the surplus proceeds in the Eagle Bank account. By Agreed Order filed January 18, 1991, One Moore Ford and Ford Motor Credit agreed, and the bankruptcy court ordered, that the cash collateral would be handled in the manner approved by the parties in December 1990 before the petition in bankruptcy. Pertinent parts of that Agreed Order read:
The debtor and Ford Motor Credit Company have agreed that Ford Credit is entitled to continue to have its cash collateral handled in the manner that had been jointly approved by the parties prior to filing the petition for debtor relief. The following procedure shall continue until changed by court order.
1. Ford Motor Credit Company's cash collateral, consists [of] contracts purchased by it from the debtor, generated by sale of wholesale inventory of automobiles.
2. Ford Credit shall be permitted to keep a representative on the debtor's premises to assure that Ford Credit receives the portion of proceeds of any sale to which it is entitled, the amount necessary to discharge the secured debt on each individual unit.
Also, on January 18, 1991, the bankruptcy court granted One Moore Ford's motion to allow use of cash collateral for payment of payroll, payroll taxes, and purchase of parts. In its order, the bankruptcy court approved One Moore Ford's using TCB's cash collateral for payroll and payroll taxes ($25,000) and for the purchase of parts ($25,000). The bankruptcy court further authorized One Moore Ford to use $23,000 of the cash collateral of Ford Motor Credit held on deposit at Eagle Bank:
The Debtor is further authorized to use cash collateral of Ford Motor Credit Company subject to the terms and provisions of an Agreed Order by and between the Debtor and Ford Motor Credit Company submitted contemporaneous herewith. Such cash collateral that the Debtor may use shall be defined as the Debtor's portion of the sale proceeds derived from purchase of contracts by Ford Motor Credit Company from Debtor. For purposes of this Order, Debtor shall use $23,000.00 of funds currently held on deposit at Eagle Bank.
One Moore Ford next entered into an agreement for post-petition financing with TCB, and the bankruptcy court conditionally approved the agreement on January 25, 1991. The court found that One Moore Ford could incur secured debt in an amount not to exceed the lesser of cash generated from operations or $1,691,000. Pertinent parts of that approved financing agreement read:
6.2 Costs and Expenses to be Funded; Monthly Budget. (a) TCB shall advance funds to the Debtor to pay the reasonable and necessary costs and expenses incurred by it in connection with the preservation and disposition of accounts receivable, all inventory, ... equipment and other property of the Debtor in which TCB has a valid, perfected and enforceable security interest.
. . . .
9.1 Liens; Security Interests. ... The security interest of TCB shall be superior to the claims of all other creditors except for the pre-petition perfected claims of Ford Motor Credit Corp. with respect to MOORE FORD's vehicle inventory and proceeds and except for any pre-petition perfected interests in Borrower's real property.
*548 From January 25, 1991, until February 21, 1991, One Moore Ford, at the direction of TCB, transferred $185,000 of the cash collateral held in the Eagle Bank debtor-in-possession account, which were surplus proceeds from its vehicle sales, to its debtor-in-possession account at TCB. TCB did not notify Ford Motor Credit or obtain its permission for these transfers. Also, on February 21, 1991, One Moore Ford made a direct deposit of $8,000 into the TCB account: $7,000 was a cashier's check and $1,000 was cash. There appears to be no dispute that the funds transferred from Eagle Bank to TCB were subsequently used to pay One Moore Ford's operating expenses. One Moore Ford eventually converted its Chapter 11 bankruptcy to a Chapter 7 liquidation. According to the proof presented in this matter, TCB is left with an unpaid debt of $750,000, and Ford Motor Credit is owed $1,841,032.
On September 18, 1991, Ford Motor Credit filed a complaint against TCB in Pulaski County Circuit Court and alleged conversion of its cash collateral held on deposit at Eagle Bank. Later, on April 2, 1993, Ford Motor Credit amended its complaint to allege that TCB converted its cash collateral when it demanded that One Moore Ford transfer the cash collateral in the Eagle Bank account to the TCB account. On February 18, 1994, Ford Motor Credit filed a third amendment to its complaint, alleging the total amount of the conversion to be $193,000.
On December 22, 1993, TCB moved for summary judgment on grounds that One Moore Ford had used the cash collateral at issue solely for operating expenses and that Ford Motor Credit had consented to the use of those funds for that purpose. On February 22, 1994, Ford Motor Credit filed its own motion for summary judgment and asserted that it was entitled to judgment for conversion against TCB as a matter of law. The circuit court conducted a hearing on the two motions on February 28, 1994, and following the hearing granted summary judgment to TCB. In doing so, the court found that Ford Motor Credit had consented to One Moore Ford's use of the Eagle Bank cash collateral for operating expenses under the Agreed Order and that Ford Motor Credit had sustained no damages to support an action for conversion because TCB had used the funds in dispute for the operating expenses of One Moore Ford which benefited both secured creditors.
Ford Motor Credit mounts three arguments for reversal: (1) TCB was not entitled to summary judgment as a matter of law because of its conversion of Ford Motor Credit's cash collateral; (2) the circuit court abused its discretion in denying summary judgment to Ford Motor Credit; and (3) an issue of material fact remains to be decided on whether Ford Motor Credit consented to use of its cash collateral for One Moore Ford's operating expenses. We agree that an issue of material fact does remain over whether Ford Motor Credit consented to TCB's use of these funds.
Our oft-stated standard for review of a summary judgment is whether the evidentiary items presented by the moving party in support of the motion left a question of material fact unanswered and, if not, whether the moving party is entitled to summary judgment as a matter of law. Oglesby v. Baptist Medical System, 319 Ark. 280, 891 S.W.2d 48 (1995); Forrest City Machine Works v. Mosbacher, 312 Ark. 578, 851 S.W.2d 443 (1993). The burden of sustaining the motion is on the moving party. Id. All proof must be viewed in the light most favorable to the party resisting the motion, and all doubts and inferences must be resolved against the moving party. Id. However, when the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing genuine issue as to a material fact. Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994); Wyatt v. St. Paul Fire & Marine Insurance Co., 315 Ark. 547, 868 S.W.2d 505 (1994).
TCB vigorously contends in support of affirming its order for summary judgment that Ford Motor Credit consented to the use of the Eagle Bank cash collateral post-petition for payment of One Moore Ford's operating expenses and that those proceeds were indeed used for that purpose only. It points to the Agreed Order where One Moore Ford and Ford Motor Credit agreed that the credit company was "entitled to continue to have *549 its cash collateral handled in the manner that had been jointly approved by the parties prior to filing the petition for debtor relief." Furthermore, the Agreed Order provided that Ford Motor Credit could keep a representative on the debtor's premises to ensure that it received "the portion of proceeds of any sale to which it is entitled, the amount necessary to discharge the secured debt on each individual unit." According to TCB, that order conclusively evidences Ford Motor Credit's consent.
Ford Motor Credit urges on the other hand that it never consented to blanket use of the Eagle Bank cash collateral for operating expenses post-petition and premises its countervailing argument on several factors. It argues that the Agreed Order may refer to a pre-petition procedure for depositing funds in the Eagle Bank account, but nowhere does it authorize use of that cash collateral for One Moore Ford's operating expenses. Ford Motor Credit also points to the Bankruptcy Code which requires either consent by all interested entities or court authorization before cash collateral can be used. 11 U.S.C. § 363(c)(2) (1988). Ford Motor Credit further underscores the fact that the second order of January 18, 1991, authorized using only a fixed amount of the Eagle Bank funds for operating expenses$23,000. That order does not state or otherwise indicate that it would be blanket or continued authority for use of this cash collateral beyond the specified amount. Ford Motor Credit contends that it consented to One Moore Ford's use of the $23,000 on that one occasion because One Moore Ford had not yet secured post-petition financing with TCB. According to Ford Motor Credit, once One Moore Ford secured financing from TCB on January 25, 1991, the obligation to pay operating expenses became TCB's and the Eagle Bank cash collateral could not be invaded. Indeed, Ford Motor Credit refers to the precise language in the January 25, 1991 Financing Order that its perfected claims in vehicle inventory and proceeds would be superior.
We agree that when read together the two January 18 orders are unclear and inconclusive on whether Ford Motor Credit consented to use of the Eagle Bank cash collateral for operating expenses post-petition. Indeed, the circuit court recognized an ambiguity in the orders, though the parties did not, when it stated:
The problem I have, though, is that there's an ambiguity with the agreed order and the order allowing use of collateral for payment. We have two affidavits from two gentlemen who had an agreement with One Moore Ford to apparently use the funds as operating expenses. There's nothing that I can see that's been filed that said that there was an agreement after January the 18th. And the January ... 18th order is ambiguous in that it states that they are entitled to continue to have its cash collateral handled in the same manner that had been jointly approved by the parties prior to filing the petition.... I don't know if there's a factual issue, though, that we need to decide, and that is what this agreed upon order means. It is not clear. If it in fact means that they continued to use the funds for operating expenses, then I would grant the motion for summary judgment.
It is difficult for this court to conclude that a question of material fact surrounding Ford Motor Credit's consent to its cash collateral does not exist when the circuit court alludes to the lack of clarity and an ambiguity in the two controlling bankruptcy court orders. When an ambiguity exists in contract language, for example, clearly it becomes a matter for resolution by the trier of fact. See, e.g., Keller v. Safeco Ins. Co., 317 Ark. 308, 877 S.W.2d 90 (1994); McNair v. McNair, 316 Ark. 299, 870 S.W.2d 756 (1994).
Moreover, a bankruptcy petition changes the relationship of all affected entities, and here there is conflicting proof on the use of the Eagle Bank funds post-petition. TCB presents the affidavits and depositions of Ford Motor Credit branch managers Claude Hill and Stan Lockhart, One Moore Ford attorney Geoffrey Treece, and then TCB Executive Vice President Robert Birch in support of its case that Ford Motor Credit consented to the use of its cash collateral for One Moore Ford's operating expenses. Ford Motor Credit counters this proof with the affidavits and depositions of *550 Lockhart, Birch, and One Moore Ford Chief Accountant Terry Mercing that it never consented to the transfer of the Eagle Bank cash collateral to TCB. Lockhart in particular testified to this by affidavit, and Birch admitted that he saw no reason to seek Ford Motor Credit's permission to transfer the Eagle Bank cash collateral. Thus, not only were the two orders of January 18, 1991, unclear and conflicting on the issue of consent, but the affidavits and depositions submitted by the parties conflict on the extent that Ford Motor Credit knew that TCB was using the Eagle Bank cash collateral post-petition. Ordinarily, cross motions for summary judgment might eliminate all factual issues. But TCB and Ford Motor Credit are diametrically opposed on the factual issue of consent.
We, accordingly, hold that whether Ford Motor Credit consented to a general use of its cash collateral at Eagle Bank for One Moore Ford's operating expenses after the bankruptcy petition was filed is an issue of material fact that remains to be determined. Nor do we believe that the issue can be resolved simply as a matter of law by reference to the bankruptcy orders for reasons already discussed. Manifestly, if Ford Motor Credit did not consent to the use of its cash collateral and it was wrongfully spent, damage to the credit company would be the result. Nevertheless, we do not reach the issue of whether a conversion in fact transpired in this opinion.
We reverse the order of summary judgment and remand for a trial on the merits. With regard to the remand, we turn to the request of Ford Motor Credit that a different circuit judge try the case due to the fact that the current circuit judge has made a decision on the consent and damage issues. Ford Motor Credit contends that this would militate against an impartial tribunal. We do not agree that this impairs the ability of Ford Motor Credit to obtain a fair trial. We have previously held that when a trial judge granted a directed verdict and we reversed and remanded for trial and the matter was in fact tried, there was no valid reason for the judge to disqualify. Carton v. Missouri Pacific Railroad, 315 Ark. 5, 865 S.W.2d 635 (1993). We noted in Carton that a judge has a duty to remain in a case unless there is some valid reason to disqualify. Moreover, the decision to disqualify rests within the trial court's discretion. Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994); Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988). Reversals of summary judgment orders and directed verdicts and remands for new trials occur from time to time. Were we to require a new judge to be substituted in each instance, that would necessitate multiple appointments and exchange agreements that may not in fact be necessary. We decline to do so in this instance.
Reversed and remanded.
| {
"pile_set_name": "FreeLaw"
} |
102 F.Supp.2d 978 (2000)
ESTATE of Andrew N. JAY, a minor, Plaintiff,
v.
ASSOCIATES' HEALTH AND WELFARE PLAN, Defendant.
No. 00 C 0967.
United States District Court, N.D. Illinois, Eastern Division.
June 20, 2000.
*979 Bart Durham, Attorney, Phillip B. Durham, Law Offices of Bart Durnham & Associates, Bolingbrook, IL, for Andrew N. Jay, plaintiffs.
Peter R. Bulmer, Michael Todd Graham, Jackson, Lewis, Schnitzler & Krupman, Chicago, IL, for Associates Health and Welfare Plan, defendants.
MEMORANDUM OPINION AND ORDER
GETTLEMAN, District Judge.
On February 14, 2000, plaintiff, the Estate of Andrew N. Jay, filed a Motion to Adjudicate Lien in the Circuit Court of the Twelfth Judicial Circuit, County of Will, Illinois, which requested the state court to adjudicate the lien of defendant, Associates' Health and Welfare Plan, by applying the Illinois Common Fund Doctrine and reducing the defendant's lien by one-third.[1] On February 16, 2000, defendant filed a Notice of Removal of Action to federal court maintaining that because plaintiff's underlying claim implicates rights under § 502(a)(3) of ERISA, plaintiff's state claim is completely preempted. Accordingly, defendant claimed that this court has original jurisdiction under 28 U.S.C. § 1331. On March 6, 2000, plaintiff moved to remand, asserting that because the Common Fund Doctrine is a claim that arises solely from state law, the claim should rightfully be resolved by an Illinois state court. For the reasons set forth below, plaintiff's Motion for Remand is granted.
Background
On March 6, 1996, Andrew Jay, the dependant son of Jeanie Jay, was injured as the result of a dog bite. As an employee of Wal-Mart Stores Inc., Jeanie Jay and her dependents were covered by the defendant, a self-funded employee welfare benefit plan governed by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001-1461. Pursuant to a Medical Loan Agreement, in which Jeanie Jay, on behalf of Andrew Jay, agreed to reimburse defendant to the extent of any settlement made relating to the dog-bite injury, defendant paid Andrew Jay's medical expenses, totaling $8,870.41. Without a lawsuit being commenced, Andrew Jay, through his guardian Jeanie Jay, agreed to settle his claim against the owner of the dog, David Jay, for the sum of $51,867.00. Subsequently, plaintiff filed a state action to adjudicate defendant's lien.
Discussion
Defendant argues that plaintiff's claim is completely preempted under § 502(a) of ERISA. As the court explained in Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482, 1487 (7th Cir. 1996), in order to determine whether a claim is within the scope of § 502(a) of ERISA, three factors are examined:
(1) whether the "plaintiff" [i]s eligible to bring a claim under that section; (2) whether the plaintiff's cause of action falls within the scope of an ERISA provision *980 that the plaintiff can enforce via § 502(a), and (3) whether the plaintiff's state law claim cannot be resolved without an interpretation of the contract governed by federal law. [Iinternal quotation marks and citations omitted.]
Although plaintiff is entitled to bring a claim under the Wal-Mart plan, its motion to adjudicate the Plan's lien is not a cause of action that falls within the scope of an ERISA provision, nor does its state law claim require resolution of an interpretation of the contract governed by federal law. As the court in Speciale v. Seybold, 147 F.3d 612, 617 (7th Cir.1998), explained, where the plaintiff's claim does not involve the interpretation of contract terms under ERISA, there is no complete preemption under § 502(a). Consequently, plaintiff's claim is not completely preempted under § 502(a) of ERISA.
This case is directly controlled by Speciale, in which Kimberly Speciale was injured in an automobile accident. As an employee of Wal-Mart Stores, Inc., Speciale was covered by the Associates' Health and Welfare Plan, defendant in the instant case. The Plan, on the condition that Speciale reimburse it to the extent of any settlement made relating to the accident, paid the majority of Speciale's medical expenses. After filing a separate tort claim against Seybold, the party responsible for the automobile accident, Speciale agreed to settle the claim. Subsequently, Speciale filed a Motion to Adjudicate Liens. Wal-Mart's plan administrator removed the action to federal court under 28 U.S.C. § 1441(b), maintaining that because the Plan arose under and was governed by ERISA, Speciale's motion to adjudicate was completely preempted. Concluding that Speciale's claim was preempted under § 502(a) of ERISA, 29 U.S.C. § 1132(a), the district court awarded Wal-Mart the full amount of the settlement less a reasonable attorney's fee. Speciale appealed, alleging that the cause was erroneously removed to federal court and should have remained in the state court for lien adjudication. The court of appeals held that in a state cause of action where there are adversarial claims to a settlement fund between an ERISA plan and other interested parties, as here, there is no preemption under § 502(a) of ERISA. Id. at 617. As the court explained, the allocation of funds is a matter for the state court under which original jurisdiction arose. Id. See also, Blackburn v. Sundstrand Corp., 115 F.3d 493 (7th Cir.1997).
Though defendant attempts to distinguish Speciale from the instant case by differentiating between subrogation and reimbursement rights, defendant's argument that Speciale is inapplicable is without merit. According to defendant, because the plaintiff's claim in Speciale sought to interpret the defendant's subrogation interests, which arise under state law, rather than its reimbursement rights, which are governed by ERISA, it is distinguishable from the instant case in which defendant has asserted its reimbursement rights. That is, according to defendant because the instant case concerns reimbursement rights governed by ERISA rather than subrogation rights, it is distinguishable from Speciale. Defendant, however, mischaracterizes the instant case. Contrary to defendant's assertions, plaintiff does not challenge defendant's reimbursement rights. Rather, plaintiff's claim seeks only to adjudicate defendant's lien pursuant to the Illinois Common Fund Doctrine, a state law claim. Consequently, contrary to defendant's assertions, the present case is not distinguishable from Speciale.
Administrative Committee v. Gauf, 188 F.3d 767 (7th Cir.1999), cited by defendant, does not alter this conclusion. In Gauf, the defendant, Patricia Gauf, was injured after an automobile accident. As an employee of Wal-Mart Stores Inc., Gauf was covered under Wal-Mart's Associates' Health and Welfare Plan. The Plan reimbursed Ms. Gauf for her medical treatment on the condition that Ms. Gauf reimburse the plan to the extent of any *981-987 judgment or settlement received relating to the accident. In a separate tort action against the driver of the other automobile involved in the accident, Ms. Gauf received a verdict in her favor and collected $36,000. Subsequently, the plaintiff, the Administrative Committee of the Associates' Health and Welfare Plan ("the Committee"), sought an order in federal court compelling Ms. Gauf to reimburse the Plan for the benefits it had paid to her relating to the accident. The Committee based its claim on the ERISA governed plan. Therefore, Gauf presented the opposite scenario than the one presented in Speciale, Blackburn, and the instant case. Indeed, the Gauf court recognized this distinction and cited Speciale and Blackburn with approval. Id. at 771. Whereas the plaintiff's complaint in Gauf was based on a provision in an ERISA governed plan and stated a claim under § 502(a)(3) of ERISA, plaintiff's claim in the instant case is brought to apportion funds, pursuant to state law. Although defendant invokes § 502(a)(3) of ERISA as a defense to plaintiff's motion, the issues raised in plaintiff's complaint, not those added in defendant's response, control the litigation. Jass, 88 F.3d at 1482. Consequently, because plaintiff's Motion to Adjudicate Lien was based on the Illinois Common Fund Doctrine and not the ERISA based plan, this case is distinguishable from Gauf.
Conclusion
For the reasons set forth above, plaintiff's motion to remand is granted.
NOTES
[1] Under the Illinois Common Fund Doctrine, a party who creates, preserves or increases the value of a fund in which others have an ownership interest may be reimbursed from that fund for litigation expenses. Blackburn v. Sundstrand, 115 F.3d 493, 496 (7th Cir. 1997).
| {
"pile_set_name": "FreeLaw"
} |
924 F.2d 647
UNITED STATES of America, Plaintiff-Appellee,v.Jack FARMER, Kevin McNab, Pamela Farmer, Martin Byrski,James Villalpando, and Michael Farmer,Defendants-Appellants.
Nos. 89-1491, 89-1535, 89-1536, 89-1622, 89-1623 and 89-1624.
United States Court of Appeals,Seventh Circuit.
Argued June 1, 1990.Decided Jan. 28, 1991.
Thomas M. Durkin, Asst. U.S. Atty., David S. Rosenbloom, Office of the U.S. Atty., Chicago, Ill., for U.S.
David C. Thomas, Legal Services Center, Chicago, Ill., for Jack Farmer.
Kenneth L. Cunniff, Chicago, Ill., for Kevin McNab.
John A. Meyer, Chicago, Ill., for Pamela Farmer.
Sarah Jennings Hunt, Cambridge, Mass., Donald A. Harwood, Hrones & Harwood, Boston, Mass., for Martin Byrski.
Paul M. Brayman, Chicago, Ill., for James Villalpando.
Marianne Jackson, Chicago, Ill., for Michael Farmer.
Before CUDAHY, COFFEY and KANNE, Circuit Judges.
CUDAHY, Circuit Judge.
1
The appellants were all convicted of RICO and/or other criminal offenses in connection with their involvement in a drug, robbery and extortion ring headed by appellant Jack Farmer. The appellants have appealed their convictions on numerous grounds. We affirm.
I. FACTS
2
The investigation leading to the drug and racketeering charges in this large RICO conspiracy case began in 1983 when one Taras Jaworskyj told the FBI about the drug ring in which he was involved. The information provided by Jaworskyj led to a three year investigation into the expansive criminal organization headed by appellant Jack Farmer. This organization sold drugs, committed murder and perpetrated home invasions. After a federal indictment was returned against him in 1983, Jack Farmer pleaded guilty to one count of possessing cocaine with intent to distribute and to one count of conspiracy to distribute cocaine. The plea agreement then signed by Jack Farmer stated specifically that the federal government was not precluded from prosecuting him for racketeering acts then under investigation. (In addition to pleading guilty to these two federal drug counts, Jack Farmer had previously been accused and acquitted of murder in Illinois state court.)A grand jury subsequently returned another federal indictment containing eighty-five counts against Jack Farmer, the other parties to this appeal (including Jack Farmer's brother and wife) and others. The first trial of the appellants here ended in a mistrial. At the second trial, a jury found these appellants guilty of most of the counts set forth in the indictment. After denying various motions for new trials and judgments of acquittal, the district court sentenced all of the appellants to substantial jail time.
3
The appellants allege a myriad of errors on appeal. These alleged errors include claims: (1) that Jack Farmer's conviction violated the double jeopardy clause of the fifth amendment; (2) that the district court abused its discretion in upholding the sufficiency of the government's Title III applications for electronic surveillance; (3) that the district court abused its discretion in refusing to sever the trials of some of the appellants; (4) that the district court improperly exercised its discretion in conducting the jury selection process; (5) that the trial court abused its discretion in admitting/excluding certain evidence; (6) that the district court erroneously instructed the jury as to the telephone counts; (7) that the district court's conspiracy instructions constituted plain error; (8) that there was insufficient evidence to support the jury's finding that Jack Farmer's criminal organization had the requisite effect on interstate commerce; (9) that the jury erroneously or improperly convicted Jack Farmer of extortion and various tax violations; (10) that the district court's instruction on the obstruction of justice count was improper; (11) that it was an abuse of discretion for the district court to repeat its Silvern instruction; (12) that the district court did not adhere to the requirements of Federal Rule of Criminal Procedure 32 when sentencing appellant McNab; and (13) that the sentences given to appellants James Villalpando and Pamela Farmer were excessive and the result of the district court's reliance upon improper inferences or factors.
4
All of the appellants' claims lack merit. The double jeopardy, interstate commerce and disparate sentencing allegations raised by the appellants are discussed in some detail. The appellants' remaining claims are discussed in a more summary fashion below. Additional facts are provided as warranted.
II. ANALYSIS
A. Double Jeopardy
5
Count II of the indictment charged defendant Jack Farmer with conducting the affairs of an enterprise through a pattern of racketeering activity. That count alleged fifty-nine separate predicate acts, among them: two murders, nine robberies, two extortions, an obstruction of justice and various drug trafficking offenses. The jury found that Jack Farmer had committed forty-one of these predicate acts. Jack Farmer now claims that his conviction under Counts I (for racketeering conspiracy) and II (for racketeering) of the indictment violated double jeopardy because five of the forty-one predicate acts he was found to have committed had actually been the subject of previous criminal proceedings. More specifically, he complains that Racketeering Act Number 46 alleged a murder of which he had already been acquitted by an Illinois court, and that Racketeering Acts Numbers 1 through 4 and 37 alleged drug offenses that were the subject of the previous federal guilty plea in 1983.1
6
Jack Farmer does not have a valid double jeopardy claim with respect to his previous acquittal for murder in state court. It is a fundamental principle of our dual criminal systems that even criminal acts which form the basis of a prior state acquittal can be used as predicate acts in a federal proceeding without violating double jeopardy. Simply put, "a conviction or acquittal by one sovereign does not constitute prior jeopardy for purposes of prosecution by the other sovereign." United States v. Jones, 808 F.2d 561, 565 (7th Cir.1986), cert. denied sub nom. Humphrey v. United States, 481 U.S. 1006, 107 S.Ct. 1630, 95 L.Ed.2d 203 (1987). This so-called "dual sovereignty" doctrine has been consistently upheld by the Supreme Court in the name of federalism. Heath v. Alabama, 474 U.S. 82, 88, 106 S.Ct. 433, 437, 88 L.Ed.2d 387 (1985); United States v. Wheeler, 435 U.S. 313, 317, 98 S.Ct. 1079, 1083, 55 L.Ed.2d 303 (1978); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); see also United States v. Schwartz, 787 F.2d 257, 266 (7th Cir.1986). Hence, a federal RICO conviction which includes predicate acts for which a defendant has already been acquitted under state law does not violate double jeopardy. United States v. Jones, 808 F.2d at 565; see also Hutul v. United States, 582 F.2d 1155, 1157 (7th Cir.1978), cert. denied, 440 U.S. 911, 99 S.Ct. 1222, 59 L.Ed.2d 459 (1979). Given the "dual sovereignty" doctrine, then, successive state and federal prosecutions for the same acts do not offend the fifth amendment to the United States Constitution. Successive prosecutions by the same sovereign must, however, be analyzed under a different theory.
7
With respect to same-sovereign prosecutions, Grady v. Corbin, --- U.S. ----, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), decided just before we heard this appeal, held that "the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Id. 110 S.Ct. at 2084.2 The Third Circuit recently held that Grady is inapplicable to RICO prosecutions, such as this one, because "RICO's language and legislative history clearly evince Congress's intent to allow separate prosecutions and cumulative punishment of predicate offenses and RICO offenses." United States v. Pungitore, 910 F.2d 1084, 1108 (3d Cir.1990) (citing United States v. Grayson, 795 F.2d 278, 283 (3d Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 927, 93 L.Ed.2d 978 (1987)). In light of the facts presented by this case, however, we believe it is unnecessary to assess the applicability of Grady v. Corbin to the double jeopardy claims of appellant Jack Farmer.
8
Four of the forty-one predicate acts which Jack Farmer has been found to have committed were acts to which Farmer had previously pleaded guilty. The plea agreement signed by Farmer specifically noted that the federal government was continuing to investigate him for "acts of racketeering" and that the plea "in no way preclude[d] the federal government from prosecuting defendant Farmer for those acts." Plea Agr. at 4, p 11. Hence, it could be argued with some force that Jack Farmer specifically waived any double jeopardy claims relating to the conduct which was the subject of both the federal plea agreement in the earlier case and the later racketeering charges.
9
Moreover, in addition to the four predicate acts challenged here, Jack Farmer was found to have committed thirty-seven other predicate acts. This is surely enough to support the finding of a RICO pattern. It should also render any reliance upon Farmer's previous convictions, even if improper, harmless. See, e.g., Pungitore, 910 F.2d at 1107 ("[E]xtortion was only one of the 32 predicate acts which the jury found that [the defendant] had committed. Thus, even if we deleted the [extortion count], we would affirm the convictions."); United States v. Rone, 598 F.2d 564, 571 (9th Cir.1979), cert. denied sub nom. Little v. United States, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980). Because the inclusion of the challenged predicate acts (involving federal crimes) is not necessary to sustain Jack Farmer's conviction, his corresponding double jeopardy claims fail on harmless error grounds. As noted, the double jeopardy claim based on the prior state acquittal of murder is defeated by the "dual sovereignty" principle.B. The Indictment and Interstate Commerce
10
The appellants attack their RICO conspiracy and substantive RICO convictions on the ground that the government failed to show that their racketeering enterprise affected interstate commerce.3 In a RICO prosecution the government carries the burden of establishing an effect on interstate commerce. See 18 U.S.C. Sec. 1962(c) (1988); United States v. Alvarez, 860 F.2d 801, 820 (7th Cir.1988), cert. denied, 490 U.S. 1051, 109 S.Ct. 1966, 104 L.Ed.2d 434 (1989). A minor or minimal influence on interstate commerce is sufficient. Alvarez, 860 F.2d at 820. Accordingly, the "required nexus between the activities of the enterprise and interstate commerce need not be great." United States v. Muskovsky, 863 F.2d 1319, 1325 (7th Cir.1988), cert. denied, 489 U.S. 1067, 109 S.Ct. 1345, 103 L.Ed.2d 813 (1989). Moreover, to satisfy the interstate element of the RICO statute, it is the enterprise and not the individual defendants that must engage in or affect interstate commerce. United States v. Groff, 643 F.2d 396, 400 (6th Cir.1981).
11
The appellants essentially contend that an effect on interstate commerce is lacking in this case because the cocaine sold by Jack Farmer's criminal enterprise was flown directly from South America to Illinois or the coca leaves from which the contraband was produced were grown in Illinois.4 Even if the cocaine did fly directly from Columbia to Illinois, the requisite effect upon interstate commerce would be established since the plane would have had to cross over the jurisdictional airspace of several different states intervening between the seacoast and Illinois. Cf. United States v. Perez, 776 F.2d 797, 801 (9th Cir.1985). A nexus with interstate commerce can be established in other ways as well.
12
The requisite effect on commerce is established, for example, where the enterprise obtains "supplies from companies located outside" the state. United States v. Conn, 769 F.2d 420, 424 (7th Cir.1985); see also Muskovsky, 863 F.2d at 1325. The evidence showed that at least one of the (drug) scales seized in the search of Jack Farmer's mother's house was manufactured in New Jersey. Appellee's Br. at 91 n. 33 (citing Government Exhibit Chicago 7A). Hence, we find that the government sufficiently proved that the activities of Jack Farmer's criminal organization had at least a minimal effect upon interstate commerce, as required by federal racketeering law.
13
C. The Allegedly Excessive Sentences of James Villalpando and Pamela Farmer
14
Appellant James Villalpando was sentenced to twelve years in prison for narcotics conspiracy and to five years probation for conviction on two telephone counts. Villalpando was, however, acquitted of racketeering. Appellant Pamela Farmer was sentenced to a total of twenty-four years in prison for conspiracy to distribute cocaine, racketeering conspiracy and thirteen counts of using a telephone to facilitate the distribution of cocaine. Both appellants claim, for different reasons, that the district court relied on improper inferences when sentencing them.
15
James Villalpando thinks that his sentence was excessive because he received a longer sentence than any other defendant on the narcotics conspiracy count. (Villalpando actually received the shortest overall sentence of all the co-conspirators who join in this appeal.) Villalpando asserts that this disparity, with respect to his narcotics conspiracy sentence, coupled with the terseness of the district court's remarks raises an "inference" that the district court was penalizing him for having been acquitted of racketeering. Pamela Farmer, on the other hand, claims that the court's sentencing remarks show that the court relied on inaccurate inferences drawn from the evidence adduced at trial when sentencing her. More specifically, she claims that none of the evidence tied her to the violent crimes committed by her husband, Jack Farmer.
16
This case arose before the federal sentencing guidelines took effect. Hence, the sentences of Villalpando and Farmer will not be overturned unless the district court relied on improper considerations or unreliable information in making its sentencing decisions. United States v. George, 891 F.2d 140, 143 (7th Cir.1989). Neither appellant points to any direct evidence that the district judge relied on improper considerations when sentencing. Rather, both try to point out improper inferences that could be drawn from the district court's decisions and reasons. We will not assume, solely on the basis of the appellants' unsupported allegations, that the district court relied upon improper inferences or factors when sentencing them. Moreover, there was ample evidence in the record that Pamela Farmer was not exactly an innocent housewife, and the district court sentenced her accordingly. The sentences of appellants James Villalpando and Pamela Farmer are therefore affirmed.
D. The Appellants' Remaining Claims
1. Title III
17
The appellants claim that the government's wiretap applications did not sufficiently show the necessity for the electronic surveillance undertaken by the government, as required by Title III. See 18 U.S.C. Sec. 2518(1)(c) (1988). This argument is specious. The government's burden of proving "necessity" is not high. United States v. Zambrana, 841 F.2d 1320, 1329 (7th Cir.1988). The government's affidavits--which asserted that electronic surveillance was necessary (1) because the investigation was having trouble fingering other members of the conspiracy without electronic surveillance; (2) because of the difficulty in conducting undercover surveillance in Farmer's ethnic neighborhood; and (3) because of the possible danger to undercover agents and cooperating witnesses--were sufficient, given the government's burden, to establish necessity under Title III. Hence, the district court did not abuse its discretion in denying the defendants' motion to suppress the voluminous electronic evidence.
2. Severance
18
Jack Farmer, Martin Byrski and Michael Farmer all appeal the district court's denial of their various severance motions. Michael Farmer and Martin Byrski claim that the case was so complex and that there was such a "gross disparity" in the evidence against them, as compared to the organization's ring leader, Jack Farmer, that they were prejudiced by the jury's inability to separate the evidence against the various parties. Jack Farmer, on the other hand, claims that he was prejudiced by the coercion defenses offered by Martin Byrski, Pamela Farmer and Michael Farmer. (These appellants had argued that Jack Farmer had pressured them into committing various criminal acts.)
19
A district court's ruling on a severance motion will be overturned only upon a showing of an abuse of discretion. United States v. Briscoe, 896 F.2d 1476, 1516 (7th Cir.) (quoting United States v. Moya-Gomez, 860 F.2d 706, 754 (7th Cir.1988)), cert. denied sub nom. Usman v. United States, --- U.S. ----, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990). In order to appeal successfully the denial of a severance motion, a defendant must also show actual prejudice resulting from the denial. Id. None of the defendants in this case can make the requisite "actual prejudice" showing.
20
As the government points out, the record shows that the jury meticulously considered the evidence against each defendant. On the various counts against the individual defendants, for example, the jury returned sixty-two findings of guilty and thirty-eight findings of not guilty. Two defendants were acquitted altogether and every defendant, with the exception of Michael Farmer, was acquitted of at least one count. Appellee's App., Ex. A. Given the meticulousness suggested by the jury's verdict, we do not believe that these appellants were actually prejudiced by the joint trial.
21
In addition, we pause to note that Jack Farmer was not actually prejudiced by the coercion defenses of some of his co-conspirators--Farmer allegedly coerced the others to commit crimes--given that Farmer's own defense rested largely on the argument that drugs had made him a crazy and violent man. In short, the defenses of Martin Byrski, Pamela Farmer and Michael Farmer were not antagonistic to the defense offered by Jack Farmer. Hence, the denials of the appellants' severance motions are affirmed.
3. The Jury Selection Process
22
Appellant James Villalpando complains that the district court unfairly conducted the jury selection process by not granting him additional peremptory challenges (the district court did, however, grant all of the defendants together an additional ten peremptory challenges) and by not explaining the jury selection process adequately. More specifically, Villalpando claims that it was an abuse of discretion for the district court not to grant him additional peremptory challenges when it became apparent that counsel for the various defendants could not agree on how to exercise their joint challenges.
23
In multi-defendant cases, Federal Rule of Criminal Procedure 24(b) gives the trial court the discretion to grant additional challenges, to be exercised jointly or separately. The whole point of setting a limit on the number of peremptory challenges is to require counsel to make strategic decisions and to conserve judicial resources that might be wasted by allowing each counsel to challenge every juror. See United States v. McClendon, 782 F.2d 785, 787 (9th Cir.1986). Hence, the fact that Villalpando was not given enough peremptory challenges to satisfy him does not necessarily result in an abuse of discretion. Moreover, the district court attempted to resolve the conflict among the various defense counsel by allocating two challenges to each defendant. This seems eminently reasonable. Hence, we find that there was no abuse of discretion here.
24
Appellant Villalpando also contends that the district court inadequately advised defense counsel of the procedure for the exercise of peremptory challenges, thereby restricting the exercise of this right. Transcripts of this phase of the trial seem to show that the defense attorneys were indeed somewhat confused about the number of peremptory challenges each was allowed and about when these challenges were to be exercised. (The district judge apparently decided to wait until the need for additional peremptory challenges was shown before deciding on the exact number.) The government points out in response, however, that the jury selection system was actually approved the day before jury selection started. (The defense, collectively, was apparently granted an additional 10 peremptory challenges during the first day of jury selection.) We believe that any confusion over the jury selection process was not so severe or pervasive as to deprive the appellants of the meaningful use of their peremptory challenges.
4. The Trial Court's Evidentiary Rulings
25
The appellants also claim that two of the evidentiary rulings made by the district court constituted reversible error. All appellants claim that the lower court improperly permitted government agent Rodriguez to testify about the amount of coca leaves required to make one kilogram of cocaine in powder form. In addition, Pamela Farmer objects to the trial court's refusal to permit her to put into evidence a tape recording of a conversation between her and an unindicted third party that concerned her husband's violence.
26
"[A] reviewing court gives special deference to the evidentiary rulings of the trial court." United States v. Kaden, 819 F.2d 813, 818 (7th Cir.1987). Thus, we will reverse such rulings only upon a showing that the trial court abused its discretion. United States v. Alvarez, 860 F.2d 801, 807 (7th Cir.1988). But, even erroneous evidentiary rulings will not be overturned if any resulting error was harmless. United States v. Zapata, 871 F.2d 616, 622 (7th Cir.1989).
27
We think that, even if the evidentiary rulings we have noted were erroneous (and we are doubtful that they were), any error was indeed harmless. As the government notes, the point underlying Agent Rodriguez's testimony was that the cocaine in question came from outside the state of Illinois, a fact which was apparently proven by the testimony of others (and which also seems to accord with common sense). Similarly, the exclusion of Pamela Farmer's conversation was harmless because there was ample evidence already in the record that her husband was a violent man.
5. Jury Instructions
28
The appellants contend that the jury instructions regarding telephone facilitation, conspiracy, extortion, racketeering affecting commerce, willful tax evasion, obstruction of justice and repetition of the Silvern instruction (dealing with jury deadlock) were improper. Although all have been considered, we decline to analyze every one of these objections in detail, finding that the appellants' jury instruction arguments were waived or that the tendered instructions comported with established law. Moreover, our review of the record shows that there was sufficient evidence to support the appellants' convictions on the counts charged.
29
6. Rule 32 and the Sentencing of Appellant Kevin McNab
30
Appellant Kevin McNab contends that he should be resentenced because, in sentencing, the district court failed to make a factual determination or, in the alternative, to assert that disputed facts would not be considered in sentencing, as required by Federal Rule of Criminal Procedure 32(c)(3)(D). McNab objected to the offense severity rating and the amount of narcotics computed in the pre-sentence report. The district court eventually amended the pre-sentence report to reflect a lower quantity of narcotics, but asserted that a determination of the offense severity rating was "a legal conclusion based on facts" that was not for McNab to make.
31
In connection with some of the co-defendants, the district court had already asserted that he would not take disputed facts into account in sentencing. Hence, this prong of Rule 32 was satisfied. McNab asserts, however, that this was not enough; that the amount of narcotics goes to his culpability in the conspiracy and that, therefore, the district court was required to hold a hearing. The government argues, in response, that McNab's claim regarding this factual dispute was waived because the district court offered to make a factual finding, but McNab's attorney declined to press the point. Appellant McNab has not filed a reply brief. Hence, we have no idea how he would respond to the government's argument. Regardless, the facts show that McNab was offered a finding as to the amount of drugs. He chose not to avail himself of it. We may not now pursue a matter abandoned in the district court.
7. Other Matters
32
As to other matters offered here, they have received due consideration and are found to be without merit.
III. CONCLUSION
33
For all the foregoing reasons, the judgment of the district court is
34
AFFIRMED.
1
Apparently, the jury found that Jack Farmer had not committed Racketeering Act Number 4, a July 1983 sale of one gram of cocaine. Appellee's Br. at 24 n. 5
2
We directed the parties to submit supplemental briefs addressing the impact of Grady on the present case
3
The appellants also claim that the court's interstate commerce instruction improperly shifted the burden of proof and constructively amended the indictment. The record shows, however, that the appellants did not specifically object to the district court's tendered interstate commerce instructions. Hence, this claim is waived. United States v. Field, 875 F.2d 130 (7th Cir.1989); United States v. Franco, 874 F.2d 1136 (7th Cir.1989). Given the facts of this case, we find that the tendered instructions did not result in plain error
4
The evidence (coupled with the court's recognition of commonly accepted facts) sufficiently established that some or all of the cocaine was not produced from plants grown in Illinois
| {
"pile_set_name": "FreeLaw"
} |
Affirmed and Opinion Filed January 15, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00606-CR
JT WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F-1676083-Y
MEMORANDUM OPINION
Before Justices Bridges, Partida-Kipness, and Pedersen, III
Opinion by Justice Partida-Kipness
A jury convicted JT Williams of murder and assessed punishment at forty years’
imprisonment. On appeal, Williams contends that he received ineffective assistance of counsel
due to counsel’s failure to request a jury instruction on voluntariness. We affirm the trial court’s
judgment.
Background
In the pre-dawn hours of July 14, 2016, Williams shot and killed Albert Brown during an
argument while sitting in a car in an Oak Cliff park. The argument arose during a conversation
between Williams and Brown regarding Williams’s suspicion that his girlfriend, Ykella Bickems,
had been cheating on him with Brown.
Williams met Brown several years earlier when Williams, Bickems, and Bickems’s
daughter moved into an apartment near Brown’s. The record reflects that Williams and Brown
became friends. Several months before the shooting, however, Williams began to suspect that
Bickems had been cheating on him with Brown and another man. Williams called the men to
discuss his suspicions, and both men denied the allegations.
Bickems testified that she and Williams moved out of the apartment complex in May 2016.
According to Bickems, Williams said he could not stay in the apartment because people were after
him, and the couple began staying in various hotels. Williams continued to accuse Bickems of
cheating on him after the couple moved from the apartment.
On the night of the shooting, Williams and Bickems were staying in a hotel in Waxahachie.
Williams called Brown to ask if Brown would cut Williams’s hair. Brown agreed, and Williams
and Bickems drove in Bickems’s car to Brown’s apartment in Dallas. Bickems testified that
Williams drove and would not let her sit in the front seat during the trip. Bickems also testified
that she typically kept a gun in the car’s center console. Williams had begun carrying the gun, and
Bickems testified that she saw the gun on Williams earlier that day.
As Williams drove up to Brown’s apartment, Brown came out to meet him on the street.
Williams told Brown that he wanted some marijuana. Brown said he didn’t have any and offered
to take Williams to a supplier in Brown’s apartment complex. Williams declined and suggested
instead that they go to Williams’s supplier in Oak Cliff. Eventually, Williams convinced Brown
to go with him to Oak Cliff, and Brown got in the front passenger seat of the car.
Williams drove to a park in Oak Cliff that was allegedly around the corner from his
marijuana supplier. Williams did not call his supplier but stopped the car and began talking with
Brown about his suspicion that Brown had been sleeping with Bickems. Williams testified that
Bickem’s gun was in a cup holder on the console while he and Brown talked.
Bickems, who was in the backseat during the entire trip, testified that she did not think
Brown was aware of her presence because the car was dark inside and she sat quietly looking at
–2–
Facebook photos on her cell phone the entire time. Bickems testified that Williams and Brown
initially joked with one another but started arguing after Brown insulted Williams. Bickems said
it was normal for Williams and Brown to argue in this way.
Williams testified that at some point during the argument Brown reached for the gun. A
“tussle” ensued when Williams attempted to stop Brown. Williams slapped Brown’s face, and the
gun fell in Brown’s lap. Williams testified that the gun went off when he grabbed it from Brown’s
lap. According to Williams, he did not intend to shoot Brown, but the gun went off accidentally.
Bickems testified that she did not witness the “tussle” but felt the car shift before she heard
the gun shot. She looked up immediately after the shot and saw Williams with his arm extended
and pointing the gun at where Brown’s head had been. Brown was slumped over towards the
passenger-side door.
The medical examiner testified that Brown died of a gunshot wound to the head. The
medical examiner noted that the bullet entered the left side of Brown’s head and exited the right
side, “basically straight across, left to right, with no significant vertical deviation or front to back
deviation.” The rear passenger-side window was shattered by the bullet that passed through
Brown’s head.
Immediately after the shooting, Williams pulled Brown from the car and pushed the
shattered rear passenger-side window into the car. Williams drove back to the hotel in Waxahachie
with Bickems in the backseat of the car. Williams and Bickems cleaned up the car and stayed at
the hotel until police visited them.
Using Brown’s cellphone records, police learned that Williams had been near Brown’s
apartment on the night of the shooting, and contacted Williams. Police met with Williams and
Bickems on July 21, 2016, and impounded Bickems’s car. Williams and Bickems were later
arrested in Natchez, Louisiana.
–3–
Williams initially implicated Bickems in Brown’s shooting but later recanted and claimed
that he shot Brown in self-defense. Williams also testified that he shot Brown accidentally. When
Williams was asked why he had the gun, which was prohibited due to his prior felony conviction,
Williams stated that he and Bickems were in danger. The jury found Williams guilty of murder.
Analysis
Williams claims that trial counsel provided ineffective assistance by failing to request a
jury instruction on voluntariness, instead arguing that Williams acted in self-defense.
To prevail on an ineffective assistance of counsel claim, an appellant must establish both
that his trial counsel performed deficiently and that the deficiency prejudiced him. State v.
Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (citing Strickland v. Washington, 466 U.S.
668, 687 (1984)). With respect to the first prong, the record on appeal must be sufficiently
developed to overcome the strong presumption of reasonable professional assistance. See
Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999). Absent an opportunity for trial
counsel to explain his actions, we will not conclude his representation was deficient “unless the
challenged conduct was so outrageous that no competent attorney would have engaged in it.”
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
The record indicates that the self-defense theory was discussed during voir dire. Defense
counsel also addressed intent as an element of murder and questioned the venire on whether a
person charged with murder should receive leniency if he did not intend to kill. The State also
discussed with the venire how a murder charge can be reduced by evidence the death was
accidental. Williams testified during trial that the shooting was an accident. In closing argument,
both defense counsel and the State addressed accident as a possible cause. Defense counsel also
argued that the only fact at issue was “what caused the gun to be discharged,” and asked the jury
–4–
to decide whether Williams discharged the gun in self-defense. The jury charge included an
instruction on justified use of deadly force in self-defense.
A person commits a criminal offense only if he voluntarily engages in conduct, including
an act, an omission, or possession. TEX. PENAL CODE ANN. § 6.01(a). “‘[T]he issue of the
voluntariness of one’s conduct, or bodily movements, is separate from the issue of one’s mental
state.’” Brown v. State, 955 S.W.2d 276, 280 (Tex. Crim. App. 1997) (quoting Adanandus v. State,
866 S.W.2d 210, 230 (Tex. Crim. App. 1993)). When evidence of an independent event, such as
the conduct of a third party, is presented, a defendant is entitled to an instruction on involuntary
conduct when requested. Id. at 277, 280.
Counsel is under no duty to raise every defense available, so long as counsel presents a
defense that is objectively reasonable or strategically sound. See Dannhaus v. State, 928 S.W.2d
81, 85–86 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d) (counsel’s strategy to focus on
culpable mental state rather than self-defense, mistake of fact, or voluntariness was not objectively
unreasonable in light of the strong evidence of guilt); see also Vasquez v. State, 830 S.W.2d 948,
950 n.3 (Tex. Crim. App. 1992) (“[J]ust because a competent defense attorney recognizes that a
particular defense might be available to a particular offense, he or she could also decide it would
be inappropriate to propound such a defense in a given case.”). Defensive issues “‘frequently
depend upon trial strategy and tactics.’” See Tolbert v. State, 306 S.W.3d 776, 780 (Tex. Crim.
App. 2010) (quoting Delgado v. State, 235 S.W.3d 244, 249–50 (Tex. Crim. App. 2007)). Thus,
the failure to request an instruction on voluntariness, even if the evidence raises the issue, does not
automatically render counsel’s performance deficient. See id.
In this case, Williams filed a motion for new trial. However, he did not raise a claim of
ineffective assistance of counsel in the motion. Thus, trial counsel did not have an opportunity to
explain himself in the trial court. See Garcia, 57 S.W.3d at 440. Additionally, the record contains
–5–
no evidence of an independent event that caused Williams’s gun to discharge, see Brown, 955
S.W.2d at 280 (voluntariness instruction was warranted on evidence that defendant’s gun
discharged when defendant was bumped by a third party), and accidental discharge does not merit
a voluntariness instruction, see Adanandus, 866 S.W.2d at 230 (“The fact that appellant did not
initially intend to engage in a struggle with a customer does not render his conduct in doing so
involuntary or any of his bodily movements during that encounter involuntary.”); George v. State,
681 S.W.2d 43, 47 (Tex. Crim. App. 1984) (voluntariness instruction was not warranted on
evidence that defendant’s gun discharged accidentally when his thumb slipped off the hammer).
Conclusion
On this record, we cannot conclude that trial counsel’s failure to request an instruction on
voluntariness was not the result of sound trial strategy. See Hathorn v. State, 848 S.W.2d 101, 118
(Tex. Crim. App. 1992) (counsel’s attempt to get the jury to find appellant guilty of a lesser offense
can be explained as a sound trial tactic); Dannhaus, 928 S.W.2d at 85–86. Since Williams has
failed to rebut the presumption of trial counsel’s competence under the first prong, we need not
consider the requirements of the second prong. We rule against Williams on his sole issue and
affirm the trial court’s judgment.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
180606F.U05
–6–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JT WILLIAMS, Appellant On Appeal from the Criminal District Court
No. 7, Dallas County, Texas
No. 05-18-00606-CR V. Trial Court Cause No. F-1676083-Y.
Opinion delivered by Justice Partida-
THE STATE OF TEXAS, Appellee Kipness. Justices Bridges and Pedersen, III
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 15th day of January, 2020.
–7–
| {
"pile_set_name": "FreeLaw"
} |
72 F.3d 66
UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,v.Timothy POLLARD, Jarvis Mack, and Robert Davenport,Defendants-Appellants,andRobert Booker, Defendant-Appellant, Cross-Appellee.
Nos. 95-1729, 95-1742, 95-1778, 95-1995, and 95-2183.
United States Court of Appeals,Seventh Circuit.
Argued Nov. 3, 1995.Decided Dec. 18, 1995.
Michael A. Thill, Donald Schmid (argued), Andrew B. Baker, Jr., Office of U.S. Attorney, Dyer, IN, for U.S.
John C. Hamilton (argued), Doran, Blackmond, Ready, Hamilton & Williams, South Bend, IN, for Timothy Pollard.
Robert J. Palmer, Bradley L. Varner (argued), May, Oberfell & Lorber, South Bend, IN, for Jarvis Mack.
Donald W. Pagos, John Hamilton (argued), Sweeney, Dabagia, Donoghue, Thorne, Janes & Pagos, Michigan City, IN, for Robert Davenport.
Donald J. Berger (argued), Berger, James & Gammage, South Bend, IN, for Robert Booker.
Before EASTERBROOK, DIANE P. WOOD, and EVANS, Circuit Judges.
TERENCE T. EVANS, Circuit Judge.
1
Timothy Pollard, Jarvis Mack, Robert Davenport, and Robert Booker were charged in 1993 along with several other persons in a 17-count indictment with, among other things, being members of a conspiracy to distribute crack cocaine, in South Bend, Indiana. Pursuant to plea agreements, Pollard, Mack, and Davenport entered pleas of guilty; Booker went to trial and was convicted on three of the counts presented to the jury. He was acquitted on one charge--a count alleging the use of a firearm during and in connection with a drug trafficking offense, in violation of 18 U.S.C. Sec. 924(c). This appeal concerns issues regarding the sentencing of all four defendants.
2
The four defendants argue in their briefs that the rule of lenity should have been applied to reduce their sentences and bring them into line with what the sentences would have been had they been dealing in powder cocaine instead of crack. The different penalties for powder and crack cocaine, the now-famous 100-to-1 ratio, were a hot topic of discussion when the briefs were written. The defendants, of course, were swimming upstream by making this argument because to prevail we would have had to overrule United States v. Lawrence, 951 F.2d 751 (7th Cir.1991), and a host of other cases. But now, seeing the handwriting on the walls of Congress, the defendants have declined to press the point. On October 30, 1995, less than a week before this case was orally argued, Congress passed Pub.L. No. 104-38, 109 Stat. 334, which disapproved "amendments to the Federal Sentencing Guidelines relating to lowering of crack sentences...." Not surprisingly, we reject the defendants' argument on this point. See also our decision a few weeks ago in United States v. Booker, 70 F.3d 488 (7th Cir.1995), for a thorough discussion of the chemical properties of powder and crack cocaine.1
3
Timothy Pollard, who was sentenced to 130 months imprisonment, argues that the district court erred in finding that he was a career offender under Sec. 4B1.1 and 4B1.2 of the sentencing guidelines. The finding jacked Pollard up to criminal history category 6 from category 4, his placement level if only an arithmetic computation of his prior crimes was required.
4
The government now concedes that the record is insufficient to support a finding that Mr. Pollard was a career offender. So a remand for resentencing must be ordered. But another issue remains, i.e., whether, upon remand, the government is free to revisit its recommended downward departure from the guideline range, pursuant to Sec. 5K1.1 of the sentencing guidelines.
5
When it became clear at the sentencing proceeding that Mr. Pollard--who earned favor with the government by giving information--was going to be placed in a higher criminal history category than anticipated--6 instead of 4--the government compensated by recommending a 12-level downward departure rather than the 10-level departure it planned on recommending going into the sentencing hearing. The district court accepted the recommendation. If Pollard's criminal history category is now revised downward, the government wants to return to a 10-level downward departure, a recommendation which, if accepted by the district court, will make this whole issue, in effect, much ado about nothing.
6
Our decision, at this point, is to vacate Mr. Pollard's sentence and remand his case to the district court for resentencing. At this point all bets are off. The government is free to make whatever recommendation it wishes.
7
Jarvis Mack received a 63-month sentence. He contends that he should have received a two-level reduction in his offense level under guideline 3B1.2 because he was only a minor participant in the crime.2 The district court was correct in rejecting this argument. Mr. Mack was not sentenced for being a member of the conspiracy or on the basis of his role in the conspiracy. He pled guilty to and was sentenced for distributing crack. His base offense level was calculated on the basis of a single kilogram of crack, not the more than 24 kilograms shown to be distributed as a result of the conspiracy. Application note 4 to Sec. 3B1.2 states:
8
If a defendant has received a lower offense level by virtue of being convicted of an offense significantly less serious than warranted by his actual criminal conduct, a reduction for a mitigating role under this section ordinarily is not warranted because such defendant is not substantially less culpable than a defendant whose only conduct involved the less serious offense. For example, if a defendant whose actual conduct involved a minimal role in the distribution of 25 grams of cocaine (an offense having a Chapter Two offense level of 14 under Sec. 2D1.1) is convicted of simple possession of cocaine (an offense having a Chapter Two offense level of 6 under Sec. 2D2.1), no reduction for a mitigating role is warranted because the defendant is not substantially less culpable than a defendant whose only conduct involved the simple possession of cocaine.
9
Mr. Mack is not entitled to a reduction for being a minor participant.
10
The remaining issues involve the government's appeal of the sentencing of Mr. Booker, who went to trial. The district court granted Booker's motion for judgment of acquittal as to one count. The jury found him guilty of three counts, including the conspiracy count, and not guilty of a count alleging the use of a firearm during a drug crime, under 18 U.S.C. Sec. 924(c).
11
The maximum statutory penalties for the counts of which he was convicted are life as to count 1 (the conspiracy as charged) and 20 years as to both count 9 (operating a crack house) and count 16 (possession with intent to distribute crack cocaine). Booker's offense level under the guidelines, based on the distribution of over 1.5 kilograms of crack, is 38. A 4-point enhancement, not challenged here, for being the organizer or leader of a drug conspiracy involving more than five participants bumps Booker up to level 42. The district court declined to impose, as sought by the government, an additional 2-point enhancement for possession of a firearm under Sec. 2D1.1(b)(1). The level-42 peg yielded an astronomical sentencing range of 30 years to life.
12
The district court sentenced Mr. Booker to 20 years. This sentence is the result, in the government's view, of two errors. First, the district court refused to impose the two-level upward adjustment for possession of a firearm pursuant to Sec. 2D1.1(b)(1) solely because the jury acquitted Mr. Booker of the Sec. 924(c) firearms charge. Second, the court determined that Sec. 5G1.2 did not allow for a sentence of more than the lowest of the maximum penalties set by statute with respect to the three counts of conviction. The lowest statutory maximum was 20 years.
13
Unfortunately for Mr. Booker, the government is right on both points. The acquittal on the Sec. 924(c) charge does not prohibit invoking the weapon enhancement under Sec. 2D1.1(b)(1) of the guidelines. The burden of proof for each setting is different. United States v. Porter, 23 F.3d 1274 (7th Cir.1994). Also, as the Supreme Court made clear last week, Sec. 2D1.1(b)(1) of the guidelines casts a wider net than Sec. 924(c). Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Upon remand, the district court must decide if Booker "used or possessed" the firearm in connection with his crack business. We express no opinion on whether that finding should or should not be made. The experienced and able district court judge is in a much better position than we are to make that call.
14
As to the second point, the district court is not bound by the lowest statutory maximum penalty. In fact, the law is that a court must impose consecutive sentences when necessary in order to impose the total punishment prescribed by the applicable guideline range:
15
The Sentencing Guidelines provide, in section 5G1.2(d), that sentences on separate counts shall be consecutive if necessary to reach the total length of sentence prescribed by the Guidelines, which may exceed the statutory maximum of each count.
16
United States v. Masters, 924 F.2d 1362 (7th Cir.1991).
17
In this case, of course, there is no need to impose consecutive sentences. The maximum statutory penalty for count one is life imprisonment, which is sufficient to allow imposition of whatever sentence the court ultimately calculates is required under the guidelines.
18
To sum up, the sentences of Jarvis Mack and Robert Davenport are AFFIRMED. The sentences of Timothy Pollard and Robert Booker are VACATED. Their cases are REMANDED for resentencing consistent with this opinion.
1
The case involved Henry Booker, convicted in South Bend, Indiana, of dealing in crack. Whether he is related to the Robert Booker in this case, who was also convicted of dealing crack in South Bend, is unknown but likely
2
He had argued, alternatively, that he was a minimal participant entitled to a four-level reduction in offense level. However, at oral argument, he effectively abandoned that position
| {
"pile_set_name": "FreeLaw"
} |
357 P.2d 1 (1960)
Donald A. PADDOCK, Executor of the Estate of Jack Hartney, Deceased, Plaintiff and Appellant,
v.
A. W. CLAY, Defendant and Respondent.
No. 10061.
Supreme Court of Montana.
Submitted September 19, 1960.
Decided November 29, 1960.
Rehearing Denied December 19, 1960.
Paddock, Skelton & Hendricks, Thomas P. Hendricks, Missoula, for appellant. Thomas P. Hendricks, Missoula, argued orally.
*2 Goldman & Jordan, Joseph M. Goldman, Missoula, for defendant. Joseph M. Goldman argued orally.
ANGSTMAN, Justice.
This action seeks restitution of certain described premises, and for treble damages for loss of rents because of alleged acts of defendant in taking possession of the premises after the death of Hartney, the tenant. Plaintiff is the executor of the estate of Hartney.
The complaint alleges that plaintiff was entitled to the possession and occupancy of the premises at the times referred to in the complaint; that plaintiff was offered $35 per month for the rental of the property and alleges that amount as the extent of his damages per month.
The answer was a general denial, and an affirmative defense to the general effect that defendant has been in the quiet possession of the land described for one year before the filing of plaintiff's complaint, and that his interest in the premises has not been ended or terminated.
An amendment was filed to the answer, without objection, which alleged in substance that if plaintiff's predecessor was in possession of the premises under an executory contract of purchase his failure to make the payments under the contract rendered him in default and the contract was terminated by defendant, hence, the occupancy of plaintiff's predecessor was without right.
The reply put in issue the affirmative allegations of defendant's answer.
All of the pleadings described the premises as a lot, 100 feet by 250 feet in section 7, township 17 north, range 15 west, in Missoula County.
The proof showed that Jack Hartney had a contract of sale from defendant covering the lot thus described in section 7, whereby he agreed to pay $300 for the premises by paying $30 per month. None of the payments were ever made. The contract was dated August 20, 1956. Hartney died on August 12, 1958. On March 26, 1958, defendant served notice of termination and cancellation of the contract on Hartney unless the payments were made within sixty days, pursuant to the terms of the contract.
The testimony of plaintiff related to a cabin which he occupied and which was located on section 8, and not on section 7, and it is the possession of this cabin that plaintiff seeks restitution, and plaintiff's proof as to damages related to his deprivation of possession of that cabin.
Defendant's testimony as to that cabin was in substance that Hartney occupied it with defendant's permission, without any rental and without any agreement as to the length of the term, and that either party to that agreement could terminate it at will. The day after Hartney's death, defendant installed a fence around the cabin and removed some of Hartney's personal belongings and placed them outside the enclosure. It is this action of which plaintiff complains.
The jury found the issues in favor of defendant and this appeal follows from the judgment entered on the verdict.
Plaintiff has submitted authorities relating to the reformation of a written instrument for mistake in the description of the property, but here there is no question of reformation involved. Plaintiff did not seek reformation of the contract, and that issue was not litigated or sought to be litigated.
Plaintiff, in reliance on sections 93-9701 and 93-9702, R.C.M. 1947, takes the position that one in peaceable possession of property may not be ousted of possession without resort to legal remedies, and that title to the property cannot be litigated in this proceeding which he characterizes as an action in forcible entry and detainer. That these are the usual rules there can be no doubt.
This case presents features however which must be particularly alluded to. *3 While title to property may not be questioned in an action of forcible entry and detainer, the right of possession may be inquired into and sometimes resort to the usual legal remedies is not imperative or the exclusive remedy to regain possession.
So far as the cabin is concerned, according to the evidence viewed in the light most favorable to defendant, in whose favor the verdict was rendered, Hartney was merely a tenant at will. 51 C.J.S. Landlord & Tenant § 159, p. 766; 32 Am., Jur., Landlord & Tenant, § 66, p. 81.
The relationship of landlord and tenant terminated on Hartney's death. R.C.M. 1947, § 42-110, and see 32 Am.Jur., Landlord & Tenant, § 67, p. 83; Dugand v. Magnus, 107 Cal. App. 243, 290 P. 309; Hancock v. Maurer, 103 Okl. 196, 229 P. 611; note in 68 A.L.R. 595, and cases there cited, and 1 Washburn on Real Property (6th ed.), § 771, p. 481.
The rule applicable here was well-stated in 1 Washburn on Real Property (6th ed.), p. 516, where it is said:
"* * * The more modern doctrine of the English courts is clearly in accordance with the opinion of Baron Parke, expressed in the following terms: `I should have no difficulty in saying that where a breach of the peace is committed by a freeholder who, in order to get into possession of his land, assaults a person wrongfully holding possession of it against his will, although the freeholder may be responsible to the public in the shape of an indictment for forcible entry, he is not liable to the other party.' And the law, as generally adopted in the United States, may be assumed to be substantially as laid down by Baron Parke. If the owner of land wrongfully held by another enter and expel the occupant, but makes use of no more force than is reasonably necessary to accomplish this, he will not be liable to an action of trespass quare clausum, nor for assault and battery, nor for injury to the occupant's goods, although, in order to effect such expulsion and removal, it becomes necessary to use so much force and violence as to subject him to indictment at common law for a breach of the peace, or under the statute for making forcible entry. In accordance with the foregoing propositions, the cases cited below seem fully to sustain the doctrine, that trespass will not lie in favor of a tenant by sufferance against his landlord for entering and expelling him from the premises, assuming, of course, that he uses no unnecessary force or violence in so doing."
The rule is stated in the annotation in 45 A.L.R. 317, as follows:
"It is generally held that where the tenant's right of possession has terminated, and the landlord enters peaceably, as in the tenant's absence, he may maintain his possession by the use of such force as is reasonably necessary."
Plaintiff contends that the court erred in refusing several of his proposed instructions. We have given consideration to these contentions and find them without merit. Some of the proposed instructions were not correct statements of the law, others contained matters covered by other instructions given. We hold that the jury was properly and adequately instructed and that there is no cause for reversal because of the instructions given or refused.
Other points have been urged by plaintiff, as grounds of reversal, and particularly as to whether error was committed in not allowing plaintiff to amend the complaint to include a prayer for exemplary damages against defendant. Since the jury found in defendant's favor, plaintiff has not been prejudiced by the court's refusal to allow the amendment.
Other contentions of plaintiff have been considered, and we find no cause for disturbing the verdict or judgment.
The judgment is accordingly affirmed.
HARRISON, C. J., and BOTTOMLY, ADAIR and CASTLES, JJ., concur.
| {
"pile_set_name": "FreeLaw"
} |
22 U.S. 658
6 L.Ed. 184
9 Wheat. 658
The FANNY.The CONSUL-GENERAL OF PORTUGAL, Libellant.
March 15, 1824
APPEAL from the Circuit Court of Maryland.
This was the case of a libel filed by the Consul-General of Portugal, on behalf of certain Portuguese subjects, owners of a number of hides which had been brought from St. Thomas to Baltimore in the brig Fanny. The facts proved in the cause, which the Court considered to be material, are the following:
Some time in the year 1817, Robert M. Goodwin, Clement Cathill, James Halsey, and John R. Mifflin, all of them citizens of the United States, and denominated 'The American concern,' fitted out, at Buenos Ayres, a brig, called La Republicana, as a privateer to cruise against the subjects of Spain and Portugal, under a commission obtained for her from Jose Artigas. Thus prepared, she sailed under the command of Obadiah Chase, also a citizen of the United States, and, in February, 1818, she captured the Portuguese brig Aurora, which, with her cargo, were sent to St. Barts, and there sold as American property for about 20,000 dollars. With this money, thus raised, Goodwin proceeded to Baltimore, and there invested it in the purchase of a new brig, called the Athenea, which had been lately built at that port. Having changed her name to that of the New Republicana, both privateers shipped their crews at Baltimore, together with their munitions of war, except the cannon and carriages for the latter vessel, which, with a view of deceiving the custom-house officers, were put on board of a small schooner, and were transferred to this privateer, a few miles below the fort. The commission, together with other papers belonging to the Republicana, were delivered to the New Republicana, and both the privateers proceeded to sea; the latter under the command of the above mentioned Clement Cathill, one of the owners. She soon after fell in with the Portuguese ship Don Pedro de Alcantara, laden with a valuable cargo of hides, sugar, &c. which she captured on the 22d of September, 1818, and ordered in to the Five Islands, there to await the orders of Goodwin. At this place, Goodwin transhipped the principal part of the cargo into several small vessels, which proceeded to the island of St. Thomas, consigned to Souffron & Co., merchants of that place. The residue of the cargo, except a small part, which was afterwards taken, together with the Don Pedro, by Commodore Jolly, commanding a squadron belonging to the republic of Colombia was also carried by Goodwin to St. Thomas, in the old privateer, at which place it is probable the whole or a great part of the captured property was sold. Nathaniel Levy, the American Consul at that island, purchased 4004 of the hides, which, together with 555 logs of lignum vitae, he shipped in the brig Fanny to Baltimore, where she arrived in January, 1819, consigned to Lyde Goodwin. On the 21st of this month, the hides and lignum vitae were libelled as Portuguese property, illegally taken on the high seas, and on the 27th of the same month, the lignum vitae was released from the operation of the libel.
To this libel a claim was filed by Lyde Goodwin, as agent of Levy, in which it is asserted that the hides had been purchased by Levy, in the regular course of trade, from Souffron & Co., and all knowledge of the matters alleged in the libel is denied. On the 15th of March the hides were delivered upon stipulation, having been appraised at the sum of 12000 dollars.
In the progress of the cause in the District Court, the owners of the brig Fanny presented to the Judge a petition, setting forth, that on the 6th of October, 1818, Nathan Levy entered into a charter-party of affreightment with the petitioners for the brig Fanny, on certain terms stated in the petition, for a voyage from Baltimore to St. Lucie, and if required, to three other ports in the West Indies, and thence back to Baltimore. That, under this charter-party, the said brig took in a cargo at Baltimore, and sailed to St. Lucie, and to three other ports, and finally delivered the cargo to the said Levy, who afterwards shipped on board the said brig, at St. Thomas, 4000 hides and 555 sticks of lignum vitae, to be carried to Baltimore, where she arrived on the 17th of January, 1819. That upon her arrival, and when the master was about to deliver the cargo to the consignee of Levy, this libel and claim were filed, and the cargo was taken from the possession of the master by the Marshal, under the process of the said Court. That there was then due to the petitioners, on the said charter-party, the sum of 2094 dollars 50 cents, as admitted by the said Levy, which they pray may be paid out of the proceeds of the hides and lignum vitae. This petition was accompanied by an account, dated the 28th of December, 1818, signed by Nathan Levy, acknowledging a balance of 2094 dollars 50 cents to be due the said brig Fanny on the charter-party. Below this account is the following entry, not signed by any person: 'The freight on the homeward cargo, consisting of 4004 hides and 555 sticks of lignum vitae, $1047 25.' The Court made an order that the agent of the claimant should pay the freight on the above goods to the amount of 1047 dollars 25 cents.
The District Court decreed the claimants to pay to the libellant the appraised value of the hides, as mentioned in their stipulation, together with interest and costs, after deducting the amount of freight theretofore ordered to be paid. This decree being wholly affirmed by the Circuit Court, upon an appeal, both parties appealed from that decree to this Court.
Mr. D. Hoffman, for the libellant, argued, 1. That this was a piratical taking, there being no sufficient evidence of a valid commission.a But if the power granting the commission were valid, still the seizure is piratical, as the commission was not only amortised, but transferred to a new vessel and a new commander, by whom it was abused in the grossest acts of violence, evincive of an animus depredandi, and which constituted the captors trespassers ab initio.b Had the authority which granted the commission been competent, and the proceedings under it regular, as the laws of this country have been violated by the captors, who are American citizens, this Court will restore the res capta.c The appellant claims the protection of this Court, on the ground of his being a bonae fidei purchaser, under a valid condemnation. If this could avail him in law, he has failed in his proof of bona fides. Every circumstance of evidence and probability is against him. Admitting, however, that there was a purchase in good faith, and under entire ignorance of the circumstances, the title of this claimant cannot be valid against that of the original owners, since there was no condemnation in point of fact; and if there had been, still, as the taking was either without a valid commission, or in virtue of an amortised or abused one, the condemnation would be inoperative.d
2. Levy, if free from all blame, cannot sustain his claim, under the doctrine of market overt. There can be no such protection for property taken jure belli, at least until after condemnation; and the doctrine of market overt is itself unknown to the jus gentium.e
3. A condemnation is produced, but it is wholly unnecessary to dwell on its operation, since a condemnation, in all respects valid as between belligerents, cannot deprive this Court of its power to restore, when the original taking was in violation of our laws. And, secondly, the condemnation now exhibited, cannot possibly apply to the property in question, as it will be found, on reference to the dates, that this decree of condemnation was some time after Levy's alleged purchase, and, indeed, only a few days prior to the filing of the libel in this cause.f But,
4. The main point of inquiry regards the claim to freight. We contend, that the appellant is responsible to us for the entire value of the hides, as the same is ascertained by the stipulation, together with interest; and that the freight bill, though properly paid by the appellant to the innocent ship-owner, cannot now be deducted by this illegal captor, from the amount stipulated to be paid by him. Waiving all question which might be made, as to the power of this Court to decree freight in the case, on the ground of incidental jurisdiction, we insist that the present is not a claim by the ship-owner for his freight, but by the appellant, to have the same allowed to him out of this fund, as having been properly paid by him. If this Court reject the claim of the appellant to the property, on the ground of its having been illegally captured, and that this infirmity adheres to the property even in the hands of a bonae fidei purchaser, we are at a loss to conceive how this purchaser can rightfully impose any charge or incumbrance whatever upon it. But when we advert to the real character of the appellant, and find him an unworthy claimant, in truth as much so as the captor himself had been, we cannot suppose that he can be entitled to any favour at the hands of this Court. He brought this prize property into an American port, without the knowledge or privity of its owner, and surely ought not to claim either compensation or indemnity, for doing that which, as to the other party, is in invitum, and has proved, in fact, extremely prejudicial to him. If this be a claim on the fund, it is only so as regards the innocent owner. No lien can be created by one who has no property, general or special, in the thing. If a malae fidei possessor cannot so mortgage or pledge the property, as that such mortgage or pledge shall be valid against the true proprietor, he is not competent to create any lien, nor to impose any charge or incumbrance whatever. But without pressing this point, we do not think that the appellant is entitled to be subrogated to the rights of the innocent ship-owner, if such right of lien even vested in him. If this claim to freight were one in rem, as well as in personam, and the illegal captors, or those claiming under them, have satisfied the personal obligation, it does not follow that they can now enforce that lien against the fund which it might, argumenti gratia, be admitted that the ship-owner possessed. This is very unlike the case of a neutral's claim for freight on belligerent property captured from him by another belligerent. The neutral had a right so to employ his vessel, subject only to the belligerent's right to make the seizure; he, therefore, in such case, takes it cum onere, and must pay the neutral his freight. The object here, however, is to transfer the obligation of paying the freight from the illegal captor to the despoiled individual. If the controversy were now wholly between the Portuguese owners of the property and the innocent American ship-owner, the claim might deserve some consideration. In this case, the ship-owner is the agent of the captors, or those claiming under them, not of the Portuguese owner, and as such, must look to his employers, and not to the goods; and if, in fact, the illegal captor has paid the freight, he cannot thereby entitle himself to be refunded out of the fruits of his piratical taking. The claim to freight is always conventional; a claim even to pro rata freight, arises from some convention, and not from the simple fact of transportation. In this case, no consent of the owners to the shipment to Baltimore can be implied. Our claim to the property is disputed on all points; and if none of these is found tenable, but the taking is ascertained to be a gross act of piracy, it would be a strange anomaly, that an honest and lawful belligerent must pay freight to a neutral ship-owner, and yet that a piratical captor shall be exempt from charges voluntarily imposed by him on the property, and that these shall be cast on those whom he has endeavoured to despoil.
5. The Court below has, also, manifestly erred in allowing the entire freight bill, as this includes a charge on some lignum vitae, which formed no part of that which is owned or demanded by the libellant. We, therefore, ask at the hands of this Court, the whole value of the property, as it is ascertained by the stipulation, together with interest from its date, so that the claim to freight may be wholly rejected. The ship-owner is, indeed, the petitioner for freight in this case; but he has been since paid, and the claim, in truth, is now at the instance of the captor, who desires to be subrogated to the rights of the ship-owner, and to enforce his lien, if he had one. We have endeavoured to show, that no such right existed, and that if it ever did, the captor is not entitled to receive the benefit of such lien.
Mr. Winder, contra, argued principally upon the facts, to show that the alleged purchase was bona fide.
March 15th.
Mr. Justice WASHINGTON, delivered the opinion of the Court; and after stating the case, proceeded as follows:
1
The above case presents two questions for the consideration of this Court. 1. Whether the Court below was correct, in restoring to the Portuguese owner that part of the cargo of the Fanny which was restored? And, 2. Whether the freight which was ordered by the Court to be paid to the owners of that vessel, ought, in whole or in part, to have been deducted from the appraised value of the hides?
2
Upon the first question, it is to be observed, that the facts above stated are incontestibly proved by the evidence in the cause. That the capturing vessel, the New Republicana, was built at Baltimore, purchased at that place by citizens of the United States, and there manned and fitted for sea, armed and equipped as a vessel of war, within the waters and jurisdiction of the United States; and with such equipments, left the United States, to cruise against the vessels and property of Spanish and Portuguese subjects on the high seas; and upon such cruise, captured the Don Pedro de Alcantara, with a valuable cargo, belonging to Portuguese subjects, were facts too clearly proved to be questioned; nor were they questioned by the counsel for the claimants. It is established, by evidence equally clear and uncontradicted, that the 4004 hides which were brought in the Fanny from St. Thomas to Baltimore, upon which the sentence of the Court below operated, formed a part of the cargo of the Don Pedro de Alcantara at the time of her capture, and that they were the property of Portuguese subjects.
3
This, then, is the case of property belonging to the subjects of a friendly power, captured on the high seas by a privateer, owned and commanded by citizens of the United States, fitted and equipped as a vessel of war, within the waters and jurisdiction of the United States; and, according to the uniform decisions of this Court in similar cases, as well as in others, where similar equipments have been made within the waters of the United States by foreigners, the property so illegally captured and brought within our jurisdiction, must be restored to the original owners, unless it could be maintained that the sale of it to the claimant devested those owners of their right to the same. But it is to be remarked, in the first place, that the asserted purchase of these hides by Levy is unsupported by any evidence whatever. He alleges in his claim, that he purchased the hides for a valuable consideration from Souffron & Co. in the regular course of trade; but this allegation is not upheld by any written document, or by the testimony of a single witness. The cause was depending more than two years in the Courts below, during all which time it was fully in the power of the claimant, a resident of the island of St. Thomas, to have proved the reality of this purchase, by the testimony of the vendors, or otherwise, if the fact had been as it was alleged.
4
But, admitting the truth of the asserted sale to Levy, he was, nevertheless, a purchaser from the agent of a tortious possessor of property to which he had no title whatever, and who, consequently, could transfer none to his vendee. The proceedings in the Vice-Admiralty Court of Margarita, by Commodore Jolly, against the Don Pedro de Alcantara and the small part of her cargo which had not been transhipped at the Five Islands, so far from amounting to a sentence of condemnation, even of the property libelled as prize of war, proceeded upon the ground of a recapture from a non-commissioned privateer, for which the recaptor was rewarded by a liberal salvage, and the residue of the sales of the property was decreed to the Portuguese owners, in case they should claim the same within the period of a year and a day. This Court is, therefore, of opinion that the decree of the Circuit Court, so far as it restores to the libellant the 4004 hides, or their proceeds, is right, and ought to be affirmed.
5
The second question respects the freight, which the decree of the Court below ordered to be deducted from the appraised value of the hides; and it is attended by no difficulty but such as arises from the confined and imperfect statement of the facts appearing in this record. That the freight of the lignum vitae, which did not belong to the libellants, and against which the proceedings were abandoned, ought not to have been paid out of the proceeds of the hides, is a matter which we think is quite too clear to be disputed; and we think it probable that the mistake was occasioned by an oversight in the Judge of the District Court, from his not knowing, or recollecting, when the petition for freight was before him, that the lignum vitae had been released from the operation of the libel. The decree, then, must, of course, be reversed, for this reason, and the cause remanded for further proceedings, in order to ascertain and separate the freight upon that article, from that due upon the hides.
6
But there is, apparently, error in the decree in respect to the whole of the freight, which, it is possible, may be explained and removed by a further examination of this subject in the Court below. The petition for freight claims the precise sum of 2094 dollars and 50 cents, as the balance acknowledged to be due by the claimant, and the account, signed by him on the 28th of December, 1818, which accompanied the petition, amounted to an acknowledgment that that sum was then due. The items of that account are, freight on 1095 barrels of flour, out and home, per charter-party, 5 cases of furniture, 36 bags of corn, and 7 days demurrage. Below that account is stated the freight due upon the hides and lignum vitae, amounting to 1047 dollars and 25 cents. It would seem, therefore, as if the freight upon the hides and lignum vitae, which arrived in Baltimore some time in January, 1819, was not included in the account signed by the claimant, and if so, it was not claimed to be due, nor required by the petition to be paid. Yet the order of the Court was, that it should be paid, and it was accordingly deducted from the appraised value of the hides. If the case should turn out to be such as is above supposed, it would seem to warrant the conclusion, that the freight upon the hides had been paid by Levy, in which case it ought not to be deducted from their appraised value, unless the reality of the asserted purchase of the hides by Levy should be made to appear to the satisfaction of the Court below, without which, we are of opinion that he is to be considered as a malae fidei possessor, and, consequently, as not entitled to be reimbursed the freight so paid, out of the property of the Portuguese owners. If, on the other hand, it should appear that the claimant was a bonae fidei purchaser of the hides, without notice, or that the freight upon them had not been paid by him to the owners of the Fanny, then it was properly deducted.
7
DECREE. This cause came on to be heard, &c. On consideration whereof, it is DECREED and ORDERED, that so much of the decree of the said Circuit Court as orders that the claimant pay to the libellant the appraised value of the hides, in the proceedings mentioned, together with interest and costs of suit, be, and the same is hereby affirmed, with costs, subject, however, to such deduction for freight as the said Circuit Court may hereafter direct, to be paid out of said appraised value, as may be hereafter decreed under the further proceedings in this cause: And as to so much of said decree of said Circuit Court, as directs the amount of freight to be deducted, agreeably to the previous order of said Circuit Court, the same is hereby reversed and annulled. And it is further ORDERED, that said cause be remanded to the said Circuit Court, for further proceedings to be had therein according to law, for the purpose of ascertaining, upon further proof, whether the claimant had paid the freight of the hides to the owner of the Fanny; and, if so, whether the claimant was a bonae fidei purchaser of said hides, without notice. And if the said Court should be satisfied from such further proof, that the said claimant, Nathan Levy, has paid the owner of the Fanny for said freight, or that he was not such bonae fidei purchaser, without notice, then with instructions not to allow a deduction of freight from the said appraised value. But if the said claimant was such bonae fidei purchaser, without notice, or if said freight had not been paid by said claimant to the owners of the Fanny, then the freight for the hides, excluding the freight on the lignum vitae, to be deducted from the appraised value of said hides.
a
7 Wheat. Rep. 476. 8 Wheat. Rep. 111.
b
3 Wood. Lec. 14 Johns. Rep. 273.
c
6 Wheat. Rep. 152. 7 Wheat. Rep. 496. 8 Wheat. Rep. 108.
d
2 Bro. Civ. Law, 55. 252, 253. 268. 461. 464. 1 Johns. Rep. 471. Bee's Rep. 308. 5 Wheat. Rep. 345, 346.
e
7 Wheat. Rep. 490.
f
Wheat. Rep. 108. 167. 174.
| {
"pile_set_name": "FreeLaw"
} |
914 F.2d 1106
K. Patrick KRUCHTEN, Marcy Kruchten, husband and wife, JamesR. Anderson, Karen S. Anderson, husband and wife, Appellants,v.UNITED STATES of America, Appellee.
No. 89-5379.
United States Court of Appeals,Eighth Circuit.
Submitted May 15, 1990.Decided Sept. 24, 1990.
James R. Anderson, Marshall, Minn., for appellants.
Jonathan B. Wiener, Washington, D.C., for appellee.
Before JOHN R. GIBSON and FAGG, Circuit Judges, and HENLEY, Senior Circuit Judge.
HENLEY, Senior Circuit Judge.
1
K. Patrick Kruchten, et al. (hereinafter "Kruchten") appeal the district court's1 summary judgment award to the United States in an action brought under the Federal Tort Claims Act ("FTCA"). 28 U.S.C. Secs. 2671-2680 (1988). We affirm.
I. BACKGROUND
2
Kruchten is the owner of farm land along the Minnesota River in Yellow Medicine County, Minnesota, which lies adjacent to land held in trust by the United States for the Upper Sioux Indian Community. In 1984 waters on the Minnesota River washed out a man-made embankment on the Sioux land, cutting a new channel across that land and Kruchten's property. The embankment at issue was built prior to 1938, when the United States acquired title to the land on behalf of the Sioux. It is not known who built the embankment. Clearly the flooding involved here would have taken place had the embankment never been erected. The United States was informed of the flooding in 1984. No repairs have been made.
3
Initially, Kruchten sought unsuccessfully to obtain administrative relief through the Department of the Interior. However, despite the fact that the St. Paul, Minnesota division of the Army Corps of Engineers in 1987 conducted a study of the situation, pursuant to the Flood Control Act, 33 U.S.C. Secs. 701-709b (1988), and recommended that a project to repair the washout be initiated, the Corps' Washington D.C. office informed personnel in St. Paul during a telephone communication that it would not authorize the project.
4
In 1988 Kruchten filed a four-count complaint against the United States seeking damages of $28,665.00, which represent the value of failed crops on the relevant land for the years 1985-1987. In the various counts Kruchten alleged the United States was negligent in its maintenance of the embankment. Kruchten made the claim that "purposeful refusal of the defendant to repair the [embankment] in 1984, or at any time thereafter, does constitute not only negligence, but actually purposeful trespass by diverted water." In addition, Kruchten claimed that a fifth amendment "taking" of his property had occurred,2 and that the water which flowed across his property constituted a nuisance.
5
The government sought summary judgment on the grounds that it is immune from such a claim under the discretionary function exception to the FTCA, 28 U.S.C. Sec. 2680(a), and that it had no actionable duty to Kruchten. The district court found that there was no basis for government liability here.
6
The law of the state in which the alleged tort occurred--in this case, Minnesota--governs all substantive issues in a Federal Tort Claims case. See United States v. Slone, 405 F.2d 1033 (8th Cir.1969). We afford great deference to state law rulings of district court judges who sit in the state where the law must be determined. See Economy Fire & Cas. Co. v. Tri-State Ins. Co., 827 F.2d 373, 375 (8th Cir.1987). Usually we overturn such rulings only if they are "fundamentally deficient in analysis, without a reasonable basis, or contrary to reported state court opinion." Id.
II. DUTY OF CARE
7
On appeal, Kruchten concedes that the district court was correct in its order insofar as it applied the law on the first two theories of relief which he raised.3 He contends, however, that the failure of government to comply with an alleged duty to maintain the embankment was negligent conduct. He argues that the district court erred in its determination that Kunz v. Utah Power & Light Co., 526 F.2d 500 (9th Cir.1975), upon which he almost exclusively relies, did not provide the basis for relief under his negligence/trespass theory. Kruchten contends that Kunz supports his position that the United States had a duty to repair the washed-out embankment.
8
In Kunz, the Ninth Circuit held that downstream landowners established liability against Utah Power and Light Company for negligent operation of a water storage system. The company in 1917 had dammed and diverted a river for irrigation purposes, and later the plaintiffs suffered damages when their land was flooded after heavy spring runoffs. The Kunz court concluded that the company had a duty to protect the landowners from flooding because the landowners demonstrated reasonable reliance on the company's affirmative acts in damming the river.
9
The district court distinguished Kunz in two primary respects. First, in Kunz, the power company had dammed the river, thereby diverting its flow. By contrast, in this case, the government merely acquired property upon which an embankment had already been built. Second, in Kunz, there was evidence that the landowners relied upon the power company with regard to flood control protection. Evidence of consultations about flood control between the parties, a change in the type of farming in which the landowners engaged beginning at the time of the defendant's construction of the water storage system, and efforts actually to minimize flooding, all considered together were significant factors to the Kunz court in finding reliance. In contrast, the district court here found that there were "no consultations with plaintiffs or other actions by defendant such as to create a relationship which would justify plaintiffs in relying on the United States to prevent such flooding".
10
Kruchten argues that although there is no indication of reliance in the record, there is nothing in the record to indicate an absence of reliance. The use of such a "negative," however, is not a sufficient showing of reliance for the plaintiffs' negligence claim to survive summary judgment. See generally Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (noting that summary judgment is warranted "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial").
11
There are other distinctions between Kunz and the instant case. In Kunz, the defendants actually diverted the course of the river. Here, by contrast, the builder of the embankment, whoever it might have been, simply sought to maintain the stream in its channel and prevent it from running across his land. Such defensive conduct in our view does not under applicable law engender the kind of relationships, nor the duty, found to exist in Kunz.
12
There is, in general, no duty to protect another from injury or harm which might befall him or her. Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn.1979). Nevertheless, in some circumstances one who gratuitously accepts the responsibility of acting to protect another must utilize due care even though no duty would exist otherwise. See Isler v. Burman, 305 Minn. 288, 295, 232 N.W.2d 818, 822 (1975).
13
Moreover, "[i]n the absence of contract, custom, or statute, no duty is imposed by common law ... upon one who erects a dike for flood protection of lands...." Clark v. United States, 109 F.Supp. 213, 219-20 (D.Or.1952); see also Higgins v. Monckton, 28 Cal.App.2d 723, 733, 83 P.2d 516, 522 (1938) (holding there is no possibility of negligence claim against landowner for failing to maintain levee to insure others against flooding). There is no indication in the Minnesota authorities of any contrary rule. Cf. Kray v. Muggli, 84 Minn. 90, 100-01, 86 N.W. 882, 886 (1901) (stating in dicta that there is no duty on the part of an owner of a dam to maintain it in good repair).
In Kunz, the court of appeals wrote:
14
'The question appears to be essentially one of whether the defendant has gone so far in what he has actually done, and has gotten himself into such a relationship with the plaintiff, that he has begun to affect the interests of the plaintiff adversely, as distinguished from merely failing to confer a benefit upon him.'
15
Kunz, 526 F.2d at 503 (quoting W. Prosser, The Law of Torts Sec. 56 (4th Ed. 1971)).
16
Whereas in Kunz, the defendants acted affirmatively to create a relationship with the plaintiffs and affect their interests, in our view, the government has done very little here other than buy land. We do not believe such purchase alone gives rise to a relationship from which a duty to ensure neighboring lands against flood damage can be found, whether one be a private citizen or the United States government. We therefore defer to the district court, and find no such duty under Minnesota law.
III. TRESPASS
17
We now examine the question whether Kruchten has a valid trespass claim under the law of Minnesota. In Minnesota, "unpermitted invasion of premises constitutes trespass quare clausum fregit." Whittaker v. Stangvick, 100 Minn. 386, 388, 111 N.W. 295, 296 (Minn.1907). It is immaterial by what means or instrumentality the trespass takes place. See id. Many of the Minnesota cases involving trespass to land discuss "positive trespass" as clearly actionable. See, e.g., Newman v. St. Louis County, 145 Minn. 129, 176 N.W. 191 (1920). However, in contrast to the case at hand, most of these cases involve surface waters, not watercourses. Cf. Pye v. City of Mankato, 36 Minn. 373, 375, 31 N.W. 863, 864 (1887) (noting that "a city will be liable if it collects and gathers up surface water by artificial means, such as sewers and drains, and casts it upon the premises of another in increased and injurious quantities"). We believe the Minnesota courts would not see enough affirmative action in the conduct of the defendant here to constitute positive trespass.
18
"One is subject to liability to another for trespass ... if he intentionally ... causes a thing [to enter the land of another] or ... fails to remove from the land a thing which he is under a duty to remove." Restatement (Second) of Torts Sec. 158 (1965). It is, of course, arguable that the failure of a party to maintain a dike would constitute "causing" the water to flow onto plaintiffs' land. See id. comment i. And "[o]ne who takes possession of land upon which there is an ... artificial condition unreasonably dangerous to persons or property outside of the land is subject to liability for physical harm caused to them by the condition...." Restatement (Second) of Torts Sec. 366 (1965). But "a cause of action for trespass does not arise from mere omission to perform a duty; there must be some affirmative act by violence or force, direct or imputed, and the injury must be immediate and not consequential." 87 C.J.S., Trespass Sec. 4, at 958 (1954).
19
The question is most often considered not in the circumstances at bar, which we have found somewhat unusual, but in the context of the initial right of a riparian landowner to construct dikes, embankments, or other structures to maintain or restore the bank of a stream to prevent flooding. See generally Annotation, Right of Riparian Owner to Construct Dikes, Embankments, or Other Structures Necessary to Maintain or Restore Bank of Stream or to Prevent Flood, 23 A.L.R.2d 750 (1952) (listing cases). The usual issue, therefore, is whether a riparian owner may construct such a structure to protect his own land, even though this may cause damage to another when additional waters are cast upon his land. Consequently, to the extent there is law on the question before us now, that is, whether this "invasion of water" is a trespass under the law of Minnesota, the parties have indicated this is a case of first impression. We have found no authority to suggest this assessment is incorrect.
20
An old case, however, does provide some guidance. In that case, which involved an embankment built on the Canadian River in Indian Territory, this circuit held that
21
[a] riparian owner may construct the necessary embankments, dikes, or other structures to maintain his bank of the stream in its original condition, or to restore it to that condition, and to bring the stream back to its natural course; and if he does no more, riparian owners upon the opposite or upon the same side of the stream can recover no damages for the injury his action causes them.
22
Gulf, C. & S. F. Ry. v. Clark, 101 F. 678, 680-81 (8th Cir.1900). Although this case by no means settles the issue at hand, it does provide some support for the general proposition that one may repel water which invades his land, despite consequences to others.
23
We have found no Minnesota case law which supports a trespass theory where a vendee takes land upon which an embankment already exists and then elects not to repair the embankment after subsequent deterioration. The district court not unreasonably concluded that no basis for government liability existed. In the circumstances, we will not disturb this determination as it relates to a trespass claim.
IV. DISCRETIONARY FUNCTION EXCEPTION
24
Even if there were a duty under Kunz, if the decision not to repair the embankment was one made by government officials exercising policy judgment, then the government may not be sued under the discretionary function exception to the FTCA, 28 U.S.C. Sec. 2680(a). See Dalehite v. United States, 346 U.S. 15, 36, 73 S.Ct. 956, 968, 97 L.Ed. 1427 (1953) ("Where there is room for policy judgment and decision there is discretion."); Hurst v. United States, 882 F.2d 306, 310-11 (8th Cir.1989).
25
However, since we have already concluded that the district court did not err in holding there is neither a duty nor a trespass under Minnesota law, we need not determine whether the action or inaction by the government here falls within the discretionary function exception.4
26
Since Kruchten made no allegations in his complaint which give rise to contested factual issues, summary judgment for the government is warranted. See Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552. For all the reasons set out above, the order of the district court is affirmed. In so holding, we emphasize that we express no opinion on the merits of the related action which Kruchten stated at oral argument was pending before the Court of Claims.
1
The Honorable Edward J. Devitt, United States Senior District Judge, District of Minnesota
2
According to Kruchten, an action before the United States Claims Court on an inverse condemnation claim is currently pending. We note this may well be the proper forum for an alleged "taking" of property case. See United States v. Causby, 328 U.S. 256, 267, 66 S.Ct. 1062, 1068, 90 L.Ed. 1206 (1946); Barnes v. United States, 241 F.2d 252, 255 (9th Cir.1956); 28 U.S.C. Sec. 1491 (1988)
3
First, Kruchten relied upon the seminal case of Rylands v. Fletcher, L.R. 3 H.L. 330 (1868), arguing below that a strict liability theory was applicable. Next, he contended that Mathewson v. Hoffman, 77 Mich. 420, 43 N.W. 879 (1889), provided support for a trespass theory buttressed by a prescriptive easement claim. Because appellant does not now disagree with the district court's disposition of these issues, we do not further consider them
4
Finally, Kruchten argues that the government was negligent pursuant to the doctrine of res ipsa loquitur, as discussed in City Water Power Co. v. City of Fergus Falls, 113 Minn. 33, 128 N.W. 817 (1910). Because Kruchten raises the res ipsa loquitur issue for the first time on appeal, we decline to consider that issue. See Estes v. United States, 883 F.2d 645, 648 (8th Cir.1989)
| {
"pile_set_name": "FreeLaw"
} |
COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
ROGER W. FRYDRYCHOWSKI
MEMORANDUM OPINION *
v. Record No. 2086-96-2 PER CURIAM
APRIL 1, 1997
CHERYL J. FRYDRYCHOWSKI
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
(William K. Grogan; Roger W. Frydrychowski,
pro se; William K. Grogan & Associates, on
brief), for appellant.
(Torrence M. Harman; J. W. Harman, Jr.;
Harman & Harman, on brief), for appellee.
Roger W. Frydrychowski (husband) appeals the decision of the
circuit court setting spousal support and deciding other issues.
On appeal, husband contends the trial court erred by (1) reducing
his visitation with the parties' two minor sons; (2) failing to
restore visitation to two days; (3) awarding Cheryl Frydrychowski
(wife) $1,050 in monthly spousal support; (4) finding him liable
for $3,290 in support arrearages; and (5) ordering him to pay
wife's attorney's fees. Upon reviewing the record and briefs of
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Visitation
"In matters concerning custody and visitation, the welfare
and best interests of the child are the 'primary, paramount, and
controlling consideration[s].'" Kogon v. Ulerick, 12 Va. App.
595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted). The
trial court is vested with broad discretion to make the decisions
necessary to safeguard and promote the child's best interests,
and its decision will not be set aside unless plainly wrong or
without evidence to support it. See Farley v. Farley, 9 Va. App.
326, 327-28, 387 S.E.2d 794, 795 (1990).
Husband assigns error to the July 15, 1994 order of the
trial court reducing his midweek visitation to one day. We
previously ruled that husband's appeal from that order was
untimely and we do not revisit that issue in this appeal. See
Frydrychowski v. Frydrychowski, Record No. 0461-95-2 (Va. Ct.
App. June 20, 1995). Challenges to the trial court's 1994
decision are out of time.
Husband also assigns error to the trial court's refusal to
restore two days of visitation. As the party seeking a change in
visitation, husband bore the burden to demonstrate a material
change in circumstances and that those circumstances warranted a
change in visitation. See Ohlen v. Shively, 16 Va. App. 419,
424, 430 S.E.2d 559, 561 (1993). Husband asserted that the two
minor children, while apparently doing well under the current
arrangement, would be better off if he had greater visitation.
2
After hearing the parties testify concerning the existing
visitation arrangements, the trial court denied husband's motion
to change visitation. The credibility of the witnesses was a
matter for the trial court to determine. The record contains no
evidence demonstrating that the trial court's decision was not in
the best interests of the children or that it was plainly wrong.
Spousal Support
In awarding spousal support, the
chancellor must consider the relative needs
and abilities of the parties. He is guided
by the nine factors that are set forth in
Code § 20-107.1. When the chancellor has
given due consideration to these factors, his
determination will not be disturbed on appeal
except for a clear abuse of discretion.
Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829
(1986). The record demonstrates that the court considered the
statutory factors, including the parties' respective needs and
incomes. Wife was employed full time. While husband alleged
that wife could earn more in another position, he presented no
evidence to support his suggestion that wife was underemployed.
Husband has failed to demonstrate an abuse of discretion in the
court's order of support.
Husband refers to the "windfall" wife received by payment of
child support for the parties' daughter. Those payments are
irrelevant to the court's determination of spousal support.
"Child support and spousal support are separate and distinct
obligations based on different criteria." Lambert v. Lambert, 10
Va. App. 623, 629, 395 S.E.2d 207, 210 (1990).
3
Arrearages
Under the existing court order, husband was obligated to pay
child support of $1,589 per month for the parties' three minor
children. No provision in the award was keyed to the children's
reaching majority.
A trial court may not retroactively modify a
child support decree to cancel a support
arrearage or to relieve a parent of an
accrued support obligation. Past due
installments become vested and are not
subject to change. A court may only modify a
support order to be effective prospectively.
The order may be made effective "with respect
to any period during which there is a pending
petition for modification, but only from the
date that notice of such petition has been
given to the responding party." Code
§ 20-108.
Bennett v. Commonwealth ex rel. Bennett, 22 Va. App. 684, 696,
472 S.E.2d 668, 674 (1996) (citing Cofer v. Cofer, 205 Va. 834,
838-39, 140 S.E.2d 663, 666-67 (1965); Taylor v. Taylor, 10 Va.
App. 681, 683-84, 394 S.E.2d 864, 865-66 (1990)). Therefore,
husband's challenge to the court's finding of an arrearage is
without merit.
Attorney's Fees
An award of attorney's fees is a matter submitted to the
sound discretion of the trial court and is reviewable on appeal
only for an abuse of discretion. See Graves v. Graves, 4 Va.
App. 326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper
award of counsel fees is reasonableness under all the
circumstances. See McGinnis v. McGinnis, 1 Va. App. 272, 277,
4
338 S.E.2d 159, 162 (1985). The trial court awarded wife only a
portion of her attorney's fees. We reject husband's
characterization that wife's refusal to abide by the parties'
visitation agreement after it was rejected by the trial court was
"unreasonable." Her compliance with the existing order was not
an unreasonable position adding unnecessarily to litigation
costs. Based on the number of issues involved and the respective
abilities of the parties to pay, we cannot say that the award was
unreasonable or that the trial judge abused his discretion in
making the award.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
5
| {
"pile_set_name": "FreeLaw"
} |
188 So.2d 789 (1966)
Alfonso ROBLES, Appellant,
v.
STATE of Florida, Appellee.
No. 34679.
Supreme Court of Florida.
July 8, 1966.
*790 Donald F. Frost and Boyle & Boyle, Miami, for appellant.
Earl Faircloth, Atty. Gen., and John S. Burton, Asst. Atty. Gen., for appellee.
O'CONNELL, Justice.
Appellant was convicted of the crime of murder in the first degree without recommendation *791 of mercy and sentenced to die by electrocution. These appear to be the essential facts relating to the alleged crime: For about a year and a half, appellant had kept company with one Jean Sterne, a divorcee and mother of a daughter, aged fifteen, and son, aged thirteen. For some time, however, Mrs. Sterne had sought to terminate the relationship. During the night of the crime, appellant and Mrs. Sterne had several encounters in which she attempted to avoid appellant. Finally, in the early morning hours, he knocked at the door of her apartment and asked through the closed door if she would talk with him. She refused and asked him to leave. He claimed, and she denied, that she said that she was expecting another caller and did not wish him to find appellant at her door. In any event, appellant thereupon broke out some glass jalousies and gained entrance to the apartment. In the ensuing confusion, appellant repeatedly stabbed the daughter, Gayle, and Mrs. Sterne. Gayle died as a result of her wounds.
Appellant and Mrs. Stern related sharply divergent versions of the crime. Appellant's version is that he broke the glass with the heel of his shoe and that his only purpose in breaking into the apartment was to talk with Mrs. Sterne. He related that immediately upon entering the apartment he was attacked by Gayle, who was wielding a knife; that he first attempted to leave the apartment, but the door had been closed; that only then did he undertake to wrest the knife from Gayle. He admits remembering that she was cut in the course of the scuffle, but relates that his mind is a blank as to what happened thereafter. According to Mrs. Sterne's version, appellant entered the apartment by breaking the jalousies on the door and, immediately upon gaining admission, began slashing with the knife, first at Gayle and then at her.
In the course of the trial, certain damaging admissions, made while appellant was in police custody, were admitted without objection by defense counsel and without the trial court having conducted any preliminary examination out of the jury's presence as to whether they had been voluntarily made. The trial court did not instruct the jury to the effect that admissions made while in police custody should be received with caution, and it does not appear that defense counsel requested such instruction.
The issue of whether this homicide had been committed in the perpetration of or in the attempt to perpetrate the felony of burglary was first injected into the case by defense counsel's request for instructions defining "assault," "felonious intent," and "felony." This request was made at the conference for settling the charges to be given by the court. The prosecutor adverted to this theory in his closing argument, and the trial court included an instruction to the jury on the subject.
Appellant seeks to raise the following questions here: (1) whether this case presents a sufficient factual basis for application of the felony-murder rule; (2) whether the trial court adequately defined the felony-murder principle in its instructions to the jury; (3) whether the term "felony" was adequately defined in the instructions; (4) whether it was reversible error for the trial court to fail to conduct a preliminary examination, out of the presence of the jury, into the voluntariness of the abovedescribed admissions; (5) whether the trial court erred in failing to instruct the jury that admissions made while in police custody should be received with great caution, even though no such instruction was requested; (6) whether the trial court erred in permitting the prosecuting attorney to repeat a dying statement of the deceased girl which had been stricken during the trial as hearsay; (7) whether the trial court had erred in failing to instruct the jury to disregard certain hearsay testimony which had been testified to despite objection by defense counsel; and (8) whether certain statements made by the prosecutor during his closing arguments were so inflammatory as to deny appellant a fair trial. We shall *792 deal with these questions in the order listed.
The factual situation of this case is appropriate for application of the felony-murder rule. Sec. 782.04 F.S.A. provides that the unlawful killing of a human being shall be murder in the first degree and punishable by death in either of two circumstances; (1) "when perpetrated from a premeditated design to effect the death of the person killed or any human being * * *," or (2) "when committed in the perpetration of or in the attempt to perpetrate any * * * burglary * * *." It being presumed that such a statutory reference is to the statutory definition of burglary, it is appropriate to turn to Sec. 810.01 F.S.A., which provides,
"Whoever breaks and enters a dwelling house * * * with intent to commit a felony * * * shall be punished by imprisonment in the state prison for life, or for such term of years as may be determined by the court."
There is sufficient evidence in the record from which it could be concluded that appellant was guilty of the felony of burglary, in that he broke into the apartment with the intent to commit the felony of aggravated assault upon Mrs. Sterne. There is also ample evidence from which it could be found that he committed a homicide in the perpetration of such felony.
Appellant has directed our attention to a line of New York cases holding that the felony-murder rule does not apply unless the supporting felony is separate and independent from the homicide and he urges that their logic applies equally here. People v. Moran, 1927, 246 N.Y. 100, 158 N.E. 35; People v. Koslow, 1958, 6 A.D.2d 713, 174 N.Y.S.2d 709; People v. La Marca, 1957, 3 N.Y.2d 452, 165 N.Y.S.2d 753, 144 N.E.2d 420.
We disagree. As appellant acknowledges, the concern of the New York court, which was to preserve the integrity of the statutory degrees of homicide, resulted from the fact that the statute of that state makes a homicide committed in the perpetration of any felony first degree murder. New York Penal Code, McKinney's Consol.Laws, c. 40, § 1044. Since the phrase "any felony" is broad enough to include even the aggravated assault that is usually involved in any homicide, the result would be that substantially every homicide would constitute first degree murder.
It was to avoid this result that the New York court adopted the doctrine that the supporting felony had to be independent of the homicide. Even so, it should be noted that the New York court was not concerned with the situation in which the same act of violence that constituted the underlying felony also resulted in the homicide. It was held sufficient for application of the felony-murder rule if the underlying felony had some elements other than those contained in the crime of homicide. Thus, the court has held that the felony-murder rule applies when the underlying felony is, for example, rape, Buel v. People, 1879, 78 N.Y. 492, or kidnapping, People v. La Marca, 1957, 3 N.Y.2d 452, 165 N.Y.S.2d 753, 144 N.E.2d 420, since those crimes have some elements which are different from those of homicide.
It is obvious that the problem that motivated the New York court to adopt the above rule cannot exist under a statute like Florida's, which limits the felony-murder rule to homicides committed in the perpetration of specified felonies, not including assault in any of its forms. Therefore, the logic of the New York cases cited does not apply in Florida.
Questions (2) and (3) challenge the adequacy of the instructions to the jury and may appropriately be treated together. Actually, it appears from appellant's brief that only one new substantive question is raised under this heading the adequacy of the court's instruction defining *793 the term "felony," as an element of burglary. We agree that this question is of basic importance.
It is beyond argument that the question whether appellant was guilty of statutory burglary constituted an essential part of the theory upon which the jury was instructed to decide defendant's guilt. As already remarked, Sec. 782.04 provides that an unlawful killing of a human being shall be first degree murder if it is either (1) perpetrated from a premeditated design to effect the death of the person killed or any human being, or (2) committed in the perpetration or attempt to perpetrate any one of certain listed felonies, including burglary. We have long held that an indictment for first degree murder is fatally defective if it fails to charge premeditation. Denham v. State, 1886, 22 Fla. 664. If premeditation is so vital a part of the crime of murder in the first degree, it must follow that the elements of the felony of burglary, which may be proved in lieu of premeditation, are equally vital and should therefore have been the subject of instructions to the jury. We are not prepared to say that the elements of the supporting felony under the felony-murder rule must be explained to the jury with the same particularity that would be required if burglary were the primary crime charged. Nevertheless, we do hold that they must be defined sufficiently to assure the accused a fair trial of the commission of the secondary crime as well as the primary one.
In the present case, the instructions relevant here consisted of the statutory definition of first degree murder, which includes the felony-murder rule, and then the following:
"The Court further instructs you that the gravamen of the offense of statutory burglary is the breaking into and entering of a dwelling house of another with the intent to commit a felony therein.
"It is not necessary for the State to prove premeditation where the death of the person killed is committed in the perpetration of, or in the attempt to perpetrate burglary. So that, if you find in the evidence, that the defendant killed Gayle Sherry Sterne while engaged in the commission of burglary, or the attempt to commit burglary, then the defendant should be adjudged guilty of murder in the first degree as the result of the perpetration of, or the attempt to perpetrate burglary."
If appellant were being tried for burglary, it could hardly be said that he could have a fair trial under these instructions. The jury is left to its own devices as to what constitutes breaking and entering and as to the character of the felonious intent that is required. As to the precise intent that appellant was alleged to have, these instructions fail to identify the felony that he allegedly intended to commit or even to define the term "felony," in the abstract. It is true that the court agreed to give such instructions and the defendant's trial counsel agreed to prepare same but failed to do so. But this failure of counsel does not relieve the court of the duty to give all charges necessary to a fair trial of the issues. We hold that since proof of these elements was necessary in order to convict appellant under the felony-murder rule, the court was obligated to instruct the jury concerning them, whether or not requested to do so. Canada v. State, Fla.App. 1962, 139 So.2d 753; Motley v. State, 1945, 155 Fla. 545, 20 So.2d 798; Croft v. State, 1935, 117 Fla. 832, 158 So. 454; 32 Fla. Jur. "Trial," Sec. 186. Referring to the sufficiency of indictments and informations, it is said in 13 Am.Jur. "Burglary," Sec. 36:
"In charging burglary a criminal intent must be alleged. The rule is well established, however, that even though in burglary and statutory housebreaking the intent, as defined by the law, is simply *794 to commit a felony, it is not sufficient for the indictment to use these general words; the particular felony intended must be specified. The allegation of the ulterior felony intended need not, however, be set out as fully and specifically as would be required in an indictment for the actual commission of that felony. It is ordinarily sufficient to state the intended offense generally, as by alleging an intent to steal, or commit the crime of larceny, rape or arson. The word `felony' is a generic term employed to distinguish certain high crimes, as murder, robbery, and larceny, from other minor offenses known as misdemeanors. The averment that the accused has broken and entered a dwelling house for the purpose of committing a felony fails wholly to apprise him of the specific offense which it is claimed he intended to commit. The defendant is not to be oppressed by the introduction of evidence which he cannot be prepared to meet. Accordingly, failure to demur to an indictment which does not specify the requisite intent does not constitute a waiver of the right to raise the objection of a motion for a new trial on appeal, since the specific intent is an essential element of the crime."
It is equally, if not more, important that the jury be adequately instructed concerning the essential elements of the crime charged than it is that the elements be alleged in the indictment or information. And this is even more true when the burglary or other secondary crime is involved under the felony-murder rule than when it is the primary crime charged.
At this point we observe also that it does not appear that the trial court properly charged the jury that the presumption of innocence extended to the crime of burglary as well as to the crime of murder. As a matter of fact the court did not specifically instruct the jury on this presumption even as to the homicide. However, it did instruct that the "material allegations of the indictment" had to be proved to the exclusion of a reasonable doubt which probably suffices as an instruction on the presumption.
But the circumstances in this case indicate that a charge on the presumption should also have been given as to the crime of burglary. For one thing this secondary crime was not one of the material allegations of the indictment. Moreover, in another charge the court instructed the jury on the component elements of the crime charged, but did not include burglary or its elements. But in the charge earlier quoted, the court did charge that it was unnecessary to prove premeditation if the jury found defendant had killed in the commission, or attempted commission, of burglary.
In view of the manner in which the complicating issue of burglary was injected at the end of the trial and of defendant's trial counsel's failure either to prepare the charges he requested, as he agreed to do, as well as his failure to object to those given, it is easy to understand how the above errors were made. Yet this does not lessen the error. It is difficult to see how the jury could have known from the instructions given that guilt of burglary was an essential element of the crime of first degree murder, as charged, and that the extraordinary burden of proof and presumption of innocence applied also to this secondary crime.
Appellant's fourth question is whether the trial court erred in failing to conduct an independent inquiry, out of the presence of the jury, into the voluntariness of the damaging admissions made by appellant while in police custody. In the instant case the defendant made no objection to the introduction of the admissions, did not request an out-of-jury inquiry, and does not contend that the admissions were involuntary. *795 Mere failure to follow the recommended and safer course of an independent inquiry out of the jury's presence is not in itself reversible error. Espinola v. State, Fla. 1955, 82 So.2d 601. The reason for such an independent inquiry is to prevent harmful error and to avoid the necessity for declaring a mistrial if it be determined that the admissions should not be admitted after the jury has heard them. Hearn v. State, Fla. 1951, 54 So.2d 651.
Appellant's fifth question is likewise without merit. In this one he argues that the trial judge erred in failing to instruct the jury that admissions given while in police custody should be received with caution. Such an instruction should have been given. However, it is not reversible error to fail to do so when there is other adequate evidence before the jury which, if believed, would justify the conviction. Hamilton v. State, Fla. 1956, 88 So.2d 606. There is in the record adequate evidence to sustain this conviction without reliance on the admissions.
Because the errors alleged in the other questions are not likely to recur on retrial it is unnecessary to answer them now.
For the reasons above expressed the judgment and sentence are reversed and the cause is remanded for new trial.
THORNAL, C.J., and THOMAS, ROBERTS, CALDWELL and ERVIN, JJ., concur.
MASON, Circuit Judge, concurs specially.
MASON, Circuit Judge (concurring specially).
I would reverse solely because of the trial court's failure to charge that the defendant is presumed to be innocent until proven guilty by the State to the exclusion of reasonable doubt.
| {
"pile_set_name": "FreeLaw"
} |
NUMBERS 13-17-00686-CR
13-17-00687-CR
13-17-00688-CR
13-17-00689-CR
13-17-00690-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
KEVIN HARGROVE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Justice Benavides
Appellant Kevin Hargrove appeals his sentence following an open plea of guilty to
the trial court. By one issue, Hargrove argues that the trial court violated his due process
rights by making comments that showed impartiality and failing to consider the full range
of punishment. We affirm.
I. BACKGROUND
Hargrove was charged by indictment of the following offenses: (1) possession of
a controlled substance less than one gram, a state jail felony; (2) burglary of a building, a
state jail felony; (3) tampering with evidence with the intent to impair, a third-degree
felony; and (4) two counts of evading arrest or detention with a prior conviction, state jail
felonies. See TEX. HEALTH & SAFETY CODE ANN. § 481.115; TEX. PENAL CODE ANN. §§
30.02, 37.09, 38.04. 1 On September 6, 2017, Hargrove pleaded guilty to all of the
offenses without a plea agreement with the State, and asked the trial court to assess his
punishment. After the trial court accepted the State’s evidence and heard testimony from
one of the police officers involved in investigating the offenses, the trial court also heard
testimony from Hargrove, in which he asked the trial court to consider probation so he
could return to Houston and assist his family following Hurricane Harvey.
The trial court found Hargrove guilty of the offenses and assessed punishment at
eight years’ imprisonment in the Texas Department of Criminal Justice–Institutional
Division for the tampering with evidence charge and eighteen months’ imprisonment in a
state jail facility for the four additional state jail offenses with all sentences to run
1 Hargrove filed a motion to consolidate his appeals, which was granted, because he pleaded
guilty to all of the offenses at the same plea hearing. Appellate cause number 13-17-00686-CR refers to
the tampering with evidence with the intent to impair offense, appellate cause number 13-17-00687-CR
refers to the evading arrest or detention with a prior conviction offense, appellate cause number 13-17-
00688-CR refers to the burglary of a building offense, appellate cause number 13-17-00689-CR refers to
the other evading arrest or detention with a prior conviction offense, and appellate cause number 13-17-
00690-CR refers to the possession of a controlled substance less than one gram. See TEX. HEALTH &
SAFETY CODE ANN. § 481.115; TEX. PENAL CODE ANN. §§ 30.02, 37.09, 38.04.
2
concurrently. The trial court stated:
Sir, I can’t put you on probation because you’ve already shown that you’re
not—you know, after reoffending while you’re on—I was generous enough
to let you out of jail, you re-offended twice. Not only that, you live in
Houston. You don’t even know where you’re going to live, and your
criminal history, your rate of offenses, your criminal activity, and so, what
you need to realize when they—the State offers you a plea bargain, that’s
why they call it a plea bargain. Thank you.
This appeal followed.
II. NO DUE PROCESS VIOLATION
By his sole issue, Hargrove argues that the trial court violated his due process
rights when “it made comments demonstrating the court’s impartiality by holding it against
[Hargrove] that he declined to accept [the State’s] plea bargain, and in so doing, [failed]
to consider the full range of punishment available to it.”
A. Applicable Law and Discussion
Due process requires a neutral and detached hearing body or officer. Brumit v.
State, 206 S.W.3d 639, 644–45 (Tex. Crim. App. 2006). Absent a clear showing of bias,
the trial court’s actions will be presumed to have been correct. Id. We presume the trial
court was a neutral and detached officer and considered the full range of punishment
unless there is a clear showing to the contrary. Cabrera v. State, 513 S.W.3d 35, 38
(Tex. App.—Houston [14th Dist.] 2016, pet. ref’d.).
Hargrove did not object during the sentencing hearing to the comments or the
sentence the trial court assessed. Whether an appellant is required to make a
contemporaneous objection to preserve error turns on the nature of the right allegedly
infringed. Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014). The Texas
3
Court of Criminal Appeals has separated defendant’s rights into three categories: (1)
absolute requirements and prohibitions, which cannot lawfully be avoided even with
partisan consent; (2) waivable-only rights, which must be implemented unless expressly
waived; and (3) forfeitable rights, which are forfeited unless requested by the litigant. Id.;
Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other grounds
by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997).
Hargrove claims that the trial court refused to consider the entire range of
punishment for an offense and imposed a predetermined punishment. A claim of
predetermined punishment falls outside of the first category of rights and can be waived
or forfeited. Grado, 445 S.W.3d at 740. However, Hargrove’s claim that the judge’s
comments indicated bias or predetermined punishment is not substantiated by the record.
Although the trial court referenced the fact that Hargrove had turned down the State’s
initial plea bargain offer, there was no indication that this fact influenced the court’s
sentencing decision. The trial court explained to Hargrove that his prior criminal history,
actions while out on bond, and uncertain living arrangements factored into its decision to
sentence Hargrove to imprisonment. The trial court’s sentences were within the
applicable statutory range. We hold that the comments of the trial court do not reflect
bias, partiality, or that the trial judge did not consider the full range of punishment. See
Brumit, 206 S.W.3d at 645. We overrule Hargrove’s sole issue.
4
III. CONCLUSION
We affirm the judgments of the trial court.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
18th day of July, 2019.
5
| {
"pile_set_name": "FreeLaw"
} |
392 F.2d 368
HILTI, INC., Defendant, Appellant,v.John OLDACH, Plaintiff, Appellee.
No. 6998.
United States Court of Appeals First Circuit.
Heard Feb. 8, 1968.Decided March 28, 1968.
Samuel S. Cross, Stamford, Conn., with whom John N. Cole, Stamford, Conn., Robert A. Gerlin, New York City, Anthony E. Krug, Stamford, Conn., and John F. Malley, Old San Juan, R.R., were on brief, for appellant.
Benjamin Rodriguez Ramon, San Juan, P.R., with whom Rafael Rodriguez Ema, Rodolfo Sequeira, Nicholas Jimenez, San Juan, P.R., and Joseph L. Martinez, Caparra Terrace, P.R., were on brief, for appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.
1
This appeal is from an order of the district court denying the corporate defendant's motion to stay proceedings, pending resolution by arbitration, as to four of eight causes of action in a suit brought against it and two individuals.1 The court, 'assuming but not judicially resolving' the continued force of a written contract and arbitration clause entered into by plaintiff and Hilti, Inc., on September 5, 1958, gave as its reasons for denial (1) that one of the defendants, Everett Johnson, is not a party to the arbitration agreement;2 (2) that the movant has delayed its demand for arbitration for nearly two years and has thereby not proceeded with due diligence; and (3) that the movant answered the complaint on the merits, elected to litigate rather than arbitrate and accordingly has waived any rights it may have had to arbitrate.
2
The relevant facts are as follows. Defendant-appellant Hilti, Inc.,3 a New York corporation whose principal place of business is in Stamford, Connecticut, manufactures and distributes a patented power drive tool used in building construction. It markets its product through some one hundred and fifty sales representatives. Hilti and plaintiff-appellee John Oldach entered into a written agreement on September 5, 1958 providing for Oldach's service as Hilti's sales representative in Puerto Rico and other areas. The right to terminate at any time upon sixty days notice was reserved to each party and any controversy or claim arising out of or relating to the agreement or its breach was to be settled by arbitration in Stamford, Connecticut under the laws of Connecticut and in accordance with the governing rules of the American Arbitration Association.
3
On October 29, 1965, some five weeks, after Hilti opened a branch sales office in Puerto Rico, managed by defendant Johnson, a former employee of appellee, Oldach brought suit against Hilti, its President, its Vice-President and Johnson, variously charging some or all of them with Sherman and Clayton Act violations, conspiracy to defraud, fraud, termination of the franchise and dealership without proper and just cause, and failure to satisfy commissions and bonuses due and owing.
4
On December 30, 1965 Hilti moved to dismiss the whold complaint, assigning the arbitration clause as the ground for dismissing the two causes related to termination of franchise and non-payment of commissions. This motion was denied on April 7. Meanwhile, defendants' time to answer was extended by stipulation and an answer on the merits was filed January 10, 1966, including as a special defense the claim that the third through sixth causes of action were arbitrable under the September 5, 1958 contract.4 Plaintiff, as the result of a procedural default by defendant, insisted on being given priority in discovery proceedings. The path proved rocky. Originally limited to ninety days, he concluded his interrogatiories-- some 310 separate questions in four sets-- over nine months after suit was brought. Objections to interrogatories and to answers, affidavits, requests for extension, and motions for summary judgment by both sides filled the interim. On September 2, 1966, defendant began its interrogatories, which encompassed 209 questions in two sets. Almost eight months later, on April 27, 1967, defendant moved for a stay of further proceedings as to the four causes of action:
5
During the course of these events defendant had invoked the arbitration agreement in the following ways In its initial motion to dismiss, it had, as we have noted, made reference to the franchise and commissions causes. In its answer it included as subject to the arbitration defense, in addition to these two causes, conspiracy to defraud and fraud. In its subsequent motion for summary judgment, it invoked the arbitration defense only as to conspiracy to defraud.
6
On this record the district court found both that defendant had waived its rights to arbitration because it had answered the complaint on the merits and 'entered into litigation', and that defendant had 'delayed nearly two years to demand arbitration' and thus had not proceeded with diligence.5 Assuming, as did the court, the continuing validity of the arbitration clause in the September 5, 1958 contract, we do not think that the evidence of inconsistent action or delay is strong enough to justify findings of waiver or default in the light of the vigorous policy favoring arbitration. Galt v. Libbey-Owens-Ford Glass Co., 376 F.2d 711, 714 (7th Cir. 1967); Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402, 410 (2d Cir. 1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, dismissed under Rule 60, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960).6
7
An understanding of the same background is, in this case, relevant to both reasons assigned by the district court since the actions which caused it to find that defendant had affirmatively waived its rights to arbitration were also the causes of the delay which occurred before it moved for a stay. If such actions were reasonable under the circumstances, any consequent delay cannot amount to default.
8
We start with the fact that defendant's answer, in its special defense, served notice on plaintiff of the arbitration defense. Given this, the burden is heavy on one who would prove waiver. Robert Lawrence Co. v. Devonshire Fabrics, Inc., supra; Almacenes Fernandez, S.A. v. Golodetz, 148 F.2d 625 (2d Cir. 1945). Nor did defendant here irrevocably lock litigious horns by filing a counterclaim, as in American Locomotive Co. v. Chemical Research Corp., 171 F.2d 115 (6th Cir. 1948), cert. denied, 336 U.S. 909, 69 S.Ct. 515, 93 L.Ed. 1074 (1949) or Radiator Specialty Co. v. Cannon Mills, Inc., 97 F.2d 318 (4th Cir. 1938).
9
It had, however, two large size problems. To begin with, it was put on notice that plaintiff was challenging the continued existence of the contract containing the arbitration clause. On January 7, 1966, plaintiff's attorney filed an affidavit averring that the contract of September 5, 1958 was never relied upon by the parties and that it was 'abandoned almost immediately'. A month later another affidavit stated that the contract was 'abandone * * * at its very inception (and) has been and is a nullity * * *.' Four months later the plaintiff swore that the contract was 'mutually abandoned at its inception'. We now have the recent guidance from the Supreme Court that '* * * a federal court may consider only issues relating to the making and performance of the agreement to arbitrate', Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404, 87 S.Ct. 1801, 1806, 18 L.Ed.2d 1270 (1967). Arguably this might imply that a court ought not to attempt in the first instance to resolve the question whether a contract which once existed has since been abandoned. But we cannot say, pre-Prima, that this kind of attack on the continued existence of an agreement was not reasonably to be considered as posing an issue for the court. See Tepper Realty Co. v. Mosaic Tile Co., 259 F.Supp. 688 (S.D.N.Y.1966). Thus, discovery addressed to this issue could not be said to be inconsistent with continued assertion of the right to arbitation. In fact, both sets of defendant's interrogatories sought details on the times and circumstances of the alleged abandonment.
10
The second problem defendant faced was the wide-ranging scope of plaintiff's interrogatories, seeking data germane to all causes of action. While defendant did seek to limit the questions, and was partially successful in doing so, plaintiff was still probing on a wide front. Defendant, in framing its own interrogatories, had no assurance that the court would find that the 1958 contract still existed. Moreover, in preparing a defense to the monopoly and restraint-of-trade causes of action, which were not claimed to be subject to arbitration, much the same ground as to actual damages and conduct had to be covered as would be relevant in a trial on the merits of the causes claimed to be arbitrable. That defendant, under these circumstances, cast a wide net cannot be equated with waiver of arbitration.7
11
The expeditious way to have disposed of the arbitration issue would have been for plaintiff to move to strike the special defense of arbitration from the answer. This not having been done, a certain amount of continued jousting was inevitable.
12
This analysis of the tactical situation faced by defendant goes far to dispose of the contention that delay in seeking a stay constituted default. While the district court referred to 'nearly two years' of delay, the fact is that the delay preceding the motion to stay was shared almost equally between plaintiff and defendant.8 If our analysis is correct, that defendant had legitimate pre-arbitration discovery purposes to pursue, such delay as it occasioned is no basis, in the light of the decided case in this area, for a finding of default.9
13
The questions of waiver and default aside, appellee argues that the arbitration agreement is inapplicable to Puerto Rican Act No. 75, 10 L.P.R.A. 278-278(d) (Supp.1966), upon which the sixth cause of action is based, for the reason that the Puerto Rico statute, enacted some six years after the effective date of the contract, could not have been contemplated by the parties and hence falls outside the intended scope of the arbitration clause. The short answer is that the portion of the arbitration clause which reads 'Any controversy or claim arising out of or relating to the breach thereof shall be settled by arbitration * * *' cannot be construed so narrowly. Whether the alleged failure to renew plaintiff's dealership was for 'just cause' necessarily turns on the nature of the relationship between the parties, created by mutual agreement and evidenced by the September 8, 1958 contract. It matters not that the statute sued on was yet to be enacted. The broad language of the arbitration clause forces us to conclude that the parties intended to arbitrate all disputes arising thereunder irrespective of whether they were foreseeable at the time of agreement. See Prima Paint Corp. v. Flood & Conklin Mfg. Co., supra, 388 U.S. at 406, 87 S.Ct. 1801, and cases collected therein.
14
Finally, appellee argues that because it compels arbitration in Connecticut the arbitration agreement is contrary to the public policy of Puerto Rico, and hence invalid. We see no substance in this argument. First, the cases cited to us in support of it, Volkswagen Interamericana, S.A. v. Rohlsen, 360 F.2d 437 (1st Cir.), cert. denied, 385 U.S. 919, 87 S.Ct. 230, 17 L.Ed.2d 143 (1966) and La Electronica, Inc. v. Electric Storage Battery Co., 260 F.Supp. 915 (D.P.R.1966), are clearly inapposite for they involve contractual limitations of jurisdiction to maintain suit. The parties here are not preoccupied with a jurisdictional dispute. The district court in Puerto Rico long ago asserted jurisdiction over the subject matter in this case and is now asked simply to stay its proceedings pending arbitration. See generally 6A Corbin, Contracts 1432 (1962) and footnote 69. Second, the assertion that arbitration proceedings cannot be held outside Puerto Rico conflicts with section 3 of the Federal Arbitration Act which speaks of arbitration 'in accordance with the terms of the agreement'. Third, the parties have chosen Connecticut law to control the arbitration process and it is not apparent to us, given Puerto Rico's own stated interest in encouraging the arbitration of disputes, 32 L.P.R.A. 3201-29 (1956), that such a designation offends fundamental Commonwealth policy. Restatement (Second) of Conflict of Laws 354h, 332a (Tent. Draft No. 6, 1960). In so saying we do not suggest the extent, if any, that such policy could countermand the Federal Arbitration Act, or venue provisions agreed to by the parties.
15
Reversed and remanded for further proceedings not inconsistent with this opinion.
1
Appellee has filed a motion to dismiss for lack of appellate jurisdiction, contending that the order is not such an interlocutory order granting an injunction as is appealable under 28 U.S.C. 1292(a)(1). We are satisfied, however, as a matter of law if not of logic, that where, as here, the causes of action for which stay was sought are traditional common law actions seeking money damages and the purpose of the stay is the prior determination of an equitable defense such as an arbitration agreement, the order denying stay is appealable. Shanferoke Coal & Supply Corp. of Delaware v. Westchester Service Corp., 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583 (1935); Standard Chlorine of Del., Inc. v. Leonard, 384 F.2d 304 (2d Cir. 1967). Cf. Baltimore Contrs., Inc. v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233 (1955)
2
Appellee did not-- wisely, we think-- attempt to support this basis for decision in brief or argument. If arbitration defenses could be foreclosed simply by adding as a defendant a person not a party to an arbitration agreement, the utility of such agreements would be seriously compromised
3
Singular references throughout this opinion to 'defendant' are to Hilti, Inc
4
These related to the charges of conspiracy to defraud, fraud, termination of franchise, and non-payment of commissions and bonuses. The remaining causes were those charging principally monopoly and conspiracy in restraint of trade
5
'3 Stay of proceedings where issue therein referable to arbitration
'If any suit or proceeding by brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.'
6
There is no question but that the contract, involving as it does dealer representation of goods manufactured in Connecticut by a New York corporation and to be sold in Puerto Rico, clearly evidences 'a transaction involving commerce', 9 U.S.C. 2; see Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 401, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). Accordingly, the Federal Arbitration Act, 9 U.S.C. 1-14, and not Puerto Rico or Connecticut law, necessarily controls the disposition of appellant's motion. Prima Paint, id. at 404-405, 87 S.Ct. 1801
7
It should be noted that the two sets of interrogatories were the only discovery efforts of defendant. No interrogatories have been submitted to non-parties. There have been no depositions. Affidavits have related strictly to pre-trial motions. Cf. American Locomotive Co. v. Gyro Process Co., 185 F.2d 316 (6th Cir. 1950)
8
Of the eighteen months between the filing of suit and the motion for a stay, ten months had elapsed before defendant was allowed, under the stipulation, to commence discovery. While plaintiff may well complain that part of the delay was occasioned by defendant's reluctance to give detailed replies, so may defendant complain of plaintiff's non-responsiveness
9
The cases demonstrate with marked consistency the reluctance of courts to find default despite substantial delay and intervening proceedings. Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402 (2d Cir. 1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, dismissed under Rule 60, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960) (9month delay; interim settlement discussions; disputed goods tested; held: no default); Almacenes Fernandez, S.A. v. Golodetz, 148 F.2d 625 (2d Cir. 1945) (6 month delay; 7 third party defendants joined; held: no default); Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978 (2d Cir. 1942) (9 month delay; answer amended two months before trial to assert right to arbitration; 'no important intervening steps * * * taken'; held: no default); Lumbermens Mut. Cas. Co. v. Borden Co., 268 F.Supp. 303 (S.D.N.Y.1967) (motion for stay of proceedings delayed two years; no direct dispute between plaintiff and movant until some 21 months after suit initiated; answer never filed; discovery initiated by plaintiff; held: no default)
To be distinguished are cases where a defendant initially failed to assert his arbitration defense, asserted a counterclaim and only later sought arbitration, American Locomotive Co. v. Chemical Research Corp., supra; Barber & Ross Co. v. Cornell & Co., 242 F.Supp. 825 (D.D.C.1965), aff'd 123 U.S.App.D.C. 378, 360 F.2d 512 (D.C.Cir. 1966), or where a plaintiff sought to stay his own action pending arbitration, Galion Iron Works & Mfg. Co. v. J. D. Adams Mfg. Co., 128 F.2d 411 (7th Cir. 1942); The Belize, 25 F.Supp. 663 (S.D.N.Y.1938).
| {
"pile_set_name": "FreeLaw"
} |
384 F.2d 589
Ricardo Fotys CARADELIS, Appellant,v.REFINERIA PANAMA, S. A., Appellee.
No. 24010.
United States Court of Appeals Fifth Circuit.
August 28, 1967.
Rehearing Denied Oct. 4, 1967.
Woodrow deCastro, Balboa, Canal Zone, for appellant.
D. A. Lindquist, New Orleans, La., for appellee.
Before TUTTLE, THORNBERRY and GODBOLD, Circuit Judges.
GODBOLD, Circuit Judge:
1
Ricardo Fotys Caradelis, owner of the M/V Corsario, appeals from dismissal of his libel against Refineria Panama, S.A., owner of the tug Payardi and the barge Oilbar III, and judgment in favor of Panama on its cross libel. Both claims arose out of a collision between the Carsario and the barge, which was being towed by the Payardi; the Corsario sank while being towed to shore and attempts to raise her have been unsuccessful.
2
An in personam libel was filed by Caradelis against Panama alleging that the cause of the collision was the negligence of the master of the Payardi and the failure of the Payardi to show proper towing lights. Damages of $105,746.62 were asked for loss of the Corsario, expense of unsuccessful attempts to raise the ship and loss of profits from her operation for one year. Panama answered denying liability and filed a cross libel alleging that the cause of the collision was negligent operation of the Corsario and asking $1,100 for damage to the towing gear of the Payardi and temporary loss of services of the tug and her tow.
3
After trial, the District Court (on January 31, 1966) entered findings of fact and conclusions of law. 249 F.Supp. 317 (D.Canal Zone, 1966). On February 2, 1966, an order titled "Interlocutory Decree" was entered which dismissed Caradelis' libel and ordered that Panama recover of Caradelis on its cross libel; the cause was continued for determination of damages. On May 19, 1966, an order titled "Final Decree" was entered directing that Panama recover from Caradelis stipulated damages of $1,083.97 plus interest and costs. Caradelis filed notice of appeal on May 26, 1966.
4
We are met with an asserted limitation of our jurisdiction. Panama contends that since the February 2 order dismissed Caradelis' libel and decreed that Panama recover on its cross libel, that order, insofar as it related to these issues, was a "final decision" within the meaning of 28 U.S.C.A. § 1291. Since no notice of appeal was filed within the ninety-day period specified by 28 U.S.C.A. § 2107 no appeal from the District Court's determination of liability lies, and our jurisdiction on appeal is limited to a review of the award of damages by the May 16 order.
5
But the February 2 decree specifically continued the cause "for further orders relative to the taking of proof for determination of Cross Libellant's damages." It cannot be regarded as a final disposition of the cross libel; only when nothing save ministerial tasks relating to computation of damages remains can a mere determination of liability be construed as a "final decision." Chace v. Vasquez, 11 Wheat. 429, 24 U.S. 429, 6 L.Ed. 511 (1826); McGourkey v. Toledo & Ohio Central Railway Co., 146 U.S. 536, 13 S.Ct. 170, 36 L.Ed. 1079 (1892); Guarantee Co. of North America v. Mechanics' Saving Bank & Trust Co., 173 U.S. 582, 19 S.Ct. 551, 43 L.Ed. 818 (1899).1 The question presented is whether an order dismissing a libel but not finally disposing of a cross libel may be a "final decision." We conclude that it is not. Fed.R.Civ. P. 54(b) requires that when each party asserts a claim for relief against the other, no appeal may be taken from final disposition of less than all the claims in the absence of action by the district court to authorize such an appeal. The rule is a recognition of the "judicial unit" principle under which no appeal lies until final disposition of all matters within the "judicial unit" constituting an action. Ayres v. Carver, 58 U.S. (17 How.) 591, 15 L.Ed. 179 (1854). See generally 6 Moore, Federal Practice Par. 54.19 (2nd Ed., 1966). This principle is as applicable to admiralty as to other proceedings. Bowker v. United States, 186 U.S. 135, 22 S.Ct. 802, 46 L.Ed. 1090 (1902); France & Canada S.S. Co. v. French Republic, 285 F. 290 (2nd Cir. 1902), cert. denied, 261 U.S. 615, 43 S.Ct. 361, 67 L.Ed. 828 (1923); 4 Benedict, Admiralty § 554 (6th Ed., 1940). Since the cross libel arose out of the same transaction as gave rise to the libel there can be no doubt that the "judicial unit" includes both claims.2 We conclude, therefore, that until final disposition of Panama's cross libel no "final decision" of Caradelis' action was made, and we are free to consider Caradelis' challenge to the District Court's determination of liability.
6
The parties agree that the situation was governed by the International Regulations for Preventing Collisions at Sea, 33 U.S.C.A. § 1051 et seq. Rule 18, 33 U.S.C.A. § 1080, directs that when two power-driven vessels are meeting head-on, so as to involve risk of collision, a "meeting" situation exists and each must alter course to starboard so as to effect a safe port-to-port passing. By its express language the rule is inapplicable to two approaching vessels which, if each maintains its course, will safely pass clear of each other (whether port-to-port or starboard-to-starboard). By night the rule applies only when each vessel is in a position to see both sidelights of the other. If approaching vessels are not meeting head-on or nearly so but their anticipated courses cross so as to involve risk of collision, a "crossing" situation exists,3 and Rule 19 (33 U.S. C.A. § 1081) requires the vessel which has the other on her starboard (the "burdened" vessel) to keep out of the way of the other; the burdened vessel must take early action to comply with this obligation (Rule 22, 33 U.S.C.A. § 1084), avoid, if possible, crossing in front of the other (Rule 22) and, if necessary, slacken her speed, stop or reverse (Rule 23, 33 U.S.C.A. § 1085). The vessel with the right of way is directed by Rule 21 (33 U.S.C.A. § 1083) to keep her course and speed.
7
If neither vessel is at fault each must bear its own loss; if the fault of one caused the collision that vessel must bear its own loss and pay for the damage to the other. If both vessels are at fault the total damages are divided equally between them regardless of comparative fault, in effect requiring the less damaged to reimburse the more damaged.4 After a collision each vessel has the duty to stand by and render such assistance to the other as may be practicable and necessary. 33 U.S.C.A. § 366. Failure of one vessel to do so will, under aggravated circumstances, exonerate the other vessel, if originally at fault, from liability. See Federal Insurance Co. v. S.S. Royalton, 328 F.2d 515 (6th Cir., 1964).
8
No controversy is raised over these rules; it is their application to sharply disputed facts on which the parties differ. Caradelis urges that we consider the evidence de novo and refind for ourselves the facts necessary to a determination of liability. We cannot agree that we have such power.
9
In theory an appeal in admiralty historically has been regarded as a trial de novo.5 In some early cases this was considered to mean that findings of fact made by the district court were not binding on the court of appeals. E.g., Coryell v. Phipps, 128 F.2d 702, 704 (5th Cir., 1942), aff'd, 317 U.S. 406, 63 S.Ct. 291, 87 L.Ed. 363 (1943). But this circuit as well as the others has now fully accepted the proposition that the "clearly erroneous" standard set out in Fed.R.Civ. P. 52 applies to admiralty actions.6 We have also consistently recognized that when some or all of the evidence upon which the findings are based was not testimony of "live" witnesses produced before the district court but rather written depositions submitted to the district court, the "clearly erroneous" standard is somewhat modified.7 As we recently commented in San Pedro Compania Armadoras, S.A. v. Yannacopoulos, 357 F.2d 737, 740 (5th Cir., 1966): "[A]lthough we are bound by the clearly erroneous doctrine * * *, it is subject to the modification that it does not apply with equal force, where * * * the appellate court is in as good a position as the lower court to evaluate the testimony that is crucial to the case."
10
In this case the testimony of the masters and mates of both ships, of seamen on the barge and tug and of the owner of the Corsario (acting as supercargo at the time of the collision) was presented to the district court in the form of transcribed testimony taken before the Local Board of Inspectors soon after the collision. The only live evidence produced before the district court was the testimony of two experts who attempted to analyze the transcribed testimony and reconstruct the details of the collision. The case law provides no clear guide to the extent to which the "clearly erroneous" scope of review is modified under these circumstances.8 We feel that while we may not consider the evidence de novo and must give considerable weight to the findings of the district court, we may reexamine the evidence more closely than if the clearly erroneous rule was fully applicable, and this we have done.
11
The record reveals the following undisputed facts: About 2:35 a. m. on November 1, 1963, the Corsario, a 95-foot cargo vessel, left the Colon docks. At 2:55 she cleared the Cristobal breakwater. At 3:02 a. m. the Payardi, with the barge in tow, left the dock at San Minas Bay bound for Balboa, Canal Zone. The Payardi proceeded two miles out and (at 3:35 a. m. according to her log) turned to a 250 degree course. The Corsario, after proceeding about one and one-half miles past the breakwater, turned to an East-Northeast course. The collision occurred at about 4:00 a. m. as the Payardi approached the entrance to the Cristobal breakwater.
12
It is also undisputed that the vessels sighted each other before the collision and that the Payardi changed her course 50 degrees to starboard (although the time of this turn is sharply disputed). It is equally clear that the Corsario did not alter her course until she was almost upon the Payardi, at which time she cut her engines and turned sharply to starboard. Although she cleared the Payardi, the Corsario struck the 300 foot hawser with which the barge was being towed; before she could disengage herself the Corsario was struck by the barge. The record also establishes that despite the lights on the Payardi's mast the Corsario did not realize that the tug had a tow until the Corsario was almost upon the tug and the barge.9
13
The evidence is conflicting whether the Payardi immediately offered full assistance to the Corsario. In any event, after anchoring the barge the Payardi took the Corsario under tow in an attempt to take her into the Colon harbor, but the Corsario sank before it was possible to beach her.
14
The Payardi's version of the collision, which was generally accepted by the district court, placed the two vessels on a meeting course, each showing the other a red light (indicating a port-to-port). At 3:40 a. m. the Payardi made her 50 degree turn to starboard after giving the proper signal, a single blast on the whistle. At 3:50, noting that the Corsario had not altered her course, the Payardi gave the danger signal, four short blasts on the whistle. This was ignored by the Corsario, which did not alter course until almost upon the Payardi.
15
On appeal Caradelis offers a much different version: The vessels approached on parallel (or nearly so) courses not port-to-port but rather starboard-to-starboard. The Corsario correctly assumed that if each held her course the ships would safely pass starboard-to-starboard. Immediately before this safe passing would have occurred (i. e., later than the 3:40 a. m. reported by the Payardi) the Payardi made her sharp swing to starboard, taking her directly into the path of the Corsario, which swerved to starboard in an unsuccessful attempt to avoid the collision.
16
Caradelis has demonstrated several problems with the district court's findings. For example, expert testimony produced at trial strongly suggested that if the Payardi's course was exactly as her master described she would not have been at the location of the collision at 4:00 a. m. Moreover the diagram agreed by both masters to be generally accurate suggests that the Corsario's course gradually curved to port; there is no support for this in the testimony.
17
But Caradelis' version is contrary to practically all the testimony developed at the hearing before the Board of Inspectors. While there are several ambiguous statements which might permit the inference of a starboard-to-starboard approach, these are far outweighed by the testimony from those aboard both vessels that during the approach each saw only the red light of the other. Caradelis relies upon certain expert testimony as establishing that a starboard-to-starboard approach best reconciles the conflicting and confused evidence. But the expert's reconstruction of the collision courses was admittedly imprecise — reliance had to be placed on the Corsario's master's recollection of his course (since no written record was kept), and certain assumptions regarding his method of taking bearings had to be made. At trial the expert himself admitted that his diagram was not intended to show the nature of the approach, i. e., port-to-port or starboard-to-starboard.
18
On the record presented here it is impossible to reconstruct the details of the collision with any degree of confidence. But we agree with the district court in rejecting Caradelis' contention that the original approach was such that if both vessels had held course a safe starboard-to-starboard passage would have been effected. It is unnecessary to speculate as to all further details since under either conceivable set of facts the Corsario had an affirmative duty to take steps to avoid the collision. If the approach was a meeting situation, we agree that the manuever to starboard by Payardi was timely, but Corsario also had an obligation to turn to starboard. If the approach was a crossing situation, Corsario was the burdened vessel, with all the obligations this status carries. The Corsario failed to do anything which would meet either of these duties but instead maintained her course and speed until it was too late for corrective action. We also agree that there was no failure to render assistance on the part of the Payardi as would relieve the Corsario from liability.
19
We feel the district court did as well as it could given the evidence submitted to it. As we recently said in Compania Anonima Venezolano de Navegacion v. Matthews, 371 F.2d 971, 973 (5th Cir., 1967): "The nature and degree of exactness of the findings [required] depend on the circumstances of the particular case. We think the findings here are ample to provide a basis for the decision." Therefore, we
20
Affirm.
Notes:
1
The February 2 order was an appealable interlocutory order within the meaning of 28 U.S.C.A. § 1292(a) (3). Arctic Shipping Corp. v. Gulfcoast Transit Co., 333 F.2d 605 (5th Cir., 1964). "We have recognized [28 U.S.C.A. 1292(a) (3)] * * * as having application primarily to situations where a determination of the rights and liabilities of the parties has been engaged in separately from a receiving of evidence on and a resolution of the question of damages." Upper Mississippi Towing Corp. v. West, 338 F.2d 823, 825 (8th Cir., 1964). Although no appeal was taken from the February 2 order within the fifteen days prescribed by 28 U.S.C.A. § 2107, Caradelis lost no rights by failing to take such an appeal. An interlocutory appeal is permissive rather than mandatory, and an aggrieved party may, at his election, decline to appeal an interlocutory order but appeal from the final determination of the case and at that point raise all questions involved in the case. Gloria S/S Co., Inc. v. Smith, 376 F.2d 46 (5th Cir., 1967)
2
Although none of the Admiralty Rules dealt with cross libels in any detail, case law firmly established that no cross libel would be permitted unless it arose out of the subject matter of the original pleading. United States v. Isthmian Steamship Co., 359 U.S. 314, 79 S.Ct. 857, 3 L.Ed.2d 845 (1959); 2 Benedict, Admiralty § 229 (6th Ed., 1940). Thus admiralty procedure, by avoiding what under civil practice would be permissive counterclaims, tended to restrict each action to a relatively compact "judicial unit." But under the recent consolidation of admiralty and civil procedure, the more liberal provisions of Fed.R.Civ.P. 13 now apply to admiralty actions. See generally, Colby, Admiralty Unification, 54 Geo.L.J. 1258, 1271-73 (1963)
3
"When the courses on which the vessels will pass are not parallel, but are at an angle with one another and will intersect as the vessels advance, it is often difficult to determine whether the meeting rule or the crossing rule applies." Griffin, Collisions § 28, pp. 62-63 (1940). Griffin concludes that a crossing situation exists if either vessel has the other more than half a point (or 5 5/8 degrees) on the bow and notes that if sidelights are properly screened half a point is the limit at which both sidelights would be displayed to another vessel. Id. at § 28, pp. 66-67. Caradelis' expert testified at trial that it is generally accepted that the courses can be as much as two points (or 22½ degrees) apart
4
Schooner Catharine v. Dickenson, 17 How. (58 U.S.) 170, 171, 15 L.Ed. 233 (1855); Arctic Shipping Corp. v. Gulfcoast Transit Co., 333 F.2d 605 (5th Cir., 1964); Gilmore and Black, Admiralty § 7-4, p. 402 (1957). For an unsuccessful attempt to divide damages according to comparative fault, see N. M. Paterson & Sons, Lt. v. City of Chicago, 209 F. Supp. 576 (N.D.Ill.1962), rev'd, 324 F.2d 254 (7th Cir., 1963)
5
Irvine v. The Hesper, 122 U.S. 256, 7 S.Ct. 1177, 30 L.Ed. 1175 (1887); Reid v. Fargo, 241 U.S. 544. 36 S.Ct. 712, 60 L.Ed. 1156 (1916). But note that the 1966 unification of civil and admiralty procedures apparently eliminated the seldom-used provision of former Admiralty Rule 45 for taking additional proof by the appellate courts
6
China Union Lines, Ltd. v. A. O. Andersen & Co., 364 F.2d 769, 789 (5th Cir., 1966); Commerce Oil Corp. v. Dixie Carriers, Inc., 252 F.2d 386 (5th Cir., 1958); Fidelity-Phenix Fire Ins. Co. of New York v. Flota Mercante Del Estado, 205 F.2d 886 (5th Cir.), cert. denied, 346 U.S. 915, 74 S.Ct. 275, 98 L.Ed. 411 (1953). This result is clearly required by McAllister v. United States, 348 U.S. 19, 99 L.Ed. 20, 75 S.Ct. 6 (1954). But, as Judge Brown noted in Oil Screw Noah's Ark v. Bentley & Felton Corp., 322 F.2d 3, 5-6 (5th Cir., 1963), "such * * * review affords a greater latitude than would an appeal from a jury verdict. In the latter it is a question of substantial evidence. In the former, there is still the qualitative factor of the truth and right of the case — the impression that a fundamentally wrong resut has been reached."
7
Waterman S.S. Corp. v. United States Smelting, Refining & Mining Co., 155 F.2d 687 (5th Cir.), cert. denied, 329 U.S. 761, 67 S.Ct. 115, 91 L.Ed. 656 (1946); Coyle Lines v. United States, 195 F.2d 737 (5th Cir., 1952); C. J. Dick Towing Co. v. The Leo, 202 F.2d 850 (5th Cir., 1953); San Pedro Compania Armadoras, S.A. v. Yannacopoulos, 357 F.2d 737 (5th Cir., 1966). See also Mobil Tankers Co., S.A. v. Mene Grande Oil Co., 363 F.2d 611 (3rd Cir.), cert. denied, 385 U.S. 945, 87 S.Ct. 318, 17 L.Ed.2d 225 (1966); Spanos v. The Lily, 261 F.2d 214 (4th Cir., 1958); Kulukundis v. Strand, 202 F. 2d 708 (9th Cir., 1953); Bertel v. Panama Transport Co., 202 F.2d 247 (2nd Cir.), cert. denied, 346 U.S. 834, 74 S.Ct. 35, 98 L.Ed. 356 (1953)
8
InSan Pedro Compania Armadoras, S.A., supra, we observed that where the only evidence supporting a finding of contributory negligence was response to written interrogatories, the clearly erroneous rule "does not apply wih equal force." In Kulukundis v. Strand, supra, the Ninth Circuit held that where the testimony of one of several witnesses was by deposition, the clearly erroneous rule "is subject to modification in the discretion of the appellate court." And in Spanos v. The Lily, supra, the Fourth Circuit stated that where most of the evidence was in the form of depositions, the clearly erroneous principle "applies with less force."
9
The Payardi carried three white lights in a vertical line on her mast. Under Rule 3 (33 U.S.C.A. § 1063), this indicated that the length of the tow exceeded 600 feet; had the Payardi been in compliance with the rule, she would have carried only two vertical white lights. But this in no way contributed to the collision. The master of the Corsario testified he did not realize the Payardi hadany tow until after he had narrowly missed her stern; the situation would have been no different had the Payardi carried two lights instead of three.
ORDER ON PETITION FOR REHEARING
PER CURIAM:
21
In application for rehearing appellant makes the point that there is a possible inconsistency in the findings of the district court that the two vessels were in a meeting situation or collision course, but that each was showing the other a red light, since Rule 18 (33 U.S.C.A. 1080) of the International Regulations for Preventing Collisions at Sea is limited in its application by night to cases in which each vessel is in such a position as to see both the sidelights of the other.1
22
The trial court rejected appellant's contention that the original approach was starboard-to-starboard. The difficulties of making a wholly consistent reconstruction of the accident did not require that the trial court accept appellant's version of the facts.
23
Other points made by appellant in its application for rehearing already have been covered in the corrected opinion.
24
The application is denied.
Notes:
1
See note 3 to our opinion pointing out the difficulties of determining whether the meeting rule or the crossing rule applies
| {
"pile_set_name": "FreeLaw"
} |
849 F.2d 600
Dandar (R. George)v.Petsock (George)
NO. 87-3812
United States Court of Appeals,Third Circuit.
MAY 16, 1988
Appeal From: W.D.Pa.,
Block, J.
1
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
150 Ga. App. 289 (1979)
257 S.E.2d 359
BROWN
v.
THE STATE.
57278.
Court of Appeals of Georgia.
Argued February 6, 1979.
Decided June 13, 1979.
Julia White, James Gutman, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.
UNDERWOOD, Judge.
Brown appeals his conviction of rape, enumerating eight alleged errors. Enumerations 1 and 2 are not supported by the evidence and are without merit.
Brown's third enumeration is that the trial court erred in sustaining repeated objections by the prosecuting attorney to questions by defense counsel relating to the general character of the complaining witness, in violation of Code Ann. § 38-1804. The cited Code section provides as follows: "A witness may be impeached by evidence as to his general bad character. The impeaching witness should be first asked as to his knowledge of the general character of the witness, and next as to what that character is, and lastly he may be asked if, from that character, he would believe him on his oath. The witness may be sustained by similar proof of character. The particular transactions, or the opinions of single individuals, shall not be inquired of on either side, except upon cross-examination in seeking for the extent and foundation of the witness' knowledge."
The defense counsel was permitted to elicit from a witness, Laverne Thompson, that she would not believe *290 the complaining witness under oath. She had previously testified that she had known the complaining witness for four years and lived in apartments directly behind her home. Thus, if there was any error, it was in favor of Brown, who was allowed to elicit the personal opinion of Thompson as to Davis' veracity. Further, there was ample testimony and evidence corroborating Davis' testimony. A police officer testified that on answering a rape call, he found Davis in a hysterical condition and crying; her face was swollen; there was a bite mark on her face and her nose was bleeding, her blouse, panties and slacks were torn (or cut); and there was blood on her slacks and blouse. She took the police officer to the scene where she pointed out tissues and debris from Brown's car, and identified those items in court. Under the circumstances, there is no merit in this enumeration of error. Calfee v. Jones, 54 Ga. App. 481, 486 (188 SE 307) (1936).
As to the industrial napkins admissibility in evidence complained of in Enumeration 4, they were identified specifically by Davis and it was not necessary to establish a chain of custody. Thus, Enumeration 4 is without merit.
Enumeration 5 contends that photographs of Davis taken after she had been treated medically were inadmissible because they were contrived and posed. However, this is mere speculation, as a female police officer testified she saw Davis at the hospital and she was upset and her face was bloody; also, her clothes were torn and bloody. The officer acknowledged that the pictures were made after Davis was treated, and there was no evidence to indicate that the pictures were not an accurate portrayal of Davis as she appeared at the time the photographs were made. There was nothing inflammatory about the photographs, and they have probative value as corroboration of Davis and the police officers who testified to her condition. Thus, the enumeration is without merit.
In his last enumeration of error Brown contends the trial judge erred in referring to Davis as the "victim," thus expressing the court's opinion as to what has or has not been proved, in violation of Code Ann. § 81-1104. However, the appellant made no objection to such *291 comments at trial, and he is therefore estopped from raising this issue on appeal. Key v. State, 146 Ga. App. 536 (4) (246 SE2d 723) (1978).
Judgment affirmed. Banke, Acting P. J., and Carley, J., concur.
| {
"pile_set_name": "FreeLaw"
} |
95 F.3d 49
Huntv.City of Longview
NO. 95-40731
United States Court of Appeals,Fifth Circuit.
July 10, 1996
1
Appeal From: E.D.Tex., No. 6:95-CV-555, 932 F.Supp. 828
2
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
285 So.2d 845 (1973)
SINCLAIR OIL & GAS COMPANY
v.
DELACROIX CORPORATION et al. (two cases).
Nos. 5251, 5252.
Court of Appeal of Louisiana, Fourth Circuit.
November 16, 1973.
*846 William J. Guste, Jr., Atty. Gen., of La., Edward M. Carmouche, Asst. Atty. Gen., Charles Romano, Sp. Asst. Atty. Gen., for appellant, State Mineral Board.
Charles H. Livaudais, Chalmette, for defendant-appellees.
Hugh M. Wilkinson, Jr., New Orleans, for Delacroix Corp., Alice Aby, and others, Royalty Owners, Adam Gonzales, Carroll C. Quatroy and Hazel M. Quatroy.
James Wilkinson, III, New Orleans, for C. Henry Adams, Jr., and others, Royalty Owners.
Melvyn Perez, Chalmette, for Louis Carmadelle and Gustave W. Carmadelle, Joseph Menesses and Ernest Melerine.
F. Rivers Lelong, New Orleans, for Frank A. Ashby, Jr., Frank R. Bailey, C. T. Cardin and James E. Grady.
*847 Emile E. Martin, III, Belle Chasse, for Boyd & Company, and others.
Sidney C. Schoenberger, New Orleans, for Pubco Petroleum Corp.
Darryl W. Bubrig, Sr., Buras, for Jean Mason Bowles.
Thomas M. McBride, III, Chalmette, for Omeadow Robin, Eva R. Mones, Herman Robin and Eleanor Robin.
Before REDMANN, STOULIG and BOUTALL, JJ.
BOUTALL, Judge.
The State Mineral Board appeals from two judgments in consolidated cases, which recognized the private ownership claims to minerals production royalties from certain unitized acreage, including water bottoms, and rejected claims of the State of Louisiana to production royalties allocable to the water bottoms.
The consolidated concursus proceedings were separately filed, one for Sand Unit A and one for Sand Unit B, by petitioner Sinclair Oil & Gas Company following completion of two gas distillate wells in an isolated marshland area of Plaquemines Parish lying some two miles south of Lake Lery, something over a mile west of a waterway called Bayou Gentilly and something over a mile north and northwest of Grand Lake.
Because the wells were found to be producing from reservoirs including multiple ownership the Louisiana Conservation Commissioner had previously created permanent production units for each well. Said unit areas abut each other, each unit area actually being two production units, as each well produces from dual completions and the two producing sands were determined to be coextensive in each well.
Sinclair (now merged into Atlantic Richfield Company) holds multiple mineral leases from private owners and further holds a mineral lease from the State Mineral Board purporting to cover all State owned water bottoms in a defined area which includes the full extent of the units.
The aggregate of the said production units includes portions of Sections 5, 7, 8, 17 and 18 in Township 15 South, Range 14 East, Plaquemines Parish, Southeastern Land District of Louisiana.
All of the area in question consists of Sections certified to the United States by the State of Louisiana as sections of swamp and overflowed lands for acquisition under the Swamp Land Grants. The State of Louisiana in turn transferred the sections to the Lake Borne Basin Levee District. The Lake Borne Basin Levee District sold these and other sections to one Fernando Estopinal, and the private claimants all deraign their title and claim of ownership from Estopinal. Thus the basic issue to be decided is whether the State divested itself of its title to all, or any portion of the area in question. The Mineral Board had originally urged that the sale from the Levee District to Estopinal was fraudulent, but it has abandoned that claim. The issue is thus narrowed to whether the State effectively divested itself of the water bottoms located within the area. The Mineral Board contends that the State could not have transferred title for two reasons: (1) that the water bottoms are navigable waterways and the title must remain in the public domain, and (2) that the water bottoms are suitable for oyster cultivation, and hence certain Oyster Statutes, namely Act 153 of 1902 and Act 189 of 1910, would prohibit the transfer of title to such water bottoms.
We have been furnished several maps and plats showing the area in question and detailing the water bottoms claimed herein, but it might be well for the court to here give a brief general description of the area. The two units are approximately equal in area and abut along a straight east-west base line, or section line. The north unit is called Sand Unit B, consisting of portions of Sections 5, 7 and 8, and is roughly wedge-shaped with an area of *848 622.96 total acres, of which 233.3 acres are water bottoms. The major portion of these water bottoms consists of the southern portion of Lost Lake, and a large unnamed lagoon connected to the southeast portion of Lost Lake and connected through the north fork of Bayou Sabine to Bayou Gentilly. The unit south of the section line is Sand Unit A and consists of portions of Sections 17 and 18, is semi-elliptical in shape, and contains 623.02 total acres, of which 323.7 acres are water bottoms. The water bottoms in this unit are called the Marretta Congo, and they are connected to Bayou Gentilly through the south fork of Bayou Sabine, and there is also a connection through an unnamed bayou into Lake Petit. It should be further noted that access to the area is also had by a channel dredged along the western side of the area to provide access to drill oil wells in the general vicinity, and from which another channel was dredged to drill the particular wells in these two units. Also on the east side of the area there is a pipeline canal dredged for service of the general area. There are also two other canals which connect with waterways in the area.
It should be noted at this time that there are other water bottoms within the disputed area, some of them connected to the claimed water bottoms and others apparently with no connection, and that the State does not claim the ownership of these water bottoms. As noted above the State's claim appears to rest upon the two-fold base of navigability of the waters, and suitability for use in oyster production. We assume therefore that these uncontested water bottoms do not meet the test imposed by these two bases and hence are either nonnavigable or nonsuited for oyster cultivation.
Primarily, the private claimants insist that it makes no difference under the present law whether the water bottoms are navigable or not because the State is without right to assail the title of these claimants, being barred by the limitation of six years prescribed by Act 62 of 1912 (LSA-R.S. 9:5661). They contend the existing jurisprudence is declarative of the principle that this limitation is imposed without regard to the navigability of the waters. Nonetheless, they do strongly urge to us, and have produced evidence in support thereof, that the water bottoms are in fact nonnavigable, and always have been.
The private claimants deraign their title from a conveyance by Lake Borne Basin Levee District to Fernando Estopinal in a Notarial Act of Conveyance before James D. St. Alexander, Notary Public for St. Bernard Parish, dated December 19, 1902 and registered December 24, 1902 in Plaquemines Parish in Conveyance Book 37, Folio 67 (Delacroix Exhibit 11). That act exhibits nothing that would cause us to say it is null and void on its face. No judicial attack has been made by the State on the validity of this Act of Conveyance until the present suit. There is no question but that the time period imposed by Act 62 has long since passed insofar as the subject property is concerned. Our Supreme Court has recognized in a series of cases involving nonnavigable water bottoms that Act 62 of 1912 barred, following six years, any State proceeding to reform or vacate a conveyance by the State or a State subdivision to a private owner. We refer to Atchafalaya Land Company v. F. B. Williams Cypress Company, 146 La. 1047, 84 So. 351 (1920); State v. Sweet Lake Land & Oil Company, 164 La. 240, 113 So. 833 (1927); Realty Operators v. State Mineral Board, 202 La. 398, 12 So.2d 198 (1943); O'Brien v. State Mineral Board, 209 La. 266, 24 So.2d 470 (1946). The Supreme Court has also declared that the Act of 1912 applied to bar a State attack on a transfer to private ownership of navigable water bottoms. We refer to Humble Oil & Refining Company v. State Mineral Board, 223 La. 47, 64 So.2d 839 (1953); California Company v. Price, 225 La. 706, 74 So.2d 1 (1954).
It is suggested to us that the principles announced in these latter two cases *849 should be rejected and we are referred to the dissenting opinions in the case of Carter v. Moore, 258 La. 921, 248 So.2d 813 (1971), and our own decisions in the cases of Winkler v. State Mineral Board, 239 So.2d 484 (La.App. 4th Cir. 1970) and the case of Stevens v. State Mineral Board, 221 So.2d 645 (La.App. 4th Cir. 1969), reversed on procedural grounds 255 La. 857, 233 So.2d 542 (1970). Despite what some, at least, of the members of this court may feel the proper principle of law to be, it is not within our authority to change those principles of law announced by our Supreme Court, but we must follow them, and if change is needed, we must rely upon that superior court to effect such a change. We see no reason to discuss the issue in depth, especially since we find the waters nonnavigable, but we refer to the various dissenting opinions, and further to the opinion of our brothers of the First Circuit in the case of State v. Cenac, 132 So.2d 897 (La.App. 1st Cir. 1961). As to the cases of Stevens and Winkler, there are factual differences which distinguish these cases as will be pointed out hereinafter.
We would consider the line of cases mentioned above supporting the application of Act 62 of 1912 to be decisive of the issues in this case, but because of the factual differences in the various cases above mentioned and the present case, we deem it necessary to inquire further into the validity of the Act of Conveyance from the Levee Board to Estopinal. For a clearer understanding, we again summarize the initial links in the private claimants chain of title as follows:
"(1) * * * said sections were among those lands certified by the State to the United States as swamp and overflow lands and were approved by the United States to the State on May 6, 1852, under the Swamp Land Grant Act, 43 U. S.C.A., Sections 981-987, Acts of Congress approved March 2, 1849.
"(2) * * * said Sections were included in tracts transferred from the State to the Lake Borgne Basin Levee District by Act No. 14 of 1892, creating the Levee District.
"(3) * * * in an instrument dated April 2, 1895, and recorded in Plaquemines Parish on May 24, 1895, the Register of the State Land Office conveyed the said sections, among other acreage, to the Levee District.
"(4) * * * In an instrument dated December 19, 1902, the Levee District conveyed said sections to Fernando Estopinal, along with other property totaling approximately 64,000 acres, for the total price of $4,642.96. Estopinal, the then Secretary of the Levee Board, is the ancestor-in-title of all of the private claimants herein.
"(5) * * * in an instrument dated July 27, 1910, and recorded in Plaquemines Parish on August 13, 1910, the Auditor of Public Records conveyed the said sections, among other lands, to the Levee District."
The State contends that link 4, the Conveyance of 1902 to Estopinal, is null, but alternatively it could not be effective until August 13, 1910 when link 5, the auditor's transfer, was recorded. The State refers to Section 11 of Act 14 of 1892 which provides that it "shall be the duty of the Auditor and Registrar" to convey the lands to be granted to the Levee Board and "when said conveyances are so recorded, the title to said land, with the possession thereof, shall from thenceforth vest absolutely in said board of levee commissioners, its successors or grantees". In support thereof, the State refers us to the cases of State v. Aucoin, 206 La. 787, 20 So.2d 136 (1944), and State v. Cross Lake Shooting and Fishing Club, 123 La. 208, 48 So. 891 (1909). We have no quarrel with what seems to be the plain wording of the Statute. However, we are of the opinion that this issue is controlled by Act 316 of 1926 which provides as follows:
"Section 1. Be it enacted by the Legislature of Louisiana that all deeds of *850 transfer heretofore made by either the Auditor or Registrar of the State Land Office of this State to * * * * the Lake Borne Basin Levee District under the various Acts creating said Levee Districts, * * * * be and the same are hereby ratified, quieted and confirmed, the same as if all such deeds had been signed by both the Auditor and the Registrar of the State Land Office of this State, * * * *".
We believe the provisions of this Act to be controlling, and hold that the defect in link 3, wherein only the Register of the State Land Office conveys to the Levee District is cured by the operation of this Act. We refer to the case of Barnett v. State Mineral Board, 193 La. 1055, 192 So. 701 (1939) in which the Supreme Court stated:
"A mere reading of Act No. 316 of 1926 discloses that the act does not purport to legalize the unauthorized or invalid act of any officer, agent, or servant of the State. What the Auditor did in this case, and what he has done in numerous similar cases, was not an illegal act on his part. At most, his action merely lacked the concurrence of the Register of the State Land Office, which might otherwise be supplied. There is no reason why the Register could not have subsequently concurred in the action of the Auditor. On the other hand, the Legislature, if it saw fit, might have divested the Register of his authority to concur in the act of the Auditor and vested that authority in some other public official or employee; or the Legislature, as it did in effect by the adoption of Act No. 316 of 1926, might have done away with the necessity of another mere ministerial and formal signature to instruments executed pursuant to prior statutes.
"As we have hereinabove pointed out, Act No. 316 of 1926 was not a sale. It was not even a new grant. It was merely the ratification and confirmation of informally executed deeds of transfers from the State to its various levee districts. There is no doubt of the right of the Legislature to adopt the statute. The statute itself is not unconstitutional because its declared purpose is to cure an irregularity of non-observance of requirements which it originally might have dispensed with. The statute relates back to the execution of the original deeds of transfer to the various levee districts. Under its express terms, it ratifies, quiets, and confirms all prior transfers of lands to the levee districts, whether the transfers be signed either by the Auditor or by the Register `the same as if all such deeds had been signed by both' of those officersThat is to say, as if the deeds had been originally signed by both the Auditor and the Register."
In our opinion, this holding requires us to rule that Act No. 316 of 1926 makes the 1895 transfer by the Register effective, not in 1926 the time of passage of the Act (in which case other Statutes would be applicable), but back to the time of the transfer to the Levee Board in 1895 and thence to the acquisition from the Board by Estopinal in 1902.
Thus, we consider the pertinent laws to be those in existence in 1902 and prior thereto, not those of 1926 nor 1910, the date of link 5. With this conclusion, we also determine that the two Acts of the Legislature relied upon by the State, that is Act 189 of 1910 relating to oyster cultivation, and Act 258 of 1910, relating to water bottoms, are not applicable to the validity of the 1902 Act of conveyance, and thus we distinguish this situation from later conveyances such as occurred in the cases of Stevens and Winkler, supra.
According to the rationale of Barnett, the subsequent act of the Auditor's transfer may be disregarded as superfluous since the transfer by the Register alone is sufficient. However, since it is contended that the 1926 Act does not apply here because *851 of the eventual transfer in 1910 (link 5) by the Auditor, we say that the result is the same in either situation. That is, Act 316 of 1926 does not legalize an invalid act as stated in Barnett, supra. Thus, if there is no impediment to the later transfer by the Auditor because of intervening prohibitory legislation between 1902 and 1910 (reference Acts 189 and 258 of 1910) then the later transfer is null and void (See Winkler v. State Mineral Board, supra.).
Unfortunately the application of Act 316 of 1926 does not solve one of the basic issues presented to us, that is, was the transfer in 1895 or the conveyance of 1902 subject to nullity by virtue of laws in existence at that time or prior thereto. To answer this question we must now inquire into the facts of navigability and suitability for oyster cultivation. We shall first address ourselves to the question of navigability of the water bottoms in question.
The evidence produced consists of a number of surveys and maps and the testimony of five witnesses (One by deposition). Of these, three testified for the private claimants and two testified for the State Mineral Board. The testimony of all of the witnesses agrees on the following: That the water bottoms claimed navigable are of minimum depth, of limited natural access and traversable only by the smallest of boats. The testimony differs in the degree of these factors. Additionally, difficulties arise in assessing the evidence presented, because the basic inquiry is as to the status of the property in 1902 and its availability for conveyance to private individuals then and secondarily to a consideration of its status at the time of trial. To put it another way, if the water bottoms were not navigable prior to the transfer of title to Estopinal, there can be no legal hindrance to the transfer on that basis.
The only definitive evidence in connection with the condition of the area in 1902 was the deposition of Mr. Alcide Campo, a resident of Delacroix Island since his birth in June 18, 1889. Mr. Campo testified that he has fished all over the area within a number of miles from Delacroix Island, and was familiar with the Lost Lake and Marretta Congo areas since he was a youngster of 11 or 12 years old, accompanying his father who was also a fisherman. He testified that the only way to get into Lost Lake and Marretta Congo was to drag over the marsh in a pirogue, and that even when upon those water bottoms, the water was very shallow. He was asked about the conditions of other water bottoms, such as Grand Lake, Lake Petit, and other bays and lakes as well as the various bayous in the area. His testimony makes it very clear that he distinguished between the navigability and depth and size of these other water bottoms as compared to the two here in question. His testimony showed that the size and depth and accessibility of these water bottoms increased within his life span beginning with the hurricane of 1915 and subsequent hurricanes, which scoured the area and made the water bottoms deeper and more accessible. He further testified that since the advent of the canals dredged for oil exploration, further scouring and accessibility was obtained.
Supplementing this testimony was that of Mr. Adam B. Melerine, the former field superintendent of the Delacroix Corporation, who exhibited some knowledge of the area when he was a youngster, but whose definitive testimony begins around 1920. He similarly testified that access into the area was only by pirogue dragged across the marsh and that these areas were so shallow that it was difficult to cross them even with a pirogue. Further evidence was presented by the testimony of Mr. Aubry G. Burke, a surveyor, who surveyed the area extensively in 1952 for the dredging of a canal in order to explore for oil. He also testified that the only access into the area was by pirogue and by airboat, and that it was impossible to get any other type of craft in and through the area in order to perform the necessary work involved. In December of 1970 and January of 1971, he had occasion to take soundings *852 of the water bottoms in question for the Delacroix Corporation to determine the depths of the various water bottoms. In Marretta Congo he found the depth to range from several inches to less than three feet except where the channels were dug. He testified that in many of the areas at low tide the mud bottom is exposed. In Lost Lake the depth ranged from several inches to 4.7 feet in the deepest part.
As opposed to this evidence, the State has offered the testimony of Mr. Hatley N. Harrison, a Civil Engineer and Surveyor, who was requested by the State to examine the nature of the water bottoms in question and determine their navigability. It is upon his examination and findings that the State lays claim to the water bottoms which were determined to be navigable. Mr. Harrison went into the area twice, once in 1966 and again in 1968, and based his conclusion as to navigability on the premise that any water that would float a pirogue was navigable. His findings as to depth, when adjusted for variables, corresponds to some degree with the findings of Mr. Burke. We find particularly illuminating the fact that on his first attempt to approach the area, he attempted to enter the Marretta Congo with a 32' boat which immediately went aground in six inches of water and was stranded most of the day until rescued by a nearby fisherman in a pirogue who brought help for them. Upon getting free of the mud, he retraced his path back the way he came through Lakes Petit and Grand Lake and then approached the area from the western side by the oil company canal dredged there. He then entered into the Marretta Congo through the dredged canal until he was near the well drilled in that unit. However he did not take any soundings and stayed within the confines of the dredged canal. On the last occasion, he entered the Lost Lake area, but this time took the obviously wise precaution of using a 14' aluminum hull and outboard motor. Access was obtained by using the pipeline canal running into the area, and after taking one sounding of two feet in the unnamed water below Lost Lake, he entered Lost Lake and took soundings ranging from three to five feet. These soundings were based on actual water depth at high tide. He testified that the usual tidal flow in that area was about six inches.
The other witness for the State was Dr. Theodore Ford, Professor of Marine Science, who entered the area by airplane the week before trial date. His purpose was not to ascertain navigability, only to ascertain suitability for oyster cultivation. His examination was only of one spot in Marretta Congo, where he simply determined whether the bottom was hard enough to support oyster cultivation. Based upon data that had been collected from the Grand Lake, Alligator Pass, Lake Petit area, he felt that there was a tidal flow into the area, and that the salinity of the water was such as to support oyster growth.
We are of the opinion that the evidence overwhelmingly shows that the water bottoms of the Lost Lake and Marretta Congo areas were not navigable in 1902, and have never been navigable up to the present time. The only things that make it possible to get into the region now with something other than a pirogue are the privately dredged oil company canals running through the area. We cannot accept the State's premise that any body of water deep enough to float a pirogue is navigable under Louisiana law. In State v. Capdeville, 146 La. 94, 83 So. 421 (1919), the court, in determining what is navigable water, stated that navigable water is that which by its depth, width and location is rendered available for commerce.
The case of Burns v. Crescent Gun and Rod Club, 116 La. 1038, 41 So. 249 (1906) is a clear demonstration of the difference between navigable waters belonging to the State and nonnavigable waters susceptible of private ownership. In that case several *853 bodies of water were considered as here, all of which were connected. That court held Irish Bayou to be navigable water (the Bayou was 200' in width, 15' in depth, was directly connected to Lake Pontchartrain, and was historically useful to vessels of large size) and then held that Irish Lagoon, Little Irish Bayou, Second Branch Bayou and Bayou Castiglione were nonnavigable and subject to private ownership. This determination of nonnavigability was reached despite factors of (1) being affected by ebb and flow of tide; (2) existence of a few feet of water; (3) communication with the lake; and (4) periodic entrance by fishermen to fish in skiffs. The court summed up: "Navigable means when a stream is large enough to float a boat of some size, engaged in carrying trade. It implies a possibility of transporting men and things."
In State v. Sweet Lake Land and Oil Company, supra, the court held nonnavigable a lake of 1800 acres, being three miles long and a mile and three tenths in width. The lake had an average depth of four feet and was situated about 15 miles from the Gulf of Mexico. As is readily apparent, this body of water is much larger and deeper than the bodies in question here. A finding of nonnavigability was based upon 1) location within the land of one owner; 2) watercraft use limited to pirogues despite the average depth of 4 feet of water; and 3) the fact that the lake, in its natural and ordinary condition did not lie along a route of water commerce. These findings, when compared to the water bottoms here in question, show the latter to be even less susceptible to a declaration of navigability.
For these reasons, we conclude that the water bottoms in question, that is, the areas of Lost Lake and Marretta Congo, and other water bottoms within the areas of sand unit A and sand unit B are not navigable waterways, and were susceptible of private ownership at the time of the transfer from the Levee Board to Estopinal, and indeed at the time of the mineral leases made herein.
The last issue before us is the application of the so-called Oyster Acts. It is contended that Act 153 of 1902 and Act 189 of 1910 each has the effect of affirming the State ownership of all water bottoms bordering or connecting with the Gulf of Mexico, and prohibits any official from disposing of those water bottoms other than as specified in the Act. Hence it is argued that the conveyance to Estopinal in 1902 and the transfer by the Auditor from the State to the Levee Board were transfers in violation of the provisions of these Acts. As noted above, it would appear that our decision in the Winkler case, supra, would require us to hold that the State Auditor did not possess the authority to transfer oyster water bottoms to the Levee Board. However, because of the provisions of Act 316 of 1926, it is our opinion that the Estopinal title stands or falls upon the situation in 1902 when conveyance was made to him.[1] Thus the 1902 Act is pertinent and we shall consider only it.
The purpose of Act 153 of 1902 was to establish, regulate and protect the oyster fishing industry in this State. The Legislature obviously determined that it was necessary that the water bottoms should be owned by the State and open to use by the general industry, and provides for an orderly method of leasing of certain areas for peaceable and continued production of oysters. The precise issue here is the determination of whether the water bottoms here contended for fall within the description of the water bodies intended to *854 be retained by the State. Since the wording of the Act is such that all of the beds of water bottoms bordering on or connecting with the Gulf of Mexico are claimed by the State, it is contended that the Act is very indefinite and since nearly every water bottom of any consequence is connected to the Gulf of Mexico through some manner of means, this encompasses every water bottom in the State, no matter how remote.
We consider that there are two major limitations apparent in the Act restricting the geographical area to which it applies.[2] First, the Act itself states that the water bottom must border on or connect with the Gulf of Mexico. Second, the purpose of the Act is such that it intends to encompass only those water bottoms which may reasonably be considered as suitable for oyster cultivation.
We hold that Act 153 of 1902 does not apply to the disputed water bottoms here because the facts in this record do not show that they bordered on or connected with the Gulf of Mexico during the pertinent periods. A simple glance at the maps placed in evidence shows that these water bottoms are well over 50 miles from the Gulf and that they are separated by numerous intervening bodies of water and by marshland. The serious dispute is that of a connection with the Gulf.
In this respect we have already discussed at length the nature of these water bottoms and the evidence pertaining thereto in our discussion of navigability. Although we believe it to be extremely important to the factual determination here, we see no necessity to repeat it. We simply emphasize that the evidence elicited relative to nature of the water bottoms at the pertinent times of the various transfers was that these water bottoms were inaccessible, isolated, and subject to no regular tidal flow. The State Mineral Board is contending that the title of the private claimants is invalid and thus it appears that the burden of proof should be upon the Board to show the facts upon which the invalidity is based. However, the evidence here clearly preponderates in favor of the private claimants. The only way into this area was by pirogue, which must be transported or pulled across the marsh from place to place in order to get to the water bottoms in question. The evidence disproves that the water bottoms were connecting with the Gulf as required by the statute. Based upon these factual determinations we conclude that the provisions of Act 153 of 1902 do not apply to the water bottoms in question, and the transfer to Estopinal was not prohibited by the operation of that act.
Since we reach this conclusion we find it unnecessary to make a determination of the suitability of these water bottoms for oyster cultivation at the pertinent times, although we must note that the Board introduced only evidence of partial suitability, as of date of trial.
We find that there was no impediment to the passage of title to Estopinal except that cured by the operations of Act 316 of 1926.
For the reasons hereinabove expressed, the judgment appealed from is affirmed and whatever costs may be legally assessable are assessed against the appellant.
Affirmed.
NOTES
[1] Because of the chronology of the various transfers we have examined the prior oyster acts, Act 105 of 1886, Act 110 of 1892 and Act 121 of 1896. These acts refer only to beds of waters "bordering on the Gulf of Mexico" and of the Gulf itself. We note with interest that Act 105 of 1886 included the beds of "sea marshes" which were omitted from the later acts. We do not consider that these acts apply to the area here which does not border on the Gulf of Mexico.
[2] Since Act 189 of 1910 contains essentially the same wording, it would appear to be subject to the same limitations.
| {
"pile_set_name": "FreeLaw"
} |
789 F.2d 350
Leonard E. DAVIS, Petitioner-Appellant,v.Frank BLACKBURN, Warden, Louisiana State Penitentiary,Respondent-Appellee.
No. 85-4638Summary Calendar.
United States Court of Appeals,Fifth Circuit.
May 14, 1986.
Leonard E. Davis, pro se.
William J. Guste, Atty. Gen., Baton Rouge, La., William E. Tilley, Dist. Atty., Edwin L. Cabra, Leesville, La., for respondent-appellee.
Appeal from the United States District Court for the Western District of Louisiana.
Before GEE, RANDALL and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
1
Petitioner appeals the denial of his application for writ of habeas corpus contending that the district court erred in denying his application without an evidentiary hearing. We affirm.
I.
2
Petitioner, Leonard E. Davis, was convicted in 1982 in a Louisiana state court of simple burglary and theft of an air conditioner and a typewriter from a public school. His conviction was affirmed on direct appeal by the Louisiana Third Circuit Court of Appeal. State v. Davis, 445 So.2d 163 (La.App.3d Cir.1984).
3
The principal prosecution witness at Davis' trial was his alleged accomplice, Dennis Holmes. Holmes initially testified that Davis did not enter the school with him at the time the typewriter was stolen. After a recess, Holmes changed his testimony and stated that Davis did enter the school with him and the two men together stole the typewriter. Holmes explained that he changed his testimony because he made a mistake and also because he feared Davis. He admitted talking to the district attorney, but under cross-examination by Davis' counsel denied that he made any agreement to change his testimony in return for a lighter sentence on charges pending against him.
4
About two years after his conviction and sentence and after the conviction had been affirmed on appeal, Davis moved for a new trial in the state district court where he was convicted. In support of this motion, Davis attached an affidavit of Holmes in which Holmes recanted his trial testimony. Holmes stated that his testimony implicating Davis in the crime was fabricated because of threats of prosecution on four counts of burglary and theft pending against him. According to the recanting affidavit, Holmes agreed to testify against Davis in return for dismissal of some of the pending charges and a lighter sentence on the ones remaining.
5
The state district judge who presided at Davis' trial denied the motion for new trial. The trial judge observed that the evidence offered in support of the new trial was not "newly discovered evidence which could not have been discovered by the exercise of due diligence." The intermediate state appellate court affirmed the denial of a new trial on grounds that the affidavit in support of the motion did not qualify as newly discovered evidence and also because the motion was based upon recanted trial testimony.
6
Davis then applied for a writ of habeas corpus in federal district court, which was dismissed without prejudice for failure to exhaust state remedies and alternatively on the merits. After exhausting his state remedies, Davis again filed an application for federal habeas relief which was again denied without a hearing. Davis now appeals the latest adverse ruling contending, among other things, that he should have been granted an evidentiary hearing.
II.
7
Davis predicates his habeas claim on the same Holmes affidavit he relied on in his motion for new trial. For reasons that follow, we conclude that Davis is not entitled to an evidentiary hearing on his habeas petition.
8
A trial judge can ordinarily deny a motion for new trial without a hearing when that motion is predicated entirely on an affidavit from a trial witness who recants his trial testimony. Armstead v. Maggio, 720 F.2d 894 (5th Cir.1983); Anderson v. Maggio, 555 F.2d 447 (5th Cir.1977); United States v. Hamilton, 559 F.2d 1370 (5th Cir.1977); United States v. Curry, 497 F.2d 99 (5th Cir.1974), cert. denied, 419 U.S. 1035, 95 S.Ct. 519, 42 L.Ed.2d 311 (1974).
9
Judge Tuck, who denied the motion for new trial, presided at Davis' trial and heard Holmes' initial testimony denying that Davis was implicated in the crime as well as the second version of Holmes' testimony in which he implicated Davis and denied that any offers of leniency had been made to him in return for his altered testimony. Judge Tuck had an opportunity to observe Holmes' demeanor as a witness, was aware of his relationship as brother-in-law to the defendant and was in a position to generally evaluate Holmes' credibility. In this circumstance where the trial itself presented the trial judge with the opportunity to resolve the credibility of the recanting witness, the federal habeas court was entitled to rely on the finding of the state district court rejecting the recanting affidavit and no additional hearing was required. United States v. Hedman, 655 F.2d 813 (7th Cir.1981).
10
In Hedman, the defendants filed a direct appeal from the denial without a hearing of their motion for new trial on newly discovered evidence. One of the items of new evidence relied on by the defendants in support of their motion for new trial was an affidavit from a trial witness who stated that the prosecution coerced him into giving false testimony. The court held that:
11
[W]e treat defendants' request for a writ of error corum nobis as similar in character to a request under 28 U.S.C. Sec. 2255. It often is true in Section 2255 cases that the existing record and the court's recollection obviate the need for a hearing where, as here, the judge entertaining a request for a new trial also presided at the original trial.
12
655 F.2d at 817.
13
The state trial judge also found that the evidence Davis relied upon for a new trial could have been discovered by reasonable diligence. The record supports this finding of the state court as well. Davis and his attorney heard both versions of Holmes' testimony. Davis' counsel had an opportunity to cross-examine Holmes and police officers about the facts underlying the criminal charge as well as threats and concessions made by the prosecution to motivate Holmes to change his testimony. A habeas application premised on newly discovered evidence is subject to the same standard as that for a new trial. If the evidence asserted in support of the habeas application could have been discovered by reasonable diligence before the conviction, such evidence can support neither a motion for new trial nor a habeas application. United States v. Robinson, 585 F.2d 274, 280 (7th Cir.1978) (en banc), cert. denied, 441 U.S. 947, 99 S.Ct. 2171, 60 L.Ed.2d 1051 (1979); see also, United States v. Hedman, 655 F.2d at 814, 817.
14
A federal court must grant an evidentiary hearing to a habeas applicant when "there is a substantial allegation of newly discovered evidence...." Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). The allegation of newly discovered evidence petitioner offers in support of his petition is insubstantial for two reasons: It was discoverable by reasonable diligence and it consists solely of an affidavit--that was rejected by the trial court--in which a trial witness seeks to recant his trial testimony. Because there is no substantial allegation of newly discovered evidence, the district court did not err in denying petitioner's application for habeas corpus without an evidentiary hearing.
15
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
OSCN Found Document:DEPARTMENT OF HUMAN SERVICES v. BRUCE
OSCN navigation
Home
Courts
Court Dockets
Legal Research
Calendar
Help
Previous Case
Top Of Index
This Point in Index
Citationize
Next Case
Print Only
DEPARTMENT OF HUMAN SERVICES v. BRUCE2016 OK 43Case Number: 112070Decided: 04/19/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2016 OK 43, __ P.3d __
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
DEPARTMENT OF HUMAN SERVICES and COMPSOURCE OKLAHOMA, Petitioners,
v.
NANCY V. BRUCE and THE WORKERS' COMPENSATION COURT, Respondents.
ON APPEAL FROM THE WORKERS' COMPENSATION COURT
¶0 Claimant Nancy Bruce injured her neck on the job on May 14, 2012, and sought workers' compensation benefits. Although her Employer admitted the injury, the trial court denied compensability finding Claimant's employment was not the major cause of her injury. Claimant appealed, and a three-judge panel reversed and found that Claimant's employment was the major cause of the injury to her neck. Employer appealed, and the Court of Civil Appeals reversed the order of the three-judge panel. Upon review, we hold that the three-judge panel's decision finding Claimant's work-related injury on May 14, 2012, was the major cause of Claimant's neck injury is not against the clear weight of the evidence.
COURT OF CIVIL APPEALS' OPINION VACATED; CAUSE REVERSED
AND REMANDED WITH INSTRUCTIONS TO REINSTATE THE ORDER OF
THE THREE-JUDGE PANEL FILED JULY 29, 2013
E.W. Keller, Keller, Keller & Dalton P.C., Oklahoma City, Oklahoma, for Respondent Nancy V. Bruce.
Heather A. Lehman Fagan, Fellers, Snider, Blankenship, Bailey & Tippens, P.C., Oklahoma City, Oklahoma, for Petitioners Department of Human Services and Compsource Oklahoma.
GURICH, J.
¶1 Claimant Nancy Bruce worked as a Certified Nurse's Assistant, or "residential life staff aide," for the Oklahoma Department of Human Services for twenty-six years where her duties consisted primarily of lifting clients, cleaning them up, feeding them, and daily care. On May 14, 2012, Claimant was injured while lifting one such client. Upon attempting to lift the client, Claimant stated she felt immediate pain in her neck and a shocking and tearing sensation which shot down her left arm and into her thumb. Claimant reported the injury to her supervisor and went to the emergency room where it was recommended she follow up with a pain management doctor. Claimant then went to Dr. Cheng, who performed an examination and x-rays. Dr. Cheng also ordered an MRI of Claimant's cervical spine. The MRI indicated "severe left neuroforaminal narrowing from disc herniations at C5-6 and C6-7."1 Dr. Cheng referred her to a neurosurgeon, Dr. Pollard, who saw Claimant on June 11, 2012. Around this time, Employer's insurance carrier appointed a case manager, D.J. Smith, to Claimant's case. Although Dr. Pollard recommended a two-level anterior cervical fusion, and scheduled Claimant's surgery on four separate occasions, the case manager for Employer's insurance company refused to authorize any further treatment.
¶2 The case manager then sent Claimant to Dr. Snell of Neuroscience Specialists, who evaluated Claimant on November 1, 2012. Dr. Snell found Claimant was temporarily totally disabled and recommended a "C5-6, C6-7 ACDF with allograft bone and plating."2 Apparently still unhappy with the surgical recommendation of Dr. Snell, the insurance company then deposed Dr. Snell, wherein the attorney for the insurance company presented Dr. Snell with Claimant's testimony from a prior trial in 2006 wherein Claimant testified to having pain and numbness in her left arm. Although Dr. Snell was fully aware of Claimant's previous injuries, as reported in his evaluation of November 1, 2012, Dr. Snell stated that unless he was able to reexamine Claimant, he could no longer say with a reasonable degree of medical certainty that the major cause of Claimant's injury was the May 14, 2012 injury.
¶3 On February 7, 2013, Dr. Snell reevaluated Claimant. Dr. Snell specifically asked Claimant about her previous testimony regarding her left arm pain. Dr. Snell's report from the February 7, 2013 evaluation provides:
HISTORY OF PRESENT ILLNESS
During the deposition there were some questions about sworn testimony that she had. I questioned her about this today. She tells me that the pain that she was having at the time that she was giving sworn testimony was more of kind of an achy kind of tension pain in the arm and it was not an electric shock kind of pain, which is the kind of pain she had after her work related injury. She also said that the chiropractic had given her significant improvement, and although she did not have complete resolution [sic] there were definitely times between 2009 and her work injury in 2012 where she had potentially months of improvement to the point where she was not really having much arm pain. She said that her chiropractic visit frequency decreased significantly because of that associated improvement.
. . . .
CAUSATION
She reports to me she had problems with her neck really ever since 9-10 years ago. She also reports that she had some problems with some pain in the left arm which was more kind of a stretching tension kind of pain and that the chiropractic had significantly helped her with this to the point where she had several periods where she had months where she was not really having any arm pain prior to her work-related injury. She reports that after the 05/14/12 work related injury she started having electric shock type pain in the left arm, which was a new pain she had not experienced before. As such, it would appear that her work-related injury resulted in her symptomatic onset of this electric shock type pain going down the left arm. Certainly, it appears that she has had problems with left arm pain in the past, as noted above. Per her report today, the quality of her left arm pain changed significantly to a neuropathic kind of shocking type pain. It would appear that the onset of the shocking type neuropathic pain was related to her work-related injury, per her report.
The above opinions are based on a reasonable degree of medical certainty.3
Notably, Dr. Snell's February 7, 2013 evaluation also states: "I had recommended a C5-6, C6-7 ACDF with allograft bone and plating for her at the 11/01/12 visit and I continue to recommend this. . . . She is currently TTD and I will keep her at TTD."4
¶4 In addition to Dr. Snell's evaluation, Claimant was also evaluated by Dr. Wolf on July 30, 2012. Dr. Wolf, who was also aware of Claimant's previous complaints of pain in her neck, found as follows:
The patient was involved in an on-the-job accident on May 14, 2012, while employed by Norce (Oklahoma Department of Human Services). It is my opinion that as a result of this on-the-job accident, the patient has sustained injury to her cervical spine. She continues to have ongoing pain and upper extremity radicular symptoms primarily on the left side, to include weakness of the left arm and weakness in grip strength along with numbness in the thumb. The patient does have significant MRI findings of internal derangement of the cervical spine. She is in need of further neurosurgical consultation.
In my medical opinion, the major cause of her injury and ongoing complaints and symptomatology is the accident on May 14, 2012, while employed by Norce (Oklahoma Department of Human Services). She does have objective medical evidence as well as permanent anatomical abnormalities as previously set forth.
After taking a history, reviewing the available medical records, and performing a physical examination I find that this patient is temporarily totally disabled from her usual occupation, secondary to this job-related injury, from May 14, 2012, and she will continue to be temporarily totally disabled until there is a resolution of her symptoms by additional testing and/or treatment or until in my medical opinion she has reached maximum medical improvement.5
¶5 On November 19, 2012, Claimant was evaluated, at the insurance carrier's request, by Dr. Munneke. Although Dr. Munneke opined that the "patient did sustain a strain injury to her cervical spine as a result of her accident on the aforementioned date [May 14, 2012]," he concluded that the "patient's need for surgery is unrelated to her accident that occurred on the 14th of May 2012."6 Dr. Munneke found that the surgical recommendation of Dr. Snell was "related to her two prior injuries that occurred in 2003 and 2004."7
¶6 Claimant filed a Form 3 with the Worker's Compensation Court on July 26, 2012. The trial court held a hearing on April 23, 2013, and the Employer stipulated at the hearing that Claimant was involved in a work-related "incident" on May 14, 2012, but argued that such was not the major cause of Claimant's injuries or need for surgical treatment. Employer contended that all of Claimant's complaints stemmed from work-related injuries in 2003 and 2004.8 Claimant testified at the hearing and did not deny that she had prior pain in her neck and left arm due to her earlier work-related injuries.
¶7 However, Claimant also testified, consistent with the medical reports introduced, that after the May 14, 2012 injury, the pain in the left side of her neck and down her arm consisted of a "zapping" and "electrical" sensation, which was not a symptom she experienced before the May 2012 injury. In spite of her Employer's admission of injury, the trial court, in an order filed May 6, 2013, denied compensability. Claimant appealed to a three-judge panel. The panel reversed, in an order filed July 29, 2013, and found that Claimant sustained an on-the-job injury "to the NECK (aggravation of pre-existing condition)," and that Claimant's employment was "the major cause of injury to the NECK and need for surgery."9 The three-judge panel awarded Claimant temporary total disability benefits and ordered Employer to provide Claimant with reasonable and necessary medical treatment, including surgery. Employer appealed, and the Court of Civil Appeals vacated the order of the three-judge panel and directed the Workers' Compensation Court to enter an order denying compensability. Claimant petitioned this Court for certiorari review, and we granted review on November 24, 2014.
¶8 A compensable injury under the Workers' Compensation Code means "any injury or occupational illness, causing internal or external harm to the body, which arises out of and in the course of employment if such employment was the major cause of the specific injury or illness. . . ." 85 O.S. 2011 § 308(10)(a). "Major cause" is defined as "more than fifty percent (50%) of the resulting injury, disease or illness." 85 O.S. 2011 § 308(28).
¶9 Although COCA cited to Dr. Snell's November 1, 2012 evaluation, and Dr. Snell's deposition testimony, COCA failed to mention the reevaluation of Claimant by Dr. Snell on February 7, 2013, wherein Dr. Snell continued to assert that Claimant's work-related injury of May 14, 2012, was the major cause of her injury and continued to recommend that Claimant have surgery. Based upon Dr. Snell's unshakable opinion, together with other credible medical evidence from treating physicians who saw Claimant on referral from Dr. Snell and objective test findings supporting Claimant's need for surgery as a result of her most recent on-the-job injury, we conclude that the three-judge panel's decision finding Claimant's work-related injury on May 14, 2012, was the major cause of Claimant's neck injury is not against the clear weight of the evidence. See 85 O.S. 2011 § 340(D); Williams Cos. v. Dunkelgod, 2012 OK 96, ¶ 18, 295 P.3d 1107, 1113.
COURT OF CIVIL APPEALS' OPINION VACATED; CAUSE REVERSED
AND REMANDED WITH INSTRUCTIONS TO REINSTATE THE ORDER OF
THE THREE-JUDGE PANEL FILED JULY 29, 2013
¶10 Reif, C.J., Combs, V.C.J., Kauger, Watt, Edmondson, Colbert and Gurich, JJ., concur.
¶11 Winchester and Taylor, JJ., dissent.
FOOTNOTES
1 Record on Appeal at 39.
2 Record on Appeal at 31.
3 Record on Appeal at 37-38.
4 Record on Appeal at 37 (emphasis added).
5 Record on Appeal at 40-41 (emphasis added).
6 Resp. Ex. 1, at 4.
7 Id. Dr. Munneke never treated the Claimant, and he was not deposed in this case. His report references certain tests conducted in 2012, the finding of disc herniations at two levels, and evidence of left median nerve entrapment at the wrist. Dr. Munneke agreed that Claimant sustained an injury on May 14, 2012, and needed surgery. He acknowledged a significant amount of treatment and objective testing after the May 14, 2012 injury. His report contains no estimate of when her two discs were herniated. There is no explanation of how she continued to work in the same job between 2004 and 2012 with disc herniations. He then states that she had a nearly normal exam in his office. Yet he paradoxically opines that her current need for surgery is related to her two prior injuries. The opinion of Dr. Snell has considerably more credibility than the opinion of Dr. Munneke. Resp. Ex. 1, at 2-4.
8 Claimant was injured on-the-job in 2003 after being hit in the head by a patient. The injury resulted in three cracked teeth and headaches due to cervical sprain/strain. Claimant filed a workers' compensation claim--WCC# 2005-00951-R--and sought dental treatment and medical treatment to her neck. The Employer conceded Claimant's compensability for dental treatment but denied her request for medical treatment to her neck due to an intervening work-related automobile accident on March 1, 2004. The court denied Claimant's request for medical treatment to her neck due to the intervening automobile accident on April 3, 2006. Claimant did not appeal that order.
With regard to the work-related automobile accident on March 1, 2004, Claimant filed a separate workers' compensation case--WCC# 2004-3458-Y. The case was settled by Joint Petition on December 22, 2004. The Joint Petition found Claimant sustained accidental personal injury arising out of and in the course of her employment to her right leg, left leg, and all body parts known or unknown.
In June of 2010, Claimant sought to reopen the WCC# 2005-00951-R (the 2003 injury) based on change of condition for the worse to her neck. The Workers' Compensation Court reopened the case and authorized medical treatment to Claimant's neck. However, the Court of Civil Appeals reversed and found that the trial court had previously determined that the automobile accident was the intervening cause of the neck injury. Thus, COCA held that "because the second work-related accident broke the causal nexus to the original injury, any/all necessary treatment to Claimant's neck is attributable to that second accident alone. A finding that the motor vehicle accident constitutes the intervening cause of the neck injury is tantamount to a finding that the neck injury is not connected to the original 2003 workplace injury." Okla. Dep't of Human Servs. v. Nancy Bruce et al., Case No. 109,804, at 7 (Nov. 30, 2012) (unpublished).
Claimant did not petition this Court for certiorari review of that opinion, and mandate issued on January 15, 2013.
9 Record on Appeal at 48-49.
Citationizer© Summary of Documents Citing This Document
Cite
Name
Level
None Found.
Citationizer: Table of Authority
Cite
Name
Level
Oklahoma Supreme Court Cases
CiteNameLevel
2012 OK 96, 295 P.3d 1107, WILLIAMS COMPANIES, INC. v. DUNKELGODDiscussed
Title 85. Workers' Compensation
CiteNameLevel
85 O.S. 308, DefinitionsDiscussed
85 O.S. 340, Repealed by Laws 2013, SB 1062, c. 208, § 171, eff. February 1, 2014Cited
| {
"pile_set_name": "FreeLaw"
} |
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 04 2020, 9:23 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT M.S. ATTORNEYS FOR APPELLEE
Renee M. Ortega Curtis T. Hill, Jr.
Lake County Juvenile Public Defender’s Attorney General of Indiana
Office
Crown Point, Indiana Catherine E. Brizzi
Deputy Attorney General
Indianapolis, Indiana
ATTORNEY FOR APPELLANT T.P.
Joann M. Price Franklin
Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination February 4, 2020
of the Parent–Child Relationship Court of Appeals Case No.
of V.P. (Minor Child) 19A-JT-2018
Appeal from the Lake Superior
and Court
The Honorable Thomas P.
M.S. (Mother) and T.P. (Alleged Stefaniak, Jr., Judge
Father), Trial Court Cause No.
Appellants-Respondents, 45D06-1905-JT-132
v.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020 Page 1 of 12
Indiana Department of Child
Services,
Appellee-Petitioner.
Bradford, Chief Judge.
Case Summary
[1] M.S. (“Mother”) and T.P. (“Father”) (collectively, “Parents”) are the biological
parents of V.P. (“Child”). Both Mother and Child tested positive for cocaine at
Child’s birth. The Department of Child Services (“DCS”) took custody of
Child after Parents abandoned Child at the hospital. Child was subsequently
found to be a child in need of services (“CHINS”). Following the CHINS
determination, Parents completed some initial assessments but did not complete
recommended services. Given Parents’ failure to complete services, DCS
eventually petitioned to terminate their parental rights to Child. Following an
evidentiary hearing, the juvenile court granted DCS’s petition to terminate
Parents’ parental rights. On appeal, Parents contend that DCS failed to present
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020 Page 2 of 12
sufficient evidence to support the termination of their parental rights. 1 We
affirm.
Facts and Procedural History
[2] Child was born on February 25, 2018. At the time of Child’s birth, both
Mother and Child tested positive for cocaine. Child remained at the hospital
following his birth. Parents abandoned Child at the hospital, failing to visit
Child or pick Child up from the hospital upon his discharge. Child was placed
in a foster home upon his discharge from the hospital. He has since remained
in this placement.
[3] DCS filed a CHINS petition on March 6, 2018, in which it alleged Child was a
CHINS due to concerns of substance abuse and neglect by Parents. DCS
further stated that
Due to there being no caregiver for the child, the Mother’s
admission of using cocaine while pregnant with the child, and
the family’s recent and previous history with DCS for substance
abuse issues and neglect, DCS took custody of the child and
placed the child in foster care after he was released from the
hospital.
1
At the outset, we note that the brief filed by Father on appeal is entitled “Father’s Memorandum of Law in
Support of Mother’s Appeal.” Despite the title of this filing, the record reveals that Father filed a notice of
appeal and presented arguments that both challenged the termination of his parental rights to Child and
supported Mother’s appeal. As such, we will treat Father’s brief as both an appeal of the order terminating
his parental rights to Child and additional argument in support of Mother’s appeal.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020 Page 3 of 12
Ex. p. 16. In its April 13, 2018 predispositional report, DCS indicated that
“[t]here continues to be resistance from the parents in regards to services as well
as visiting their child.” Ex. p. 35. On July 19, 2018, the juvenile court issued
an order on factfinding and dispositional decree in which it found Child to be a
CHINS, ordered that Child remain in his foster placement, and incorporated
DCS’s recommendations relating to services. These services included:
[Parents] are to have supervised visits with [Child].
[Father] is to have a substance abuse assessment and follow
through with the recommendations.
[Father] should work with the Fatherhood Initiative program to
establish paternity.
[Parents] are to participate in random drug screens.
[Mother] should continue with her services through her open
CHINS case, which include the following: [Mother] is to
participate in individual therapy, domestic violence education
and therapy, Intensive Outpatient Substance Abuse services
(IOT), parent education, and follow through with the
recommendations from her psychological assessment.
[Father] is to have a parenting assessment and follow through
with all recommendations.
[Father] is to participate in recommendations from his initial
clinical assessment, which include the following: individual
therapy, home-based casework services, psychological
assessment, and a deferred recommendation that once [Mother]
completes her DV classes, the couple should participate in
couple’s counseling or co-parenting to address healthy
boundaries, communication, and trust.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020 Page 4 of 12
Ex. p. 36.
[4] Parents completed some of the assessments ordered by the juvenile court but
did not consistently participate in services, and Mother continued to test
positive for drugs. Parents last visited with Child in July of 2018. Parents
ultimately failed to make “any progress towards reunification” with Child. Tr.
p. 13.
[5] On May 9, 2019, DCS filed a petition to terminate Parents’ parental rights. The
juvenile court conducted an evidentiary hearing on July 24, 2019. Neither
Mother nor Father appeared for the evidentiary hearing. Following conclusion
of the evidence, the juvenile court took the matter under advisement. On July
30, 2019, the juvenile court issued an order terminating Parents’ parental rights
to Child.
Discussion and Decision
[6] The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. Bester v.
Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Although
parental rights are of a constitutional dimension, the law allows for the
termination of those rights when parents are unable or unwilling to meet their
parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001),
trans. denied. Parental rights, therefore, are not absolute and must be
subordinated to the best interests of the children. Id. Termination of parental
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020 Page 5 of 12
rights is proper where the children’s emotional and physical development is
threatened. Id. The juvenile court need not wait until the children are
irreversibly harmed such that their physical, mental, and social development is
permanently impaired before terminating the parent–child relationship. Id.
[7] Parents contend that the evidence is insufficient to sustain the termination of
their parental rights to Child. In reviewing termination proceedings on appeal,
this court will not reweigh the evidence or assess the credibility of the witnesses.
In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d 874, 879
(Ind. Ct. App. 2004). We only consider the evidence that supports the juvenile
court’s decision and reasonable inferences drawn therefrom. Id. Where, as
here, the juvenile court includes findings of fact and conclusions thereon in its
order terminating parental rights, our standard of review is two-tiered. Id.
First, we must determine whether the evidence supports the findings, and,
second, whether the findings support the legal conclusions. Id.
[8] In deference to the juvenile court’s unique position to assess the evidence, we
set aside the juvenile court’s findings and judgment terminating a parent–child
relationship only if they are clearly erroneous. Id. A finding of fact is clearly
erroneous when there are no facts or inferences drawn therefrom to support it.
Id. A judgment is clearly erroneous only if the legal conclusions made by the
juvenile court are not supported by its findings of fact, or the conclusions do not
support the judgment. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020 Page 6 of 12
[9] Parents claim that DCS failed to present sufficient evidence to prove by clear
and convincing evidence:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the
conditions that resulted in the child’s removal or the
reasons for placement outside the home of the
parents will not be remedied.
(ii) There is a reasonable probability that the
continuation of the parent-child relationship poses a
threat to the well-being of the child.
(iii) The child has, on two (2) separate occasions,
been adjudicated a child in need of services;
(C) that termination is in the best interests of the child.
Ind. Code § 31-35-2-4(b)(2).
I. Indiana Code Section 31-35-2-4(b)(2)(B)
[10] It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written
in the disjunctive, the juvenile court need only find that one of the conditions
listed therein has been met. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App.
2003), trans. denied. Therefore, where the juvenile court determines that one of
the above-mentioned factors has been proven and there is sufficient evidence in
the record supporting the juvenile court’s determination, it is not necessary for
DCS to prove, or for the juvenile court to find, either of the other factors listed
in Indiana Code section 31-34-2-4(b)(2)(B). See In re S.P.H., 806 N.E.2d at 882.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020 Page 7 of 12
[11] DCS does not allege that Child has been adjudicated CHINS on two separate
occasions. As such, DCS had to prove either that (1) the conditions resulting in
removal from or continued placement outside Parents’ home will not be
remedied or (2) the continuation of the parent-child relationship poses a threat
to Child.
[12] The juvenile court determined that the evidence established a reasonable
probability that the conditions that resulted in Child’s removal and continued
placement outside Parents’ care would not be remedied, finding as follows:
There is a reasonable probability that the conditions resulting in
the removal of the child from his parents’ home will not be
remedied in that: The child became a ward of [DCS] at birth due
to the drug usage of mother and the child testing positive for
drugs at birth. The child remained in the hospital and the parents
did not return for the child. The child was abandoned at the
hospital by the parents. The child was removed from parental
care on an emergency basis due to the allegations of abuse
and/or neglect. Parents have a history with [DCS] for their two
other children were wards of [DCS].
Parents were offered services pursuant to a case plan which
included substance abuse assessments, parenting assessment,
home based casework services, initial clinical assessments,
medication evaluation, random drug and alcohol screens,
domestic violence therapy, individual therapy, and supervised
visitations.
Mother and father have a history of domestic violence issues.
Mother participated in the assessments, but did not participate in
the recommended services in the case plan for reunification
pursuant to this child’s case or the sibling’s matters. Mother was
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020 Page 8 of 12
sporadic with visiting the child. Mother has not seen this child
since July 2018. Mother has not completed the case plan for
reunification and has not shown any interest in parenting this
child. Mother does not have any significant bond with the child
due to her lack of contact with the child. Mother continues to
test positive on her drug screens.
Father only participated in a portion of the services offered by the
[DCS]. Father was sporadic with the visitations with the child.
Father has not visited the child since July of 2018. [Father]
throughout the life of the case had a lot of erratic behaviors and
has indicated on numerous occasions that he was not going to
participate in the case plan. Father has shown no interest in
parenting this child. Father does not have any significant bond
with this child. Father also has substance abuse issues to which
he is not receiving any treatment.
Neither mother nor father attended the fact[-]finding hearing on
the petition to terminate their parental rights.
The permanency plan was changed to adoption on March 22,
2019.
Neither parent is providing any emotional or financial support
for the child. Neither parent has completed any case plan for
reunification. Neither parent is in a position to properly parent
this child. The child has been in placement since birth and is
bonded and thriving. This child has never been in parental care
or custody.
The child remains outside of the parents’ care. The original
allegations of neglect have not been remedied by the parents.
Neither of these parents have demonstrated an ability to
independently parent the child and provide the necessary care,
support and supervision. There is no basis for assuming the
parents will complete the necessary services and find one or both
of themselves in a position to receive the child into the home.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020 Page 9 of 12
The parents failed to utilize the available services and make the
necessary efforts to remedy the conditions, which led to
intervention by DCS and the Court.
Appellant’s App. pp. 30–31. Neither Mother nor Father challenge these
findings on appeal. As such, we accept the findings as true. See In re S.S., 120
N.E.3d 605, 610 (Ind. Ct. App. 2019). We agree with the juvenile court’s
determination that these findings demonstrate a reasonable probability that the
conditions resulting in Child’s removal from Parents’ care will not be remedied.
[13] In challenging the sufficiency of the evidence to sustain the termination of their
parental rights to Child, Parents acknowledge that they have not completed
services but claim that DCS failed to prove that they are unable to provide a
stable home for Child. Specifically, they argue that they have housing, Father
receives social security benefits, and Mother is looking for employment. They
also claim that, while they currently have no bond with Child, DCS failed to
prove that they would be unable to establish a bond with Child in the future, if
Child were to ever be placed in their care. Parents’ claims amount to an
invitation for this court to reweigh the evidence, which we will not do. See In re
S.P.H., 806 N.E.2d at 879.
II. Indiana Code Section 31-35-2-4(B)(2)(C)
[14] We are mindful that in considering whether termination of parental rights is in
the best interests of a child, the juvenile court is required to look beyond the
factors identified by DCS and look to the totality of the evidence. McBride v.
Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020 Page 10 of 12
2003). In doing so, the juvenile court must subordinate the interests of the
parents to those of the children involved. Id. “A parent’s historical inability to
provide a suitable environment along with the parent’s current inability to do
the same supports a finding that termination of parental rights is in the best
interests of the children.” Lang v. Starke Cty. Office of Family & Children, 861
N.E.2d 366, 373 (Ind. Ct. App. 2007). Furthermore, this court has previously
determined that the testimony of the case worker, guardian ad litem (“GAL”),
or a CASA regarding a child’s need for permanency supports a finding that
termination is in the child’s best interests. Id. at 374; see also Matter of M.B., 666
N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.
[15] With respect to the best interests of Child, the juvenile court found as follows:
The child continues to reside in a stable foster home which has
indicated both a willingness and ability to adopt the child. It
would be unfair to the child to delay such permanency on the
very remote likelihood of parents committing to and completing
services.
The Indiana Supreme Court has held that at some point in time a
child’s right to permanency outweighs a parents ever important
right to parent. The Court finds that in this case, [Child]
certainly has a right to permanency.
****
It is in the best interest of the child and his health, welfare and
future that the parent-child relationship between the child and his
parents be forever fully and absolutely terminated.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020 Page 11 of 12
Appellant’s App. Vol. II p. 31. The juvenile court’s findings are supported by
the record.
[16] While both parents completed at least some of the initial court-ordered
assessments, neither completed the necessary services or made any progress
towards reunification. DCS had continued concerns of substance abuse by and
domestic abuse between Parents. In addition, FCM Passmore testified that she
believed that termination of Parents’ parental rights was in Child’s best
interests, explaining:
[Child] needs consistency. He needs treatment and care. He’s
seventeen months old, he needs his basic needs met of food,
clothing, shelter, education and medical. [Child] does participate
in First Step Services. He receives physical therapy as well as
speech. And he needs a home that is free from domestic violence
as well as substance abuse.
****
[Child] needs a permanent, loving home. He’s been in the home
for seventeen months. He appears very bonded with the foster
parents. There’s never been any safety concerns in regards to
care and treatment and he’s thriving.
Tr. pp. 16–17. FCM Passmore’s testimony coupled with Parents’ failure to
make any progress toward reunification is sufficient to sustain the juvenile
court’s findings regarding Child’s best interests.
[17] The judgment of the juvenile court is affirmed.
Altice, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2018 | February 4, 2020 Page 12 of 12
| {
"pile_set_name": "FreeLaw"
} |
431 F.2d 1025
The FIRST NATIONAL BANK OF CUSHING, CUSHING, OKLAHOMA, a national banking association, Appellee,v.SECURITY MUTUAL CASUALTY COMPANY, Appellant,v.Robert W. ADAMS, Robert W. Adams, Executor of the Will of Alma M. Blank, deceased, Frank G. Berry and George M. Berry, Executors of the Will of James E. Berry, deceased, Levi Swingle, Arthur Blaine Imel, E. L. Roberts, D. A. Griffin, and George M. Berry, Appellees.
No. 94-69.
United States Court of Appeals, Tenth Circuit.
August 20, 1970.
Rehearing Denied November 5, 1970.
James C. Pinkerton, Tulsa, Okl. (Carl Pinkerton and R. H. Wills, Sr., Tulsa, Okl., with him on the brief), for appellant.
Gerald G. Stamper, of Thornton & Stamper, Tulsa, Okl., for appellee, The First National Bank of Cushing.
John M. Imel, Tulsa, Okl. (Martin, Logan, Moyers, Martin & Conway, Tulsa, Okl. and James W. Rodgers, Jr., Holdenville, Okl., of counsel, with him on the brief), for appellees, Robert W. Adams and another.
Before MURRAH, Senior Circuit Judge, SETH and HOLLOWAY, Circuit Judges.
SETH, Circuit Judge.
1
This suit was commenced by the plaintiff, a national bank, against the defendant bonding company for recovery on a banker's blanket bond and on an excess fidelity policy issued by the defendant. This action was based upon a loss to the bank resulting from fraudulent and criminal acts by an officer of the bank. The case was tried without a jury, and a judgment was rendered against the bonding company in the amount of $560,814.47. The bonding company has taken this appeal.
2
The bonding company filed a third-party complaint against some of the directors of the bank and also against the officer-director who was involved in the criminal acts and against an additional officer-director. The trial court dismissed the third-party complaint against all the directors except the two officer-directors.
3
The officer of the bank who was responsible for the losses was tried on a criminal charge and was convicted. In this action there is no question as to the criminal nature of his act, nor the amount of losses which resulted. See Swingle v. United States, 389 F.2d 220 (10th Cir.).
4
From the record it appears that Mr. Swingle over a period of several years permitted the payment of overdrafts on a commercial account by withholding insufficient checks written by the customer from the bank records for extended periods of time, and by subsequent issuance of fictitious drafts, granting of fictitious loans, and questionable purchases of equipment. Another officer, also a longtime employee of the bank, had knowledge of the methods used by Swingle to accomplish the payment of the checks and the withholding of them from the bank records. Other losses occurred on another account where the bank's funds were advanced to a sole proprietorship after the death of the proprietor and to a bankrupt corporation owned by the same person through the use of fictitious notes. The fraudulent schemes of Swingle were not disclosed by the examination made by the bank directors nor were they disclosed by examinations made of the bank by the national bank examiners over a period of several years. Swingle had been employed by the bank in various responsible positions for approximately thirty-five years, and at the time of the incidents in question was president of the bank and had the complete trust and confidence of the directors. He was also active in public and church affairs in the community of Cushing, Oklahoma.
5
The principal issue on this appeal is whether or not the directors had notice of the fraudulent acts of Swingle by reason of their examinations of the bank or by reason of the contents of the reports submitted to the board by the national bank examiners. The appellant bonding company asserts they had such notice long before notifying the bonding company and that the bank directors were negligent to an extent that it is relieved from liability on its bond. Also the company urges that the bank should be held to have knowledge of the wrongdoing by reason of the contents of its records.
6
The case thus comes to us basically as a substantial evidence case. The trial court made findings of fact on the three issues referred to above. These findings must, of course, stand unless clearly erroneous. Of equal importance it is for the trial court to draw the inferences from the facts, and again if not clearly erroneous will stand although there be other possible inferences. Butler Paper Co. v. Business Forms, Ltd., 424 F.2d 247 (10th Cir.); National Farmers Union Service Corp. v. United States, 400 F.2d 483 (10th Cir.), and Rosenfield v. Kay Jewelry Stores, Inc., 384 F.2d 98 (10th Cir.). It found that the directors had no knowledge of the wrongdoing by Swingle and were not put on notice thereof by reason of their examinations nor by reason of the reports made by the national bank examiners. The trial court found that the directors were not negligent in the performance of their duties and that they had no knowledge of the wrongdoing by reason of the bank's own records.
7
We conclude from an examination of the record that the findings of the trial court are fully supported by the evidence. The principal differences between the appellant and the appellee in this appeal are resolved by an analysis of just what the directors were notified or advised of by the reports made by the national bank examiners. In a consideration of this issue, which is a factual one, it is necessary to briefly consider how Swingle used the bank's bookkeeping practices to effect the fraud and to conceal it.
8
The record shows that the bank used a deferred posting system whereby checks received by the bank on a particular day were accumulated and held to be posted by the bookkeeping section on the day following. The bank's records revealed only totals of the checks received and deposits made for any particular day. On the second day when the checks went to the bookkeeping department, the checks which were regular in all respects were posted to the individual accounts; however, checks which were postdated, had improper signatures, or were on accounts which had insufficient funds to pay them, or were otherwise irregular, were not posted but were accumulated and returned by the bookkeeping department to an officer of the bank. The bookkeeping department returned these checks for the reason that the employees there had no authority to enter or to post overdrafts or other irregular checks. Instead some disposition of these checks had to be made by an officer of the bank. These checks which were so returned are referred to in this record as "bookkeeper's turnbacks," or "bookkeeper's returns." A check so turned back by the bookkeeping department on a particular account was given for disposition to the officer who ordinarily handled the particular customer's account. This officer would in the ordinary and proper practice see that the check was corrected or would authorize its posting as an overdraft. The item would be entered as an overdraft or as a cash item on the books of the bank.
9
The record indicates that Swingle, as to two particular accounts which he handled, and particularly on the one account in which the largest loss took place, when he would receive an insufficient fund check on the account from the bookkeeping department as a turnback, he would that day or later put the check back through a teller's window and again it would proceed through the deferred posting system and would be again returned several days later to him as a bookkeeper's turnback. This repeated return and redeposit of the checks was referred to as a "cycling." The way in which it was used by Swingle with the result that checks were held by the bank for several days in turn caused the insufficient fund checks to be paid by the bank as they could not then be returned to the bank or person sending them to the Cushing bank for payment. Further by reason of the cycling, the checks were withheld from proper recording in the books and records of the bank.
10
The record also shows that Swingle, when the accumulation of checks in his cycling became large or when some examination was imminent, would forward a fictitious draft for the customer to another bank, make a fictitious loan, or a questionable purchase of equipment from the customer to provide sufficient funds in the account and to remove the checks from the cycle.
11
As indicated above, the repeated examinations of the bank made by the national bank examiners did not disclose the fraud of Swingle because it did not disclose the fact that he was cycling the checks. The examinations did disclose that items returned from the bookkeepers were held from time to time by the officers and this fact was criticized. It is apparent from the record that the temporary holding of items returned from the bookkeepers was a common practice in banks at the time in order that mistakes and errors in regard to the checks could be corrected, but that it was a practice criticized by the examiners as it was not considered proper banking practice.
12
The position of the bonding company appellant in this appeal is that the directors received notice of the fact that the officers were holding the bookkeeper's turnbacks, and this was sufficient to put them on notice of the fraudulent methods being used by Swingle. On the other hand, the appellee argues that the notice to be derived from the reports of the national bank examiners was no more than of a fairly common poor banking practice of temporarily holding the turnbacks. The record shows that in each instance the returns which were criticized were cleared up during the course of the examination or immediately thereafter. Although on one occasion the report showed the checks had been held for several weeks, the reports of the national bank examiners were considered by the directors at their regular meetings, the officers were questioned about the items, and in each instance were told that the particular item had been properly cleared. The directors were entitled to rely upon such explanations.
13
The record thus demonstrates that the directors did not receive any notice of the fraudulent acts of Swingle prior to the ultimate disclosure of the cycling of checks made by Swingle. The reports of the bank examinations did not contain any information which could constitute notice of the dishonest acts. Thus the record shows only that the directors had notice of a practice which was not necessarily in accord with the best banking practices, but which was common and which was in each instance fully explained at the time. The fraud of Swinwas not disclosed until he advised the chairman of the bank that he was cygle was the cycling of the checks which count and which then totaled a substantial sum. The chairman advised the nacling checks drawn on a particular actional bank examiners of this fact and they immediately came to the bank and conducted an examination which disclosed the fraud. The examiners who had conducted examinations prior to this time and who submitted reports testified that they then had no knowledge of the fact that Swingle was cycling checks in a manner to ensure their payment and to thereby defraud the bank, and consequently their comments in their reports to the directors did not refer to this device used by Swingle, but instead referred only to the holding of the bookkeeper's turnbacks which was a not uncommon practice.
14
The appellant also urges that the directors in some manner participated in the wrongdoing or were grossly negligent by reason of the granting of excess loans to certain customers whose accounts were used by Swingle in the manner described above. The record demonstrates that the excess loans were not the fraud or the wrongdoing upon which the action was based, but instead were a device used by Swingle to hide his prior wrongdoing of which the directors were unaware. One excess loan was brought to the attention of the directors, and it was explained as excess by Swingle because it was on the same security used by another customer. This loan was taken out of the bank by the directors' purchase of it, which was itself proper. The directors had no indication that the loan was otherwise improper as Swingle concealed its purpose and origin.
15
The record further demonstrates that the finding of fact by the trial court that the directors were not negligent is also supported by the evidence. The directors' examinations were made regularly and in accordance with good practice, and the fact that these examinations did not disclose the fraud did not constitute negligence under the circumstances as demonstrated by the examiners' failure to find the fraud. See Hughes v. Reed, 46 F.2d 435 (10th Cir.). Also Swingle and the other officers who had knowledge of Swingle's cycling of checks were the only regular employees or officers of the bank who were also directors, and they participated in and directed the examinations in a manner to prevent knowledge by the other directors of the devices used by Swingle.
16
The appellant also asserts that the directors should have had knowledge of the fraud by reason of the records of the bank itself, but there is no merit in this position in view of the nature of the action and the nature of the fraud concerned.
17
We also find the contention of the appellant that the acts of the bank released the bonding company to be without merit. This argument relates to the participation in the bankruptcy of one of the customers whose account is concerned. This participation relates to the attempt by the bank to recover on what security and assets of the customer were available and cannot constitute an act which would in any way release the bonding company.
18
We agree with the district court that the losses occurred, that the policies covered the losses, and that the directors were without prior notice. The judgment of the trial court as entered was proper, including the interest as allowed. Phoenix Ins. Co. v. Diffie, 270 P.2d 634 (Okl.).
19
Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
902 F.2d 1576
Bostwick (Steva Maxine)v.Loftgreen (Victor Dee)
NO. 90-1113
United States Court of Appeals,Eighth Circuit.
FEB 26, 1990
1
Appeal From: D.Neb.
2
DISMISSED.
| {
"pile_set_name": "FreeLaw"
} |
923 F.2d 846
U.S.v.Burwell
NO. 89-1623
United States Court of Appeals,Second Circuit.
OCT 19, 1990
1
Appeal From: E.D.N.Y.
2
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
362 F.3d 847
PRECISION CONCRETE, Petitioner/Cross-Respondent,v.NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
Southwest Regional Council of Carpenters f/k/a Southern California-Nevada Regional Council of Carpenters, and Laborers Local Union No. 872, Intervenors.
No. 02-1164.
No. 02-1203.
United States Court of Appeals, District of Columbia Circuit.
Decided April 6, 2004.
On Petitioner's Application for Attorneys' Fees.
Before: GINSBURG, Chief Judge, and SENTELLE and HENDERSON, Circuit Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM:
1
We decided the merits of this controversy in Precision Concrete v. NLRB, 334 F.3d 88 (D.C.Cir.2003). We now consider petitioner's application for attorneys' fees and expenses pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Because we find that as to a substantial portion of the litigation the General Counsel was not substantially justified in issuing and prosecuting a complaint and the Board was not substantially justified in defending its decision through litigation in this court, we award a portion of the fees sought in the application for the reasons more fully set forth below.
I. BACKGROUND
2
The factual background of the controversy is set forth in some detail in Precision Concrete v. NLRB, 334 F.3d at 89-90, but we need to make brief reference to pertinent portions of the background facts in order to analyze the application before us. Briefly put, after a contentious organization drive, approximately 100 of Precision's work force undertook a strike called by the Building Trades Organizing Project ("Union"). The strike was not successful. The company hired replacement workers and refused to reinstate the strikers. The Union filed a series of unfair labor practice charges. The General Counsel of the Board filed a complaint which in addition to the charges filed by the Union alleged that the company had committed an unfair labor practice in an incident involving an employee wearing a union t-shirt (the "Pulido-Mendez t-shirt incident"). This was not included in any formal unfair labor charges filed against the company. The Administrative Law Judge ("ALJ") hearing the complaint held that the Pulido-Mendez t-shirt incident was an unfair labor practice, that it was "closely related" to previously filed formal charges, and that the incident was a cause of the strike. Because "an unfair labor practice striker who unconditionally offers to return to work is entitled to reinstatement," Gibson Greetings, Inc. v. NLRB, 53 F.3d 385, 389 (D.C.Cir.1995), this finding was critical to the claimed right of the strikers to a reinstatement remedy, which they could not obtain if the strike were economic, and not in response to an unfair labor practice or practices. On appeal, the Board upheld the decision of the ALJ. As neither the Board nor the ALJ found any other unfair labor practice to have been a cause of the strike, the Board's major remedy of reinstatement depended entirely on the Board's jurisdiction over the "t-shirt" claim. Precision appealed to this court arguing that the t-shirt incident was not properly before the Board. We agreed, holding that the Board did not have jurisdiction to adjudicate the t-shirt incident and therefore did not have jurisdiction to enter the reinstatement relief against the petitioning employer. See, e.g., Drug Plastics & Glass Co., Inc. v. NLRB, 44 F.3d 1017, 1022 (D.C.Cir.1995) ("Where the Board is unable to connect the allegations in its complaint with the charge allegation, we are unable to find that the Board has jurisdiction over the unrelated complaint allegations."). Based on our decision in its favor in Precision, the employer now petitions this court for reimbursement of its attorneys' fees incurred in the matter in the amount of $143,430.50 in attorneys' fees and $7,994.05 in expenses.
3
Under the EAJA,
4
a court shall award to a prevailing party... fees and other expenses ... incurred by that party in any civil action... including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
5
28 U.S.C. § 2412(d)(1)(A). Precision argues that the Board was not "substantially justified" in litigating this matter and that it is therefore entitled to reimbursement of the fees and expenses prayed for. In support of this argument, Precision asserts that "the Board's insistence that it had jurisdiction over the Mendez t-shirt incident is the primary reason Precision continued to pursue this case," and that "[i]t would not have been necessary for Precision to incur any fees beyond the hearing before the Administrative Law Judge absent this jurisdictional error by the Board." Precision Concrete's Reply in Support of its Application at 4-5.
6
The NLRB disagrees, arguing that no fees should be reimbursed for litigating the Pulido-Mendez t-shirt incident because the Board was substantially justified in bringing that action. The NLRB also argues that no fees should be awarded for time spent on four unfair labor practices found by the ALJ/Board. The Board also argues that Precision's counsel expended uncompensable hours on other arguments in support of its petition for review of the Board's holding on the t-shirt incident and that petitioners should not be awarded fees for the time spent on those arguments. Because we agree with Precision that the NLRB acted without substantial justification, we hold that it is entitled to fee reimbursement under the Equal Access to Justice Act, although we will order some reduction to the amount prayed.
II. ANALYSIS
7
Subject to other statutory criteria which are not in dispute in this matter, the EAJA provides that a "prevailing party" in actions "including proceedings for judicial review of agency action, brought by or against the United States" are entitled along with the customary costs of litigation to a recovery of fees and other expenses incurred. 28 U.S.C. § 2412(d)(1)(A). As Precision is obviously the prevailing party, and as there is no dispute as to any other statutory criterion, the governing issue in this case is whether the position of the NLRB was substantially justified. We hold that beginning with the review of the ALJ's decision by the Board, it was not.1
8
As we made clear in the merits decision of this case, the t-shirt incident which was the only foundation for the principal remedy ordered by the Board and brought to us for review first arose in an amended complaint more than six months after the alleged incident. Section 10(b) of the National Labor Relations Act requires that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board." 29 U.S.C. § 160(B) (emphasis added). While it is well established that a complaint need not be filed within six months of the incident and may be amended more than six months after the incident, see NLRB v. Dinion Coil Co., 201 F.2d 484, 491 (2d Cir.1952), the statute does require "that the complaint be based upon an unfair labor practice charge filed within six months of the allegedly unlawful conduct." Precision, 334 F.3d at 91. Not only was there no timely charge filed as to the t-shirt incident, no charge was ever filed alleging that incident. The t-shirt incident appeared for the first time in the complaint, an appearance not timely and not valid.
9
We have long held that "when the Board ventures outside the strict confines of the" charges before it, "it must limit itself to matters sharing a significant factual affiliation with the activity alleged in the charge." Id., quoting G.W. Galloway Co. v. NLRB, 856 F.2d 275, 280 (D.C.Cir. 1988). The Supreme Court long ago dealt with the standard of relatedness governing the Board's ability to pass on allegations of unfair labor practices raised for the first time in a complaint but not part of the timely filed charge underlying the complaint. NLRB v. Fant Milling Co., 360 U.S. 301, 79 S.Ct. 1179, 3 L.Ed.2d 1243 (1959). In Fant Milling, the Supreme Court held that the Board may prosecute unfair labor practices not specifically alleged in a charge where such practices are "`related to those alleged in the charge and ... grow out of them while the proceeding is pending before the Board.'" Precision, 334 F.3d at 92, quoting Fant Milling, 360 U.S. at 309, 79 S.Ct. at 1183. In Precision, we held that the only link between the t-shirt incident and the other charged unfair labor practices was that "all occurred during the course of the Union's organizing drive in 1988." 334 F.3d at 93. Since that connection was obviously insufficient under well-established precedent, the Board had no jurisdiction to pass on the alleged incident as an unfair labor practice and hence no jurisdiction to enter the reinstatement order. Therefore, Precision was plainly entitled to the relief sought in the merits action. Id.
10
The principal question before us today is whether the Board was substantially justified in its invalid assertion of jurisdiction. The best evidence on that subject is the justification which the Board offered in the merits argument. Without rehashing that entire case, after a full review of the Board's arguments and the record we held that "[t]he only link we can see is that the alleged incidents all occurred during the course of the union's organizing drive in 1998." Precision, 334 F.3d at 93. It is well established that "coincidence of the two separate violations during the same organizing campaign" does not meet the test of Fant Milling. Ross Stores, Inc. v. NLRB, 235 F.3d 669, 674 (D.C.Cir.2001).
11
Fant Milling made it clear in 1959 that the Board cannot pass on allegations of unfair labor practices outside those alleged in a timely filed charge. While this requirement has been relaxed to the extent of permitting the Board to "include allegations in the complaint that are not specifically asserted in the charge," Galloway, 856 F.2d at 280 (emphasis added), it has not been abolished. The Board does not have "carte blanche to expand the charge as [it may] please, or to ignore it all together." Id. When the Board goes beyond this clear jurisdiction to proceed on the complaint rising out of the timely filed charge, it can act only where there is a "`significant factual affiliation' between the charged conduct and the allegations in the complaint." Precision 334 F.3d at 92, quoting Galloway, 856 F.2d at 280. In the face of an unbroken line in authority to that effect, see Drug Plastics, 30 F.3d at 172-73; Ross Stores, Inc., 235 F.3d at 674; and Galloway, 856 F.2d at 280, the Board acted where it clearly did not have jurisdiction. As we have stated before in an EAJA case against another agency, "while a string of losses is not determinative, it can be indicative that an agency's position lacks substantial justification." Contractor's Sand & Gravel, Inc. v. FMSHRC, 199 F.3d 1335, 1341 (D.C.Cir.2000) (internal quotations and citations omitted). Absent some compelling argument for asserting jurisdiction where it has long been held to have none, the Board cannot substantially justify its action. It has offered no such compelling justification here. We therefore conclude that Precision is entitled to an award of attorneys fees and expenses under the EAJA.
III. AMOUNT
12
To say that Precision is entitled to an award of attorneys' fees is not to say that Precision is entitled to an award in the amount prayed. "Even if an applicant meets the threshold EAJA requirements, [it] can collect only a `reasonable' fee." Anthony v. Sullivan, 982 F.2d 586, 589 (D.C.Cir.1993) (quoting Commissioner of Immigration and Naturalization Service v. Jean, 496 U.S. 154, 161, 110 S.Ct. 2316, 2320, 110 L.Ed.2d 134 (1990)). Precision seeks compensation for 1,151.4 hours of attorney time at the statutory rate of $125 per hour (see 28 U.S.C. § 2412(d)(2)(A)) for a total of $143,925.00.2 While the rate is fixed by statute, the NLRB contends, and we agree, that the hours asserted are excessive. We therefore will make several deductions from the amount prayed.
13
First, as to the time spent in preparation and argument before the ALJ, the issues at that point were not limited to the t-shirt incident and the affidavit filed by counsel for Precision does not very clearly delineate time spent on the specific issues. While the General Counsel did not have substantial justification for the inclusion of the t-shirt incident, as to the other issues, regardless of whether Precision won or lost, there is no claim that they were filed without substantial justification. Precision's counsel has given us little help in allocating the hours before the ALJ between the t-shirt incident and other parts of the case. Presumably at that early stage much of the background work would have been the same with or without the invalid issue. We therefore deduct 200 of the 341.3 hours prayed for preparation and argument before the ALJ.
14
The next block of time is attributed to preparation and argument before the Board as well as contemporaneous settlement discussions. As the Board points out to us, other issues remained in the case at that time-issues as to which the substantial justification of the Board's position is not at issue. We therefore reduce by half the 280.6 hours prayed and deduct from the available relief the attorneys' fees for 140.3 hours.
15
As to the next phase, that is time spent on the brief and oral argument for the petition for review in this court, the Board asserts that other issues remain, specifically procedural and due process claims. We cannot agree with the Board that the presence of the other issues should occasion a pro rata reduction in the fees sought for appearance before this court. Precision credibly argues that it would not have pursued the petition for review in the absence of the clearly erroneous jurisdictional argument upon which it did prevail. It is not the case that the time spent on Issue A inevitably equals the time spent on Issue B or that an appeal or petition raising three issues would have been brought on the two weakest of them had the first and strongest argument not been there. Nonetheless, we agree with the Board that the total of 500.53 hours which Precision claimed its counsel expended on the appellate brief and argument is "unreasonable and excessive and should be reduced." As the Supreme Court has long recognized, "cases may be overstaffed, and the skill and experience of lawyers vary widely." Hensley v. Eckerhart, 461 U.S. 424, 443, 103 S.Ct. 1933, 1944, 76 L.Ed.2d 40 (1983). Therefore, we must exclude from fee awards "hours that are excessive, redundant, or otherwise unnecessary." Id. The attorneys representing Precision in the court proceedings had litigated this case in its earlier stages and were familiar with the facts and law involved. The case was not one of great complexity or based on an unusually voluminous record. We see nothing in this case that warranted the expenditure of over twelve and a half weeks at forty hours per week of professional time. Obedient to Hensley v. Eckerhart, that we should exclude "hours that were not `reasonably expended'" and consider the possibility of overstaffing, id., we have reviewed the nature of this litigation and the quality of the representation. In light of counsel's familiarity with the case, the lack of complexity and the product presented to this court, we order reduction of the time spent in litigation before this court by fifty percent, or rounding to the nearest tenth, 250.2 hours.
16
We therefore reduce the total compensable hours by 590.6 hours, to 560.8 hours and award counsel fees in the total amount of $70,100.00.
IV. EXPENSES
17
Precision seeks expenses in the amount of $7,994.05. Application for Attorneys' Fees at 31-35. The NLRB notes that Precision's request includes expenses for travel, courier expenses, overnight delivery, facsimile transmissions, telephone costs, and taxis, which the NLRB argues are not reimbursable under the EAJA. See Epilepsy Found. of Northeast Ohio v. NLRB, 2002 WL 1331873 at *2 (D.C.Cir. 2002) (unpublished opinion); Mass. Fair Share v. Law Enforcement Admin., 776 F.2d 1066, 1069-70 (D.C.Cir.1985).
18
Precision replies the NLRB is correct that these expenses are not recoverable under this court's prior decisions, but argues that "in this era where facsimile and FedEx are the standard means of delivery in most law offices, these expenses are in line with the statutory objectives."
19
Be that as it may, the NLRB has correctly listed Precision's requested expenses that are not reimbursable under the EAJA. Opposition of NLRB to Precision Concrete's Application, Exhibit B at 3-4. It would appear that, pursuant to the EAJA and this court's prior decisions, the NLRB's calculation that $2,462.83 in expenses should be deducted is correct.
20
We therefore award expenses in the amount of $5,531.22.
V. CONCLUSION
21
For the reasons set forth above, we hold that petitioners are entitled to attorneys' fees in the amount of $70,100.00 and expenses in the amount of $5,531.22.
22
So ordered.
Notes:
1
EAJA recovery of attorneys' fees and costs is available in adversary administrative adjudications as well as litigation in the article III courtsSee 5 U.S.C. § 504.
2
The amount sought by Precision in its Application for Attorneys' Fees is slightly different, $143,430.50. Considering the number of hours sought (1,151.4), we calculate this amount to be underestimated by $495.00
3
The NLRB calculates the number of hours claimed for this phase as 578, but we have recalculated the prayer of Precision and believe the figure 500.5 more fairly represents the portion attributable to the petition for review. The Board's calculation and ours have been made quite difficult by the failure of Precision anywhere to total its hours claimed, let alone subtotal the same into workable units. Therefore, both the Board and the court have done the best we can with the raw data supplied by Precision
| {
"pile_set_name": "FreeLaw"
} |
153 N.W.2d 825 (1967)
Faye V. PETERSON, Respondent,
v.
Palmer A. PETERSON and Paul L. Halverson, individually and as trustee, Respondents,
Jerome Daly and Jan Achman, Respondents,
William E. Drexler, Relator.
No. 39893.
Supreme Court of Minnesota.
October 27, 1967.
*826 Firestone Fink, Krawetz, Miley & O'Neill, John S. Connolly, St. Paul, for relator.
Robert Dygert, James P. Rorris, Minneapolis, for Faye Peterson.
Jerome Daly, Savage, Paul G. Fisch, Minneapolis, for Palmer Peterson and Paul Halverson.
Dan T. Cody, St. Paul, for Daly & Achman.
OPINION
SHERAN, Justice.
Certiorari to the District Court of Hennepin County.
Relator was convicted of constructive criminal contempt before the District Court of Hennepin County and sentenced to 6 months' imprisonment and a $250 fine. On certiorari, he contends that the conviction must be set aside because the trial court denied his request for a trial by jury and because the prosecution was conducted by the private attorney of the plaintiff in the civil action out of which the alleged contempt arose.
The principal questions here presented are whether in constructive criminal contempt[1] cases the alleged contemnor is entitled to a trial by jury and whether in such cases prosecution may be by an attorney *827 other than one representing the State of Minnesota.
1. In 1877, State ex rel. Warfield v. Becht, 23 Minn. 411, was decided. In that case, relator, who had been adjudged in contempt for his disobedience of an order directing him to deliver up certain property to a receiver in proceedings supplementary to execution, and who had been sentenced to 1 month in jail plus a fine of $25, brought a habeas corpus proceeding, claiming that his commitment was contrary to the Minnesota Constitution's guarantee of a jury trial. This court rejected his claim on the basis that "[t]here was no criminal prosecution here, nor was the relator held to answer for a criminal offense, in the meaning of the constitution," and that "[t]rial by jury in such proceedings would not only be a thing without precedent, but intrinsically inappropriate. It would seem to be a necessity that a court should have in its own hands the power to punish contempts of its authority." 23 Minn. 413.
Notwithstanding the Warfield case and dicta in State ex rel. Russell v. Ives, 60 Minn. 478, 480, 62 N.W. 831, 832, that "[w]hen the accused is brought before the court, or appears in response to the order, the court proceeds to hear the case without a jury," a district court in 1948 accorded a jury trial to one charged with constructive criminal contempt. See, Swift & Co. v. United Packing House Workers of America, 228 Minn. 571, 37 N.W.2d 831.
We have heretofore held that a number of criminal procedural safeguards are applicable to constructive criminal contempt cases. See, State ex rel. Sandquist v. District Court, 144 Minn. 326, 175 N.W. 908 (self-incrimination); State v. Binder, 190 Minn. 305, 251 N.W. 665 (proof beyond reasonable doubt); State ex rel. Fischer v. District Court, 65 Minn. 146, 67 N.W. 796 (same); Richardson v. Richardson, 218 Minn. 42, 15 N.W.2d 127, 154 A.L.R. 526 (proof must conform to accusation); French v. French, 236 Minn. 444, 53 N.W.2d 218 (same); State v. Smith, 116 Minn. 228, 133 N.W. 614 (double jeopardyno appeal of acquittal).
Minn.Const. art. 1, § 6, provides: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * *." The language is identical with that in U.S. Const. Amend. V.
In Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672, it was held that the Federal Constitution does not compel a jury trial in contempt cases.[2]
But in United States v. Barnett, 376 U. S. 681, 695, note 12, 84 S.Ct. 984, 992, 12 L. Ed.2d 23, 33, the United States Supreme Court said by way of dictum: "Some members of the Court are of the view that, without regard to the seriousness of the offense, punishment by summary trial without a jury would be constitutionally limited to that penalty provided for petty offenses."
*828 In Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629, the court applied this principle to the Federal courts by exercising its supervisory power, ruling that Federal courts may not impose sentences greater than 6 months for contempt unless a jury trial has been had or waived and that sentences in excess of that period could be revised on appeal to comply with this rule.
There has been considerable dispute as to whether the new United States Supreme Court rule is constitutionally based.[3] The statement in Barnett was specifically labeled dictum, and the Cheff decision was specifically termed one in the exercise of the Supreme Court's supervisory power over Federal courts.[4]
It is realistic to think that the United States Supreme Court's new rule, although now stated to be in the exercise of its supervisory power, may be extended to the Sixth Amendment of the Federal Constitution and made applicable to the states under the Fourteenth Amendment.
There are persuasive reasons to believe that State ex rel. Warfield v. Becht, supra, should be overruled and that the right of a defendant to trial by jury in cases of constructive criminal contempt should be declared. Our State Constitution confers the right to trial by jury in all criminal prosecutions, regardless of gravity. 10 Dunnell, Dig. (3 ed.) § 5235; see, State ex rel. Erickson v. West, 42 Minn. 147, 43 N.W. 845; see, e. g., State v. Everett, 14 Minn. 330 (Gil. 439).
The cases in which this court has held that a jury trial is not available in municipal ordinance prosecutions, State v. Hartman, 261 Minn. 314, 112 N.W.2d 340; State v. Ketterer, 248 Minn. 173, 79 N.W.2d 136; see, 10 Dunnell, Dig. (3 ed.) § 5235, are not entirely in point in that they are grounded upon the fact that an ordinance violation is not an offense against the state as a whole. See, State v. Hoben, 256 Minn. 436, 98 N.W.2d 813.
Constructive criminal contempt is, in one sense, conduct offensive to the dignity of the state as a whole and is punishable by up to 6 months' imprisonment and a $250 fine.[5] The punishment is imposed as a deterrent to others. See, Gardner v. Conway, 234 Minn. 468, 48 N.W.2d 788; Campbell v. Motion Picture Machine Operators, etc., 151 Minn. 238, 186 N.W. 787; State ex rel. Works v. Langum, 125 Minn. 304, 146 N.W. 1102; State v. Smith, 116 Minn. 228, 133 N.W. 614; State v. Leftwich, 41 Minn. *829 42, 42 N.W. 598; In re Fanning, 40 Minn. 4, 41 N.W. 1076.
It is also a fact that in a case such as this, a constructive criminal contempt is an affront to the jurist whose orders are evaded and to the judicial system as an institution. But the urgent and immediate necessity of maintaining order in the courtroom which justifies the summary disposition of direct contempts does not apply where the offensive conduct is committed out of the presence of the court. In such cases, formal proceedings are needed in any event to establish the contumacious conduct involved and to give the person accused notice and opportunity to be heard. We have often held that the trial judge, in deciding constructive contempt cases, is limited to the evidence adduced at the contempt trial and may not rely upon knowledge obtained elsewhere. See, Clausen v. Clausen, 250 Minn. 293, 84 N.W.2d 675; State v. Binder, 190 Minn. 305, 251 N.W. 665; State ex rel. Russell v. Ives, 60 Minn. 478, 62 N.W. 831.
Constitutional mandates aside, practical considerations suggest the desirability of a jury trial in cases of constructive criminal contempt. Jury trials foster public understanding and acceptance of the administration of justice and bring public attention and interest to disputes which are not and should not be the exclusive concern of the bench and bar. The use of the jury to insulate the alleged offender and the offended jurist may very well serve the interest of fairness without adversely affecting judicial procedures.
The considerations of necessity upon which others have previously based the denial of a right to trial by jury in constructive criminal contempt cases (see, e. g., In re Debs, 158 U.S. 564, 595, 15 S.Ct. 900, 910, 39 L.Ed. 1092, 1106; People v. Bloom, 35 Ill.2d 255, 220 N.E.2d 475) do not seem compelling to us. Eminent authorities have argued that there is no necessity for depriving one charged with constructive criminal contempt of a jury trial. Beale, Contempt of Court, Criminal and Civil, 21 Harv.L.Rev. 161, 172; cf. Toledo Newspaper Co. v. United States, 247 U.S. 402, 425, 38 S.Ct. 560, 566, 62 L.Ed. 1186, 1195 (Mr. Justice Holmes dissenting). This view is expressed in Goldfarb, The Contempt Power, p. 182:
"* * * [T]hough courts may have a right of self-defense, only society as a whole has the right to punish offenses. Once the interruption to the court's proceeding ceases, the sovereign should be the only one to punish, and then only according to the procedures set out in the Constitution. It is not for the individual or for the incorporeal body that is wronged to punish. * * * [P]ractices in contempt cases [may be compared] with the right of individuals to defend themselves against assault. Certainly an individual may defend himself. But once having defended himself, he cannot punish his assailant other than through the orderly processes of law. * * * [C]ontempt is less a necessity for the exercise of a legal power than an engine for its abuse; and though courts should have the right to dispel interference with the performance of their functions, that power should go no further."[6]
It has been argued that it would be demeaning for a judge who has offered evidence against an alleged contemnor to have the defendant acquitted by a jury. This contention has not been urged in the present matter. And, in any event, the assumption of the argument (i. e., that the jurist against whom the contumacious conduct is directed has an interest in the outcome of the case) militates in favor of rather than against submission to a jury.
Although the preceding discussion leads logically to the conclusion that the defendant *830 in constructive criminal proceedings is entitled to a trial by an impartial jury by virtue of Minn.Const. art. 1, § 6, our decision in State ex rel. Warfield v. Becht, 23 Minn. 411, decided almost 100 years ago, remains authority to the contrary unless overruled. As of this time, we do not have sufficient experience with jury trials in constructive criminal contempt cases to know whether the considerations of necessity to which reference is made in that opinion still apply so as to justify the treatment of some constructive criminal contempt cases in a way different than that common to "criminal prosecutions" as those words are used in our constitution. For the present at least, we deem it the better course to hold that although this defendant may not have been entitled to a jury trial as a matter of constitutional right, he should have been afforded the privilege in this case as the authority of the judicial system was not in jeopardy and the punishment imposed involved imprisonment.
2. We also believe that constructive criminal contempts should not be prosecuted by attorneys other than those representing the state. As noted above, we have often stated that criminal contempts are offenses against the dignity of the state as a whole. We have held that criminal contempt is not a proceeding in the action out of which the alleged contempt arose, but is collateral to it, and the parties to the action out of which the alleged criminal contempt arose have no interest in it. See, State v. Leftwich, 41 Minn. 42, 42 N.W. 598. This being the case, the private attorney for one of the parties to the proceeding out of which the alleged contempt arose has no status which authorizes him to prosecute. The offense being against the state, due and orderly process is better assured if the prosecution is conducted by an attorney for the state.
Different considerations apply in cases of direct and civil contempt. Our decision here is limited to cases of indirect contempt where criminal sanctions are to be imposed. It is not necessary to consider other points raised by relator.
Reversed and remanded for a new trial.
NOTES
[1] "Constructive" contempts are those which are "not committed in the immediate presence of the court, and of which it has no personal knowledge," Minn.St. 588.01, subd. 3, as opposed to "direct" contempts, which occur "in the immediate view and presence of the court." § 588.01, subd. 2. Regarding direct contempts, Minn.St. 588.03 provides: "A direct contempt may be punished summarily, for which an order shall be made reciting the facts as occurring in the immediate view and presence of the court or officer, and adjudging the person proceeded against to be guilty of a contempt, and that he be punished as therein specified."
"Criminal" contempt is that which is prosecuted to maintain and vindicate the authority of the court, as opposed to "civil" contempt, which is prosecuted to make effective the remedy given to a private party. See, State ex rel. City of Minneapolis v. Minneapolis St. Ry. Co., 154 Minn. 401, 191 N.W. 1004; Campbell v. Motion Picture Machine Operators, etc., 151 Minn. 238, 186 N.W. 787. Criminal contempt is prosecuted for the purpose of punishment; civil contempt, for the purpose of coercing performance by the contemnor. See, Zieman v. Zieman, 265 Minn. 190, 121 N.W.2d 77; State ex rel. Eder v. Searles, 141 Minn. 267, 170 N.W. 198; State v. Leftwich, 41 Minn. 42, 42 N.W. 598; In re Fanning, 40 Minn. 4, 41 N.W. 1076.
[2] Mr. Justice Frankfurter concurred in the Green decision despite his belief that the traditional reliance upon an "immemorial usage" of jury-less contempt adjudications was historically inaccurate. See, Frankfurter and Landis, Power of Congress Over Procedure in Criminal Contempts in "Inferior" Federal Courts a Study in Separation of Powers, 37 Harv.L.Rev. 1010, 1042 to 1052.
[3] Although one state court has rejected the notion that the new rule is constitutionally based, see, People v. Bloom, 35 Ill.2d 255, 220 N.E.2d 475; People ex rel. Stollar v. Ogilvie, 36 Ill.2d 261, 222 N.E.2d 496, another state court believes that the possibility it is so based is a real one. See, State ex rel. Buckson v. Mancari, Del., 223 A.2d 81. In one case it is suggested as an alternative ground that the new rule has not been made applicable to the states. See, Ford v. Boeger (8 Cir.) 362 F.2d 999, 1007. A commentator has stated, "It would seem to be inevitable that the Court will apply the same [Cheff] rule to the States under the due process clause of the 14th Amendment." See, Burdick, Problems in Contempt, 43 N.D.L.Rev. 237, 241.
[4] See, Note, 8 William & Mary L.Rev. 76.
[5] Minn.St. 588.10. It should be noted that § 588.02 limits the power to punish constructive contempts by imprisonment or by a fine exceeding $50 to cases where it appears that a party's right or remedy was defeated or prejudiced; and that § 588.20, making certain contempts misdemeanors, apparently limits the punishment for such contempts to 90 days or $100. § 609.02, subd. 3. The present relator was charged with contemptuous conduct not falling within the descriptions of § 588.20.
According to a table published in 8 William & Mary L.Rev. 90, 30 states limit the penalty which may be imposed for contempt without a jury trial. The lowest imprisonment limit is 1 day, the highest, 6 months, which obtains in 7 states. The average maximum imprisonment is 58 days; and the average maximum fine is $313.
[6] Paraphrasing 1 Livingston, Complete Works on Criminal Procedure, pp. 258 to 267. See, Goldfarb, The Constitution and Contempt of Court, 61 Mich.L.Rev. 283.
| {
"pile_set_name": "FreeLaw"
} |
705 F.2d 599
83-1 USTC P 9294
Charlotte MIKULEC, Plaintiff-Appellee,v.UNITED STATES of America, Defendant-Appellant.
No. 499, Docket 82-6192.
United States Court of Appeals,Second Circuit.
Argued Dec. 1, 1982.Decided April 5, 1983.
John F. Papsidero, City of Tonawanda, N.Y., for plaintiff-appellee.
James F. Miller, Attorney, Tax Division, Dept. of Justice, Washington, D.C. (Roger P. Williams, U.S. Atty., Buffalo, N.Y., Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, William S. Estabrook, Attorneys, Tax Division, Dept. of Justice, Washington, D.C., of counsel), for defendant-appellant.
Before LUMBARD, MANSFIELD and KEARSE, Circuit Judges.
LUMBARD, Circuit Judge:
1
This appeal requires us to decide the extent to which, under New York law, a judgment creditor's judgment is satisfied if, at an execution sale held upon her lien, she purchases the judgment debtor's property herself. The question arises in connection with an attempt by the United States, as tax lienor, to redeem from a judgment creditor-purchaser a part interest in a factory in Buffalo, New York. In a decision filed on March 8, 1982, Judge Elfvin of the Western District of New York held that under New York law Charlotte Mikulec's purchase, as a judgment creditor, of property belonging to her debtor, her son (Conrad Mikulec), for less than value satisfied her judgment to the extent of the property's fair market value. 533 F.Supp. 1142 (W.D.N.Y.1982). He therefore held that the United States, to redeem the interest in the factory, had to pay Charlotte the interest's fair market value or the amount of her outstanding judgment ($121,008.44), whichever was less. The United States declined to make such payment and on May 25, 1982 the district court entered judgment quieting title in Charlotte. The United States now appeals from that judgment, and contends that Judge Elfvin should have set as the redemption price the $50 Charlotte bid at the execution sale. The government argues that under New York law Charlotte's judgment was satisfied not to the extent of the purchased interest's value, but only by the $50 actually bid. We agree with the government's interpretation of New York law and accordingly, we reverse.
2
The facts are not disputed. On October 4, 1968 Charlotte Mikulec, her husband, Stanley, and their son, Conrad, acquired a factory in Buffalo, New York. Conrad took a 50 percent interest in the property, and Charlotte and Stanley each took a 25 percent interest. On November 8, 1972 the Mikulecs mortgaged the property to Manufacturers and Traders Trust Co. for $185,580.
3
On March 10, 1976 Jarl Extrusions, Inc. obtained a judgment in New York Supreme Court, Erie County, against Power-Pak Products, Inc. and Conrad in the amount of $144,933. On May 24, 1976 Jarl obtained a judgment in the same court against both Charlotte and Conrad in the amount of $3,161.1 Executions with respect to both judgments were issued to the Erie County Sheriff and on June 2, 1978 he seized Charlotte's and Conrad's interests in the factory. The United States received notice of the pending sheriff's sale because it had filed tax liens against Conrad's interest.2 On August 21, 1978 Jarl assigned its March 10, 1976 and May 24, 1976 judgments to Charlotte. That same day the sheriff's sale was held, and Charlotte purchased Conrad's interest for $50. A sheriff's deed transferred title to Charlotte in October, 1978. On or about December 19, 1978 the United States attempted to redeem the property under 26 U.S.C. Sec. 7425(d)(1) (1976), by sending Charlotte's attorney a check for $50.98 (representing Charlotte's purchase price plus six percent interest). Charlotte rejected the government's check, and on December 4, 1980 brought suit to quiet title or, alternatively, for an order setting as the redemption price the amount outstanding on the March 10, 1976 judgment against Conrad--$121,008.44.
4
Section 7425(d)(1) of the Internal Revenue Code, 26 U.S.C. Sec. 7425(d)(1) (1976), authorizes the United States to redeem from the purchaser at an execution sale real property subject to federal tax liens. Section 2410(d) of 28 U.S.C. states that the redemption price shall be:(1) the actual amount paid by the purchaser at such sale (which, in the case of a purchaser who is the holder of the lien being foreclosed, shall include the amount of the obligation secured by such lien to the extent satisfied by reason of such sale ).
5
(emphasis supplied). Where, as here, the lien holder purchases the liened property, "the amount legally satisfied by reason of the sale does not include the amount of such lien to the extent a deficiency judgment may be obtained therefor." 26 C.F.R. Sec. 301.7425-4(b)(2)(ii) (1982). The extent to which a deficiency judgment may be obtained is solely a matter of state law. See the examples in 26 C.F.R. Sec. 301.7425-4(b)(5); Equity Mortgage Corp. v. Loftus, 504 F.2d 1071, 1075-76 (4th Cir.1974). Thus the only issue presented by this case is the extent to which Charlotte's purchase of her debtor's property at an execution sale satisfied her judgment under New York law.
6
In ruling that Charlotte's purchase of Conrad's property satisfied her judgment by the lesser of the property's value and the amount of the judgment, the district court relied upon the decision of the New York Supreme Court, Westchester County, in Wandschneider v. Bekeny, 75 Misc.2d 32, 346 N.Y.S.2d 925 (1973). In Wandschneider, judgment creditors purchased their judgment debtor's house, in which the debtor had equity of at least $27,000, at a sheriff's sale for $500. On the day following the sale the judgment debtor commenced a special proceeding in Supreme Court to set the sale aside. Finding that it would be unconscionable to permit the judgment creditors to acquire equity of $27,000 in exchange for a $500 reduction in their outstanding judgment, Justice Gagliardi held that CPLR Sec. 5240, together with his general equity powers, authorized him to adjust the parties' rights. Section 5240 provides:
7
The court may at any time, on its own initiative or the motion of any interested person, and upon such notice as it may require, make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure. Section 3104 is applicable to procedures under this article.
8
To prevent the judgment creditors from reaping a windfall, Justice Gagliardi offset against the creditors' outstanding judgment the amount of equity they acquired through the purchase. The Justice supported his ruling by drawing an analogy to Real Property Actions and Proceedings Law Sec. 1371(2), which limits a foreclosing mortgagee's right to a deficiency judgment to the difference between the debt and the greater of the property's fair market value and the bid price.
9
If Wandschneider established the rule of New York law applicable to this case, we would agree with the district court's ruling. We conclude, however, that for two reasons the district court's reliance upon Wandschneider was misplaced. First, the New York Court of Appeals has held that Sec. 5240 may not be used to adjust parties' rights after a sale has been validly completed and title transferred. Guardian Loan Co. v. Early, 47 N.Y.2d 515, 419 N.Y.S.2d 56, 392 N.E.2d 1240 (1979). Second, we do not think that New York law entitles a judgment debtor to a setoff even though the debtor himself never requests relief.
10
In Guardian Loan, after the defendants failed to pay a judgment for $1,268, their residence was sold at a sheriff's sale to a stranger to the underlying judgment for $3,020. Two days after the sale the sheriff delivered a deed to the purchaser. The defendants thereafter commenced a special proceeding to set aside the sale. They contended that they had equity in their residence of at least $39,000. The Suffolk County Supreme Court, relying upon Sec. 5240, set the sale aside, and a divided Appellate Division affirmed. The Court of Appeals reversed, holding that although Sec. 5240 grants courts broad discretionary powers to alter the use of enforcement procedures, "it has no application after a Sheriff's sale has been carried out and the deed delivered to the purchaser, at which time the use of the enforcement procedure will have been completed." 47 N.Y.2d at 520, 419 N.Y.S.2d at 59, 392 N.E.2d at 1242 (citations omitted). The Court of Appeals stated that the use of Sec. 5240 to invalidate titles acquired at judicial sales would discourage third parties from participating in such sales. The court found no evidence that the Legislature intended Sec. 5240 to have such consequences.
11
The district court distinguished Guardian Loan from Wandschneider by noting that in Guardian Loan the sale was to a stranger to the judgment but in Wandschneider it was to the judgment creditor. The court stated that the specific issue addressed in Guardian Loan--whether Sec. 5240 authorizes a court to set aside a judicial sale to a third party simply because a representative price was not obtained--was "a far different question from whether a judgment creditor should be allowed to obtain the judgment debtor's property at an execution sale for a paltry sum and thereafter obtain a deficiency judgment without regard to the value actually wrested from the debtor's hands, which was the issue decided in Wandschneider." We do not agree with the district judge's attempt to distinguish Wandschneider from Guardian Loan with regard to Sec. 5240. Guardian Loan plainly holds that Sec. 5240 has no application after title is transferred pursuant to a judicial sale. See 47 N.Y.2d at 520, 419 N.Y.S.2d at 60, 392 N.E.2d at 1243: "However unfortunate the judgment debtor's plight may be, CPLR 5240 relates to the use of an enforcement device; it has no application after the threatened use of an enforcement procedure is a fait accompli." We conclude, therefore, that under Guardian Loan Sec. 5240 cannot be used to invalidate sales or to adjust rights following a transfer of title regardless of the identity of the purchaser. As title to Conrad's interest in the factory was transferred to Charlotte long before this case commenced, Sec. 5240 provides no basis for a setoff against Charlotte's judgment.3
12
In holding that Sec. 5240 is irrelevant to this case, we do not mean to suggest that Guardian Loan disapproved the result in Wandschneider. The injustice of permitting a judgment creditor to reap a double or multiple recovery from his debtor is obvious. Guardian Loan expressly stated that although Sec. 5240 affords no basis for post-transfer relief, a New York court may always "exercise its inherent equitable power over a sale made pursuant to its judgment or decree to ensure that it is not made the instrument of injustice." 47 N.Y.2d at 520, 419 N.Y.S.2d at 60, 392 N.E.2d at 1243 (emphasis supplied, citation omitted). The court stated that "(w)here the judgment debtor can show not merely disparity in price, but in addition ... exploitive overreaching, a court of equity may grant relief." 47 N.Y.2d at 521, 419 N.Y.S.2d at 60, 392 N.E.2d at 1243 (citation omitted). In light of these comments in Guardian Loan, we agree with the suggestion in Survey of New York Practice, 54 St. John's L.Rev. 382, 420 n. 176 (1980) "that if the facts in Wandschneider were before the Court of Appeals today, the use of equity, but not CPLR 5240, would be consistent with the Guardian Loan decision."
13
We believe that on the facts of this case, a New York court would not have used its equity powers to impose a setoff. New York courts follow the rules that "equity aids the vigilant," see, e.g., Valentine Gardens Coop., Inc. v. Oberman, 237 N.Y.S.2d 535, 538 (Sup.Ct.1963), and that "(e)quity requires that he who would invoke its aid must himself be diligent." In re Ageloff's Estate, 161 Misc. 388, 390, 292 N.Y.S. 287, 289 (Surrogate's Ct.1936). Although these maxims generally are applied in connection with claims of equitable estoppel, they also, we think, fairly indicate that New York courts require that an equitable right be asserted by the one who possesses it. Cf. Guardian Loan, 47 N.Y.2d at 521, 419 N.Y.S.2d at 60, 392 N.E.2d at 1243 ("where the judgment debtor can show not merely disparity in price, but in addition [misconduct] ... a court of equity may grant relief" (emphasis supplied, citation omitted)). Equitable relief was therefore properly granted in Wandschneider, where the judgment debtor, the very day after the sale, commenced proceedings to set the sale aside. In contrast, the judgment debtor in this case, Conrad, has never asserted a claim to a setoff. Nothing in New York law suggests that a non-mortgagee judgment creditor who purchases his debtor's property suffers an equitable setoff regardless of whether the debtor ever asserts his rights. Moreover, we believe that a New York court would be particularly reluctant to grant equitable relief in the present case, as Conrad's failure to claim a setoff may reflect an intent to retain in the family property otherwise subject to redemption for unpaid taxes.
14
We thus conclude that CPLR 5240 did not authorize a setoff against Charlotte's judgment, and that a New York court would not have used its equity powers to grant a setoff. It follows that Charlotte's purchase of Conrad's property satisfied her judgment only to the amount of her $50 bid. The district court should have permitted the government to redeem the property from Charlotte for $50 plus interest.
15
Our decision is fair to Charlotte. After the government redeems the property Charlotte may, if she chooses, enforce against Conrad her outstanding judgment less fifty dollars and levy against such other property as Conrad may own. Charlotte does not claim that she placed primary reliance upon Conrad's interest in the factory for the satisfaction of her judgment. But even if she did so rely, she could have protected herself against the effects of government redemption by bidding at the execution sale the lesser of the amount of her outstanding judgment and the fair market value of Conrad's interest. A purchasing lienor may be charged with knowledge that under the federal tax statute she risks being left with the right to become a judgment creditor of the debtor as her sole recourse on the outstanding obligation unless she bids the price at the execution sale up to the amount of the obligation. Cf. Equity Mortgage Corp. v. Loftus, supra, 504 F.2d at 1079. Having chosen to bid a mere $50, Charlotte is bound by that figure.
16
Reversed and remanded.
1
This judgment was later vacated nunc pro tunc
2
The United States filed tax liens totalling $100,363.66 against Conrad and his wife, Carol, between November 19, 1976 and May 31, 1977
3
In Hoffman v. Seniuk, 88 A.D.2d 954, 451 N.Y.S.2d 191 (A.D.2d 1982), the Appellate Division held that Guardian Loan does not prohibit a court from granting relief under Sec. 5240 during the interval between the striking off of the property to the highest bidder at the sheriff's sale, and the delivery of the deed. The court reasoned that relief could be granted during this interval because title is not transferred until the deed is delivered. Hoffman does not strengthen Charlotte's case, since neither Charlotte nor any other person requested a setoff during the period between Charlotte's purchase of Conrad's interest and the delivery to her of the deed
| {
"pile_set_name": "FreeLaw"
} |
821 F.2d 551
18 Soc.Sec.Rep.Ser. 129, Unempl.Ins.Rep. CCH 17,458Joyce M. JOHNS, Plaintiff-Appellant,v.Otis R. BOWEN, Secretary of Health and Human Services,Defendant-Appellee.
No. 86-3106.
United States Court of Appeals,Eleventh Circuit.
July 14, 1987.
William C. Davis, Jr., Jacksonville, Fla., for plaintiff-appellant.
John E. Lawlor, III, Asst. U.S. Atty., Jacksonville, Fla., for defendant-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before ANDERSON and CLARK, Circuit Judges, and SIMPSON*, Senior Circuit Judge.
PER CURIAM:
1
Joyce M. Johns appeals from the district court's judgment affirming the determination of the Secretary that she is not entitled to social security disability insurance benefits because of her ability to perform sedentary work. In making this determination, the Administrative Law Judge (ALJ), whose findings were adopted by the Secretary, found Johns' complaints of pain not to be credible. Because the ALJ failed to use the proper standards for determining whether Johns' pain is disabling, we vacate that part of the decision and remand the case for further proceedings consistent with this opinion.
I. BACKGROUND
2
Johns appeals from the denial of her third application for social security disability insurance benefits, which was filed on June 14, 1983. Johns' two previous applications were denied at the administrative level, and she did not seek judicial review. Johns' current application alleges that she has been disabled since February 25, 1981, because of spondylitis, polymyalgia rheumatica, osteoporosis, acute intermittent porphyria, lupus, myeloma, anemia, and cranial arteritis, which makes her extremely nervous. The application was denied initially and upon reconsideration.
3
Johns received a hearing before an ALJ on April 2, 1984. At the hearing, Johns testified that she was fifty years old and had a tenth grade education. At the time of the hearing, Johns' height was five feet, four inches, and her weight had declined from 182 pounds to 168 pounds, although she was not on any diet. Johns testified that she had worked at Lerner's, a women's apparel company, for seventeen years in several positions, including cashier, credit clerk, credit manager, store manager and payroll clerk. In 1978, she asked to transfer from the position of store manager to payroll clerk because of her health. In 1980, Johns requested that her work-load be reduced to three eight-hour days per week. On February 25, 1981, she took a thirty-day leave of absence from her payroll clerk position. She did not return to work.
4
In response to a question by the ALJ as to the primary reason why she was not working, Johns stated "pain" and explained she was unable to sit, lie, stand, or walk for any long period of time. Upon further inquiry as to which medical condition constituted her primary complaint, Johns responded that it was her polymyalgia rheumatica. Johns testified further that during a typical day she was able to read for about forty-five minutes, play a couple of songs on the piano, pick up her four-pound dog and walk with it a very short distance, cook, and do light housework that did not involve bending. Johns stated that she was unable to sit longer than thirty minutes, walk or drive more than one block (because she was unable to turn her head or the steering wheel and feared blackouts), shop, vacuum, or reach into the cupboard.
5
The medical evidence consists of the following reports compiled during the years 1981-1984. On March 30, 1981, Dr. John B. Ross, a specialist in internal medicine and Johns' treating physician, wrote that his patient's problems were incapacitating and that her health would benefit from a cessation of work.
6
On January 31, 1982, Johns was admitted to the hospital with various symptoms. Dr. William J. Harrington diagnosed anemia of chronic disease, and noted no evidence of myeloma or porphyria. Johns was discharged three days later in satisfactory condition. On May 9, 1982, Johns was admitted to the hospital with a new complaint of pain in her right hip, in addition to previously undiagnosed symptoms. Dr. Ross' discharge report of May 14, 1982, noted apparent pain in Johns' lower back, indicating anemia, and an x-ray revealing degenerative disc space. Dr. Ross' discharge diagnosis was polymyalgia rheumatica, based on Johns' anemia, elevated sedimentation rate, and complaints of pain in her neck, shoulder and pelvic area. The physician prescribed pain medication, including prednisone, that Johns later discontinued because of its side effects.
7
On January 11, 1983, Dr. William V. Choisser, a family practitioner, examined Johns and reported that she had a full range of motion. Dr. Choisser diagnosed: mild anemia of chronic disease, polymyalgia, and spondylitis by history with little objective evidence; acute intermittent porphyria by history, with an unconfirmed diagnosis; and no evidence of lupus. He noted that Johns did no lifting, stayed inside and lay in bed most of the day, and could walk a half a mile on a good day.
8
In April, 1983, Dr. A.N. Reddy, a specialist in internal medicine and rheumatology, examined Johns at the request of her insurance carrier. Dr. Reddy's report noted her complaints of pain in her shoulders, neck and chest, and observed that her history was not suggestive of classic polymyalgia rheumatica. The doctor diagnosed chronic anemia. Dr. Reddy referred Johns to Dr. Neil Abramson, who did not rule out a diagnosis of polymyalgia rheumatica or temporal arteritis.
9
On August 4, 1983, Dr. Rigoberto Fernandez examined Johns at the request of the medical disability examiner. Dr. Fernandez found that Johns had limited movement in her upper extremities caused by pain in the cervical area, and limited flexibility in her back and spine due to neck pain. Dr. Fernandez diagnosed: low back pain by history with normal range of motion and 1982 x-rays revealing acute spondylitis; possible polymyalgia rheumatica, multiple myeloma, or cranial arteritis, although unconfirmed by biopsy; osteoporosis of the spine with multiple pain by history; acute intermittent episodes of porphyria confirmed with tests; history of rheumatoid arthritis suggested by high sedimentation rate; chronic anemia by history; unconfirmed lupus; history of blackout spells and blurry vision; and moderate obesity.
10
On September 6, 1983, Dr. Ross reported that Johns' polymyalgia rheumatica condition is variable and sometimes incapacitating, that her medication may aggravate her osteoporosis, and that her temporal or cranial arteritis may diminish her vision and cause other eye problems. Dr. Ross concluded his report with the statement that "I believe Mrs. Johns' health is better served by her not working." On September 13, 1983, Dr. Ross informed the Office of Disability Determinations that it would be "next to impossible to estimate the severity and course of Mrs. Johns' primary disease." On March 27, 1984, Dr. Ross again reiterated the conclusion that "gainful employment for Joyce Johns is no longer possible."
11
The ALJ conducted the proper inquiry under 20 C.F.R. Sec. 404.1520 (1986) and found that Johns suffered from severe polymyalgia rheumatica, but did not have an impairment or combination of impairments listed or equal to those found in App. 1, Subpt. P, Reg. No. 4. The ALJ denied Johns benefits because he concluded that she retained the residual functional capacity to perform work of a sedentary nature, such as her past work as a payroll clerk. The ALJ concluded that Johns' impairment did not prevent her from performing her past relevant work and therefore she was not disabled. The ALJ rejected Dr. Ross' conclusions regarding Johns' ability to work, and Johns' allegations of chronic pain of a disabling nature. Johns' request for review by the Appeals Council was denied.
12
On appeal, Johns first contends that there is insufficient evidence to substantiate the ALJ's conclusion that, despite her severe impairment, she retains the residual functional capacity to perform her past relevant work. Specifically, Johns argues that the ALJ erroneously rejected the opinion of Dr. Ross, her treating physician, and unduly relied upon the report of Dr. Sanford Cobb, a non-examining physician. Second, Johns claims that the ALJ failed to consider properly her allegation of disabling pain. We find merit only in Johns' second claim and remand the case for further findings consistent with this opinion.
II. DISCUSSION
13
A claimant is entitled to disability benefits when she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment...." 42 U.S.C. Sec. 423(d)(1)(A) (1982). The claimant bears the initial burden of proving that she is unable to perform her previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir.1986). It is well established that "[i]n determining whether the claimant has satisfied this burden, the examiner must consider four factors: (1) objective medical facts or clinical findings; (2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the claimant's age, education, and work history." See, e.g., id. at 1005 (citation omitted).
14
We must uphold the decision of the ALJ if it is supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 390, 401, 91 S.Ct. 1420, 1422, 1427, 28 L.Ed.2d 842 (1971); Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir.1986).
A. Sufficiency of the Evidence
15
Johns challenges the ALJ's finding that she retains the residual functional capacity to perform sedentary work1 on the ground that he erroneously rejected the opinion of her treating physician, Dr. Ross, and instead relied upon the report of Dr. Sanford Cobb, an employee of the Department of Health and Human Services, who reviewed Johns' file but did not examine her. On two occasions, Dr. Ross indicated that Johns would benefit from a cessation of work. On a third occasion, Dr. Ross determined that Johns was unable to return to work. However, Dr. Cobb found that Johns was capable of performing medium work.2
16
It is established that the ALJ must accord "substantial" or "considerable" weight to the opinion of a claimant's treating physician, absent "good cause" to the contrary. Broughton v. Heckler, 776 F.2d 960, 961 (11th Cir.1985). The requisite "good cause" is not provided by the report of a nonexamining physician because the opinion of such a person is entitled to little weight if it contradicts the opinion of the claimant's treating physician. Id. at 962. However, we need not consider further whether the ALJ erroneously rejected Dr. Ross' opinion on the basis of Dr. Cobb's report. Contrary to Johns' contention, we find no evidence that the ALJ relied upon Dr. Cobb's report. The ALJ summarized the medical findings and diagnoses of Drs. Ross, Harrington, Choisser, Reddy, and Fernandez, all of whom examined Johns, but made no reference whatsoever to Dr. Cobb's report.
17
Although the opinion of a claimant's examining physician is accorded substantial weight, it is not necessarily dispositive on the issue of disability. See Jones, 810 F.2d at 1005. The opinion of the treating physician regarding disability or inability to work may be discounted if it is unsupported by objective medical evidence or is merely conclusory. See Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir.1987); 20 C.F.R. Sec. 404.1527.3 In this case, the ALJ had good cause for not according substantial weight to Dr. Ross' statements concerning Johns' inability to continue working because all three statements were conclusory and unsupported by objective medical findings. On March 30, 1981, Dr. Ross reported only that Johns' "medical problems are somewhat bizarre, but ... certainly incapacitating." On September 6, 1983, Dr. Ross wrote to Johns' attorney that the claimant's polymyalgia rheumatica is a "variable disease and [is] sometimes incapacitating." In a subsequent letter to Johns' attorney on March 27, 1984, Dr. Ross merely confirmed the claimant's diagnosis of polymyalgia rheumatica, noted her reluctance to take prednisone because of its side effects, and concluded that gainful employment for her was no longer possible. These opinions omit any discussion of why the disability makes it impossible for the claimant to be gainfully employed, or the nature or permanence of the disability.
18
Subject to further findings upon remand regarding whether Johns is disabled by pain, we conclude that the evidence supports a finding that the claimant can perform sedentary work, which includes her past relevant work as a payroll clerk.
B. Disabling Pain
19
Johns challenges the ALJ's rejection of her claim that she suffers from chronic disabling pain, which precludes her from engaging in gainful employment. The ALJ found that in light of Johns' appearance at the hearing, and the absence of sufficient medical evidence, her allegations of chronic pain of a disabling nature were not fully credible. We need not decide whether Johns' alleged pain indeed prevents her from returning to work in order to conclude that the ALJ both failed to apply the correct legal standard and made an improper credibility determination.
20
In 1984, Congress established a new, temporary standard for evaluating subjective evidence of pain. See 42 U.S.C. Sec. 423(d)(5)(A) (Supp. III 1985);4 see also 20 C.F.R. Sec. 404.1529.5 This court has held that Congress intended the new standard to apply to all cases then pending before either the Secretary or the court. Landry v. Heckler, 782 F.2d 1551 (11th Cir.1986). The law requires the Secretary
21
to consider a claimant's subjective testimony of pain if [he] finds evidence of an underlying medical condition, and either (1) objective medical evidence to confirm the severity of the alleged pain arising from that condition or (2) [that] the objectively determined medical condition must be of a severity which can reasonably be expected to give rise to the alleged pain.
22
Mason v. Bowen, 791 F.2d 1460, 1462 (11th Cir.1986) (citation omitted).
23
The medical reports provide substantial evidence of an underlying medical condition of polymyalgia rheumatica, among other impairments, thus satisfying the threshold prong of the above standard. The ALJ appears to have examined the first prong of the second part of the test, concluding that there was insufficient medical evidence to substantiate Johns' claim of chronic, disabling pain. However, the ALJ failed to consider the alternative way in which a claimant can satisfy the test, i.e., whether Johns' medical condition could reasonably be expected to produce the alleged pain. Because the ALJ was bound to consider this, we remand the case to permit a determination of whether Johns has satisfied the second prong of the latter part of the above test. Jackson v. Bowen, 801 F.2d 1291, 1294 (11th Cir.1986). We observe that the diagnosis of polymyalgia rheumatica was based, in part, upon Johns' complaints of pain.6 Indeed, polymyalgia rheumatica is defined as "[p]ain and stiffness affecting the muscles of the neck and shoulders, and later involving also the muscles of the hips and thighs. It is said to occur more often in women, in middle and later years." J. Schmidt, Attorneys' Dictionary of Medicine & Word Finder (1986). Johns shall be given the opportunity to submit additional evidence in this regard.
24
We also find that the ALJ made an improper credibility determination when he rejected Johns' complaints of pain on the bases of his own observations of her appearance at the hearing and his own criteria for evaluating pain. The ALJ stated as follows:
25
At the hearing itself claimant gave no evidence of having any difficulty turning her head. She was closely observed because of her many complaints and she gave no outward sign of pain or discomfort. Despite her testimony about being in pain all the time, she had taken no medication on the day of the hearing.
26
....
27
In evaluating the credibility of allegations regarding the severity of pain all factors should be considered. Constant or unremitting pain is an appetite depressant. Generally speaking if an individual has suffered severe and constant pain over a long period of time there are physical signs observable such as drawn features, weight loss and muscle atrophy due to dysfunction. In addition a person suffering from constant pain rarely if ever presents an outward appearance of good health. At the hearing claimant did not appear preoccupied with personal discomfort and the testimony was direct and to the point. No outward obvious abnormalities were noted. The evidence discloses a fairly even weight record.
28
Hearing Decision (May 25, 1984), Record, Vol. 2 at 18.
29
Subjective pain testimony supported by objective medical evidence of a condition that can reasonably be expected to produce the symptoms of which claimant complains is sufficient to sustain a finding of disability. MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir.1986); 42 U.S.C. Sec. 423(d)(5)(A) (Supp. III 1985). Where the claimant's testimony is critical, the fact finder must articulate adequate reasons for questioning a claimant's credibility. See Jones, 810 F.2d at 1004. Although credibility determinations are reserved to the ALJ, this court has condemned use of the "sit and squirm" test. See, e.g., Wilson v. Heckler, 734 F.2d 513, 517 (11th Cir.1984).
30
The ALJ determined that Johns did not suffer pain of a disabling nature, in part because of her lack of preoccupation with personal discomfort during the hearing, her lack of obvious abnormalities, and her "fairly even weight record."7 The ALJ developed his own indicia for measuring claimant's pain, including drawn features, weight loss and muscle atrophy. Thus, the ALJ improperly engaged in "sit and squirm" jurisprudence, substituted his own criteria for measuring pain, and erroneously considered only objective medical evidence, to evaluate claimant's testimony about her pain. Wilson, 734 F.2d at 518. Because of these errors, this case must be remanded to the Secretary for further consideration under the proper standards. Id.
III. CONCLUSION
31
We find that the ALJ failed to apply the proper standards to determine whether Johns' complaint of disabling pain is credible and would diminish any residual functional capacity to work that she may otherwise have. We vacate that part of the decision and remand the case for further proceedings consistent with this opinion.
32
AFFIRMED in part, VACATED and REMANDED in part with instructions to remand to the Secretary.
*
Judge Simpson did not participate in the decision in this case and the decision is by quorum. 28 U.S.C. Sec. 46; Circuit Rule 3
1
Sedentary work "involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." 20 C.F.R. Sec. 404.1567(a) (1986)
2
Medium work "involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work." 20 C.F.R. Sec. 404.1567(c) (1986). See also id. Sec. 404.1567(a) and (b)
3
The regulation provides:
Conclusion by physicians concerning your disability.
We are responsible for determining whether you are disabled. Therefore, a statement by your physician that you are "disabled" or "unable to work" does not mean that we will determine that you are disabled. We have to review the medical findings and other evidence that support a physician's statement that you are "disabled."
20
C.F.R. Sec. 404.1527 (1986)
4
The statute provides:
An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require. An individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability.
42 U.S.C. Sec. 423(d)(5)(A) (Supp. III 1985).
5
The regulation provides:
How we evaluate symptoms, including pain.
If you have a physical or mental impairment, you may have symptoms (like pain, shortness of breath, weakness or nervousness). We consider all your symptoms, including pain, and the extent to which signs and laboratory findings confirm these symptoms. The effects of all symptoms, including severe and prolonged pain, must be evaluated on the basis of a medically determinable impairment which can be shown to be the cause of the symptom. We will never find that you are disabled based on your symptoms, including pain, unless medical signs or findings show that there is a medical condition that could be reasonably expected to produce those symptoms.
20
C.F.R. Sec. 404.1529 (1986)
6
Dr. Ross diagnosed polymyalgia rheumatica on the basis of Johns' anemia, elevated sedimentation rate and complaints of pains in her neck, shoulder and pelvic area. In addition, Dr. Fernandez found that Johns had limited movement and flexibility due to pains in her cervical area and neck, and a history of lower back and spinal pain. He concluded that she had possible polymyalgia rheumatica
7
Contrary to this conclusion, Johns did not have a fairly even weight record. When the ALJ asked her if she weighed 182 pounds, she replied that her weight was down to 168 pounds, although she was not on any diet. Record, Vol. 2 at 26
| {
"pile_set_name": "FreeLaw"
} |
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
_________________________
No. 06-12-00069-CV
______________________________
R. WAYNE JOHNSON, Appellant
V.
K. ELLISON, Appellee
On Appeal from the 76th Judicial District Court
Titus County, Texas
Trial Court No. 36,347
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
R. Wayne Johnson, a.k.a. “Legal Eagle,”1 complains of an alleged “void order”
dismissing his lawsuit against “K. Ellison” for “depravation [sic] of property” due to an alleged
“refus[al] to process plaintiff’s appeal” in a different lawsuit. Johnson complains that the court
erred in finding that his petition “constitute[d] a frivolous filing.” For the reasons set forth
below, we dismiss the appeal for want of jurisdiction.
A court may enter an order prohibiting a person from filing a new litigation in a court in
this state if the person is a vexatious litigant. TEX. CIV. PRAC. & REM. CODE ANN. § 11.101(a)(1)
(West Supp. 2012). Johnson is on the State of Texas’ list of vexatious litigants. 2 See generally
TEX. CIV. PRAC. & REM. CODE ANN. §§11.051–.057 (West 2002). He is specifically prohibited
from “filing any more litigation in Texas courts without permission of a local administrative
judge.” Office of Court Administration, Vexatious Litigant Order (July 31, 2012, 10:08 AM),
http://www.txcourts.gov/oca/pdf/vex/RWayneJohnson-akaLegalEagle.pdf.
1
Office of Court Administration, Vexatious Litigants (July 31, 2012, 10:06 AM),
http://www.txcourts.gov/oca/vexatiouslitigants.asp; see TEX. CIV. PRAC. & REM. CODE ANN. § 11.104(b) (West
Supp. 2012).
2
We have previously dealt with Johnson in his capacity as a vexatious litigant, as have three of our sister courts. See
In re Johnson, No. 06-12-00057-CV, 2012 WL 2094424 (Tex. App.—Texarkana June 12, 2012, orig. proceeding);
In re Johnson, No. 06-11-00096-CV, 2011 WL 4686502 (Tex. App.—Texarkana Oct. 7, 2011, orig. proceeding); In
re Johnson, No. 06-11-00116-CV, 2011 WL 5135298 (Tex. App.—Texarkana Oct. 28, 2011, orig. proceeding); In
re Johnson, No. 13-12-00024-CV, 2012 WL 171920 (Tex. App.—Corpus Christi Jan. 18, 2012, orig. proceeding);
In re Johnson, No. 07-10-00254-CV, 2011 WL 2554381 (Tex. App.—Amarillo June 28, 2011, orig. proceeding); In
re Johnson, No. 07-10-00202-CV, 2010 WL 474037 (Tex. App.—Amarillo Nov. 23, 2010, orig. proceeding); In re
Johnson, No. 07-09-00008-CV, 2010 WL 1904276 (Tex. App.—Amarillo May 11, 2010, orig. proceeding); In re
Johnson, No. 07-07-0431-CV, 2009 WL 2225844 (Tex. App.—Amarillo July 27, 2009, orig. proceeding); In re
Johnson, No. 07-07-0245-CV, 2008 WL 2681314 (Tex. App.—Amarillo July 9, 2008, orig. proceeding); In re
Johnson, No. 07-06-00445-CV, 2006 WL 3543015 (Tex. App.—Amarillo Dec. 8, 2006, orig. proceeding); In re
Johnson, No. 09-04-129-CV, 2004 WL 584426 (Tex. App.—Beaumont Mar. 25, 2004, orig. proceeding); In re
Johnson, No. 07-04-0009-CV, 2004 WL 76363 (Tex. App.—Amarillo Jan.16, 2004, orig. proceeding).
2
“A local administrative judge may grant permission to a person found to be a vexatious
litigant under Section 11.101 to file a litigation only if it appears to the judge that the litigation:
(1) has merit; and (2) has not been filed for the purposes of harassment or delay.” TEX. CIV.
PRAC. & REM. CODE ANN. § 11.102(a) (West Supp. 2012).3 “A clerk of a court may not file a
litigation, original proceeding, appeal, or other claim presented by a vexatious litigant subject to
a prefiling order under Section 11.101 unless the litigant obtains an order from the local
administrative judge permitting the filing.” TEX. CIV. PRAC. & REM. CODE ANN. § 11.103(a)
(West Supp. 2012). If the clerk mistakenly files the litigation without an order from the local
administrative judge, as was done here, any party may file with the clerk and serve on the
plaintiff and other parties to the suit a notice stating that the plaintiff is a vexatious litigant
subject to a prefiling order. TEX. CIV. PRAC. & REM. CODE ANN. § 11.103(b) (West Supp. 2012).
On the filing of the notice, the court is required to dismiss the suit unless the plaintiff, within ten
days after the notice is filed, obtains an order from the local administrative judge permitting the
filing of the litigation. Id. Here, however, the record contains no indication that K. Ellison was
served with notice of the suit, or that the party filed a notice in accordance with Section
11.103(b).
Nonetheless, permission from the local administrative judge was required as a
prerequisite to the filing of the lawsuit. Here, the record failed to demonstrate that Johnson
requested such permission. Noting this defect, we provided notice to Johnson requesting that he
3
Although the trial court’s dismissal order found Johnson’s petition to be frivolous under Chapter 14 of the Texas
Civil Practice and Remedies Code, that determination was required to be made by the local administrative judge as a
prerequisite to filing suit.
3
show this Court how we had jurisdiction over this appeal. 4 Johnson’s response has been
received, but fails to demonstrate that the proper procedure set forth in Chapter 11 of the Texas
Civil Practice and Remedies Code has been followed. Accordingly, a prerequisite to filing suit
was not met and the lawsuit should not have been filed. We dismiss the appeal for want of
jurisdiction.
Josh R. Morriss, III
Chief Justice
Date Submitted: September 5, 2012
Date Decided: September 6, 2012
4
Ample time to allow Johnson to present the case to the local administrative judge was afforded.
4
| {
"pile_set_name": "FreeLaw"
} |
348 N.W.2d 633 (1984)
Donald F. PIRKL, Appellant,
v.
NORTHWESTERN MUTUAL INSURANCE ASSOCIATION, Appellee.
No. 83-271.
Supreme Court of Iowa.
May 16, 1984.
As Corrected May 16, 1984.
Rehearing Denied June 8, 1984.
John T. Nolan and Marc B. Moen of Rate, Nolan, Bohanan, Moen & Lucas, Iowa City, for appellant.
Robert N. Downer of Meardon, Sueppel, Downer & Hayes, Iowa City, and F.W. Tomasek of Tomasek, Vogel & Charnetski, Grinnell, for appellee.
Considered by REYNOLDSON, C.J., and UHLENHOPP, HARRIS, LARSON, and CARTER, JJ.
CARTER, Justice.
Both the insured and the insurer appeal from the judgment of the district court following a jury trial to recover actual and punitive damages based on the insurer's failure to pay a theft loss claim.
The case involves the claim of plaintiff, Donald F. Pirkl, a Johnson County farmer, who contends that the defendant Northwestern Mutual Insurance Association *634 breached its contract of insurance and acted in bad faith when it failed to pay his claim for a reported theft of approximately sixty-nine feeder pigs. After hearing the evidence, the jury awarded plaintiff $1228.20 in compensatory damages and $12,282.00 in punitive damages. Upon defendant's motion for judgment notwithstanding the verdict, the trial court set aside the award of punitive damages and entered judgment for the amount of compensatory damages only.
On appeal, the plaintiff asserts that (1) this court should recognize the existence of an independent claim in tort by an insured against an insurer for bad faith failure to pay a first party claim; and (2) that there was substantial evidence offered in support of all the elements of such a claim in the present case thereby rendering the trial court's ruling on defendant's motion for judgment notwithstanding the verdict erroneous. On its cross-appeal, the defendant insurer asserts that (1) the untimeliness of plaintiff's notice of loss should preclude any recovery under the policy, and (2) the district court erred in its instructions to the jury concerning the effect of lack of prejudice upon its affirmative defense of untimely notice of claim.
The record discloses that on or about July 22, 1980, the plaintiff believed that some of his feeder pigs were missing from a field where they had been kept. He notified the Johnson County Sheriff's Office, and a deputy was soon dispatched to investigate the disappearance. There were few visible signs that a theft had occurred. The ground was hard packed and did not show tire tracks. A gate to the enclosed area where the pigs had been located was closed, but plaintiff believed that the latch was attached differently (locked from the outside rather than the inside) from the way he had last fastened it. It also appeared that a strand of electric fencing was missing from the top of the gate.
The particular field is located in close proximity to an entrance to Interstate 80, a circumstance claimed to provide easy access to plaintiff's field while at the same time attracting minimal attention to cars and trucks because of a usually high amount of traffic in the area. Although he could locate no direct evidence of theft, the deputy sheriff concluded that the pigs had been stolen. This conclusion was based largely on the fact that several other livestock thefts had occurred recently in Johnson, Washington and Iowa Counties.
The plaintiff had been insured by the defendant mutual insurance association for over twenty years at the time of this incident. His policy contained a provision requiring that a claim of theft loss be filed within 24 hours of the underlying occurrence. It also required that on theft claims there should be "substantial proof" that a loss was caused by theft. Inventory shortages and other mysterious disappearances were not embraced within the coverage of the policy absent independent evidence of theft.
Plaintiff did not notify the defendant association of his theft claim until July 28, 1980. By this time, he had sold the remaining feeder pigs and believed he had ascertained with reasonable certainty the number of pigs which were missing. Upon being presented with the claim, the defendant association sent an adjuster to visit the farm who advised the plaintiff that in the absence of physical evidence that a theft had occurred the company must disallow the claim.
After plaintiff's attorney had written the association and received a reply reaffirming the denial of the claim, plaintiff initiated this action seeking compensatory damages for a theft loss alleged to be covered by defendant's policy and for punitive damages based upon an alleged bad faith refusal to pay the claim. Trial resulted in the aforementioned verdicts, motions and ruling of the district court. We consider the claims presented on appeal separately. Additional facts which are deemed necessary to our decision are considered in connection with the legal issues presented.
I. Existence of Independent Tort Action for Insurer's Bad Faith Failure to Settle First Party Claims.
*635 At the outset, plaintiff urges us to clarify the matter of whether this jurisdiction recognizes an independent tort based upon an insurer's bad faith in failing to settle a casualty loss claim with its own insured. The defendant association contends that we unequivocally rejected such a theory of liability in Brown Township Mutual Insurance Association v. Kress, 330 N.W.2d 291, 298 (Iowa 1983). We do not believe our holding in Kress is that clearly defined with respect to this issue.
While we noted in Kress that we had in other cases declined to recognize such a theory of recovery, it appears that in those cases in which the issue had previously been considered, the claims which the insurer failed to pay were as a matter of law "fairly debatable." See, e.g., Higgins v. Blue Cross of Western Iowa and South Dakota, 319 N.W.2d 232, 236 (Iowa 1982); M-Z Enterprises, Inc. v. Hawkeye Security Insurance Co., 318 N.W.2d 408, 414 (Iowa 1982).[1] We also inferred that this was the situation in Kress in denying the right to recover punitive damages in that case.
As a result of our previous approach to claims of this nature, our law has been shaped on the basis of identifying the type of situation which does not permit recovery on an independent tort theory rather than identifying the type of situations, if any, which would support recovery on such a theory. Because of the apparent frequency with which this type of claim is being asserted, we conclude that some effort should be made to clarify its status under our law.
The plaintiff urges that there is no logical basis for recognizing a cause of action in tort for acts of a liability insurer which cause harm to its insured as a result of the insurer's bad faith in representing the insured's interests against a third party claim[2] and in not also recognizing a similar cause of action against a casualty insurer who causes harm to its insured through the bad faith handling of a property loss claim. He cites Anderson v. Continental Insurance Co., 85 Wis.2d 675, 687, 271 N.W.2d 368, 374-75 (1978) as supporting the analogy between the two types of insurance claims.
We are not nearly as persuaded as the Wisconsin court in Anderson that the rationale which recognizes an ancillary duty of a liability insurer to exercise good faith in the settlement of third party claims is equally applicable and of equal importance when an insured seeks payment of a claim for a property loss from his own casualty insurer.
The relationship between the insurer and its insured in the two situations is markedly different. In the former situation, a clear fiduciary duty arises which places an affirmative duty on the insurer to investigate the claim and take such additional affirmative action as is required in the best interests of its insured. In the casualty insurance situation, the relationship between insurer and insured is for many purposes at arms length. The insurer has no clearly defined duty of investigation and may require the insured to present adequate proof of loss before paying the claim. The two parties are on opposite sides of the issue rather than being partners on the same side as in the liability insurance situation.
*636 If the issue were simply a theoretical one of whether the nature of this type of claim is one which should properly be recognized as a tort action we would be inclined to respond in the negative. Clearly, however, that is not the real issue presented. The real issue is whether punitive damages may be recovered in some circumstances for denial of a first party casualty loss claim by an insurer for other than legitimate reasons.
The defendant association urges that such failure is only a breach of contract, and we should adhere to the rule that punitive damages are not recoverable for that type of claim. We thoroughly reviewed the law surrounding recovery of punitive damages in contract actions in Pogge v. Fullerton Lumber Co., 277 N.W.2d 916, 918-20 (Iowa 1979). We determined in Pogge that in considering whether punitive damages should be permitted, the nature of the conduct is more significant than the legal label which is attached to the conduct. We recognized that in situations which satisfied the elements of a claim for intentional infliction of emotional distress an act which is a breach of contract may also support a claim for punitive damages. Id. at 920. We concluded that
[I]n exploring the dimensions of conduct invoking an award for punitive damages,... such an award was permissible where defendant was guilty of malice, fraud, gross negligence, or an illegal act.
Id. In Kooyman, 315 N.W.2d at 34 (Iowa 1982), we recognized that in the area of bad faith settlements of third party liability claims by a liability insurer not all acts constituting bad faith will support an award of punitive damages. We implied, however, that such damages are recoverable in situations involving "positive misconduct of a malicious, illegal, or an immoral nature."
Based upon the considerations discussed in Pogge and Kooyman, we are unable to accept the defendant's contention that in no instance will the denial of a valid claim by a casualty insurer support a claim for punitive damages in addition to the recovery of the loss which should have been paid under the policy. We conclude, however, that such recovery may not be predicated on action which involves no more than upsetting the justified expectations of the insured.
Tested by these principles, we find that the trial court in the present case was correct in setting aside the jury's award of punitive damages in its ruling on defendant's motion for judgment notwithstanding the verdict. The evidence of theft submitted to the defendant association by plaintiff was certainly not strong. At several places in the record, plaintiff himself is quite equivocal as to his own beliefs in this regard. There is no claim of fraud in defendant's denial of the claim. There is no indication in the record of any acts by the defendant from which it can be inferred that it acted with malice in denial of the claim. We affirm the district court on plaintiff's appeal.
II. Defendant's Appeal.
Defendant asserts on its appeal that the trial court erred in not also setting aside the award of actual damages in response to its motion for judgment notwithstanding the verdict. This is based upon its theory that plaintiff's notice of the theft loss was untimely as a matter of law based upon the policy requirements. In the alternative, defendant contends on its appeal that the trial court erred in instructing the jury that failure to give notice of the theft within the time required by the policy would not preclude recovery if the insurer was not prejudiced as a result of the delay.
We reject both contentions advanced by defendant.
Both of defendant's contentions on appeal are based on the contention that notice of the theft "within twenty-four hours of the time of loss" is a condition precedent to any recovery for theft loss under the policy. The fact that a certain performance is required on the part of one of the contracting parties does not necessarily render it a condition precedent to the *637 enforcement of any performance on the part of the other party to the agreement. Union Story Trust & Savings Bank v. Sayer, 332 N.W.2d 316, 322 (Iowa 1983). In the Sayer case, we said:
[I]n order to predicate the discharge of one of the contracting parties upon breach of condition by the other, the party claiming discharge must show the condition breached constituted the entire agreed exchange by the other party, or was expressly recognized in the bargain as a condition for the other's performance.
Id. While the conditions of the policy in the present case provide that notice of theft should be given the insurer "within twenty-four hours of the time of loss," this is not expressly made a condition precedent to the payment of the claim. Accordingly, we hold that the trial court correctly instructed the jury that if no prejudice resulted to the insurer from the failure to comply with this provision, plaintiff's right to recover under the policy would not be defeated. It cannot be said on the present record that prejudice resulted to the insurer as a matter of law. Indeed, no indication of actual prejudice has been suggested. We affirm the district court on defendant's appeal.
AFFIRMED ON BOTH APPEALS.
NOTES
[1] In Seeman v. Liberty Mutual Insurance Co., 322 N.W.2d 35, 41 (Iowa 1982), we answered a certified question from a federal court declining to recognize a private cause of action for unreasonable insurance practices which violate certain statutes regulating insurance companies which do business in this state. In that decision, we expressly left open the question of whether we recognized the existence at common law of an independent tort action for an insurer's bad faith failure to settle first party claims.
[2] We recognized an independent tort liability for breach of a liability insurer's duty to act in good faith in representing an insured against a third party in Higgins, 319 N.W.2d at 235; Kooyman v. Farm Bureau Mutual Insurance Co., 315 N.W.2d 30, 33-34 (Iowa 1982); and Koppie v. Allied Mutual Insurance Co., 210 N.W.2d 844, 846-48 (Iowa 1973). In Long v. McAllister, 319 N.W.2d 256, 262 (Iowa 1982), we refused to recognize such a claim by a third party claimant against an insurer for bad faith in failing to settle a claim against its insured.
| {
"pile_set_name": "FreeLaw"
} |
604 F.2d 1091
102 L.R.R.M. (BNA) 2001, 86 Lab.Cas. P 11,503
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 265,Respondent.
No. 78-1662.
United States Court of Appeals,Eighth Circuit.
Submitted Feb. 14, 1979.Decided Aug. 20, 1979.
Andrew F. Tranovich, Atty., N. L. R. B., Washington, D. C., for petitioner; John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel and Sandra Shands Elligers, Atty., Washington, D. C., on brief.
David D. Weinberg, of Weinberg & Weinberg, Omaha, Neb., for respondent.
Before HEANEY and McMILLIAN, Circuit Judges, and BENSON,* Chief Judge.
McMILLIAN, Circuit Judge.
1
The National Labor Relations Board (Board) petitions this court, pursuant to § 10(e) of the National Labor Relations Act (Act), as amended, 29 U.S.C. § 151 Et seq., for enforcement of its order finding that the International Brotherhood of Electrical Workers, Local 265 (the Union), violated § 8(b)(7)(C) of the Act by unlawfully picketing for recognitional and organizational purposes.
2
The Board concluded that the Union violated § 8(b)(7)(C) by picketing R P & M Electric (the Company), an electrical contractor in the construction industry, with an object of forcing or requiring the Company to recognize or bargain with the Union when the Union was not the certified bargaining representative of the Company's employees and had not filed an election petition within thirty days after commencement of the picketing. We grant enforcement of the Board's order.
3
The facts as found by the Board are not in dispute. Briefly, they are as follows: In August, 1974, Arlie Heald, the Union's business manager, asked R P & M's president, Roger Trautwein, if he would sign a collective-bargaining agreement. Trautwein indicated that at an unspecified time in the future he would be amenable to such an agreement. About a month later, Heald asked Trautwein whether he was now ready and Trautwein said no. In July, 1976, Heald spoke with Bruce Trautwein (Roger's brother and a member of the Union) regarding the matter. Heald sent Bruce Trautwein to his brother to see if Roger Trautwein was now willing to sign. Bruce Trautwein reported back that Roger Trautwein was not interested.
4
Thereafter, on August 9, 1976, Heald sent the following letter to R P & M:
Gentlemen:
5
Your company has been and is engaged in electrical construction work in Lincoln, and we note that you apparently have the electrical work for some of the Safeway Stores in Lincoln. This organization has investigated the conditions under which your employees perform their work. We have found that your total labor cost on the above work is below that which has been negotiated with contractors in the area. In addition, we have found that you are free to underbid fair contractors on work of this sort because of the substandard wages and benefits that you pay on other work.
6
As a matter of simple economics, therefore, the conditions under which your employees perform their work adversely affect other employees and limit employment opportunities for workers who regularly receive fair wages and benefits.
7
We wish to inform you that this organization does not intend to interfere with the rights of your employees to work without becoming members of the Union, nor does it make any demand upon you to sign a contract with our Union.
8
The purpose of this communication is to Request your company to pay your employees who will be employed by you in Local 265's area performing work in the electrical field, the Minimum standards of wages, hours and working conditions established by our Union. Our sole and only interest in this request is to Maintain minimum standards of wages, hours and working conditions for electrical employees who will be employed by you in this area regardless of their Union or non-union affiliation. We want this specifically understood by your Company.
9
Our only object throughout the course of this dispute is to inform the public and the citizens in this area that your employees work under substandard conditions. We shall do so by means of peaceful primary picketing and other lawful forms of publicity at job sites and other locations where you are engaged in your normal business.
10
If you are desirous of complying with our request, We will furnish your company with a statement of minimum standards of wages, hours and working conditions that have been established by our union for electricians. However, If you request such a statement from us and in the event we can not reach a mutual agreement relative to the union's request within a period of three days following receipt of this letter, our union and your company will be in dispute concerning Minimum standards established by our organization as to wages, hours and working conditions for workmen who will be employed by you doing electrical work in this area.
11
On the other hand, if you do not contact us at all within the period of three days after receipt of this letter in answer to our request, our union and your company will be in dispute concerning minimum standards established by our organization as to wages, hours and working conditions for workmen who will be employed by you doing electrical work in this area.
12
We are Ready, willing and able to meet with your company at a reasonable and convenient time, within the time limits expressed above for the purpose of discussion concerning the matters contained in this letter. (Emphasis supplied.)
13
By letter dated August 11, Roger Trautwein advised the Union that the work on the Safeway job had been completed. However, on two subsequent dates, October 11, 1976, and November 23-24, 1976, the Union picketed R P & M jobsites with a sign which read: "R P & M Elect. does not pay union wages & conditions. I.B.E.W. Local 265. This dispute with the above-named employer only." In each instance of picketing, the Union removed the picket after receiving a telegram from the general contractor on the project stating that R P & M had either been removed or would not be on the project during certain hours. Three carpenters and a laborer refused to cross the picket line on November 23.
14
It is also agreed that the Union never filed an election petition under § 9(c) of the Act, seeking certification by the Board as the bargaining representative of the Company's employees.
15
At the outset we are reminded of the very narrow standard of review in Board decisions. This court must affirm any Board decision to the extent that it rests on findings of fact for which there is substantial evidence in the record. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); NLRB v. Pacific Grinding Wheel Co., 572 F.2d 1343, 1347 (9th Cir. 1978); NLRB v. Wal-Mart Stores, Inc., 488 F.2d 114, 116-17 (8th Cir. 1973).
16
The Union contends that there is not substantial evidence in support of the Board's findings. The Union also contends that the attempts at attaining recognition by the Company of the Union had been abandoned prior to the sending of the August 9, 1976, letter. It argues that both the Administrative Law Judge (ALJ) and the Board presumed a continuation of a recognitional and an organizational objective because of the events that occurred in August, 1974. Granted, the August, 1974, attempts were well beyond the six-month period provided in § 10(b) of the Act, 29 U.S.C. § 160(b). This in no way detracts from the Board's finding that the Union's picketing had a recognitional object. In our view, the earlier events of August, 1974, while remote, at least shed some light upon the specific conduct beginning with Heald's conversation with Bruce Trautwein in July, 1976, Bruce's report back as to his brother Roger's position, and the subsequent August 9, 1976, letter. See NLRB v. Carpenters Local 745, 450 F.2d 1255, 1258 (9th Cir. 1971). In any event, neither the Board nor the ALJ purported to rest their decisions entirely upon the 1974 conduct, but instead rested upon their interpretation of the July, 1976, conversation and the subsequent August 9 letter for their finding of a § 8(b)(7)(C) violation.
17
The Union argues that the August 9, 1976, letter not only disavowed any interest in organizing the Company's employees or negotiating a contract on their behalf, but also was a mere "area standards" letter and thus had a nonorganizational purpose. In support of these arguments, the Union claims that the ALJ and the Board ignored Heald's uncontradicted testimony that the purpose of the letter was to attempt to maintain the hourly rates of wages and monetary benefits for Department of Labor purposes and that it was not the purpose of the Union to include all portions of the labor agreement in the request contained in the August 9 letter.
18
Section 8(b)(7), enacted as part of the 1959 Landrum-Griffin amendment to the Act, establishes a comprehensive code governing recognitional and organizational picketing. NLRB v. Drivers Local 639 (Curtis Bros.), 362 U.S. 274, 291, 80 S.Ct. 706, 4 L.Ed.2d 710 (1960). The application of § 8(b)(7) is limited to picketing by unions, not currently certified, where an object thereof is either forcing or requiring an employer to recognize or bargain with it or forcing or requiring employees to select it as their bargaining representative. Houston Building & Construction Trade Council, (Claude Everett Construction Co.), 136 NLRB 321, 49 LRRM 1757 (1962).
19
Congress enacted § 8(b)(7) as a corollary to the federal policy of ensuring employees a free choice in the selection of a bargaining representative. Dayton Typographical Union No. 57 v. NLRB, 117 U.S.App.D.C. 91, 94, 103-106, 326 F.2d 634, 637, 646-649 (D.C.Cir. 1963); Local 542, Operating Engineers (R. S. Noonan, Inc.), 142 NLRB 1132, 53 LRRM 1205 (1963), enf'd, 331 F.2d 99, 107 (3d Cir.), Cert. denied, 379 U.S. 889, 85 S.Ct. 161, 13 L.Ed.2d 93 (1964). Prior to the 1959 amendments, a union could lawfully picket an employer for an unlimited length of time, either to compel the employer to recognize it as the bargaining representative of his employees or to force the employees to select it as their representative. Section 8(b)(7)(C) removes these threats by encouraging prompt resort to the Board's election process and by discouraging the economic pressures of picketing as the vehicle to resolve questions of representation. Dayton Typographical Union No. 57 v. NLRB, supra, 117 U.S.App.D.C. at 104, 326 F.2d at 647. See also Meltzer, Organizational Picketing and the NLRB: Five on a Seesaw,30 U.Chi.L.Rev. 78, 79-83 (1962). Consequently, § 8(b)(7)(C) makes it an unfair labor practice for an uncertified labor organization to picket an employer for more than thirty days if the picketing has a recognitional or organizational objective, and the union fails to file a § 9(c) election petition within thirty days of its commencement. Hirsch v. Building & Construction Trades Council, 530 F.2d 298, 303 (3d Cir. 1976). In no way does § 8(b)(7)(C) restrict picketing for other objectives. Indeed, one recognized non-recognitional objective outside of the proscription of § 8(b)(7)(C) is so-called "area standards picketing," that is, picketing for the sole purpose of compelling compliance with prevailing area wage and benefit standards. San Francisco Local Joint Executive Board v. NLRB, 163 U.S.App.D.C. 234, 239, 501 F.2d 794, 799 (D.C.Cir. 1974). For the "area standards" rule to apply, however, the union must have the "area standards" exception as its sole object, to the exclusion of any recognitional and organizational intent or purposes. Id. n. 9. Moreover, picketing under § 8(b) (7)(C) is proscribed if one of the objects of the picketing is recognitional or organizational. Nor is there any requirement that recognitional or organizational objectives either be the sole or even the principal objective. General Service Employees Local 73 v. NLRB, 188 U.S.App.D.C. 119, 131, 578 F.2d 361, 373 (D.C.Cir. 1978); NLRB v. Suffolk County District Council of Carpenters, 387 F.2d 170, 173-74 (2d Cir. 1967).
20
To establish that an object of picketing is recognitional, it need not be established that the union is seeking to gain recognition Qua recognition. Rather, Congress proscribed as recognitional picketing any picketing that seeks to establish a union in a continuing relationship with an employer with regard to matters which could substantially affect terms or conditions of employment of his employees and which are or may be subjects of collective bargaining by a lawfully recognized exclusive representative. Dallas Building & Construction Trades Council v. NLRB, 130 U.S.App.D.C. 28, 31-32, 396 F.2d 677, 680-681 (D.C.Cir. 1968); Building & Construction Trades Council (Samuel E. Long, Inc.), 201 NLRB 321, 82 LRRM 1218, Enf'd without published opinion, 485 F.2d 680 (3d Cir. 1973). Therefore, a recognitional object is established when a union, although purportedly picketing to maintain area standards, undertakes to go beyond a legitimate area standard object and demands that a picketed employer do more than equal the total cost package of its area contracts. For example, to attempt to dictate to the employer the distribution of benefits paid to his employees between wage and fringe benefits establishes a recognitional object under § 8(b)(7). Local Joint Executive Board (Holiday Inns of America, Inc.), 169 NLRB 683, 684, 67 LRRM 1214, 1215 (1968); Retail Clerks Local 899 (State-Mart, Inc.), 166 NLRB 818, 823-24, 65 LRRM 1666, 1667 (1967). In such circumstances the union's conduct is seen as an attempt to engage in Pro tanto bargaining to gain benefits for employees it does not represent. State-Mart, Inc., supra, 166 NLRB at 824,65 LRRM at 1667. Similarly, because the rationale for permitting area standards picketing is the recognition of the legitimate concern of unions that the employers with whom they have contractual relationships should not be put at a competitive disadvantage because of the cost of such contracts, a union has no legitimate concern in demanding that a picketed employer observe non-cost benefits which the union obtained for its own members. Attempts to impose such noneconomic terms of employment on the employees of other employers sounds more in terms of demanding acceptance of the area bargain than adherence to area standards. Id. See also San Francisco Joint Board (Romay of California), 171 NLRB 761, 769, 68 LRRM 1187, 1188 (1968).
21
The question of picketing objectives is one of fact to be determined by the Board. In making its determination, the Board is not bound to accept the self-serving explanation given by the union as to the object of its actions. General Service Employees Local 73 v. NLRB, supra,188 U.S.App.D.C. at 132, 578 F.2d at 374; NLRB v. Carpenters Local 2133, 356 F.2d 464, 465-66 (9th Cir. 1966). Moreover, it is permissible for the Board to consider the totality of the union conduct. NLRB v. Local 182, International Brotherhood of Teamsters, 314 F.2d 53, 58-59 (2d Cir. 1963).
22
In this regard, we find it reasonable for the Board to conclude, based upon union renewal of the August, 1974, conversations in its July, 1976, conversation with Bruce Trautwein, the August 9, 1976, letter was tantamount to a recognitional demand constituting a continuation of the Union's earlier efforts to obtain recognition. In referring to the terms and conditions of employment of the Company's employees, the Union's letter casts its language in broad, sweeping terms and requires by the plain import of its language that the Company comport with the terms and conditions to be accorded its employees to those "which (have) been negotiated with contractors in the area" to avoid picketing by the Union. State-Mart, Inc., supra, 166 NLRB at 823-24, 65 LRRM at 1667. That the Union requests extended well beyond a request to merely comply with area standards is readily apparent when one considers that it requested the Company to maintain "the minimum standards of wages, hours, and working conditions" established by the Union for electricians in the area, and included an offer to furnish the Company with Its standard for all three categories mentioned. This language appears to require the Company to adhere not only to area wages and hours, but also to "other working conditions which may or may not be economic in nature and which flow from a collective-bargaining agreement." Local 437, IBEW (Dimeo Construction Co.), 180 NLRB 420, 421 (1969). Indeed, the Board's interpretation of the language of the August 9 letter is buttressed by the language of the picket signs which stated that the Company does not pay Union wages and conditions. This reference imports an object of bringing non-Union conditions to an end by causing the Company to recognize the Union as its employees' representative. This language clearly implies a recognitional and organizational objective. San Francisco Local Joint Executive Board (Foodmaker, Inc., d/b/a Jack-in-the-Box), 203 NLRB 744, 746 (1973).
23
We hold that the Board could reasonably find that the Union's use of the term "working conditions" in its August 9 letter and the term "Union Conditions" in its picketing import a meaning to the Union's request which transcends mere compliance with area standards and instead implies that the Company adopt the terms of the Union's collective-bargaining agreement executed with other area employees. If there is an ambiguity in the Union use of the terms "working conditions" and "Union Conditions," it is resolved by the testimony of Heald. Heald testified:
24
Perhaps it is a misused term with us, I don't know. We refer to working conditions as including, I suppose, Most everything in the labor agreement, but most importantly, any monetary, and direct monetary benefits, such as the rates of wages and the Health and welfare contributions that our contractors make, the contribution they make to our apprenticeship fund, to our vacation fund . . . . (Emphasis added.)
25
Heald further testified that the apprentice and training program he had in mind in the August 9 letter was the program established under the Union's collective-bargaining agreement and only the employers who are signatory to the Union labor agreement are actually allowed to make those contributions.
26
Furthermore, even in the event such picketing could be construed to be publicity or informational picketing within the meaning of the proviso to § 8(b)(7)(C) that exempts "picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization," this proviso affords the Union no defense. The purpose of the proviso is to exempt from the Act a comparatively innocuous species of picketing having the immediate purpose of informing or advising the public, NLRB v. Local 3, IBEW, 317 F.2d 193, 197 (2d Cir. 1963), but to forbid picketing which has the effect of inducing employees of other employers to exert economic pressure on the picketed employer and thereby disrupt, interfere with, or curtail the picketed employer's business. Hirsch v. Building & Construction Trades Council, supra, 530 F.2d at 304. Here, the record shows that the effect of the picketing induced employees of Cook to stop working for two days, thereby disrupting the Company's business operation at the Lawrence project site. Nor can it fairly be said that the legend on the picket sign came within the protective proviso of § 8(b)(7)(C). Also, contrary to the Union's contention before the Board, the Union cannot escape the proscription of the proviso even if the Union did not actively coerce Cook's employees to cease performing services because the Union's picketing did, in fact, have that effect on Cook's employees. San Francisco Local Joint Executive Board, supra, 163 U.S.App.D.C. at 240, 501 F.2d at 800; NLRB v. Knitgoods Workers Local 155, 403 F.2d 388, 391 (2d Cir. 1968).
27
We conclude that there is substantial evidence to support the Board's conclusion:
28
The total picture . . . is that of a union which, as recently as a month before the August 9 letter, demanded recognition, and thereafter sought to achieve the same end under the guise of area standard picketing.1 Respondent's (the union) demands not only were broader than necessary to achieve compliance with area standards, but it offered to negotiate with the Company concerning those demands, an offer which is wholly inconsistent with the asserted purpose of its conduct. In such circumstances, its disavowal of any intent to obtain a contract must be disregarded in face of the strong inference present herein that recognition and bargaining were in fact an objective of Respondent's (the Union) picketing.2
29
We find no merit to the Union's argument that § 8(b)(7)(C) is unconstitutional as transgressing the free speech provisions of the First Amendment. While it cannot be gainsaid that the dissemination of information concerning a labor dispute is protected by the free speech guarantee of the First Amendment, Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 84 L.Ed. 1093 (1940), it is well settled that picketing by an organized group is more than free speech. Bakery & Pastry Drivers Local 802 v. Wohl, 315 U.S. 769, 775, 62 S.Ct. 816, 86 L.Ed. 1178 (1942). Because picketing involves patrolling, which is not constitutionally protected, Thornhill and its progeny lend no "support to the contention that peaceful picketing is beyond legislative control." Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 500, 69 S.Ct. 684, 690, 93 L.Ed. 834 (1949).3 Rather, it is now recognized that the government may, in enforcing a valid public policy, "constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy." International Brotherhood of Teamsters Local 695 v. Vogt, Inc., 354 U.S. 284, 293, 77 S.Ct. 1166, 1171, 1 L.Ed.2d 1347 (1957). In Vogt, the Supreme Court upheld the state's right to prohibit peaceful picketing designed to coerce an employer to put pressure on his employee to join a union in contravention of the state policy favoring employee free choice in the selection of their representatives.
30
Consequently, the Congressional policy underlying § 8(b)(7)'s proscription on recognitional picketing is to preserve industrial peace in those situations where unions had previously applied economic pressure to force bargaining relationships upon unwilling employers and employees in contravention of various national labor policies. See Dayton Typographical Union No. 57 v. NLRB, supra, 117 U.S.App.D.C. at 94, 326 F.2d at 637; See also Meltzer, Organizational Picketing and the NLRB, supra, 30 U.Chi.L.Rev. at 83. Accordingly, the Courts of Appeals have uniformly upheld the constitutionality of § 8(b)(7). See Local Joint Board v. Sperry, 323 F.2d 75, 79 (8th Cir. 1963); Accord, NLRB v. Lawrence Typographical Union No. 570, 376 F.2d 643, 654 (10th Cir. 1967); NLRB v. Local 3, IBEW, 339 F.2d 600, 601 (2d Cir. 1964).
31
Finally, the Union admits that its picketing was designed to force the Company to sign a prehire agreement under § 8(f) of the Act but argues that picketing in support of this objective does not violate § 8(b)(7)(C) of the Act. Actually these contentions by the Union provide further support for the Board's finding. In NLRB v. Local 103, Iron Workers, 434 U.S. 335, 345, 98 S.Ct. 651, 658, 54 L.Ed.2d 586 (1978), the Supreme Court specifically approved of the Board's decision in Ruttman Construction Co., 191 NLRB 701, 702 (1971), that a "prehire agreement is merely a preliminary step that contemplates further action for the development of a full bargaining relationship." As the Supreme Court further noted, "when the Union successfully seeks majority support, the prehire agreement attains the status of a collective-bargaining agreement executed by the employer with a union representing a majority of the employees in the unit." NLRB v. Local 103, Iron Workers, supra, 434 U.S. at 350, 98 S.Ct. at 660. Thus, if there is a question whether the picketing by the Union had a recognitional objective, the Union's admission that it picketed to force the Company to sign a prehire agreement, which is "a preliminary step . . . for the development of a full bargaining relationship," further demonstrates that the Union's picketing had a recognitional objective.
32
We believe such an interpretation is consistent with Congressional intent. In NLRB v. Local 103 Iron Workers, supra, 434 U.S. at 348 n.10, 98 S.Ct. at 659, the Supreme Court found that "Congress was careful to make its intention clear that prehire agreements were to be arrived at voluntarily, and no element of coercion was to be admitted into the narrow exception being established to the majority principle." As the House Conference Report states: "Nothing in (Section 8(f)) is intended . . . to authorize the use of force, coercion, strikes or picketing to compel any person to enter into such prehire agreements." H.R.Rep.No.1147, 86th Cong., 1st Sess. 42, Reprinted in (1959) U.S.Code Cong. & Admin.News, pp. 2318, 2514; I Legislative History of the Labor-Management Reporting Disclosure Act of 1959 at 946.
33
Enforcement granted.
34
HEANEY, Circuit Judge, dissenting.
35
I respectfully dissent. In my view, a majority of the three-person panel of the National Labor Relations Board has rewritten § 8(b)(7)(C) of the National Labor Relations Act, as amended 29 U.S.C. § 151 Et seq., to suit their own fancy, which happens to be a dislike of picketing which has as its objective the maintenance of Union standards in an area. Unfortunately, this Court now accepts the views of the panel; and, in the process, expands § 8(b)(7)(C) unjustifiably.
36
In my view, Member Jenkins' dissent is correct and should be followed. He states:
37
While it is clear that (the Union) initially sought to be recognized by the Employer as the bargaining agent for its employees, it is apparent that this original objective was influenced by two factors. First, Section 8(f) of the Act authorizes the execution of bargaining agreements between a labor organization and an employer engaged in the building and construction industry without a showing of majority status on the part of the labor organization. Consequently, it is clear that the statutory framework naturally invites recognition requests from labor organizations directed toward employers of the type involved herein. Further, in response to (the Union's) initial recognition request made in 1974, the Employer expressly stated that at some point in the future it would be willing to voluntarily reach a bargaining agreement with (the Union). When viewed in this light it is plain that the casual inquiry made of the Employer in July 1976 hardly constitutes the opening salvo of a full-fledged organizational or recognitional drive about to be launched by (the Union). When its inquiry met with a negative response, (the Union), on August 9, unequivocally disavowed any interest in seeking recognition from the Employer. * * * (A) reading of (the August 9) letter as a whole serves to dispel any recognitional aura surrounding the use of the terms "working conditions" or "mutual agreement." Specifically, (the Union) noted that the Employer's lower "total labor cost" allowed it to underbid contractors whose employees had been organized, and that this adversely affected organized workers. * * *
38
While it is true that this Board carefully scrutinizes the true intent behind purported area standards picketing and considers events which precede as well as those which accompany picketing, there is no presumption that picketing, which on the surface is aimed solely at an area standards object, is nevertheless for a prohibited object solely due to a previous recognitional interest, absent substantial independent evidence to support such a presumption. In this case, no such independent evidence exists indicating that (the Union) continued to entertain a prohibited objective during the picketing. As shown above, the words used in the area standards letter were consistent with an exclusive area standards concern. Furthermore, there is no showing that (the Union) alternatively used one, then another, objective depending on the tactics it desired to employ momentarily. The only time (the Union) disavowed one objective and advocated another was on the occasion of the August 9 letter. Thereafter, the record is totally devoid of any attempts on the part of (the Union) or the pickets to intersperse the manifest area standards objective with a recognitional or organizational message. The picket signs used merely informed the public that the Employer did not Pay union wages and conditions, a phrase which again clearly refers solely to economic terms. It is therefore clear that the (Union) closely adhered to a limited object that the Employer meet area standards. (Emphasis included.)
39
The Board's majority finding, that the Union's use of the terms "working conditions" and "Union conditions" import a meaning to the Union's request which implied a demand that the Company adopt the terms of the union collective bargaining agreement executed with other area employees, is drawn out of thin air and Heald's testimony provides no support for it. Heald made it clear that the Union's concern was that the picketed Company meet the monetary benefits in the Union contract so that they would not be able to compete unfairly with Union contractors and, thus, take work away from their employees. Such a concern is a proper one. No unfair labor practice occurs when a union engages in picketing which has, for its sole object, truthfully advised the public that some employer is operating under substandard working conditions. Centralia Building and Construction Trades Coun. v. N. L. R. B., 124 U.S.App.D.C. 212, 363 F.2d 699 (D.C.Cir. 1966).
*
The Honorable Paul Benson, Chief Judge, United States District Court for the District of North Dakota, sitting by designation
1
All too frequently purported area standards have been employed to mask preexisting recognitional or organizational objectives. See, e. g., Teamsters Local 115 (Nate Ben's Reliable, Inc.), 224 NLRB 388 (1976); Local 492, Carpenters (Richard H. Lawrence), 215 NLRB 263 (1974)
2
Even if recognition were not the only object of the Union's conduct, the violation is still present because recognition need only be an object of a labor organization's conduct in order to render § 8(b)(7)(C) applicable. Building Service Employees Local 87 (Liberty House/Rhodes), 223 NLRB 30, 33 (1976)
3
See International Brotherhood of Teamsters Local 695 v. Vogt, Inc., 354 U.S. 284, 77 S.Ct. 1166 (1957), for a discussion of Thornhill and AFL v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855 (1941) in light of subsequent cases limiting their application
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1309
MONA MOHAMMED ABDU,
Petitioner,
versus
MICHAEL B. MUKASEY, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A95-899-263)
Submitted: December 10, 2007 Decided: December 27, 2007
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Petition denied in part and dismissed in part by unpublished per
curiam opinion.
Israel W. Gobena, GOBENA & DE WALT, Saint Paul, Minnesota, for
Petitioner. Peter D. Keisler, Assistant Attorney General, Shelley
R. Goad, Senior Litigation Counsel, Dalin R. Holyoak, OFFICE OF
IMMIGRATION LITIGATION, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mona Mohammed Abdu, a native and citizen of Ethiopia,
petitions for review of an order of the Board of Immigration
Appeals (Board) denying as untimely and numerically barred her
motion to reopen immigration proceedings. We have reviewed the
record and the Board’s order and find that the Board did not abuse
its discretion in denying the motion to reopen. See Barry v.
Gonzales, 445 F.3d 741, 744 (4th Cir. 2006). Further, we lack
jurisdiction to review the Board’s refusal to invoke its sua sponte
authority to reopen proceedings. See Zhao Quon Chen v. Gonzales,
492 F.3d 153, 155 (2d Cir. 2007). Accordingly, we deny in part and
dismiss in part the petition for review. 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.
PETITION DENIED IN PART
AND DISMISSED IN PART
- 2 -
| {
"pile_set_name": "FreeLaw"
} |
474 F.2d 1350
Pantojav.Richardson
72-1416
UNITED STATES COURT OF APPEALS Seventh Circuit
2/7/73
1
N.D.Ill.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
780 F.Supp. 1086 (1991)
In re: COMPLAINT FOR EXONERATION FROM OR LIMITATION OF LIABILITY OF SHELL OIL COMPANY AND SHELL OFFSHORE INC. AS OWNERS AND/OR OWNERS PRO HAC VICE OF M/V EB II.
Civ. A. 91-0711.
United States District Court, E.D. Louisiana.
December 2, 1991.
Arthur Anthony Crais, Jr., Peter Frank Liberto, Charles M. Raymond, Shell Oil Co., New Orleans, La., for Shell Oil Co., Shell Offshore, Inc.
Michael J. Kincade, Bailey, Rossi & Kincade, Metairie, La., for CIGNA Property and Cas. Companies.
Danny J. Lirette, St. Martin, Lirette & Shea, Houma, La., Robert A. Chaffin, Chaffin Law Firm, Houston, Tex., for Raymond Sheppard, Nadine Sheppard; David E. Long, Rita Long.
Michael A. Fenasci, Fenasci & Smith, Israel M. Augustine, Jr., Israel M. Augustine, Jr. & Associates, New Orleans, La., for Linda Henry, Moses Simeon.
John J. Cummings, III, Cummings, Cummings & Dudenhefer, Palmer Lambert, Linda Jane Nelson, Lambert & Nelson, New Orleans, La., Calvin Clifford Fayard, Jr., Fayard & Kuhn, Denham Springs, La., for Wanda C. Dillon, Jimmy L. Dillon.
*1087 Timothy F. Burr, Gerard Joseph Sonnier, Galloway, Johnson, New Orleans, La., for Coastline Const., Inc.
ORDER AND REASONS
CHARLES SCHWARTZ, JR., District Judge.
This matter is before the Court on the below listed motions of the parties in the captioned matter:
(1) Motions to Dismiss the Complaint of Shell Oil Company for Lack of Standing Pursuant to F.R.C.P. Rule 12(b)(1)[1] filed on behalf of claimants, Wanda Dillon, individually and on behalf of the estate of deceased, James E. Dillon, and Jimmy L. Dillon, father of the deceased (hereinafter referred to collectively as the "Dillons"), David Long and Rita Long (hereinafter collectively referred to as the "Longs"), and Raymond Sheppard and Rita Sheppard (hereinafter referred to collectively as the "Sheppards");
(2) Motion to Modify the Limitations Injunction to Permit State Court Actions Brought Against Shell Solely in its Capacity as Owner/Operator of the East Bay Field filed on behalf of claimants, the Longs and the Sheppards; and
(3) Motion to Extend Stay to their respective shareholders, Shell Petroleum Inc. and Shell Energy Resources, Inc. filed on behalf of plaintiffs in limitation, Shell Oil Company ("SOC") and Shell Offshore, Inc. ("SOI") and sometimes referred to collectively hereinafter "Shell."
Formal opposition, supplemental memoranda and supporting documents filed with respect to each of the motions have been considered by the Court. The matters were originally set for oral hearing on Wednesday, November 13, 1991, but were continued, reset for hearing on Wednesday, November 27th, 1991. However, the matter was submitted on the briefs, without a hearing, upon receipt of supplemental memoranda and exhibits submitted on behalf of both claimants and plaintiffs in limitation.
I. Factual/Procedural Background.
This proceeding arises from an incident which occurred on or about February 15, 1991 involving the M/V EBII ("EBII"). Plaintiffs in Limitation, SOC (unquestionably record/former owner of the EBII)[2] and SOI (admittedly the "actual" owner of the EBII)[3] claim to be "owners" of the EBII, within the meaning of The Limitation of Liability Act, 46 U.S.C.App. § 183. On February 15, 1991 the EBII, a jack-up barge, was located near the mouth of the Mississippi River in the Gulf of Mexico [known as South Pass, East Bay], adjacent to Well 10-A. The EBII had been piloted to that location and "jacked-up" to the level of Well 10-A earlier that morning. The mechanics of the accident were that the operator of the hydraulic crane aboard the EBII, while attempting to lift grating from the well jacket onto the EBII, tore a valve from the gas lift line. This activity released pressurized natural gas into the area of the EBII which ignited. The fire *1088 allegedly caused injury allegedly to claimants, Raymond Sheppard, David Long, William H. Taylor, and the deaths of James Earl Dillon, Juan Anthony Simeon, and Roland L. Johnson, who were aboard the EBII. The well jacket adjacent to the EBII was unmanned.
Claimants admit that SOI was "owner" of the EBII at the time of the accident up until the present time[4], and concomitantly argue that SOC (record/former owner) is without standing to bring this limitation action.
Plaintiffs in Limitation, SOI and SOC have submitted the Act of Sale of December 1, 1982 (Shell Exh. "A"), evidencing conveyance of the EBII from SOC[5] to SOI. It is not disputed that SOC was the former owner, as well as record owner of the EBII, at the time of the accident at issue.
II. The Law.
A. Standard Under Rule 12(b)(1).
Unlike the Rule 12(b)(6) motion, a Rule 12(b)(1) motion can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency, and in so doing rely on affidavits or any other evidence properly before the court.[6] It then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, has subject matter jurisdiction. The district court obviously does not abuse its discretion by looking to the extra-pleading material and may, in a clear-cut case, dismiss the suit for lack of subject matter jurisdiction.[7]
In the case at bar both plaintiffs and claimants have submitted extra-pleading material; thus, it is appropriate for this Court to consider such evidence in the Rule 12(b)(1) context.
B. Limitation of Liability.
Whether plaintiff in limitation SOC has a right to limitation of liability depends upon whether the Limitation of Liability Act, 46 U.S.C.App. § 181 et seq. applies to the facts of the case. Section 183(a) of the Limitation Act provides:
The liability of the owner of any vessel ... for any loss, damage, or injury ... done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall not ... exceed the amount or value of the interest of such owner in such vessel, and her freight then pending. Id. [emphasis supplied].
Plaintiffs in limitation have the burden of proof to establish the application of the limitation provisions of 46 U.S.C.App. § 183(a) to the facts of this case.[8] The *1089 parties do not dispute the applicability of this act to the accident involving the EBII, rather the issue presented by claimants and petitioners motions are: (1) whether plaintiff in limitation, Shell Oil Company, qualifies as an "owner" of EBII within the meaning of Section 183; (2) whether an otherwise qualified "owner" is entitled to limitation when said "owner" is also subject to suit arising out of the same accident but in a capacity other than owner; and (3) whether shareholders of the "owner" come within the ambit of the protections afforded by the Limitation Act. The Court will address these issues serially and in the above mentioned order.
C. Section 183 "Owner".
Claimants contend that SOC is not the "owner" because Shell Offshore Inc. was the actual, equitable and/or true owner at all pertinent times. SOC argues in opposition that as record owner at the pertinent time and former owner of the EBII, it qualifies as "owner" and is therefore entitled to limitation of liability pursuant section 183 to the Limitation Act.[9]
The term "owner" is not defined in the Limitation of Liability Act. Cases have construed it as an "untechnical word" which should be given a broad construction so as to achieve Congress' purpose of inducing and encouraging investment in shipping.[10]
The term "owner" does not require title, but rather, as a general rule, one who is subjected to a shipowner's liability because of his exercise of dominion over a [i.e., relationship to] the vessel should be able to limit his liability to that of an owner.[11] More succinctly stated, the act is designed to cover one who is a "likely target" for liability claims predicated on his status as the person perhaps ultimately responsible for the vessel's maintenance and operation.[12]
The rule that emerges from all of the cases interpreting ownership pursuant to Section 183 is that if the plaintiff in limitation may be held liable because of his ownership *1090 or control of the vessel, then he can maintain a limitation action.[13]
Moving claimants have in fact "taken aim" at both SOC and SOI, the EBII's former/record owner and actual/owner pro hac vice, respectively. This Court cannot hold on the facts presently before it, that SOC can never be held liable as an "owner."[14] Moreover, this Court may retain jurisdiction to dispose of the "concourse" of claims asserted against it.
D. Dual Capacity Cela Ne Fait Rien.[15]
Moving claimants contend that the injunction previously issued by this Court should be modified so as to allow them to proceed against Shell in its capacity other than as "owner" of the EBII that is, as owner and operator of the East Bay Field. Perhaps recognizing that their claims against Shell would not escape the umbrella of limitation, the moving claimants have carefully worded certain claims so as to avoid allegations that Shell's liability flows from its "ownership" or "control" of the EBII.[16] Nevertheless, analysis of their claims[17] leads to the inescapable conclusion that, in the event that claimants are successful in holding any of the Shell entities accountable, it may well be as "owner" of the vessel as that term has been explained above and construed in the past.
In Olympic Towinq Corp. v. Nebel Towing Co., 419 F.2d 230, 235 (5th Cir.1969), cert. denied, 397 U.S. 989, 90 S.Ct. 1120, 25 L.Ed.2d 396 (1970),[18] the Fifth Circuit recognized that inequities can result if such other non-limitation proceedings are allowed to continue. The court further stated that the admiralty court is generally acknowledged to possess broad injunctive power to ensure "the orderly and effective operation of the Limitation Act." Id. In Complaint of Paradise Holdings, Inc., 795 F.2d 756 (9th Cir.1986), the appellate court upheld the district court's stay of state court proceedings against the non-owner parties, and explained:
We conclude therefore, that it is sometimes inconsistent with the purposes of the Act to permit some limitation action claimants to proceed in state court ... in advance of an equitable division of the limitation fund among all potential claimants. Id. at 763.
Citing Nebel Towing, supra, the court in Paradise Holdings further explained that a "major purpose of the Act is to permit the shipowner to retain the benefit of his insurance" and that "`the reason for requiring the limitation proceeding be completed first is to permit the vessel owner to *1091 receive the benefit of his insurance.'" Id. at 762-63. The court was further concerned with the "real possibility that the state court litigation [would] have some preclusive effect on the issues in the limitation proceeding." Id.
Under Supplemental Rule F(3) an owner, upon compliance with Supplemental Rule F(1), is generally entitled to an injunction enjoining the further prosecution of all claims against him or his property. There is no provision whatsoever regarding an "owner" who is subject to suit in yet another capacity. The case law is simply devoid of any support for the "dual capacity" exception pertaining to Section 183 "owners" as theorized by moving claimants herein.
The limitation proceeding's purposes other than encouraging investment in the shipping industry figure significantly in this Court's determination of the issues before it.[19] Augustus Hand wrote early on in the jurisprudence: "The purpose of a limitation proceeding is not merely to limit liability but to bring all claims into concourse and settle every dispute in one action." The Quarrington Court, 102 F.2d 916, 918 (2nd Cir.), cert. denied, 307 U.S. 645, 59 S.Ct. 1043, 83 L.Ed. 1525 (1939) (emphasis added).
A critical purpose underlying the limitation action is to achieve a "complete and just disposition of a many-cornered controversy."[20] Thus, the limitation proceeding furthers the goal of uniformity which has been declared a dominant requirement for admiralty law. The importance of this aspect was reiterated by Justice Frankfurter in Maryland Cas. Co. v. Cushing, 347 U.S. 409, 74 S.Ct. 608, 611-12, 98 L.Ed. 806 (1954), wherein it is stated:
The heart of [the limitation] system is a concursus of all claims to ensure prompt economical disposition of controversies in which there are often a multitude of claimants.... Moreover, it is important to bear in mind that the concursus is not solely for the benefit of the shipowner. The elaborate notice provisions of the Admiralty Rules are designed to protect injured claimants. Id.
Moving claimants' motion to modify the injunction is antithetical to the very nature of the limitation proceeding. This Court's concern emanates directly from the congressional concern for judicial economy, the bedrock of the Limitation Act and procedures. Achieving judicial economy therefore is the law which this Court is bound to follow. The Limitation of Liability Act provides this Court with the power to enjoin suits against the "owner" to achieve uniformity and accordingly, assure that all claims will be heard in a single forum.
The Supreme Court stated in Metropolitan Redwood Lumber Co. v. Doe, 223 U.S. 365, 371, 32 S.Ct. 275, 275, 56 L.Ed. 473 (1912), that "the very nature of the proceeding is such that it must be exclusive of any other separate suit against an owner on account of the ship." Id.
For all of the aforementioned reasons this Court declines claimants' invitation to modify the injunction heretofore issued herein in connection with claims against Shell.
E. Extension of Stay to Include Shell's Shareholders.
The etiology of Shell's Motion for extension of stay prohibiting claimants from prosecuting actions arising out of the subject incident against its shareholders, Shell Energy Resources, Inc. ("SER") and Shell Petroleum, Inc. ("SPI"), is as follows. Shell contends in its Supplemental Memorandum *1092 in Support of Extension of Stay, on page 1, that "claimants have informed counsel for petitioners that a suit will be filed against [SER] and [SPI] as the corporate entities which hold stock in [SOI] and [SOC], respectively." Suit has in fact been filed against said shareholders. Based on the foregoing, Shell filed its Motion to Extend Stay to prohibit claimants' from prosecuting any such action against its [i.e., "owners'"] shareholders.
Shell relies on the Supreme Court's decision in Flink v. Paladini, 279 U.S. 59, 49 S.Ct. 255, 73 L.Ed. 613 (1929), as authority for extension of stay, inasmuch as the Flink Court extended limitation to stockholders, recognizing that "their pecuniary interest in the vessel did not differ substantially from those who held shares in the ship." Id.
Claimants argue in opposition that Flink, supra, is no longer the law, citing Calkins v. Graham, 667 F.2d 1292 (9th Cir.1982), which is inapposite. In Calkins, the facts were that petitioner's [Calkins'] mother had agreed to sell the vessel, the Lucky One, to Calkins or to such third party as he may select. Id. at 1293. Later, Alaska Oregon Fisheries, Inc. ("AOF") agreed to purchase the vessel. Calkins was president and 75% shareholder of AOF. Title was not transferred to AOF, but rather, AOF entered into an oral agreement to sell the vessel to Eileen Ballo, who was to pay the purchase price in installments. AOF delivered the vessel to Ballo, after which the accident which gave rise to the limitation proceeding occurred. It was only sometime after the accident that AOF obtained legal title to the vessel. Id.
In other words, in Calkins, at no time prior to or at the time of the accident was AOF an "owner" of the vessel, having neither legal title, nor possession and control at any pertinent time. Certainly, as the court in Calkins ruled, Calkins himself could have no relationship/interest in the vessel via AOF, who was also not an "owner" pursuant to Section 183. The facts upon which the Calkins court predicated its decision, were simply that: (1) neither AOF nor Calkins were the titled owner of the vessel at any time prior to or on the date of the accident; (2) neither AOF nor Calkins had possession or control of the vessel at the time of the accident, since Ballo had possession and control and responsibility for the vessel's maintenance under the sales agreement with AOF; (3) neither AOF nor Calkins had any money invested in the vessel at any pertinent time.
The Calkins court's discussion of Flink, supra, is pure dicta, inasmuch as the AOF, in which company Calkins was a 75% shareholder, had no interest in the vessel at any pertinent time. In Flink, there was no question but that A. Paladini, Inc. "owned" the vessel at the time of the accident, accordingly the shareholders were likely targets having a pecuniary interest in the vessel at the pertinent time. The Flink Court concluded:
Having no doubt of the comprehensive purpose of Congress we should not be ingenious to interpret the California statute in such a way as to raise questions whether it could be allowed to interfere with the uniformity which has been the dominant requirement for admiralty law. 49 S.Ct. at 256.
This Court disagrees with the interpretation claimants seek to foist upon Calkins, such that it overrules the gist of Flink, thus rendering it "obsolete." The right to limitation, since Flink and up until the present time, remains broadly construed and extends to any person whose interest in the vessel is such that he may be a likely target.
Which brings this Court full circle to the instant case, wherein claimants seek to impose liability upon shareholders of Shell, SER and SPI, "likely targets" by virtue of their relationship to the vessel as shareholders of its "owners."[21] Accordingly, and considering all of the submissions of the parties and the law applicable to the issues before this Court,
*1093 IT IS ORDERED that Claimants' Motions to Dismiss the Complaint in Limitation of Shell Oil Company Pursuant to F.R.C.P. Rule 12(b)(1) are hereby DENIED.
IT IS FURTHER ORDERED that Claimants' Motions to Dismiss the Complaint in Limitation of Shell Offshore, Inc. are MOOT, claimants having formally withdrawn said Motions.
IT IS FURTHER ORDERED that Claimants' Motions to Modify the Injunction to Allow State Court Suits to Proceed Against Shell in its Capacity as Owner and Operator of the East Bay Field are hereby DENIED.
IT IS FURTHER ORDERED that Plaintiffs' Motion to Extend Stay to Enjoin Proceedings Against its Shareholders, Shell Energy Resources, Inc., and Shell Petroleum, Inc., is hereby GRANTED.
NOTES
[1] Prior to the hearing on the Motion to Dismiss claimants informed the Court that they desired to withdraw their Motion to Dismiss as to Shell Offshore Inc. and further indicated to the Court their intention to pursue said motion only with respect to Shell Oil Company.
[2] See, Conveyance of Vessels dated December 15, 1982, indicating Shell Oil Company was the former vendor of the EBII (Claimants' Appendix B, Exh. "C-1" and "C-7" to Supplemental Memorandum in Support of 12(b)(1) Motion to Dismiss); Permanent Coast Guard Certificate No. 168, indicating Shell Oil Company as registered owner of the EBII at all pertinent times (attachment to Shell's Supplemental Memorandum In Opposition to Claimants' 12(b)(1) Motion to Dismiss); Deposition of Thomas C. Odom, taken November 22, 1991, pp. 6-14 (Appendix A to Claimants' Supplemental Memorandum In Support of 12(b)(1) Motion to Dismiss); and Affidavit of S.J. Paul, Secretary of Shell Offshore, Inc., dated November 25, 1991, certifying that SOI is a wholly owned subsidiary of Shell Energy Resources, Inc., which is in turn the wholly owned subsidiary of Shell Oil Company (attachment to Shell's Supplemental Memorandum in Opposition to Claimants' 12(b)(1) Motion to Dismiss).
[3] See, Claimant's Supplemental Memorandum in Support of Motion to Dismiss Shell Oil Company, at p. 2, wherein claimants concede that "Shell Offshore, Inc. is the true and equitable owner of the `EBII.'"
[4] As previously mentioned at note 1, supra, prior to the hearing scheduled November 27, 1991, claimants withdrew their motion to dismiss as to plaintiff in limitation SOI.
[5] Shell is the transferring owner [i.e., former owner of the EBII], Coast Guard Licensee and public owner of record, Shell Exh. 2.
[6] See, Martin v. Morgan Drive Away, Inc., 665 F.2d 598, 602 n. 1 (5th Cir.), cert. dismissed, 458 U.S. 1122, 103 S.Ct. 5, 73 L.Ed.2d 1394 (1982), vacating the district court's judgment that plaintiff lacked standing to pursue an antitrust claim against defendants and stating:
The trial court dismissed the suit under Rule 12(b), but did not specify whether the dismissal was under 12(b)(1), lack of subject matter jurisdiction, or 12(b)(6), failure to state a claim upon which relief can be granted. If the latter, the court could not look beyond the face of the pleadings and thus if dismissal was conditioned upon the contestable issues of fact, the trial court's action was improper. If the court's action was based on Rule 12(b)(1), it could go beyond the pleadings to determine its own jurisdiction, but since it did not hold an evidentiary hearing to determine the disputed factual issues, its dismissal on that ground would also be improper. This circuit has stated that dismissal for lack of subject matter jurisdiction `should be granted sparingly....' [citations omitted]. Id.
See also, St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.), cert. denied, 493 U.S. 993, 110 S.Ct. 541, 107 L.Ed.2d 539 (1989).
[7] Martin, 665 F.2d at 602. It is here important to mention that the Fifth Circuit has not gone as far as the Ninth Circuit, which held in St. Clair, supra, that the Court may even resolve factual disputes.
[8] Coryell v. Phipps, 317 U.S. 406, 409, 63 S.Ct. 291, 292, 87 L.Ed. 363 (1943); Hernandez v. M/V Rajaan, 841 F.2d 582, 591 (5th Cir.), corrected, reh'g denied, en banc, 848 F.2d 498 (5th Cir.1988), cert. denied, 488 U.S. 981, 109 S.Ct. 530, 102 L.Ed.2d 562 (1988), cert. denied, 488 U.S. 1030, 109 S.Ct. 837, 102 L.Ed.2d 970 (1989).
[9] In Supplemental Memorandum in Opposition to Claimants' Rule 12(b)(1) Motion to Dismiss against Shell Oil Company, Shell further argues:
To substantiate Shell's argument that Shell Oil Company, in addition to being the owner of title and specifically listed on the Coast Guard registration, is also the owner in a capacity to sufficient to warrant standing to bring the limitation action ... [it] attaches ... [1] the registration from the Coast Guard with Shell Oil Company listed as owner and [2] the Certificate of the Secretary of Shell Offshore Inc., S.J. Paul, certifying that Shell Offshore, Inc. is a wholly owned subsidiary of Shell Energy Resources, Inc. and that Shell Energy Resources, Inc. is a wholly owned subsidiary of Shell Oil Company. The effect of this Certificate is to establish that Shell Oil Company owns and absolutely controls Shell Energy Resources, Inc. and Shell Energy Resources, Inc. is the holding company and entirely owns and controls Shell Offshore Inc. That is to say no one else but Shell Oil Company owns any of the stock of Shell Energy Resources, Inc. and that no one else but Shell Energy Resources Inc. owns any of the stock of Shell Offshore Inc. Therefore the owner of the EBII is Shell Oil Company. Id. pp. 1-2.
Perhaps herein lies the reason why SOC remains title/registered owner of the EBII. Claimants' seek to characterize the SOC's retention of title as a mere administrative oversight, when the facts posited by SOC suggest a valid business reason for retaining "ownership" of the EBII.
[10] Coryell, 317 U.S. at 411, 63 S.Ct. at 293-94; Flink v. Paladini, 279 U.S. 59, 49 S.Ct. 255, 256, 73 L.Ed. 613 (1929); Standard Oil Co. of New Jersey v. Southern Pacific Co., 268 U.S. 146, 45 S.Ct. 465, 69 L.Ed. 890 (1925); Dick v. United States, 671 F.2d 724, 727 (2nd Cir.1982); Admiral Towing Co. v. Woolen, 290 F.2d 641, 645 (9th Cir.1961); Austerberry v. United States, 169 F.2d 583, 593 (6th Cir.1948); In re The Trojan, 167 F.Supp. 576 (N.D.Cal.1958); In re Petition of Colonial Trust Co., 124 F.Supp. 73 (D.Conn. 1954); The Milwaukee, 48 F.2d 842 (E.D.Wis. 1931). "These cases have held such diverse parties as shareholders, mortgagees, prior vendors, life tenants, trustees, and government agencies in wartime to be "owners" entitled to limit their liability." In re Barracuda Tanker Corp., 281 F.Supp. 228 (S.D.N.Y.1968) (stating the rule that emerges from these cases is that, if petitioner may be held liable because of his ownership or control of the vessel, he can maintain a petition to limit his liability).
[11] Dick, 671 F.2d at 724; Admiral Towing Co. v. Woolen, 290 F.2d 641, 644-46 (9th Cir.1961); In re Petition of United States, 259 F.2d 608, 610 (3rd Cir.1958); Complaint of B.F.T. No. Two Corp., 433 F.Supp. 854, 871-73 (E.D.Pa.1977); The Milwaukee, 48 F.2d 842 (E.D.Wis.1931).
[12] Admiral Towing, 290 F.2d at 645.
[13] See, In re Barracuda Tanker, supra at note 7.
[14] Unquestionably, SOC's contractual relationship [i.e., record/former owner] to the EBII might reasonably furnish ground upon which a claim for limitation of liability for damage could be asserted.
[15] As they say in France, "it doesn't make any difference."
[16] See, Claimant's Supplemental Memorandum in Support of Claimant's Motion to Modify, at pp. 1-2, wherein they restate their claims against the Shell entities in their capacity other than as "owners", to wit:
Claimants contend that the well jacket 10A as well as the entire East Bay Field gas lift system was defectively designed and constructed. Claimants further contend that this defective design and construction of the offshore facilities was a major cause of the accident of February 15, 191 [sic 1991]....
* * * * * *
A cause of action based upon negligent operation of the `EBII' is totally separate from liability arising out of negligent design and construction of platform 10A and its associated gas system.
[17] Plaintiff's in limitation aptly argue, as follows:
The primary focus of the activity resulting in the event of this limitation is the crane operation aboard the vessel. The well jacket in question is a small unmanned well jacket. The six men aboard the vessel included, Bill Taylor, of the EBII and a five man maintenance crew.
See, Plaintiffs' Memorandum in Opposition to Motion to Dismiss, at pp. 2-3, wherein it is argued that claimants "artificially allocate the claimed negligence," that is, "some to the vessel and some to the platform."
[18] The Nebel decision was overruled by Crown Zellerbach Corp. v. Ingram Industries, Inc., 783 F.2d 1296, 1301 (5th Cir.1986), to the extent that it held limitation to be a personal defense under Louisiana law, and held that the owner's insurer had a right to limitation of liability.
[19] The original impetus for limitation was to encourage investments in the shipping industry. Justice Black questioned the continued vitality of this basis for limitation in his dissenting opinion in Maryland Casualty Co. v. Cushing, 347 U.S. 409, 74 S.Ct. 608, 98 L.Ed. 806 (1954) stating that many of the conditions in the shipping industry which spurred passage of the act no longer prevail. Despite the criticism, the act is still intact and most recently commentators have emphasized the role the limitation proceeding plays, paving the way for "realistic insurance coverage and reasonable apportionment of costs of a maritime disaster." J. Schoenbaum, Admiralty and Maritime Law § 14-1 (1987).
[20] Hartford Accident & Indemnity Co. v. Southern Pacific Co., 273 U.S. 207, 216, 47 S.Ct. 357, 359, 71 L.Ed. 612 (1927) [emphasis supplied].
[21] As previously stated supra at note 9, SOC submitted documents to the effect that SOC wholly owns and controls SER, which holding company entirely owns and controls SOI.
| {
"pile_set_name": "FreeLaw"
} |
38 So.3d 134 (2010)
THE FLORIDA BAR
v.
GOLDSTEIN (HARVEY).
No. SC10-1001.
Supreme Court of Florida.
June 3, 2010.
Decision Without Published Opinion Suspended.
| {
"pile_set_name": "FreeLaw"
} |
75 B.R. 227 (1987)
In re Robert M. GROVES, Debtor.
Robert H. WALDSCHMIDT, Trustee,
v.
ASSOCIATES COMMERCIAL CORP., Kenworth of Tennessee, Inc., and Jessie G. Fuqua.
Bankruptcy No. 385-03471, Adv. No. 386-0025, No. 3:86-0923.
United States District Court, M.D. Tennessee, Northeastern Division.
July 1, 1987.
Robert H. Waldschmidt, Nashville, Tenn., for plaintiff.
F. Wearen Hughes, Bass, Berry & Sims, Nashville, Tenn., for defendant.
MEMORANDUM
MORTON, Senior District Judge.
This case is before the court upon an appeal from an order of the United States Bankruptcy Court for the Middle District of Tennessee, dated August 25, 1986, 64 B.R. 329, granting plaintiff's motion for summary judgment and avoiding the liens of Kenworth of Tennessee, Inc., on four truck tractors. For the reasons which follow, the decision of the bankruptcy court shall be affirmed.
The bankruptcy court held that possession of the two 1982 truck tractors was insufficient to perfect Kenworth's security interest and that Kenworth was not entitled to an equitable lien on any of the four tractors. With respect to the two 1982 vehicles, the original certificates of title were issued in Arkansas where liens were noted on the titles, but the indebtednesses secured by these liens were subsequently paid and the liens released. The titles were surrendered and the vehicles were brought to Tennessee. When Kenworth sold the vehicles to the debtor, he was given the old certificates of title together with the necessary documents to obtain a Tennessee certificate of title. The Kenworth liens (which were later assigned to Associates Commercial Corp.) were noted on the title forms and the bills of sale. The debtor signed a security agreement granting a security interest in the vehicles to Kenworth. Kenworth relied upon the debtor to apply for a Tennessee certificate of title. In this case, however, the debtor never applied for the Tennessee title and therefore the security interest was never perfected since notation of lien on the title never occurred. The debtor defaulted on the purchase payments to Kenworth. Kenworth gained possession of the two tractors when the debtor delivered them for repairs. While Kenworth was in possession of the tractors, the debtor filed bankruptcy. Subsequent to the filing of the bankruptcy petition, Kenworth *228 repurchased from Associates the contracts on all four tractors.
The appellant argues that under Tennessee law a security interest in a motor vehicle may be perfected by possession. In support thereof, it cites Tenn.Code Ann. § 47-9-305, which provides that a security interest in "goods" may be perfected by possession of the collateral. Since Kenworth had possession of the two 1982 truck tractors at the time of the filing of the bankruptcy petition, it is argued that the security interest was thereby perfected. At first glance, the appellant's analysis appears sound, especially when an analogy is drawn to the common law principles of pledges. However, the bankruptcy court rejected this theory on three grounds with which we agree and to which we would add only the following comments. Judge Paine notes that Tenn.Code Ann. § 55-3-126(b) precludes application of Tenn.Code Ann. § 47-9-305 (perfection by possession). Tenn.Code Ann. § 55-3-126(b) provides in pertinent part:
Notwithstanding any provisions of law to the contrary, the method provided in this section . . . of certifying a lien or encumbrance upon a motor vehicle . . . shall be exclusive except as to liens depending upon possession. . . .
The foregoing statute is a part of the Tennessee Motor Vehicle Title and Registration Law. It follows that notation of a lien on the title to a motor vehicle is the exclusive method of perfecting that lien with the exception of liens "depending upon possession." As noted in footnote 3 of his opinion, Judge Paine interprets the exception to mean liens depending upon possession for their existence, i.e., artisan's liens, rather than liens depending upon possession for perfection, i.e., pledges. The weight of authority is in accord with Judge Paine's interpretation,[1] and while there is room for differing opinions as to the meaning of "liens depending upon possession" in light of the dearth of case law examining that particular statutory language, we do not disagree. If the legislature of the State of Tennessee sees fit to allow perfection of liens on motor vehicles by possession pursuant to T.C.A. § 47-9-305, the language of T.C.A. § 55-3-126(b) should be amended to clearly exclude liens depending upon possession for perfection including pledged motor vehicles.
The appellant also relies upon In Re Crosby, (Transport Acceptance Corp. v. Crosby), 19 B.R. 436 (Bankr.E.D.Tenn. 1982), remanded 23 B.R. 514 (E.D.Tenn. 1982) aff'd without published opinion, 714 F.2d 139 (6th Cir.1983), in which Judge Bare concluded that a security interest in a vehicle may be perfected by possession pursuant to T.C.A. § 47-9-305. However, the effect of T.C.A. § 55-3-126 was not addressed and therefore we find Crosby distinguishable. Additionally, Judge Bare appears to have retreated from that position in a later opinion where he acknowledges that "[a]s a general rule, a security interest in an automobile must be noted on the certificate of title in order to be perfected in Tennessee." In Re Morristown Lincoln-Mercury, Inc., 25 B.R. 377, 384 (Bankr.E.D.Tenn.1982). Footnote 12 cites T.C.A. §§ 55-3-125 and 55-3-126(b) in support of the general rule.
No compelling circumstances exist in this case which warrant the imposition of equitable liens.
In summary, the decision of the bankruptcy court shall be affirmed, and the liens of Kenworth of Tennessee, Inc., on four truck tractors shall be avoided. An appropriate order shall be entered.
NOTES
[1] See, e.g., In Re Armstrong, 56 B.R. 781 (W.D. Tenn.1986); In Re York, 43 B.R. 36 (Bankr.M.D. Tenn.1984); In Re Krulik, 6 B.R. 443 (Bankr.M. D.Tenn.1980).
| {
"pile_set_name": "FreeLaw"
} |
960 S.W.2d 954 (1998)
In The Interest Of S.E.W., A Child.
No. 06-97-00103-CV.
Court of Appeals of Texas, Texarkana.
January 27, 1998.
*955 Elizabeth Ann Fulton, Longview, for appellant.
Peggy Delores Wagner, Diana, for appellee.
Before CORNELIUS, C.J., and GRANT and ROSS, JJ.
ROSS, Justice.
Steven Foster appeals from a judgment awarding Peggy Wagner retroactive child support. The child the subject of this suit was born to Peggy Wagner on November 16, 1978. Wagner filed an original petition to establish paternity on September 26, 1996, six weeks before the child turned eighteen. In that petition, she asked for retroactive child support, medical expenses, maintenance of medical and health insurance, and attorney's fees. A genetic screen was conducted, and the court found that the DNA tests conclusively determined that Foster was the father. The evidence shows that they all lived in the same small community and that Foster was fully aware of the child's existence. There is also evidence that Wagner told Foster the child was his and evidence that she had asked for financial help from him over the years. Foster declined each request.
Foster contends that the judgment awarding retroactive child support should be reversed, claiming that the trial court abused its discretion by not considering Wagner's eighteen-year delay in notifying him of his possible paternity, and also claiming that the common-law theory of laches prevented recovery.
The governing statute is TEX. FAM.CODE ANN. § 160.005 (Vernon 1996). The statute reads in part as follows:
(b) On a finding of parentage, the court may order support retroactive to the time of the birth of the child and, on a proper showing, may order a party to pay an equitable portion of all prenatal and postnatal health care expenses of the mother and child.
The terms of the statute are not mandatory, and the trial court is thus empowered to exercise its discretion in ordering an unwilling parent to pay retroactive child support and an equitable portion of other specified expenses. The court is to use the *956 child support guidelines provided by Chapter 154 in making its order for retroactive child support. Tex.Fam.Code Ann. § 154.131 (Vernon 1996) provides:
(a) The child support guidelines are intended to guide the court in determining the amount of retroactive child support, if any, to be ordered.
(b) In ordering retroactive child support, the court shall consider the net resources of the obligor during the relevant time period and whether:
(1) the mother of the child had made any previous attempts to notify the biological father of his paternity or probable paternity;
(2) the biological father had knowledge of his paternity or probable paternity;
(3) the order of retroactive child support will impose an undue financial hardship on the obligor or the obligor's family; and
(4) the obligor has provided actual support or the other necessaries before the filing of the action.
The statutory language indicates that the trial court has discretion in deciding whether to award retroactive child support and the amount of such an award. TEX.FAM. CODE ANN. §§ 154.131, 160.005; In re J.H., 961 S.W.2d 550, 551 (Tex.App.San Antonio, 1997, n.w.h.). Therefore, we will not reverse the trial court's judgment absent an abuse of discretion. Nordstrom v. Nordstrom, No. 01-96-00956-CV, 1997 WL 706736, at *2, ___ S.W.2d ___, ___ (Tex.App.Houston [1st Dist.], Nov.6, 1997, n.w.h.); Cohen v. Sims, 830 S.W.2d 285, 288 (Tex.App.Houston [14th Dist.] 1992, writ denied). An abuse of discretion occurs when the trial court acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985); In re G.J.S., 940 S.W.2d 289, 293 (Tex.App. San Antonio 1997, no writ).
In the present case, there is conflicting testimony about whether the mother had informed Foster of her claim that the child was his and about whether he acknowledged that it was his child. The mother testified that when the child was born she told people that the child was fathered by another individual, but also testified that Foster aided in that fabrication. It is clear that Foster had previously provided no support for the child. There was testimony concerning Foster's financial situation before the trial court set the amount of retroactive child support, and Foster does not contend that the order is improper because it imposes an undue financial hardship. The trial court had testimony about the requisite factors before it for consideration, and its award is not so excessive as to permit us to conclude that it abused its discretion in setting the amount of retroactive child support.[1]
Foster also argues that the equitable defense of laches should apply to prevent recovery. He bases this contention upon his position that the mother intentionally failed to notify him that the child was his until the child had reached the age of majority. Even if we assume that laches can apply to this case, the testimony conflicts about the date Foster was informed of Wagner's claim that the child was his. The mother testified that she informed Foster that the child was his before the child was born. Foster claimed otherwise. Thus, Foster's argument that laches can apply as a matter of law fails in the face of conflicting evidence.
The judgment is affirmed.
NOTES
[1] The trial court set the amount of retroactive child support at $24,000.00, to be paid at the rate of $500.00 per month.
| {
"pile_set_name": "FreeLaw"
} |
378 F.Supp.2d 134 (2005)
DRUG MART PHARMACY CORP., et al., Plaintiffs,
v.
AMERICAN HOME PRODUCTS CORP., et al., Defendants.
No. 93-CV-5148 (ILG).
United States District Court, E.D. New York.
July 13, 2005.
*135 Nicholas A. Gravante, Jr., Steven I. Froot, Philip J. Iovieno, David A. Barrett, Boies, Schiller & Flexner LLP, New York, NY, Durrette Bradshaw, PLC, Wyatt B. Durrette, Jr., Kenneth D. McArthur, Jr., Richmond, VA, for Plaintiffs.
Wayne A. Cross, Robert A. Milne, Michael J. Gallagher, White & Case LLP, New York, NY, for defendant Ciba-Geigy Corporation.
Saul P. Morgenstern, David S. Copeland, Robert Grass, Kaye Scholer LLP, New York, NY, John Treece, Craig B. Sonnenschein, Sidley Austin, Brown & Wood, Chicago, IL, for defendant G.D. Searle & Co.
MEMORANDUM AND ORDER
GLASSER, District Judge.
INTRODUCTION
Pending before the Court is the motion submitted by the designated defendants for judgment on the pleadings or, in the alternative, summary judgment, dismissing the representative plaintiffs' claims for conspiracy under the Robinson-Patman Act, 15 U.S.C. § 13(a) (the "Act"), and precluding plaintiffs from seeking joint and several liability under the Act.[1] Each side cites to a different case, the plaintiffs to a Seventh Circuit decision, and the defendants to a Supreme Court decision, arguing that it is dispositive of the issue before me.
As set forth below, the Court grants defendants' motion for judgment on the pleadings dismissing plaintiffs' claims for conspiracy under the Act and for the imposition of joint and several liability upon the defendants.
BACKGROUND
The background of this case has been recounted in numerous prior opinions by this Court, by the United States District Court for the Northern District of Illinois, and by the Court of Appeals for the Seventh Circuit. See 288 F.Supp.2d 325 (E.D.N.Y.2003); 296 F.Supp.2d 423 (E.D.N.Y.2003); 2002 WL 31528625 (E.D.N.Y. Aug.21, 2002). See also 288 F.3d 1028 (7th Cir.2002); 186 F.3d 781 (7th Cir.1999); 123 F.3d 599 (7th Cir.1997); 1999 WL 33889 (N.D.Ill. Jan.19, 1999); 1996 WL 167350 (N.D.Ill. Apr.4, 1996); 867 F.Supp. 1338 (N.D.Ill.1994); 1994 WL 240537 (N.D.Ill. May 27, 1994). Familiarity with prior opinions is therefore assumed, *136 but for purposes of this opinion, it is sufficient to know that plaintiffs are approximately 3,800 independent pharmacies who have filed suit under the Act against defendants, pharmaceutical manufacturers, for giving discounts or rebates on brand name prescription drugs to health maintenance organizations and mail order pharmacies, while denying discounts to them.[2] Among other things, plaintiffs allege a conspiracy under the Act between the defendants for price discrimination, separate and apart from the conspiracy claim giving rise to their Sherman Act case which has settled in principle.
DISCUSSION
I. Motion for Judgment on the Pleadings Relating to Plaintiffs' Conspiracy Claims under the Act and Assertion of Joint and Several Liability
A. Standard on a Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(c)
In deciding a motion under Fed.R.Civ.P. Rule 12(c), the Court applies the same standard as that applicable to a motion under Fed.R.Civ.P. 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party. Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir.2004); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A complaint will be dismissed under Rule 12(c) "if it appears beyond doubt that the [nonmoving party] can prove no set of facts in support of his claim which would entitle him to relief." Patel v. Searles, 305 F.3d 130, 135 (2d Cir.2002) (internal quotations omitted), cert. denied, 538 U.S. 907, 123 S.Ct. 1486, 155 L.Ed.2d 227 (2003). Although the parties submitted evidence, the Court does not convert defendants' motion into one for summary judgment because it does not consider that evidence.
B. Whether Conspiracy Claims Are Elements of a Robinson-Patman Cause of Action
Section 2(a) of the Robinson-Patman Act provides in relevant part that: "It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between purchasers of commodities of like grade and quality, *137 where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof... and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them...." 15 U.S.C. § 13(a). Defendants argue that plaintiffs' Robinson-Patman Act claims must be dismissed insofar as they are predicated on allegations of a "conspiracy to discriminate in price." Defendants further assert that since there is no viable conspiracy claim under the Act, plaintiffs' argument that they may be held jointly and severally liable is meritless.
In opposition, plaintiffs contend that the law supports their position, and they rely heavily on the Seventh Circuit's decision in Sidney Morris & Co. v. Nat'l Ass'n of Stationers, Office Outfitters & Mfrs., 40 F.2d 620 (7th Cir.1930). In that case, the plaintiff, a retailer and wholesaler of stationery products, asserted that defendants issued recommended price lists for their products "which purported to state prices at which articles should be resold by retailers." Sidney Morris, 40 F.2d at 622. The defendants represented a diverse group, and included two industry associations, wholesalers, retailers and manufacturers. Id. at 621. Defendants purportedly "insisted that plaintiff desist from its practice of reselling ... office equipment at less than the published resale prices" and "demanded that plaintiff become a member of [a trade association] and pay the said association the regular initiation fees and dues." Id. at 622. The complaint acknowledged that certain of the defendants did not have any direct contact with the plaintiff, and therefore these defendants did not discriminate in price against the plaintiff directly, but rather "aided and abetted," or "conspired," to further the discrimination. Id. When plaintiff did not comply with defendants' demand, they refused to sell their products to plaintiff. Id. Plaintiff filed suit against the defendants under a precursor to the Robinson-Patman Act.[3]Id. at 623. The Seventh Circuit reversed the district court's grant of defendants' motion to dismiss the complaint.
The Seventh Circuit first noted the well established principle that an "action may lie for damages suffered by reason of torts committed pursuant to a conspiracy but no action for damages lies for the conspiracy alone." 40 F.2d at 624 (citation omitted). Accordingly, it went on to observe, "[n]ot being an action for conspiracy and no action for a conspiracy, as such, being maintainable, it is idle to examine the complaint to test its allegations by the standards of an alleged good complaint for conspiracy." Id. at 625. Notwithstanding these statements, the Court proceeded to find that certain of the defendant entities, whose sole unlawful conduct was alleged to be their participation in an "unlawful conspiracy," could be liable under the Act. The Court's conclusion was bolstered by the following hypothetical:
[T]he question arises, may B, who has unlawfully discriminated in prices against A, and who has unlawfully refused to sell its goods to A, because of A's refusal to agree to sell only at a fixed resale price, avoid liability because X, Y, and Z agree and conspire with B *138 to force A into an association, the object of which is the maintenance of a fixed resale price, etc.? We think not. A cause of action is stated against B. A's damages arises by virtue of B's unlawful discrimination in price and its refusal to sell A its merchandise. X, Y, and Z become liable, not because of their refusal to sell A, but because, through their unlawful conspiracy with B, they became liable for B's wrongful act committed on A. There would have been no occasion and no justification for joining the retailer defendants who did not sell [plaintiff] excepting as they, through their agreement with B, became the agents and partners of B. B would have been the sole party whose wrongful acts gave A a cause of action but for the action of X, Y, and Z in participating in B's unlawful enterprise. The cause of action did not bec[o]me one for conspiracy, however, but remained one for damages resulting from the doing of acts prohibited by the statute. But the parties liable for the damage were increased through the entry of other parties into the unlawful enterprise.
Sidney Morris, 40 F.2d at 624 (emphasis added).
The Court declines to regard the holding in Sidney Morris as authoritative. The Seventh Circuit recognized that there was no conspiracy claim under the Act, but then inconsistently ruled that X, Y, and Z in the Court's hypothetical, and the defendants in the case before it, could be held liable for price discrimination based solely on their participation in the conspiracy "enterprise."[4] Moreover, in this case, unlike Sidney Morris, each defendant is charged with engaging in price discrimination against plaintiffs.
Further support for this Court's decision to reject the holding in Sidney Morris comes from the Supreme Court, which sixty years later, stated clearly that the Act "is aimed at price discrimination, not conspiracy." FTC v. Henry Broch & Co., 363 U.S. 166, 174, 80 S.Ct. 1158, 4 L.Ed.2d 1124 (1960). Since the Supreme Court's decision in Broch, the only court to squarely address the issue whether an action for conspiracy can be maintained under the Robinson-Patman Act has held that it does not. See General Supply Deck and Floor Underlayment Co. v. Maxxon Southwest, Inc., 2001 WL 1480768, at *4 (N.D.Tex. Nov.19, 2001) (dismissing conspiracy claim because "[t]here is no provision in the Robinson-Patman Act providing for such a claim") (citing Broch, 363 U.S. at 174, 80 S.Ct. 1158); see also Kaspar Wire Works, Inc. v. Leco Engineering and Machine, Inc., 190 U.S.P.Q. 85, 92 (M.D.Fla.1976) (judgment entered against plaintiffs where they failed to introduce "any evidence whatsoever respecting any price discrimination" and noting that the "purpose of the Robinson-Patman Act ... is to curb and prohibit all devices by which large buyers (or sellers) gain discriminatory preferences over small ones by virtue of their greater economic power; it is aimed at price discrimination, not conspiracy") (citing Broch), aff'd, 575 F.2d 530 (5th Cir.1978).
There are at least three additional reasons why this Court declines to follow Sidney Morris. First, plaintiffs' argument that evidence of a "conspiracy" is relevant to its damages claim under the Act is a poorly disguised tautology that would allow plaintiffs to prove a conspiracy not provided by the Act which merely grants a remedy for redress against price discrimination. A plain reading of the Act gives no indication that Congress intended to *139 provide a cause of action for conspiracy. Sidney Morris, the sole prop upon which the plaintiffs' argument rests, creates a questionable wrong to provide a remedy.
Second, as already noted, the plain language of the Act addresses price discrimination, and price discrimination alone. The word "conspiracy" is not mentioned either in the statute or in its legislative history. Price discrimination causes actual injury under the Act when the favored purchaser uses its advantage in a way that impairs the disfavored purchaser's ability to compete. The plaintiff disfavored purchaser must show that it lost customers or profits because the favored purchaser used its favored advantage either to lower its resale prices or otherwise to attract business. It is for that reason that a plaintiff asserting a claim under the Act must proffer individualized proof of lost customers or profits as against each defendant. See, e.g., The Intimate Bookshop, Inc. v. Barnes & Noble, Inc., 2003 WL 22251312, at *8 (S.D.N.Y. Sept.30, 2003) (the plaintiff's failure to disaggregate the effect and contribution of each defendant's unlawful conduct to its alleged injury is fatal to its claim) (citing American Booksellers Ass'n, Inc. v. Barnes & Noble, Inc., 135 F.Supp.2d 1031, 1039-40 (N.D.Cal.2001) (the plaintiffs cited no authority allowing them to average the effects of allegedly unlawful acts of defendants to show that, on average, they were harmed by those acts. Each plaintiff must show a causal connection between the unlawful price discrimination and his injury)).
Third, if plaintiffs are allowed to recover on their claim for price discrimination conspiracy under the Act, they would recover twice for the same claim. As indicated above, see infra fn. 2, the plaintiffs asserted a claim against the defendants under the Sherman Act for the same underlying conduct, which has been resolved by a settlement in principle. The Sherman Act, at its most basic level, prohibits conspiracies agreements between two or more persons or entities to achieve an illegal purpose in restraint of trade. 15 U.S.C. § 1. At oral argument, plaintiffs' counsel acknowledged that these two conspiracy claims under the Sherman Act and the Robinson-Patman Act are identical:
The Court: Would it [price discrimination] also be a conspiracy to violate the Sherman Act?
Mr. Gravante: Yes, it would.
The Court: You were able to pursue that remedy and you did pursue that remedy under section 1, didn't you?
Mr. Gravante: We're happy to continue to pursue it.
The Court: You have settled it?
Mr. Gravante: We have not settled it. We have an agreement in principle to settle it.
(Hearing Transcript of May 26, 2005 ("5/26/05 Tr.") at 21). This attempt to recover twice for the same wrong provides an independent and sufficient reason to dismiss plaintiffs' conspiracy claims pursuant to the Robinson-Patman Act. See, e.g., Defiance Indus. v. Galdi, 256 F.Supp. 170, 172 (S.D.N.Y.1964) (motion to dismiss complaint granted where the plaintiff "in practical effect would be asking the court to permit double recovery for the same actionable wrongs").
Finally, plaintiffs argue that defendants are jointly and severally liable for damages under the Act. However, as plaintiffs' counsel recognizes, there is no authority supporting that assertion, except for Sidney Morris, a case which, as discussed above, has, at the very least, been undermined by Broch. See 5/26/05 Tr. at 33 (at oral argument, plaintiffs' counsel stated that "the only case law that exists is *140 a Seventh Circuit decision that I believe is binding on this Court that squarely supports our view"). If the Court imposes joint and several liability on defendants, it would find one or more defendants liable for price discrimination even in the absence of evidence to support a finding of a causal connection between its alleged discrimination and the plaintiffs' claimed injury, and based, in turn, upon an alleged conspiracy not targeted by the Act.
Consistent with the Court's conclusion, research has not revealed a single case in which a conspiracy claim was asserted and allowed in a Robinson-Patman case, nor has research revealed a single reference in a treatise or law review in which Sidney Morris has been cited for the proposition that such a claim can be made under the Act. The inference, I suggest, is permissible, that the unavailability of such a claim is accepted by the legal and academic community.
CONCLUSION
For the foregoing reasons, defendants' motion for judgment on the pleadings dismissing plaintiffs' claims for conspiracy under the Robinson-Patman Act and precluding plaintiffs from seeking joint and several liability under that Act is granted. The Court directs counsel to appear for a status conference on Tuesday, July 26, 2005 at 11:00 am in Courtroom Five.
SO ORDERED.
NOTES
[1] Also pending before the Court are the following motions filed by defendants: 1) motion for summary judgment dismissing plaintiffs' § 2(a) Robinson-Patman Act claims; 2) motion for partial summary judgment as to all Robinson-Patman Act claims based on rebates paid to legal entities that do not take title to, resell or dispense brand name prescription drugs; 3) partial summary judgment as to plaintiffs' Robinson-Patman Act claims premised on discounts or rebates to for-profit staff-model health maintenance organizations; and 4) motion for summary judgment on the ground that plaintiffs have not shown that they are entitled to damages under the Act. Those motions are not addressed in this memorandum and order.
[2] In addition to their claims under the Robinson-Patman Act, plaintiffs brought claims against defendants under the Sherman Act, 15 U.S.C. § 1. While this litigation was pending before Judge Charles P. Kocoras of the United States District Court for the Northern District of Illinois, the Court entered Pretrial Order Number 5, which, among other things, bifurcated discovery of the two claims and "contemplate[d] that ... plaintiffs' claims may be tried in two separate trials." (Declaration of Robert Grass executed on January 21, 2005 Exh. 1). This Court severed the Sherman Act claims from the Robinson-Patman Act claims. In November 2004, the parties agreed to settle the Sherman Act claims shortly before trial was scheduled to commence, though seven defendants Ciba Geigy Corporation, Sandoz Pharmaceutical Corp., Hoffman-La Roche, Inc., Abbott Laboratories, Marion Merrill Dow, Inc., Rhone-Poulenc Rorer Pharmaceuticals Inc. and Johnson & Johnson have not yet reduced the terms of their settlement to writing subject to the Court's decision on this motion. Fifteen other defendant manufacturers have settled both plaintiffs' Sherman Act and Robinson-Patman Act claims.
Pretrial Order Number 5 stayed the Robinson-Patman Act claims asserted against all non-designated defendants until the first Robinson-Patman Act trial involving designated parties is completed. Pursuant to the pretrial order, the parties designated seventeen plaintiffs to proceed against five defendants. Two of the designated defendants Ciba Geigy and Searle remain, as the others have settled with plaintiffs. For the sake of simplicity, references in this opinion to "plaintiffs" and "defendants" are to the designated plaintiffs and designated defendants.
[3] The Clayton Antitrust Act was passed in 1914, which prohibited price discrimination, though not as expansively as the amendments to that Act which were passed in 1936 as the Robinson-Patman Act.
[4] The Court would appear to have "changed positions as nimbly as if dancing a quadrille." See Orloff v. Willoughby, 345 U.S. 83, 87, 73 S.Ct. 534, 97 L.Ed. 842 (1953) (Jackson, J.).
| {
"pile_set_name": "FreeLaw"
} |
Supreme Court of Florida
____________
No. SC14-2215
____________
RAYMOND M. AUSTIN,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
[January 14, 2016]
PER CURIAM.
We initially accepted jurisdiction to review the decision of the First District
Court of Appeal in Austin v. State, 158 So. 3d 648 (Fla. 1st DCA 2014), based on
express and direct conflict with the decision of the Third District Court of Appeal
in Lightsey v. State, 112 So. 3d 616 (Fla. 3d DCA 2013). See art. V, § 3(b)(3),
Fla. Const. After further consideration, we conclude that jurisdiction was
improvidently granted. Accordingly, we hereby discharge jurisdiction and dismiss
this review proceeding.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
PARIENTE, J., concurs with an opinion.
NO MOTION FOR REHEARING WILL BE ALLOWED.
PARIENTE, J., concurring.
I do not dissent from the decision to discharge jurisdiction in this case, but
only because juvenile offender Raymond Austin will still be afforded an
opportunity to seek correction of his apparently unconstitutional sentences in light
of this Court’s recent juvenile sentencing decisions in Henry v. State, 175 So. 3d
675 (Fla. 2015), and Horsley v. State, 160 So. 3d 393 (Fla. 2015). I write
separately to highlight my disagreement with the First District Court of Appeal’s
conclusion that Austin failed to preserve his illegal sentencing claims that were
based on emerging precedent from the United States Supreme Court in Graham v.
Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012).
Although this was not the conflict issue upon which this Court’s jurisdiction
was premised, nor was it specifically briefed by the parties, the record is clear that
Austin argued about the effect of Graham and Miller during the sentencing
proceedings and recognized that the law at that time remained unclear as to the
appropriate sentencing options for the trial court to consider. The First District, in
fact, noted this point. See Austin v. State, 158 So. 3d 648, 651 (Fla. 1st DCA
-2-
2014) (stating that Austin’s counsel informed the trial court that “the law ‘has been
very muddled as far as what would be constitutional and what would not be’ ”).
In other words, this is not a case in which the Graham and Miller issues were
never raised in the trial court and then all of a sudden became the focus of the
appeal. The First District’s holding that Austin’s illegal sentencing claims were
unpreserved imposed an unduly high burden on Austin to precisely articulate the
parameters of the sentences the trial court could consider, when even the district
courts of appeal had at that point provided very little guidance—and, sometimes,
actually contradictory guidance—as to the available sentencing options.
Indeed, the irony is that if Austin had filed a motion under Florida Rule of
Criminal Procedure 3.800(b), seeking to correct his illegal sentences as the First
District asserted he should have, the trial court would have been constrained to
deny the motion because controlling case law had held that Austin’s sentences
were not illegal. Of course, both of the then-controlling First District cases have
since been quashed by this Court, which has now provided clarity as to the effect
of Graham and Miller on juvenile offenders in Florida. See Gridine v. State, 89
So. 3d 909 (Fla. 1st DCA 2011), quashed, 175 So. 3d 672 (Fla. 2015); Thomas v.
State, 135 So. 3d 590 (Fla. 1st DCA 2014), quashed, 2015 WL 5178605 (Fla. Sept.
4, 2015).
-3-
With this observation in mind, I concur in the decision to dismiss review.
The trial court should entertain a proper motion from Austin to correct his
sentences in light of this Court’s recent decisions in Henry and Horsley.
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions
First District - Case No. 1D13-1046
(Duval County)
Christopher James Anderson, Neptune Beach, Florida,
for Petitioner
Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and
Virginia Chester Harris, Assistant Attorney General, Tallahassee, Florida,
for Respondent
-4-
| {
"pile_set_name": "FreeLaw"
} |
461 B.R. 510 (2011)
In re Robert K. SMOAK, Patricia E. Smoak, Debtors.
No. 09-30421.
United States Bankruptcy Court, S.D. Ohio, Western Division, at Dayton.
September 28, 2011.
*513 Charles J. Roedersheimer, Lester R. Thompson, Dayton, OH, for Debtors.
Decision Granting in Part and Denying In Part Debtors' Objection to the Proof of Claim of Ocwen Loan Servicing as Agent for Bank of New York Mellon, as Trustee on Behalf of the Registered Certificate holders of GSAMP Trust 2004 SEA2 Mortgage Pass-Through Certificates, Series 2004SEA2 Mortgage Services Inc. and Determining that the Claim of Bank of New York Mellon, Trustee Shall be Paid Pursuant to the Terms of the Debtors' Modified Plan
GUY R. HUMPHREY, Bankruptcy Judge.
I. Introduction
The mortgage at issue in this proceeding is subject to a pooling and servicing agreement which governs the terms of a securitization trust. The trust relates to certain pooled residential mortgages, and the promissory notes underlying those mortgages. The principal issue to be determined is the effect of this pooling and servicing agreement upon the standing of an entity in physical possession of a note that is an asset of that trust to enforce it through its proof of claim. Also at issue is the effect of the debtors' modified Chapter 13 plan on the treatment of such a claim. The court determines that Bank of New York Mellon, Trustee, being in physical possession of the note with an affixed endorsement in blank, is the holder of a negotiable instrument under the Ohio Uniform Commercial Code and, therefore, had standing to file a proof of claim and is the real party in interest. The court further determines that this claim is governed by the terms of the debtors' modified Chapter 13 plan.
II. Procedural and Factual Background
A. Confirmation of the Smoaks' Chapter 13 Plan and Post-Confirmation Modification of the Plan
Robert and Patricia Smoak filed a Chapter 13 bankruptcy petition and plan (docs. 1 & 7). The Smoaks own a home in a Dayton suburb (the "Property"). The Smoaks scheduled Ocwen Loan Servicing ("Ocwen") as having a claim (the "Claim") secured by the Property; however, the record clarified that Ocwen, as its full name suggests, is only the loan servicer. The Smoaks' Chapter 13 plan proposed to address the Claim through a special plan provision (See doc. 7). According to this provision, the loan was to be paid in full by April 1, 2009 with a balloon payment in the amount of $93,714 due on that date. As the note matured during the time period covered by the Smoaks' Chapter 13 plan, the Smoaks proposed to pay the entire Claim within the time period of their plan.[1]*514 To meet this requirement, the Smoaks proposed either to refinance the current obligation or obtain a loan modification and, in the interim, to pay $1,000 each month to the secured claimant once a valid proof of claim was filed. The Chapter 13 plan was confirmed without objection (doc. 20).
Subsequently the Smoaks moved to modify their plan (doc. 57). The modification, among other things, sought to fix the amount of the Claim at $76,000 and set a 10 year amortization schedule for payments within the plan and, consistent with the prior plan, provided for full payment of the Claim within the time period covered by the modified plan. The Smoaks intend to satisfy these requirements by making the monthly amortized payments during the life of the plan until they can obtain a new loan to pay the balance of the Claim.
B. Bank of NY Mellon's Claim and the Claim Allowance Process
"The Bank of New York Mellon, as Trustee on behalf of the registered certificateholders of GSAMP Trust 2004-SEA2, Mortgage Pass-Through Certificates, Series 2004-SEA2" ("Bank of NY Mellon" or "Trustee of the Securitization Trust") filed a proof of claim in the amount of $96,608.65 (Proof of Claim No. 1). The proof of claim was filed as secured and attached a copy of a mortgage (the "Mortgage") and note (the "Note") reflecting Bank One, NA as the lender. Ocwen, as the servicer of the loan, filed the proof of claim and was to collect all the payments (See claim 1-1). The Smoaks objected to the Claim (docs. 24 & 25), arguing that "[s]ince Creditor's claim references no documents showing either Ocwen or the Creditor as the owner or assignee, the claim must be disallowed under § 502 and Rule 3001(c). Debtors assert that documentation of ownership of the claim is particularly important since the entity listed on the Note, Bank One N.A., has been purchased by another financial entity and Bank of NY Mellon is identified as a securitized trust." Ocwen, on behalf of Bank of NY Mellon, responded only that the proof of claim "is correct in all respects" and attached documentation purportedly showing the ownership of the loan (doc. 30).[2]
The court ultimately held a hearing on the objection to the Claim. Following the hearing on the Claim, the parties entered into a stipulation which, as will be explained, narrowed the dispute to whether noncompliance with the pooling and servicing agreement which governed the securitization trust to which the Note was purportedly transferred affects Bank of NY Mellon's standing and the allowance of the Claim. Before addressing those issues, and in order to place the effect of the pooling and servicing agreement in its proper context, the court will review the timing and circumstances of the original signing of the Note and granting of the Mortgage and the transfer of the Note and Mortgage.
C. Assignment of the Claim
As evidenced by the Note (Exhibit A), on March 8, 1999 the Smoaks borrowed *515 $95,125 from Bank One, NA. As security, the Smoaks granted Bank One the Mortgage on the Property (Exhibit B). An allonge dated September 1, 2009 (the "2009 Allonge"), with a listed effective date of July 15, 2004 (Exhibit A): a) reflects that the then present holder of the Note was "THE BANK OF NEW YORK, AS SUCCESSOR TO JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, AS SUCCESSOR-IN INTEREST TO BANK ONE NATIONAL ASSOCIATION, AS TRUSTEE, AKA BANK ONE N.A.;" b) disclaims all interest of The Bank of New York in the Note; and c) pays the Note to the order of "THE BANK OF NEW YORK MELLON, AS TRUSTEE ON BEHALF OF THE REGISTERED CERTIFICATEHOLDERS OF GSAMP TRUST 2004-SEA2, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2004-SEA2" (the "Securitization Trust"). Thus, the 2009 Allonge reflects that the Note was transferred on three separate occasions: 1) from Bank One N.A. to JP Morgan Chase Bank; 2) from JP Morgan Chase Bank to the The Bank of New York; and ultimately 3) from Bank of New York to Bank of New York Mellon, as Trustee for the Securitization Trust (See also Exhibits C, D & E).
The parties agreed at the hearing that Bank One merged with JP Morgan Chase and that the Bank of New York subsequently purchased certain assets from JP Morgan Chase, which included the Note. Additionally, the evidence shows Ocwen had the authority to act as agent to file the proof of claim on behalf of Bank of New York Mellon and to service the loan on behalf of Bank of NY Mellon. See Exhibit F. However, the Smoaks have consistently asserted that Bank of NY Mellon, and Ocwen as its servicer, do not have standing and the authority to pursue a claim in their bankruptcy case because: a) the 2009 Allonge does not comply with Ohio's version of the Uniform Commercial Code (the "UCC") codified in Ohio Revised Code Chapter 1301 et seq.; and b) the parties to the pooling and servicing agreement (the "PSA") did not comply with the terms of the PSA.
Subsequent to the evidentiary hearing, the parties stipulated that Bank of NY Mellon is in physical possession of the Note, along with a blank indorsement in the form of an allonge affixed to the note dated March 31, 2004 (the "2004 Allonge") (doc. 94).
D. The Pooling and Servicing Agreement
As noted, the Bank of NY Mellon is the Trustee for the Securitization Trust. For purposes of this decision, a pooling and servicing agreement is an agreement creating a trust that defines the terms under which promissory notes and their related mortgages are placed into the trust, describes how the notes and mortgages and related loan documents are transferred by and between the parties to the trust, and sets forth the various responsibilities of the parties to the trust. The promissory notes, mortgages or deeds of trust, and related loan documents are the trust res. Through the securitization process, the beneficial or ownership interests in the trust are held by investors. See Exhibit 1.[3] The Securitization Trust was to include *516 primarily 8,226 sub-prime loans aggregating approximately $621,103,282 (Exhibit 1, p. 33 of 274). The PSA represents contractual obligations between the parties to that agreement: Bank One, GSMC (and its affiliate, Goldman Sachs Mortgage Company), Ocwen, and Bank of NY Mellon as the Trustee of the Securitization Trust.
The PSA states that the "mortgage loans" would be purchased from Bank One and Bank One would make "certain representations and warranties relating to the mortgage loans." (Exhibit 1, p. 13 of 274). Under the PSA terminology, Bank One is the "responsible party." (Exhibit 1, p. 35 of 274). The closing date for the Securitization Trust was "on or about June 29, 2004" (Exhibit 1, p. 11 of 274). As of June 30, 2004 Ocwen was to act as the primary servicer for the loans (Exhibit 1, p. 14 of 274). GSMC is the depositor of the mortgage loans. The mortgages were acquired by Goldman Sachs Mortgage Company (which acted as an affiliate for the depositor) from the responsible party, Bank One. The PSA also provides for the transfer of the mortgage loans to encompass various documents including the original note, original mortgage, original or certified copies of guaranties, mortgage assignments and other relevant documents (Exhibit 1, p. 45 of 274). Generally, the PSA provides that if certain documents are not in proper order after review by the Trustee of the Securitization Trust, the responsible party could be required to repurchase a mortgage loan (Exhibit 1, p. 47 of 274).
E. The Hearing and Stipulation
The court held a hearing on the Smoaks' objection to the Claim on April 26, 2011 (doc. 81). At the hearing, the parties stipulated to the admission of the Smoaks' only exhibit, being the PSA (Exhibit 1), and all of Bank of NY Mellon's exhibits: the Note (Exhibit A); the Mortgage (Exhibit B); the Assignment of the Mortgage from the Bank of New York to the Bank of NY Mellon (Exhibit C); the Agreement of Merger between Bank One and JP Morgan Chase Bank (Exhibit D); a Form 8-K relating to a set of transactions between Bank of New York and JP Morgan Chase completed on October 1, 2006 (Exhibit E); and the power of attorney granting Ocwen authority to act as the agent for Bank of NY Mellon (Exhibit F). All of these documents were admitted into evidence. The remainder of the hearing consisted of counsels' argument concerning the legal effect of the documents which were admitted.
Following the hearing, the parties stipulated that Bank of NY Mellon "is in physical possession of the subject mortgage note as a holder of said note pursuant to the blank indorsement contained in the allonge affixed to said note" and reserved for determination the issue of "the applicability of the Pooling and Servicing Agreement ("PSA") and any effect said PSA may or may not have regarding Creditor's legal entitlement to enforce the Note as a secured or unsecured claim" (doc. 94). Following the filing of the stipulation, the court took the matter under advisement.
III. Legal Conclusions
A. Jurisdiction and Venue
This court has jurisdiction pursuant to 28 U.S.C. § 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (B) and (O). Venue of the contested matter has not been contested.
B. Standard of Review
With certain exceptions not relevant, Bankruptcy Code § 502(b)(1) states *517 that a claim may not be allowed if "such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured[.]" Bankruptcy Rule 3001(f) provides that "[a] proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim." A party objecting to a claim filed in compliance with Bankruptcy Rule 3001 and Official Form 10 has the initial burden of production or "going forward." In re Burkett, 329 B.R. 820, 826-27 (Bankr. S.D.Ohio 2005). In all circumstances, the creditor retains the ultimate burden of persuasion as to the validity of its claim. Id. at 827.
C. Analysis
1. The Holder of the Note Under the UCC is the Real Party in Interest
Federal Rule of Civil Procedure 17, which is applicable to this contested matter through Bankruptcy Rules 7017 and 9014(c), requires the real party in interest to file a proof of claim. See Veal v. Amer. Home Mtge. Servicing, Inc. (In re Veal), 450 B.R. 897, 907 (9th Cir. BAP 2011); In re Hwang, 438 B.R. 661, 665 (C.D.Cal.2010). The real party in interest with respect to a mortgage proof of claim and enforcement of the rights of a mortgagee in a bankruptcy is the party entitled to enforce the note and its accompanying mortgage. In re Agard, 444 B.R. 231, 245 (Bankr.E.D.N.Y.2011); Hwang, 438 B.R. at 665. In order to determine the real party in interest, the court must look to applicable non-bankruptcy law, in this instance Ohio law, because bankruptcy law does not address the enforcement of promissory notes. See Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 59 L.Ed.2d 136(1979); Nuvell Credit Corp. v. Westfall (In re Westfall), 599 F.3d 498, 502 (6th Cir.2010).
Under Ohio law, the holder of a negotiable instrument, including a promissory note, has the right to enforce it. Ohio Revised Code § 1303.31(A)(1) [UCC 3-301]; In re Foreclosure Cases, 521 F.Supp.2d 650, 653 (S.D.Ohio 2007); Nat'l City Mtge. Co. v. Piccirilli, 2011 WL 3819795 (Ohio Ct.App. Aug. 24, 2011).[4]See also Hwang, 438 B.R. at 665 (holder of a negotiable instrument is the real party in interest under California law). Ohio Revised Code § 1301.01(T)(1) [UCC 1-201][5] defined "holder" with respect to a negotiable instrument as either: a) a person in possession of the instrument If the instrument is payable to bearer; or b) the person identified in the instrument when that person is in possession of the instrument if the instrument is payable to an identified person.[6] Through the blank endorsement, *518 the Note became bearer paper.[7] Bank of NY Mellon is the holder of the Note as Trustee for the Securitization Trust because it holds the original note and an endorsement, not to a particular person or entity, but instead in blank. Densmore v. Litton Loan Servicing, L.P. (In re Densmore), 445 B.R. 307, 310 (Bankr.D.Vt. 2011), citing In re Samuels, 415 B.R. 8, 20 (Bankr.D.Mass.2009) (Possession of the note with a blank endorsement creates standing because the bank was the holder); Wilson v. Countrywide Home Loans, Inc. (In re Wilson), 442 B.R. 10, 15 (Bankr. D.Mass.2010) ("By virtue of its possession of a note indorsed in blank, Deutsche Bank is the holder of the note."). In addition, Ocwen can enforce the note because it acts as the agent for the Bank of New York Mellon. See Exhibit F. As the holder, for all the reasons explained, Bank of NY Mellon is the real party in interest.[8]
The Smoaks raise concern as to their payments on the Note going to the wrong entity and because "[a]ny challenge by an investor in the Trust assets will impinge or place a cloud on title as to the mortgage deed ..." and, therefore, "[t]heir rights will be affected by noncompliance by the parties identified as having responsibilities and duties under the Trust." Brief of Robert K. and Patricia E. Smoak for Objection Hearing (doc. 93), pp. 4-5. However, because it has been established that Bank of NY Mellon is the holder of the Note, the Smoaks, as the maker of the Note,[9] need not be concerned with who the owner of the Note is, but only that the payments are being delivered to a person with the right to enforce the Note. See Kemp v. Countrywide Home Loans, Inc. (In re Kemp), 440 B.R. 624, 631 (Bankr.D.N.J.2010), quoting Adams v. Madison Realty & Dev. Inc., 853 F.2d 163, 166 (3rd Cir.1988) ("From the maker's standpoint, therefore, it becomes essential to establish that the person who demands payment of a negotiable note, or to whom payment is made, is the duly qualified holder.... Consequently, plaintiffs here, as makers of the notes, may properly press defendant to establish its holder status."). See also Livonia Properties Holdings, L.L.C. v. 12840-12976 Farmington Road Holdings, L.L.C., 399 Fed.Appx. 97, 102, 2010 WL 4275305, at *4 (6th Cir.2010) ("Livonia is not at risk of paying the debt *519 twice" because the creditor has established rights to the note based on possession and a proper chain of assignment). Through the payments made to Ocwen as the established agent of Bank of NY Mellon, pursuant to the binding effect of the modified Chapter 13 plan, the Smoaks can be assured the payments will be applied to their obligations under the Note. See Veal, 450 B.R. at 910 ("[I]f a maker makes a payment to a `person entitled to enforce', the obligation is satisfied on a dollar for dollar basis, and the maker never has to pay that amount again."). The UCC and Ohio law interpreting the UCC require this result.
2. Because Bank of New York Mellon is the Holder of the Note and the Mortgage is an Incident of the Note, the Smoaks Have No Basis to Question the Transfers Provided by the PSA or the Mortgage Assignment
While the Smoaks assert that Bank of NY Mellon does not have standing as the Trustee of the Securitization Trust to enforce the Note because the terms of the PSA were not complied with, the PSA does not change that Bank of New York Mellon is the holder of the note under the Ohio UCC. The arguments made by the Smoaks that noncompliance with the PSA vitiates the standing of lenders to enforce notes and mortgages have been made by other debtors and rejected. In Correia v. Deutsche Bank Nat'l Trust Co. (In re Correia), 452 B.R. 319 (1st Cir. BAP 2011), the court affirmed the bankruptcy court's determination that the debtors lacked standing to raise violations of the pooling and servicing agreement involved in that case, and following In re Almeida, 417 B.R. 140, 149 n. 4 (Bankr.D.Mass.2009), the court held that the debtors, as makers of the notes, were not parties or thirdparty beneficiaries to the pooling and servicing agreement and, therefore, lacked standing. See also Bittinger v. Wells Fargo Bank NA, 744 F.Supp.2d 619, 625-26 (S.D.Tex.2010) (obligor cannot sue for breach of contract based upon a pooling and servicing agreement to which it is not a party) and Livonia Property Holdings, L.L.C. v. 12840-12976 Farmington Road Holdings, L.L.C., 717 F.Supp.2d 724, 748 (E.D.Mich.2010), aff'd 399 Fed.Appx. 97 (6th Cir.2010) (similar). Based upon the undisputed facts of this contested matter, the PSA does not relate to who is the "person entitled to enforce" the Note under the Ohio UCC.
In addition, the Smoaks cannot attack the transfer of the Mortgage because, under long established Ohio law, a mortgage is an incident of the underlying debt, in this instance the Note. Gemini Svcs., Inc. v. Mortgage Elec. Regis. Sys., Inc. (In re Gemini Svcs., Inc.), 350 B.R. 74, 82 (Bankr.S.D.Ohio 2006); U.S. Bank Nat'l Ass'n v. Marcino, 181 Ohio App.3d 328, 908 N.E.2d 1032, 1038 (2009). As the makers of the Note, the Smoaks cannot challenge the security for the Note based on a defect in its assignment, as long as the holder has provided evidence that the makers granted the Mortgage to secure the obligations owed on the Note. See Noland v. Wells Fargo Bank N.A. (In re Williams), 395 B.R. 33, 44 (Bankr. S.D.Ohio 2008) (defects in assignments of a mortgage may affect subsequent bona fide purchasers of the mortgage, but not the original mortgagor). Bank of NY Mellon has provided such evidence and the Smoaks have not disputed it. See Exhibit B (Mortgage on the Property granted to Bank One NA by the Smoaks).[10]
*520 3. Noncompliance With the PSA Does Not Affect the Right of the Holder of the Note to Enforce the Note Against the Makers
Even if the Smoaks had standing to raise issues pertaining to noncompliance with the PSA, noncompliance with the PSA does not affect a holder's ability to enforce a promissory note against the maker of the note or deprive the holder from having standing in a bankruptcy case to file a proof of claim and collect on it. The Smoaks argue that the parties to the PSA which governs the Securitization Trust did not comply with the contractual terms of the PSA and, therefore, the Note was never properly transferred to the Securitization Trust or to the Securitization Trustee.[11] Accordingly, the Smoaks argue that the Bank of NY Mellon cannot take any action with respect to the Note because the Note is not an asset of the Securitization Trust. In making this argument, the Smoaks have asserted that the parties to the PSA have varied the effect of the UCC and altered or eliminated the rights of a holder under UCC 1-102(3) [Ohio Revised Code § 1301.02(C)]. See Debtors Robert K. And Patricia E. Smoak Brief In Response To Brief Of The Bank Of New York Mellon, p. 3, n. 1. The court disagrees.
Parties to transactions governed by the UCC can agree to vary the effect of some provisions of the UCC. Thus, Ohio Revised Code § 1301.02(C) [UCC 1-102(3)][12] provided *521 that "[t]he effect of the provisions of Chapters 1301., 1302., 1303., 1304., 1305., 1307., 1308., 1309., and 1310. of the Ohio Revised Code may be varied by agreement, except as otherwise provided in those chapters and except that the obligations of good faith, diligence, reasonableness, and care prescribed by those chapters may not be disclaimed by agreement, but the parties by agreement may determine the standards by which the performance of those obligations is to be measured if the standards are not manifestly unreasonable."
However, the PSA does not and could not vary the essential rules and terminology of the transfer of negotiable instruments to establish the "person entitled to enforce." See Official Comment 2 to UCC 1-102:
1. Subsection (a) states affirmatively at the outset that freedom of contract is a principle of the Uniform Commercial Code: "the effect" of its provisions may be varied by "agreement." The meaning of the statute itself must be found in its text, including its definitions, and in appropriate extrinsic aids; it cannot be varied by agreement. But the Uniform Commercial Code seeks to avoid the type of interference with evolutionary growth found in pre-Code cases such as Manhattan Co. v. Morgan, 242 N.Y. 38, 150 N.E. 594 (1926). Thus, private parties cannot make an instrument negotiable within the meaning of Article 3 except as provided in Section 3-104; nor can they change the meaning of such terms as "bona fide purchaser," "holder in due course," or "due negotiation," as used in the Uniform Commercial Code. But an agreement can change the legal consequences that would otherwise flow from the provisions of the Uniform Commercial Code. "Agreement" here includes the effect given to course of dealing, usage of trade and course of performance by Sections 1-201 and 1-303; the effect of an agreement on the rights of third parties is left to specific provisions of the Uniform Commercial Code and to supplementary principles applicable under Section 1-103. The rights of third parties under Section 9-317 when a security interest is unperfected, for example, cannot be destroyed by a clause in the security agreement.
Ohio Revised Code § 1301.02(C) (re-codified in Ohio Revised Code 1301.302 (Official Comment 1)) (emphasis added). For example, in interpreting Ohio law, a bankruptcy court determined that Ohio Revised Code § 1301.02 did not permit a party to change the definition of a security interest. In re Homeplace Stores, Inc., 228 B.R. 88, 94 (Bankr.D.Del.1998). Similarly, the PSA does not change who the holder (or other person entitled to enforce) the Note is under Ohio's version of the UCC. Instead, the PSA generally seeks to govern, among many other details, the effect of certain provisions of commercial law and to create certain supplemental obligations between the parties to it.
*522 Further, the Smoaks' argument confuses the rights of an owner of a promissory note or one who holds interests in a promissory note with the rights of a holder of a note. Their argument suggests that in order to prove standing to file and enforce a proof of claim relating to a securitized mortgage note, a creditor must establish that it is the owner of the note not the holder of the note. However, as noted, under Ohio law, it is the holder of a promissory note who may enforce it and who, therefore, has standing to file a proof of claim.[13] Of course, it may be, upon different facts, that a securitization trust trustee, or similar entity, may not be entitled to enforce a note as the holder or other "person entitled to enforce" under the Ohio UCC. However, the Smoaks' argument does not challenge the holder status of the Trustee of the Securitization Trust.
The holder status of the Trustee of the Securitization Trust is established by Article 3 of the UCC, as codified in Ohio. Article 3, by establishing the "person entitled to enforce" the Note, addresses the proper person to be paid. Veal, 450 B.R. at 909. To the extent the Smoaks are arguing Article 9 of the UCC should apply, Article 9 generally addresses who owns or has other property interests in a negotiable instrument. Id. at 909-10.[14] This decision does not address the role of Article 9 in ownership status and how such law may interact with the PSA. See id at 912-13 (extended discussion of Article 9 and ownership rights in promissory notes). The significance for this decision is that Article 3, rather than Article 9, creates the holder rights of Bank of New York Mellon and ultimately gives it standing as a real party in interest.
In short, even if the assignments and transfers failed to comply with the terms of the PSA, the result is not any different under these facts. The owner of the Note (if it is different than the holder) is not a real party in interest because its rights, if any, would be against a holder or other third party in violation of a contract, not the maker. Hwang, 438 B.R. at 667. Under Rule 19, the owner's rights are not impaired by its inability to protect its interest by filing a proof of claim because it lacks the authority to collect under the Note. See Federal Rule of Civil Procedure 19(a)(1)(B)(i) (applicable by Bankruptcy Rules 7019 and 9014(c)).[15]See also Kemp, 440 B.R. at 633 ("The attempted assignment of the note in the assignment of mortgage document, together with the terms of the Pooling and Servicing Agreement, created an ownership issue, but did *523 not transfer the right to enforce the note."). The PSA may establish ownership, but does not define the holder or other "person entitled to enforce" the Note under the Ohio UCC.
The court does not conclude that the status as an owner of a note (or the holding of other interests in a note or in a securitized trust) may never provide standing or that breaches of a pooling and servicing agreement will never be dispositive of the determination of an action, adversary proceeding, or contested matter. Of course, issues as to who may be entitled, under a separate contract, to ultimately receive the mortgage payments collected by the holder of the note, whether recourse obligations between the parties to the pooling and servicing agreement were triggered by the breach of the agreement, and a myriad of other questions relating to a pooling and servicing agreement, securitized trust, and the notes and mortgages could arise. However, the arguments of the Debtors neither require an analysis of any possible error in the transfer of the note to the PSA nor establish their standing under these facts to raise them.[16]
4. The Smoaks' Modified Plan Determined the Allowed Amount and the Treatment of Bank of NY Mellon's Claim
Another issue is the amount of the Claim and its treatment. For the reasons that follow, the court determines that the allowed amount and the treatment of Bank of NY Mellon's claim as Trustee of the Securitization Trust shall be as provided by the Smoaks' modified plan.
Ocwen filed a secured proof of claim on behalf of Bank of NY Mellon as the Trustee of the Securitization Trust in the amount of $96,608.65. Proof of Claim 1. The Smoaks filed an objection to that claim, contending that Ocwen had not established standing and that since the mortgage note became due during the Smoaks' plan period, they could modify the claim both to reduce the interest rate and to reduce the claim to its present value (doc. 25). The Smoaks later filed a motion to modify their confirmed plan (doc. 57). The text of the motion, in pertinent part, states:
This Motion is made pursuant to terms set forth in their Plan for Real Estate for their home and residence at 24 Mario Drive, Trotwood, Ohio 45427 ("Property") for a mortgage loan ("Loan") due and payable to Creditor Ocwen Mortgage Services, as agent for Bank of New York Mellon, Trustee, on behalf of Registered Certificate Holder GSAMP Trust 2004-SEA2 to Mortgage Pass Through Certificate Series SEA2-2004 ("Ocwen"). The Motion also resolves the Debtors objection to Ocwen's secured claim (Claim Register 1) in the amount of $96,608.65 which Loan reached maturity date on March 12, 2009 approximately 42 days after Debtors *524 bankruptcy petition filing date. Debtors modified plan will provide for full payment of Ocwen's claim within the length of their plan through a combination of monthly payments and a refinancing prior to the expiration of the modified plan.
Motion for Modification of Plan, p. 1 (doc. 57) (bold in original). The Memorandum In Support of the motion further provided, in pertinent part:
2. ... Debtors, pursuant to the provisions of 11 U.S.C. § 1322(c) and § 1325(a)(5), will provide for monthly mortgage payments to Ocwen by treating the Loan as matured with a monthly payment based on the applicable Plan interest rate and a projected maturization date for a ten year note with an origination date of the petition filing date of January 29, 2009. Present valuation for the Property will be the appraised value of $76,000....
3. The effective date of the loan modification will be April 1, 2010.
4. The funds currently held by the Trustee based upon the pending objection of Debtors to Creditor's claim will be paid based upon the revised amortized loan payment schedule as set forth in this modified plan.
* * * *
Based upon the above, the Debtors' Plan is modified as follows:
Special Plan for Real Estate
Debtors' residence at 24 Mario Drive, Trotwood, Ohio 45426 ("Property"), currently is encumbered by a secured loan and mortgage ("Note") serviced by Ocwen Mortgage Services, Inc. for Bank of New York Mellon, Trustee, on behalf of Registered Certificate Holder GSAMP Trust 2004-SEA2 to Mortgage Pass Through Certificate Series SEA2-2004 ("Ocwen"). The Note matured on March 12, 2009 and pursuant to 11 U.S.C. §§ 1322(c) and 1325(a)(5) will be fully paid within the term of Debtor's Plan as a Matured Note. Debtors' monthly payments to Ocwen and any subsequent assignee of the claim on the Matured Note will be $796.84. The Matured Note payment will be calculated by applying the applicable Plan interest rate to the present valuation for the Note of $76,000 as determined by the appraised Property value listed in Debtors' confirmed Plan. The allocation of principal and interest Matured Note payments will be calculated based on an amortization schedule for a ten year note with the origination date being the petition filing date of January 29, 2009. Debtors will arrange for full payment of the Matured Note within the modified term of the Plan by refinancing the Matured Note prior to the completion date of the modified Plan. The balance of the Note owed at the time of the refinancing will be determined by the balance due on the Matured Note as of the date of refinancing. For purposes of calculating the balance due for refinancing, an amortization schedule is attached as Exhibit A to apportion the Debtors' monthly payments as to interest and principal of the Matured Note for payments under the modified plan. Debtors shall obtain authorization from the Trustee or the Court before entering into any refinance agreement.
Funds currently held by the Trustee due to Debtors' objection to Creditor Ocwen's claim will be paid to Ocwen pursuant to Mature Note terms and amortization schedule as set forth in the preceding paragraph for monthly payments due on the Note on or after January 29, 2009[.]
*525 Motion for Modification of Plan, p. 2 (doc. 57) (bold in original). Further, attached as Exhibit A to the motion is an amortization table that contains a monthly amortization of the loan, as proposed to be modified through the motion and states: "Loan Amount: $76,000 ~ Term of the Loan: 10 years ~ Interest Rate: 4.750%; Monthly mortgage payments: $796.84 ~ Total interest paid over the life of the loan: $19,621.14." The loan balance after the first payment, February 1, 2009, under that table is stated as "75,503.99." See doc. 57 (bold in original).
No objection to the motion to modify the plan was filed and the court entered an order approving the modification. In its hearing brief (doc. 77), Bank of NY Mellon argues that the Smoaks' modification is ambiguous because the first page of the motion refers to "full payment" of Bank of NY Mellon's claim while paragraph 2 of the Memorandum in Support provides for reduction of the claim from $96,608.65 to $76,000. The brief further states that:
In addition, the "Special Plan for Real Estate" contained in the Motion for Modification provides that "[d]ebtors will arrange for full payment of the Matured Note within the modified term of the Plan by refinancing the Matured Note prior to the completion date of the modified". See Special Plan for Real Estate in Motion for Modification. Again, the plan speaks to "full payment" of the Matured Note, and the Motion for Modification continues to state "[t]he balance of the Note owed at the time of the refinancing will be determined by the balance due on the Matured Note as of the date of refinancing". It is axiomatic black letter law that these conflicting terms should be construed against the drafter of the plan. Thus, Creditor's claim should be paid in full as filed.
(doc. 77, p. 9). Thus, Bank of NY Mellon argues that the plan modification is ambiguous because it uses contradictory language, both saying that the claim will be "paid in full" and stating that the claim will be reduced to $76,000 and that this ambiguity must be resolved against the Smoaks as the drafters and proponents of the modification.
First, the court finds that the modification is not ambiguous. Upon review of the entirety of the modified plan, the court finds the confirmed modification determined that the secured claim of Bank of NY Mellon to be $76,000; set a 10 year amortization schedule, including interest; required payments during the plan of $796.84 each month and provided the entire secured claim would be paid in full during the plan by refinancing the obligation to Bank of NY Mellon. The language of the Memorandum in Support and the amortization schedule attached as Exhibit A to the motion clearly set forth that the claim would be $76,000, not as filed in the amount of $96,608.65, and amortized over a ten year period.
Second, even if the modification was ambiguous, it was incumbent upon Bank of NY Mellon to object to the modification and to raise any such ambiguity or questions or concerns that it had concerning the terms of the proposed modification at that time so that any such ambiguity could be timely resolved. As this court noted in In re McLemore, 426 B.R. 728, 737 (Bankr.S.D.Ohio 2010), issues as to vagueness or ambiguity of a plan must be raised at the confirmation stage. Such issues cannot be raised later after the plan or modification has become binding under Bankruptcy Code §§ 1327 and 1329. See also United Student Aid Funds, Inc. v. Espinosa, ___ U.S. ___, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010); In re Harvey, 213 F.3d 318, 322 (7th Cir.2000) and In re *526 Averhart, 372 B.R. 441, 445-46 (Bankr. E.D.Wisc.2007).
As a final note, the amount of a creditor's claim ordinarily would be addressed and resolved through the claims allowance process and not through the Chapter 13 plan confirmation process. However, the Smoaks' loan matured during the plan period and the Smoaks sought to provide different treatment to that claim pursuant to Bankruptcy Code § 1322(c)(2) and there is no dispute that Ocwen and Bank of NY Mellon received adequate notice of the modification motion. Under these particular facts, the mechanism of using the plan modification to resolve the amount of Bank of NY Mellon's claim along with the other terms of the loan and claim is not offensive to procedural due process. See McLemore, 426 B.R. at 741-42 and In re Hudson, 260 B.R. 421, 430-31 (Bankr.W.D.Mich.2001) (secured creditor must object to plan treatment and filed proof of claim cannot serve as substitute for objecting to treatment under a plan). See also Espinosa, 130 S.Ct. at 1380 (creditor cannot use Federal Rule of Civil Procedure 60(b)(4) to vacate a confirmation order when it failed to object to a properly noticed plan). Ordinarily, absent Bankruptcy Code § 1322(c)(2), this claim, as a secured claim on the primary residence, would not be allowed to be modified under Bankruptcy Code § 1322(b)(2). In short, the fundamental issue in the modified plan was not the amount of the claim, but altering the treatment of the claim.
For these reasons, the court finds that the Smoaks' treatment of Bank of NY Mellon's claim provided in their modified plan is binding on Bank of NY Mellon. Bank of NY Mellon, as the Trustee of the Securitization Trust, shall be paid $76,000, based upon an amortization over 10 years, at an interest rate of 4.750%, with a monthly mortgage payment of $796.84, until the unpaid principal balance, as modified under the plan, is paid in full prior to the completion date of the Smoaks' modified plan through refinancing or otherwise.
IV. Conclusion
The proof of claim filed by Ocwen on behalf of Bank of New York Mellon as the Trustee of the Securitization Trust (1-1) did not have the necessary documentation to show standing and was not entitled to prima facie validity pursuant to Bankruptcy Rule 3001. The Smoaks met their initial burden of production to challenge the allowance of the Claim. However, through the belated stipulation concerning the Note and the Allonge, Bank of New York Mellon has met its ultimate burden of persuasion to establish standing as the real party in interest. Therefore, the objection of the Smoaks to the proof of claim of Bank of New York Mellon as relates to the standing of Bank of New York Mellon is denied. Bank of New York Mellon, the Trustee for the Securitization Trust, is the real party in interest and has a secured claim in the amount of $76,000, and Ocwen, as the recognized servicer for Bank of New York Mellon, Trustee of the Securitization Trust, is to be paid as detailed in the Smoaks' modified Chapter 13 plan. The court will issue an order contemporaneously with this decision.
NOTES
[1] 11 U.S.C. § 1322(c)(2) provides that "in a case in which the last payment on the original payment schedule for a claim secured only by a security interest in real property that is the debtor's principal residence is due before the date on which the final payment under the plan is due, the plan may provide for the payment of the claim as modified pursuant to 1325(a)(5)...." For the remainder of this decision, references to Title 11 of the United States Code shall simply refer to "Bankruptcy Code §___."
[2] As this decision explains, for reasons never adequately explained to the court, the documentation needed to establish Bank of NY Mellon as the holder of the Note was not provided by Bank of NY Mellon until 21 months laterafter an evidentiary hearing.
[3] The PSA is in the form of a prospectus for investors and was filed with the Securities and Exchange Commission. However, regardless of whether the PSA embodied by Exhibit G is considered the complete contract under New York law, the court finds that Bank of NY Mellon, as the Trustee of the Securitization Trust, is the holder of the Note and, as explained later, nothing in Exhibit G changes basic tenants of Ohio UCC law, such as who is the holder of a negotiable instrument. The court makes no findings as to any specific section of Exhibit G beyond the legal conclusion that no provision of the PSA changes who the holder of the Note is under Ohio's version of the UCC.
[4] Under the UCC, it is not always necessary to be the holder of the note in order to have the right to enforce it, but the court need not address those issues. See Ohio Revised Code § 1303.31 (Person entitled to enforce an instrument). See also Veal v. Amer. Home Mtge. Servicing, Inc. (In re Veal), 450 B.R. 897, 911, n. 22 (9th Cir. BAP 2011) (describing the limited circumstances under which a nonholder may enforce a negotiable instrument).
[5] Effective June 29, 2011, Ohio Revised Code 1301.01 was re-codified in Ohio Revised Code § 1301.201. Ohio Revised Code § 1301.01(T)(1) is now codified at Ohio Revised Code § 1301.201(B)(21). The substantive changes to the definition of holder concern documents of title and would not have impacted this decision.
[6] Ohio Revised Code § 1301.201(B)(5) [UCC 1-201], effective June 29, 2011, was part of the amendments and recodifying of Ohio Revised Code § 1301.01, which specifies that the instrument must be a negotiable instrument. The change is not substantive because Ohio Revised Code § 1303.03(B) [UCC 3-104] defines "instrument" to mean "negotiable instrument." The Smoaks do not argue that the Note is not a negotiable instrument. See also Ohio Revised Code § 1303.03(A) for the definition of a negotiable instrument.
[7] Ohio Revised Code § 1303.25(B) [UCC 3-205] defines a blank indorsement as "an indorsement that is made by the holder of the instrument and that is not is not a special indorsement." A special indorsement "means an indorsement that is made by the holder of an instrument, whether payable to an identified person payable to bearer, and that identifies a person to whom it makes the instrument pay[a]ble sic. An instrument, when specially indorsed, becomes payable to the identified person and may be negotiated only by the indorsement of that person." Ohio Revised Code § 1303.25(A). See also Ohio Revised Code § 1303.10(D) ("An instrument payable to an identified person may become payable to bearer if it is indorsed in blank pursuant to [1303.25(A)].").
[8] Under these facts, the court need not consider any potential defects in the 2009 Allonge. For instance, the Smoaks, among other things, raise the issue of the 2009 Allonge being post-dated. That issue is moot and the court expresses no opinion on the question or any other issues related to the 2009 Allonge. The 2004 Allonge, dated March 31, 2004, and affixed to the Note, proves that the Bank of New York Mellon, as Trustee of the Securitization Trust, is a person entitled to enforce the note because, under the Ohio UCC, it is the holder of the Note.
[9] "`Maker' means a person who signs or is identified in a note as a person undertaking to pay." Ohio Revised Code § 1303.01(A)(7) [UCC 3-103].
[10] The Smoaks also argue (doc. 78, n. 2) that Bank of NY Mellon failed to comply with Ohio Revised Code § 5309.65 which states:
Before an assignee or trustee for the benefit of creditors, receiver, master commissioner, special master commissioner, executor, or other person appointed by a court, shall deal with or transfer registered land, or any interest therein, such person shall file in the county recorder's office a certified copy of the deed, order of the court, will, or other authority showing that such person is authorized to deal with or transfer such land or interest, and shall present to the recorder the duplicate certificate of title for such land. The recorder shall enter upon the registered certificate and on the duplicate certificate of title, a memorial thereof, with a reference to such deed, order of the court, will, or other authority by its file number. In case of a deed of the land in fee simple to the assignee, receiver, or other officer, the recorder shall register the title in the name of such transferee and issue to him a certificate of title, stating therein the purpose for which the land was transferred to him.
However, this section only addresses the transfers of registered land, or an interest in registered land, and not generally to encumbrances upon real property. Further, the Smoaks fail to explain how the Property is "registered land." See Ohio Revised Code § 5309.01(D) ("`registered land' means any land registered under this chapter or Chapter 5310. of the Revised Code.") The court finds that this section of the Ohio Revised Code is not applicable.
[11] See Brief of Robert K. and Patricia E. Smoak for Objection Hearing (Doc. 93, p. 4): "Documents offered to the Court by the Creditor to date certainly cast doubt on the validity of Creditors claim of ownership given the absence of compliant transfer of chain of title and endorsement as to the Note and Mortgage." See also Debtors Robert K. And Patricia E. Smoak Brief In Response To Brief Of The Bank Of New York Mellon, p. 2 (Doc. 78, p. 2): "Ocwen as the servicer of the Trust, and the Trust itself, are required to adhere to prescribed criteria under the methods, under the pooling and servicing agreement ("PSA") to accomplish any endorsement and transfers of the note or assignments of the mortgage deed into the Trust. Neither the Trust nor Ocwen have complied with these PSA provisions."
[12] Effective June 29, 2011, Ohio Revised Code § 1301.02(C) was re-codified as § 1301.302(A) & (B) and non-substantive changes to the language were made. It now reads:
"(A) Except as otherwise provided in division (B) of this section or elsewhere in Chapter 1301., 1303., 1304., 1305., 1307., 1308., 1309., or 1310. of the Revised Code, the effect of provisions of Chapters 1301., 1303., 1304., 1305., 1307., 1308., 1309., and 1310. of the Revised Code may be varied by agreement.
(B) The obligations of good faith, diligence, reasonableness, and care prescribed by Chapter 1301., 1302., 1303., 1304., 1305., 1307., 1308., 1309., or 1310. of the Revised Code may not be disclaimed by agreement. The parties, by agreement, may determine the standards by which the performance of those obligations is to be measured if those standards are not manifestly unreasonable. Whenever Chapter 1301., 1302., 1303., 1304., 1305., 1307., 1308., 1309., or 1310. of the Revised Code requires an action to be taken within a reasonable time, a time that is not manifestly unreasonable may be fixed by agreement."
Ohio Revised Code § 1301.302(A) & (B). Although some recent changes to Ohio UCC law are substantive, all the changes noted to various subsections to the Ohio UCC cited in this decision are not substantive. In any event, the changes only apply to transactions entered on or after the bill's effective date of June 29, 2011. See Ohio 2011 Am. H.B. 9, Section 3.
[13] The Smoaks assert the PSA is governed by New York trust law. The court has no reason to dispute that assertion and it does not appear that Bank of NY Mellon disputes it. However, Ohio UCC law establishes standing and the real party in interest and the Note and Mortgage are governed by Ohio law. None of the cases cited by the Smoaks change this result. In Doble v. Deutsche Bank Nat'l Trust Co. (In re Doble), 2011 WL 1465559 (Bankr.S.D.Cal. April 14, 2011), cited by the Smoaks, that court found New York trust law did not apply to real estate investment trusts. The court does not express an opinion as to that conclusion; however, as to the relevance of the PSA in that case to standing, nothing in the decision contradicts this court's narrow finding that a valid blank endorsement of a negotiable instrument provides the holder with standing to file a proof of claim as the real party in interest. Nor do the other cases cited in the Smoaks' brief (doc. 93) alter this court's conclusion.
[14] UCC § 9-109(a)(3) provides that Article 9 "applies to ... a sale of ... promissory notes."
[15] See Ohio Revised Code § 1303.31(B) [UCC 3-301] ("A person may be a `person entitled to enforce' the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.").
[16] For example, one could assume for argument's sake that the Note could be returned to the "responsible party" for failure to comply with the PSA, and the holder of the Noteat some undetermined future date could change. However, from the Smoaks' perspective, all previous payments to the prior holder would reduce the balance on the Note and the secured claim of Bank of NY Mellon and payments would then be owed to the current holder. If the Smoaks had shown that the Note, with the endorsement in blank, had been transferred from the Trustee to the responsible party's assignee, or some other entity, that transferee would become the holder. No such evidence was introduced and nothing in the record suggests that ever occurred. While the court is mindful that the "real world" reality of the Smoaks being assured the holder is receiving the payments may be more complicated to implement in practice, the protection of the Smoaks under the UCC is to pay the holder of the Note, whoever that may be at any given time.
| {
"pile_set_name": "FreeLaw"
} |
379 Mass. 90 (1979)
393 N.E.2d 895
USM CORPORATION
vs.
MARSON FASTENER CORPORATION & others.[1]
Supreme Judicial Court of Massachusetts, Suffolk.
March 5, 1979.
August 29, 1979.
Present: HENNESSEY, C.J., QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS, & ABRAMS, JJ.
George T. Finnegan (John M. Harrington, Jr., with him) for the plaintiff.
Robert F. Sylvia (James F. Ryan with him) for the defendants.
*91 ABRAMS, J.
The USM Corporation (USM) seeks an accounting for the alleged misappropriation of a trade secret contained in a machine used in the manufacture of blind rivets.[2] In addition, USM sought relief from each of the defendants by reason of their "wrongful acts" in misappropriating confidential information.
To defeat the claim of misappropriation of a trade secret, the defendants alleged that USM had not kept its information secret. Hearings were held before a master; one of the master's conclusions was that although information embodied in the machine was "of a nature which would constitute it a trade secret if protected, [it] was not sufficiently guarded by USM to entitle USM to recover anything from the defendants." A judge confirmed the master's report, ruling that "the Master's ultimate finding with respect to the adequacy of the measures taken by USM to guard the secrecy of the USM machine is supported by the evidence before the Master, consistent with his subsidiary and other general findings and correct as a matter of law." The judge then ordered the entry of judgment dismissing the complaint with prejudice. USM appeals. We allowed USM's application for direct appellate review.
The main thrust of USM's appeal is that it did pursue a course of conduct reasonably designed to preserve the secrecy of its trade secret. USM contends that it was error to conclude from the master's subsidiary findings that its complaint should be dismissed. USM avers that in any event it was improper to dismiss the complaint since the master's report indicates that the defendants acquired the information improperly. See Restatement of Torts § 759 (1939). *92 We have reviewed the master's report and conclude that it was error for the judge to dismiss the complaint.[3]
We summarize the subsidiary findings of fact on which the master and the judge based their conclusions. Since 1950, USM has engaged in the manufacture and sale of blind rivets. In 1954, employees of USM began development of a new type of blind rivet assembly machine. Development of the machine was completed in 1959.
The USM blind rivet assembly machine ("USM machine" or "machine") is able "to provide a means of reliable and rapid assembly of mandrels and rivet bodies into rivets." USM claims that the combination and relationship of various parts of the machine, along with certain features incorporated into the machine, are the trade secrets and confidential information which the defendants have misappropriated.[4]
The master ultimately found that the development of the USM machine involved considerable time, effort and expense, that the development of the machine was relatively difficult, and that its "combination [of features] was unique and effective when devised and ... did not constitute a *93 matter of public knowledge or of general knowledge in the industry." Therefore, the master properly concluded that the USM machine was of an appropriate nature to qualify it as a trade secret.[5]
The master also found that Joe Cooper, Irving Cooper, and Louis Lewis were the officers and directors of corporations which distributed USM blind rivets for a period of approximately one year. In 1961, after being denied an exclusive distributorship, the defendants decided to manufacture blind rivets in competition with USM, but they were dissatisfied with the performance of their own blind rivet assembly machines. Eventually, the defendants were able to construct a blind rivet assembly machine like the USM machine because the defendants hired Frank Lahnston, a former junior engineer at the USM Shelton plant and provided him with "a group of about 100 [blue] prints without identifying title blocks but which Lahnston recognized as prints of USM [parts] drawings of the USM Machine." By 1964, Lahnston had succeeded in constructing for the defendants a blind rivet assembly machine which was "substantially the same as the USM Machines."
However, the master concluded that USM was not entitled to claim trade secret protection for its machine because USM had taken inadequate precautions to preserve the *94 secrecy of the USM machine. To reach this result, the master focused on the security measures taken at the USM plant in Beverly, where the USM machine was developed, and at the USM plant in Shelton, where the USM machines were in operation. We therefore summarize the master's findings relating to USM's security measures in some detail.
Between 1954 and 1959 USM carried out the development of its machine at the Beverly plant. The Beverly plant was fenced, and employees and visitors entered the plant through guarded gates. Once inside the plant, employees were expected to remain in their immediate work areas. Supervisors questioned any employee who was discovered outside the employee's work area. While employees were not to remove objects from the plant without permission, guards did not generally inspect employees' briefcases or lunch boxes as they left the plant.
Visitors to the plant were logged in and out. They were also required to state their business and to wait in a designated reception area. At no time were visitors permitted to walk unescorted through the plant.
During the period of their development, the USM machines were located in a relatively isolated area of the Beverly plant, but USM employed no special security precautions to prevent access to the machines. At all times both during and after their development, USM treated the machines as items of factory equipment. "The term `factory equipment' defines machines and other equipment developed or adapted by USM to be used internally in production of items to be sold to others and not themselves to be sold or otherwise made available to third persons."
All drawings and blueprints of parts for the USM machines were kept in the engineering department of the Beverly plant, along with 250,000 other drawings of factory equipment. No assembly drawings were ever made for the USM machine. Whenever a print of a particular drawing was required for work being done outside the engineering department, the employee needing the print was to complete a written production order. After receiving the work *95 order, engineering employees stamped the print with the work order number and the phrase "for the above only" before delivering the print to the employee. However, while some USM blueprints were stamped "confidential," no drawings, blueprints, or prints of the USM machine were stamped "confidential" prior to the filing of the complaint in this action.
After USM completed the development of the USM machine, some of these machines were installed at the USM plant in Shelton, Connecticut. With a few variations, USM security precautions at the Shelton plant were similar to those in force at the Beverly plant.
Employee entrances at the Shelton plant were unguarded, and employees did not wear badges. All doors were locked during hours when the plant was not operating, and any employee entering the plant outside of regular working hours was required to have a pass and to be logged in by the watchman.[6]
Visitors to the Shelton plant were always logged in and waited in a reception room which was separated from the production area by an opaque partition. Visitors entering the production area were expected to be escorted at all times.
The USM machines at the Shelton plant were located in the production area of the plant. They were not separated from other plant operations and were visible from the shipping room doors. A set of reproducible drawings for the USM machine was kept at the Shelton plant. The drawings were located in the office of the engineering department, which was separated from the production area by a lockable door.
USM conducted occasional plant tours at Shelton. The tours, however, did not open the plant to the general public *96 and were conducted for the families of employees and for distributors of USM products.[7]
All supervisory, technical, and engineering employees at the Shelton plant signed nondisclosure agreements in early 1963.[8] Similar agreements were signed by research personnel at the Beverly plant.
USM generally did not seek patent protection for any items of factory equipment and sought no such protection for the USM machine or for any of its components. There was also no written policy specifically prohibiting disclosure of information concerning factory equipment, and prior to November, 1963, no USM officer published a formal statement identifying the USM machine or its components as confidential information.
The master concluded that these security precautions did not entitle USM to claim trade secret protection for the USM machine, measured against a standard of conduct which required USM to "exercise a degree of eternal vigilance or pursue an active course of conduct sufficient to maintain the secrecy of the information embodied in the USM Machine."
USM argues that the master's subsidiary findings of fact establish that USM took reasonable precautions to maintain the secrecy of its information, and that such reasonable precautions are all that are required to entitle a plaintiff to claim trade secret protection for its information. Thus *97 USM asserts that the defendants' use of this information constituted a misappropriation of USM's trade secrets and confidential information for which the defendants should be held liable. We agree.
One who possesses a trade secret and wishes to protect it must act to preserve its secrecy. See Peabody v. Norfolk, 98 Mass. 452, 458 (1868); Restatement of Torts § 757, Comment b (1939). See also United States Plywood Corp. v. General Plywood Corp., 370 F.2d 500, 508 (6th Cir.1966), cert. denied, 389 U.S. 820 (1967); Future Plastics, Inc. v. Ware Shoal Plastics, Inc., 340 F. Supp. 1376, 1382 (D.S.C. 1972); Hamilton Mfg. Co. v. Tubbs Mfg. Co., 216 F. 401, 404 (W.D. Mich. 1908); Gallowhur Chem. Corp. v. Schwerdle, 37 N.J. Super. 385, 397 (1955). Cf. Republic Sys. & Programming, Inc. v. Computer Assistance, Inc., 322 F. Supp. 619, 628 (D. Conn. 1970), aff'd, 440 F.2d 996 (2d Cir.1971); Bristol v. Equitable Life Assurance Soc'y, 132 N.Y. 264, 267 (1892).
However, where a plaintiff has actively sought to protect its trade secret, the question then becomes whether the protective measures are reasonable. "Reasonable precautions against predatory eyes we may require, but an impenetrable fortress is an unreasonable requirement, and we are not disposed to burden industrial inventors with such a duty in order to protect the fruits of their efforts." E.I. duPont deNemours & Co. v. Christopher, 431 F.2d 1012, 1017 (5th Cir.1970), cert. denied, 400 U.S. 1024 (1971). See Greenberg v. Croydon Plastics Co., 378 F. Supp. 806, 813-814 (E.D. Pa. 1974); Allen Mfg. Co. v. Loika, 145 Conn. 509, 516 (1958); RTE Corp. v. Coatings, Inc., 84 Wis.2d 105, 115 (1978). Cf. Structural Dynamics Research Corp. v. Engineering Mechanics Research Corp., 401 F. Supp. 1102, 1117 (E.D. Mich. 1975); Dior v. Milton, 9 Misc. 2d 425, 439 (Sup.Ct.), aff'd, 2 App. Div.2d 878 (N.Y. 1956). See also R. Ellis, Trade Secrets § 41 (1953) ("A course of conducting business which necessarily implies a desire on the part of the employer that the information in question is to be kept secret is sufficient"). See generally Hutter, Trade Secret *98 Misappropriation: A Lawyer's Practical Approach to the Case Law, 1 W. New England L. Rev. 1, 17 (1978); R.M. Milgrim, Trade Secrets § 2.04 (1978).
No general rule may be established to determine whether the security precautions taken by the possessor of a trade secret are reasonable.[9] "Relevant factors to be considered include (1) the existence or absence of an express agreement restricting disclosure, (2) the nature and extent of security precautions taken by the possessor to prevent acquisition of the information by unauthorized third parties, (3) the circumstances under which the information was disclosed ... to [any] employee to the extent that they give rise to a reasonable inference that further disclosure, without the consent of the possessor, is prohibited, and (4) the degree to which the information has been placed in the public domain or rendered `readily ascertainable' by the third parties through patent applications or unrestricted product marketing." Kubik, Inc. v. Hull, 56 Mich. App. 335, 356 (1974). Additionally, a court should consider the relationship and the conduct of the parties. We think it appropriate to balance a plaintiff's conduct in maintaining its security measures against the conduct of a defendant in acquiring the information. See Restatement of Torts § 757, Comment b (1939) ("a substantial element of secrecy must exist, *99 so that, except by the use of improper means, there would be difficulty in acquiring the information").
The master's subsidiary findings reveal that the information which USM seeks to protect is embodied in certain features of the USM machine, including the internal configuration and arrangement of various component parts. Because this information relates to the machine itself, the marketing of the blind rivets produced by the machine would not disclose the information which USM seeks to protect. Disclosure of this information requires either extended access to the machine itself or access to the detailed parts drawings.[10]
USM required supervisory, technical, and research personnel, including the defendant Lahnston, to sign nondisclosure agreements. See note 8, supra. While the nondisclosure agreements did not list the particular information which USM considered secret, such specificity is not required to put employees on notice that their work involves access to trade secrets and confidential information. See Eastern Marble Prods. Corp. v. Roman Marble, Inc., 372 Mass. 835, 840 (1977); R. Callmann, Unfair Competition, Trademarks and Monopolies § 53.3, at 390 (3d ed. 1968 & Cum. Supp. 1978). Accord, Kodekey Elecs., Inc. v. Mechanex Corp., 486 F.2d 449, 455 (10th Cir.1973) (nondisclosure agreements a "primary and essential precaution"); S. Jarvis Adams Co. v. Knapp, 121 F. 34, 40 (6th Cir.1903); Ultra-Life Laboratories, Inc. v. Eames, 240 Mo. App. 851, 866 (1949).
In the work environment at USM, where employees are on notice that their work may involve access to trade secrets and confidential information, there can be little question *100 that the USM employees knew or should have known that detailed parts drawings and blueprints for factory equipment were considered confidential by their employer.[11] "[I]t is well settled that detailed manufacturing drawings ... are prima facie trade secrets." A.H. Emery Co. v. Marcan Prods. Corp., 389 F.2d 11, 16 (2d cir.), cert. denied, 393 U.S. 835 (1968). See Schulenburg v. Signatrol, Inc., 33 Ill.2d 379, 386-388 (1965), cert. denied, 383 U.S. 959 (1966). It is not fatal that the blueprints and parts drawings were not labeled "confidential" or "secret" or that USM had not expressly informed its employees that these part drawings were considered secret by USM. See A.H. Emery Co. v. Marcan Prods. Corp., supra; Affiliated Hosp. Prods. v. Baldwin, 57 Ill. App.3d 800, 808 (1978). Cf. Nucor Corp. v. Tennessee Forging Steel Serv., Inc., 476 F.2d 386, 392 (8th Cir.1973).
Similarly, the plant security precautions taken by USM were sufficient to exclude the general public from the production areas of USM's plants, thereby denying access to USM factory equipment, including the USM machine. The fact that USM conducted escorted tours for employees' families and USM product distributors, including certain defendants, does not militate against a finding that USM denied public access to the USM machine. Compare Plant Indus., Inc. v. Coleman, 287 F. Supp. 636, 643 (C.D. Cal. 1968) (tours by women's clubs and customers' representatives do not constitute failure to maintain secrecy) and Franke v. Wiltschek, 209 F.2d 493 (2d Cir.1953) (defendants' tour of plant while negotiating to sell plaintiffs' products does not destroy secrecy), with Motorola, Inc. v. Fairchild Camera & Instrument Corp., 366 F. Supp. 1173, 1186 (D. Ariz. 1973) (security inadequate where competitors toured plant, operated "secret" machine and "observed *101 its `secret' process in a separate microscope placed there for this purpose") and Hamilton Mfg. Co. v. Tubbs Mfg. Co., 216 Fed. 401, 404 (W.D. Mich. 1908) (public generally not excluded from production area). See Watercolor Group v. William H. Newbauer, Inc., 468 Pa. 103, 111-112 (1976). See also Junker v. Plummer, 320 Mass. 76, 78 (1946); L.M. Rabinowitz & Co. v. Dasher, 82 N.Y.S.2d 431, 437-438 (Sup. Ct. 1948).
We do not require the possessor of a trade secret to take heroic measures to preserve its secrecy.[12] Rather, "if the person entitled to a trade secret wishes to have its exclusive use in his own business, he must not fail to take all proper and reasonable steps to keep it secret. He cannot lie back and do nothing to preserve its essential secret quality." J.T. Healy & Son v. James A. Murphy & Son, 357 Mass. 728, 738 (1970). See Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835, 841 (1972). The question whether a plaintiff has taken "all proper and reasonable steps" depends on the circumstances of each case, considering the nature of the information sought to be protected as well as the conduct of the parties. See Hutter, Trade Secret Misappropriation: A Lawyer's Practical Approach to the Case Law, 1 W. New England L. Rev. 1, 17-18 (1978); 10 Z. Cavitch, Business Organizations § 233.01[3] (5), at 233-27 (1978). Cf. Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835, 840 (1972).
*102 Applying this standard, we denied trade secret protection in Healy because the plaintiff had made a conscious policy decision to do nothing to safeguard the confidentiality of its manufacturing processes. J.T. Healy & Son v. James A. Murphy & Son, supra at 736-738. In Healy, the employees were never informed that any of the manufacturing processes were considered secret; employees were not required to sign nondisclosure agreements; the plant was not partitioned into sections; and employees engaged in other work could plainly see the two "secret processes" in operation. Id. at 736-737. The plaintiff in Healy, other than excluding the general public from the manufacturing plant, took no security precautions whatever. See id. at 738-739.
By contrast, in Eastern Marble Prods. Corp. v. Roman Marble, Inc., 372 Mass. 835 (1977),[13] trade secret protection was afforded a plaintiff who not only enforced a separation of the manufacturing area of the plant from the public area but also required all manufacturing employees "to sign an agreement not to disclose the methods and procedures involved in the [plaintiff's] manufacturing processes." Id. at 840. While the nondisclosure agreements did not specifically refer to the particular manufacturing processes claimed as trade secrets, we observed that "this agreement by its terms included all the proprietary and secret information involved in the manufacturing process. Such an agreement cannot be disregarded as an empty formality. At the very least it put the employees on notice that secrets were involved." Id.
We think that, considering the character of the information which USM sought to protect, the steps taken by USM to preserve the secrecy of its trade secret were reasonable. Accord, Eastern Marble Prods. Corp. v. Roman Marble, Inc., supra. Until the defendants acquired a set of USM *103 machine parts drawings and a former USM employee,[14] the defendants' efforts to construct a satisfactory blind rivet assembly machine had been unsuccessful.[15] In short, USM's "efforts at secrecy, like the process itself, met the basic criterion of success." Space Aero Prods. Co. v. R.E. Darling Co., 238 Md. 93, 112, cert. denied, 382 U.S. 843 (1965). See Restatement of Torts § 757, Comment b (1939).
Since we have concluded that USM took sufficient reasonable steps to preserve the secrecy of the information embodied in the USM machine, and that USM is entitled to claim this information as a trade secret, the judge's dismissal of the complaint in this action must be reversed.
We think it necessary to comment on the judge's action in dismissing the complaint without ruling on the master's finding that Cooper had utilized improper means to procure information about the USM machine. Although we need not base our conclusion on the master's finding of impropriety on the part of Joe Cooper, we will not condone such conduct by our silence.
*104 A plaintiff who may not claim trade secret protection either because it failed to take reasonable steps to preserve its secrecy or because the information, while confidential, is only "business information," may still be entitled to some relief against one who improperly procures such information. The law puts its imprimatur on fair dealing, good faith, and fundamental honesty. Courts condemn conduct which fails to reflect these minimum accepted moral values by penalizing such conduct whenever it occurs. Seismograph Serv. Corp. v. Offshore Raydist, Inc., 135 F. Supp. 342, 354-355 (E.D. La. 1955), modified on other grounds, 263 F.2d 5 (5th Cir.1958) ("It is simply the difference between right and wrong, honesty and dishonesty, which is the touchstone in an issue of this kind"). See Restatement of Torts § 759 & Comment b (1939); McDonald's Corp. v. Moore, 243 F. Supp. 255, 258 (S.D. Ala. 1965), aff'd, 363 F.2d 435 (5th Cir.1966) (holding defendants liable for the "improper acquisition and copying of the [plaintiff's] operational manual"). See also Crocan Corp. v. Sheller-Globe Corp., 385 F. Supp. 251, 254-255 (N.D. Ill. 1974) ("improper means used to gain information is a separate basis of liability, regardless of whether the information constitutes a technical trade secret"). Accord, Dr. Miles Medical Co. v. John D. Parks & Sons, 220 U.S. 373, 402 (1911); Board of Trade of Chicago v. Christie Grain & Stock Co., 198 U.S. 236, 250 (1905).[16]
*105 The judgment is reversed. This action is remanded to the Superior Court for further proceedings consistent with the master's report and with this opinion.[17]
So ordered.
NOTES
[1] Marson Corporation, Cooper-Lewis, Inc., Joe Cooper, Irving Cooper, Louis S. Lewis, Frank Lahnston, MF Liquidating Corporation, Mar Liquidating Corporation, Marson Corporation (Delaware), and Marson Fastener Corporation (Delaware).
[2] As described in the master's report, "A blind rivet is a device composed of ... a mandrel and a rivet body. The mandrel, a nail-like object, is inserted in the rivet body, a hollow cylinder with a flange at one end, so that the mandrel head rests against the nonflanged end of the rivet body and the mandrel projects beyond the flanged end." A blind rivet is used to fasten materials together. It "can be inserted and fixed from only one side of the materials to be fastened, a property which makes it a highly useful device."
[3] The master's ultimate conclusions were based solely on his subsidiary findings of fact. "[W]here the master in his report sets forth all of the subsidiary findings upon which he bases an ultimate conclusion, it is the duty of the trial court, and of this court, to draw its own inferences from those findings." Corrigan v. O'Brien, 353 Mass. 341, 346 (1967). Therefore, it is open to this court, as it was to the judge, to reach its own conclusions from the master's findings. See Jones v. Wayland, 374 Mass. 249, 255 (1978); Wormstead v. Town Manager of Saugus, 366 Mass. 659, 660 (1975). See also Samia v. Central Oil Co. of Worcester, 339 Mass. 101, 122 (1959). Cf. Blanchette v. Blanchette, 362 Mass. 518, 522 (1972).
[4] We need not describe the details of USM's machine, since the central issue on appeal is the sufficiency of the measures taken by USM to protect the "trade secret" rather than the nature of the secret itself. Moreover, it is conceivable that "the USM machine, the special features thereof and the combination and interrelationship of those features" remain a trade secret. Accord, Jet Spray Cooler, Inc. v. Crampton, 377 Mass. 159, 163 n. 6 (1979); Space Aero Prods. Co. v. R.E. Darling Co., 238 Md. 93, 106, cert. denied, 382 U.S. 843 (1965). Cf. Cataphote Corp. v. Hudson, 444 F.2d 1313, 1317 (5th Cir.1971) (generally, business information other than trade secrets also should not be detailed).
[5] The defendants objected to the master's conclusion that only the failure adequately to protect the information prevented USM from claiming trade secret protection. The judge found the master's conclusion, "amply supported and in fact compelled by the evidence before him," and overruled the defendants' objection. Before this court, the defendants have not argued the question whether the information is appropriate to qualify it as a trade secret. Thus the question may not be properly before us. Cf. Lyons v. Elston, 211 Mass. 478, 482 (1912); Mass.R.A.P. 16 (a) (4), as amended, 367 Mass. 919 (1975), 16 (b), 365 Mass. 860 (1974). Even if the question were properly here, we agree with the judge's ruling that the master's subsidiary findings amply warrant the conclusion that the information embodied in the USM machine was of an appropriate nature to qualify it as a trade secret. See Jet Spray Cooler, Inc. v. Crampton, 377 Mass. 159, 167 n. 9 (1979); Eastern Marble Prods. Corp. v. Roman Marble, Inc., 372 Mass. 835, 838-839 (1977); Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835, 840 (1972). Cf. Jet Spray Cooler, Inc. v. Crampton, 377 Mass. 159, 173 n. 13 (1979).
[6] The defendant Lahnston was not required to follow this procedure.
[7] Cooper-Lewis, Inc., became a wholesaler of USM blind rivets in 1960. Shortly thereafter, Irving Cooper and Joe Cooper, officers of Cooper-Lewis, Inc., toured the USM plant in Shelton. At the time the Coopers toured the Shelton plant in 1960, they were unescorted for much of the time. However, "[t]hey did not, and no observer could, determine the internal construction of the various internal features of the USM machine."
[8] In pertinent part, the nondisclosure agreement provides that: "I further agree that I will carefully guard and keep secret all confidential information which does or may concern the business and affairs of [USM], and at no time while in the employ of said Corporation or thereafter shall disclose any such information without first securing the written consent of said Corporation. I also agree that all documents or other data relating to the business of said Corporation which shall come into my possession shall be surrendered upon request whether before or after my employment shall have ceased."
[9] The significance of the security precautions taken by the possessor of a trade secret must be viewed in the context of the law of trade secrets, taken as a whole. "There are numerous factors to be considered in determining whether an alleged trade secret will be protected. Such factors include: (a) The expenditure of money, time, and labor in developing the trade secret; (b) The novelty of the secret; (c) The question whether the secret is in fact a secret; (d) The conscious and continuing effort by the proprietor to maintain secrecy, including the prevention of unauthorized disclosure by employees; (e) The value of the secret to the proprietor's business; (f) The extent to which the trade secret may be isolated by analysis and known procedures and (g) The relationship between the parties having knowledge of the secret." A.H. Siedel & R.L. Panitch, What the General Practitioner Should Know about Trade Secrets and Employment Agreements 12 (1973). See, e.g., Jet Spray Cooler, Inc. v. Crampton, 377 Mass. 159, 167 n. 9 (1979).
[10] The master found that "an observer could not determine either the precise nature of the components included in the particular features ... or the dimensions and precise relationship of such features without reference to the drawings of such features or without somehow cutting the parts up so as to examine their internal configuration. Without reference to the drawings of the USM Machine or an opportunity for examination of the internal configuration of its parts, an independent designer would not duplicate [these features]."
[11] The master found that when Joe Cooper called Lahnston to the Marson Fastener office and showed Lahnston the blueprints, "Lahnston became concerned about the agreement he had signed at [USM] Shelton ... and was told not to worry."
[12] "[I]ndustrial security procedures need to be optimized rather than maximized. Beyond the optimum point, the direct and indirect costs of further security outweigh the value of the protection." Popper, What Price Secrecy, Pulsebeat 3, 4 (Spring, 1968) (discussing commercial inefficiency resulting from elaborate trade secret security measures). See Note, Trade Secrets, 7 B.C. Indus. & Com. L. Rev. 324, 325 (1965) (monetary cost of elaborate security diverts funds from research). However, there is no hard and fast rule as to what constitutes an "optimum" program to protect trade secrets. See, e.g., Schneider & Halstrom, A Program for Protecting Proprietary Information, 18 Prac. Law. 71, 73-80 (1972); Vandevoort, Trade Secrets: Protecting a Very Special "Property," 26 Bus. L. 681, 685-688 (1971); LuKacher, Protection against Loss of Proprietary Information Through the Activities of Former Employees, 40 N.Y. St. B.J. 478, 479-480 (1968).
[13] Our opinion in Eastern Marble Prods. Corp. v. Roman Marble, Inc., 372 Mass. 835 (1977), was announced subsequent to the date on which the master filed his report but prior to the time the judge entered his "Findings, Rulings and Orders."
[14] The master found that USM never made an assembly blueprint for the USM machine, and that no USM machine was ever constructed by one not thoroughly familiar with it. "The USM machine was assembled by using a parts catalogue compiled by the USM Engineering Department. To assemble the machine one would follow the sequence of the parts listed in the catalogue." The master found as a fact that no assembly blueprint existed and that this fact "contributed to the difficulties Lahnston experienced in trying to assemble the ... [blind rivet assembly] machine so that it would operate." Apparently, the defendants did not obtain a copy of the parts catalogue.
[15] Neither the master nor the judge considered the defendants' conduct as bearing on the reasonableness of the plaintiff's security precautions. However, it is clear from the master's report that the process contained in the USM machine was neither generally known nor known within the industry. The master found that Joe Cooper's acquisition of the USM blueprints was improper. Cooper's conduct should have been considered by the master and the judge in assessing the reasonableness of USM's security precautions. See Restatement of Torts, § 757, Comment b (1939). See also Solo Cup Co. v. Paper Mach. Co., 240 F. Supp. 126, 141 (E.D. Wis. 1965), aff'd in part, 359 F.2d 754 (7th Cir.1966) (absence of satisfactory explanation of defendants' acquisition of plaintiff's drawings).
[16] In cases where allegations of the misuse of trade secrets involve the activities of former employees, the major issue is generally not whether the defendant improperly acquired the information but whether the former employee may use or disclose information properly acquired. See, e.g., Eastern Marble Prods. Corp. v. Roman Marble, Inc., 372 Mass. 835, 840-842 (1977); Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835, 840-841 (1972). See also Restatement (Second) of Agency §§ 395-396 (1958).
[17] Having recommended that the action be dismissed, the master, on the chance that he might be held wrong, went on to an accounting of profits of those defendants which had produced rivets with the use of the plaintiff's alleged secret. (The plaintiff stipulated that it would not seek "damages" against these defendants, i.e., recovery for any loss suffered by it through diversion of customers or the like.) The accounting was for operations in Massachusetts from January 1, 1964, to December 31, 1972; accounting for operations in Massachusetts after 1972, and for operations elsewhere from 1964, was reserved and has not yet taken place. (The accounting made showed the defendants' pre-tax "relief income" of $1,252,910. The plaintiffs costs proved by it attributed to "development" were but $31,699.) Agreeing with the master's main recommendation, the judge below did not pass on the accounting. A minority of the court ventures the following comments regarding the accounting. Operating expenses of these defendants are properly allowed. So are allocable taxes. On remand, the defendants, in fairness, will be free to attempt to establish in the accounting any other deductions appropriate to rendering the ultimate recovery a sound reflection of their unjust enrichment due to the exploitation of the secret, and no more. Thus they may attempt to define just what was preserved in reasonable secrecy and to show what profits, if any, are attributable not to that secret so defined but to superior management skills. A majority of this court, including the author of this opinion, expresses no opinion on the issue of the accounting as it was not decided below nor briefed or argued before this court.
As to any further evidentiary hearings, "[a]lthough we have noted the discretion reposed in a trial court judge to refer cases to masters ... we now add that we consider it desirable that the [Superior] Court give serious consideration to the expeditious completion of the trial of this case before a judge in order to avoid any further delay which seems to be inherent in the reference of cases to masters...." O'Brien v. Dwight, 363 Mass. 256, 298 (1973).
| {
"pile_set_name": "FreeLaw"
} |
572 N.E.2d 510 (1991)
STAMPCO CONSTRUCTION CO., Inc., Everett Stamper, Appellants-Defendants,
v.
W. Keith GUFFEY, Wendell Guffey, Appellees-Plaintiffs.
No. 18A02-8911-CV-584.[1]
Court of Appeals of Indiana, First District.
May 30, 1991.
*511 Frank E. Spencer, Indianapolis, for appellants-defendants.
Michael H. Duckett, Public Defender's Office, Lafayette, for appellees-plaintiffs.
RATLIFF, Chief Judge.
STATEMENT OF THE CASE
Stampco Construction Co., Inc. and Everett Stamper (collectively "Stampco") appeal an adverse judgment in an action for damages resulting from payment of less than the prevailing scale of wages for performance of public works. We affirm.
ISSUES[2]
We restate the issues presented upon appeal as:
1. Whether a private cause of action exists under the federal or Indiana prevailing wage statutes.
2. Whether an employee may waive the benefit of the prevailing wage statutes by an agreement for wages less than the prevailing wage rate or by a release.
3. Whether liquidated damages under IND. CODE § 22-2-5-2 were appropriate and whether the awards were excessive.
FACTS
W. Keith Guffey (Keith) and Wendell Guffey (Wendell) were both employees of Stampco between July 1984 and October 1985, who performed work under contracts for the construction of public works. At that time, IND. CODE § 5-16-7-1 et seq. and the federal Davis Bacon Act[3] mandated payment of prevailing wages for workers employed on public works projects. Keith worked on the Muncie Sanitary District and Community Development projects and was compensated $13.00 per hour. He also worked on the Blair's Green Acres project ("Blair's project") for $350 per week from June October 1985. Wendell was employed on the Blair's project and *512 received $8.00 per hour for regular hours and $12.00 per hour for overtime.
Keith signed an affidavit of release on October 30, 1985, in exchange for $500 cash and a $1,500 I.O.U. The affidavit released Stampco from payment of minimum wages and prevailing wages for work performed on public works projects.
After Keith and Wendell were terminated from employment, both filed suit seeking compensation for the difference between the wages paid and those to which they were entitled under the prevailing scale of wages. The trial court awarded Keith $8,146.74 unpaid wages differential and Wendell, $2,502.11. The awards were trebled in accordance with I.C. §§ 22-2-5-1 and 2.
DISCUSSION AND DECISION
Issue One
Stampco does not argue on appeal that the wages paid to Keith and Wendell complied with the prevailing wage statute. I.C. § 5-16-7-1 et seq. Stampco argues that Keith's claim regarding unpaid wages on the Muncie Community Development project is not governed by the Indiana statute, but by the Federal Davis Bacon Act, which Stampco alleges does not provide a private right of action. We agree the federal statute supplants the Indiana prevailing wage statute in regard to the Muncie Community Development project. The federal statute regulates the method of and time for payment of wages. The federal statute requires a provision for payment of prevailing wages in all contracts for federal public works in excess of $2,000. Keith's claim for damages on the Muncie Community Development project, which received federal financial assistance, must be viewed in consideration of the federal statute.
Stampco argues no private action is authorized by the federal statute. McDaniel v. University of Chicago (7th Cir.1977), 548 F.2d 689, 695, holds otherwise. Although other federal courts have not found an implied private cause of action, see Weber v. Heat Control Co. (3d Cir.1984), 728 F.2d 599, 600 and U.S. v. Capeletti Brothers, Inc., (5th Cir.1980), 621 F.2d 1309, 1317, we elect to follow the Seventh Circuit's decision in McDaniel.[4] In McDaniel, the court utilized the analysis in Cort v. Ash, (1975), 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26, to determine whether an employee has an implied private right of action. McDaniel, 548 F.2d at 692. The first step of the four step analysis of Cort is to determine if the plaintiff is the special beneficiary of the act. Id. The court stated, "On its face, the [Davis-Bacon] Act is a minimum wage law designed for the benefit of construction workers." McDaniel, 548 F.2d at 693 (quoting U.S. v. Binghampton Constr. Co. (1954), 347 U.S. 171, 74 S.Ct. 438, 98 L.Ed. 594). The court then determined that employees are the special beneficiaries of the Davis-Bacon Act. After the McDaniel court considered the remaining steps of the Cort analysis, the court found an implied private right of action for the employee. McDaniel, 548 F.2d at 695. Therefore, we find Keith does have a valid cause of action under the federal statute for unpaid wages on the Muncie Community Development project.
*513 In regard to the other public works project, Stampco contends that the Indiana statute is a criminal statute and does not provide a private cause of action for Keith or Wendell. Although no provision explicitly authorizes a civil suit for violation of the Indiana statute, we adopt the Seventh Circuit's analysis of the federal statute and find an implied right of action in the Indiana statute. See McDaniel, 548 F.2d at 695. Our ruling is consistent with the Indiana cases recognizing the right of employees of public contractors to sue as third party beneficiaries for wages on a contract between the contractor and the public. Indiana State Building and Constr. Trades Council v. Warsaw Community School Corp. (1986), Ind. App., 493 N.E.2d 800, 805.
We find Keith and Wendell have valid causes of action against Stampco under the prevailing wage statutes.
Issue Two
Next, Stampco argues that Keith and Wendell waived any benefits under the statutes by agreeing to lower wages. See Bell v. Town of Sullivan (1902), 158 Ind. 199, 63 N.E. 209 (employee may waive benefit of minimum wage statute where no rule of public policy is being violated). We find the decision in Bell to be inapposite, because we find Stampco's employment agreements with Keith and Wendell violate public policy.
"Whether or not a contract is against public policy is a question of law for the court to determine from all of the circumstances in a particular case." Ross Clinic, Inc. v. Tabion (1981), Ind. App., 419 N.E.2d 219, 223, trans. denied. We keep in mind that it is in the public's best interest that the freedom of contract should not be restricted unnecessarily and that agreements are not to be held void as against public policy unless they are clearly contrary to what the legislature has declared to be public policy, or unless they clearly tend to injure the public in some way. Id.
Indiana's prevailing wage statute has been held constitutional. Board of Commissioners of the County of Allen v. Jones (1983), Ind. App., 457 N.E.2d 580, 585-87. In Jones, the court held the prevailing wage statute does not infringe upon the liberty to contract. Id. Prevailing wage statutes are enacted to protect public works employees from substandard wages. See McDaniel, 548 F.2d at 693; see also Ames Constr. Co. v. Dole (D.Minn. 1989), 727 F. Supp. 502, 508. Stampco's employment agreements with Keith and Wendell violated the Davis Bacon Act and I.C. § 5-16-7-1 et seq. which require payment of wages at the prevailing rate. As a general rule, a contract made in violation of a statute is presumed void. Tolliver v. Mathas (1989), Ind. App., 538 N.E.2d 971, 974, trans. denied. Public policy would be violated if we were to condone Stampco's failure to follow the law. Allowing settlement or release of a claim would permit unscrupulous contractors to force employees to submit to economic pressures and accept lower wages. We find the employment agreements are void as against public policy and refuse to enforce the agreements which would subvert the federal and state legislatures' intentions.
Stampco further contends Keith's release waives any claim for unpaid wages against Stampco. Because we have found an employee cannot waive the benefits of the prevailing wage statutes by an employment agreement to lower compensation, we also find an employee cannot release his right to receive prevailing wages. For the reasons articulated in regard to the employment agreement, we find the release to be void as against public policy.
Issue Three
Stampco next contends the court erroneously awarded damages and attorneys' fees. Stampco initially argues IND. CODE § 22-2-5-2 is not applicable because the salary was paid, Keith and Wendell failed to request the unpaid wages while they were employed, and the Blair's project was a Barrett Law[5] project. The argument *514 that the salary was paid so I.C. § 22-2-5-2 does not apply is without merit. Stampco does not contend that the prevailing wage was paid. Stampco only presents arguments that no penalty should be levied for underpayment in this case. Consequently, his arguments concede that the wages were not paid in accordance with I.C. § 5-16-7-1. The trial court did not err in invoking I.C. § 22-2-5-2.
Next, Stampco argues liquidated damages may not be sought because no demand was made "prior to or concurrent with the employment" as required by I.C. § 22-2-5-2. See City of Hammond v. Conley (1986), Ind. App., 498 N.E.2d 48, 52. However, our supreme court has decided recently that no demand is required where the employee was terminated from employment. Osler Institute, Inc. v. Inglert (1991), Ind., 569 N.E.2d 636, aff'ing, 558 N.E.2d 901, 905. "To hold otherwise would allow employers owing wages to their employees to terminate the employees, avoid the payment of wages, and then be shielded from the application of the penalty statute." Osler Institute, 558 N.E.2d at 905.
Stampco alleges the Blair's project, which was a Barrett Law project, was not publicly funded. Therefore, Stampco concludes liquidated damages cannot be awarded because I.C. § 22-2-5-2 applies only to publicly funded projects. We disagree with Stampco's allegation that the Blair's project was not a publicly funded public works project. The contract for the Blair's project was made by the city of Anderson, and the contractors were paid by the city from a public fund created by assessments levied against property owners. See I.C. §§ 36-9-18-1 et seq. and 36-9-19-1 et seq. We conclude the court did not err in relying on I.C. § 22-2-5-2 when it determined the damage awards.
The remainder of Stampco's arguments is that the damage awards were excessive. The court determined Keith was paid $8,146.74 below the prevailing wage rate. The court awarded liquidated damages and increased the award to $25,426.62[6]. Wendell was underpaid $2,502.11, which amount was tripled to $7,506.22[7] as liquidated damages. Stampco contends the court erred and gave Keith and Wendell triple the amount of unpaid wages, instead of double as prescribed by I.C. § 22-2-5-2. We have interpreted I.C. § 22-2-5-2 to provide a penalty equal to double the unpaid wages in addition to the unpaid wages. Fardy v. Physicians Health Rehab. Serv. (1988), Ind. App., 529 N.E.2d 879, 882. The total maximum award may amount to three times the wages due. Id. Therefore, we find no error in the court's treble awards pursuant to I.C. § 22-2-5-2.
Affirmed.
ROBERTSON, J., concurs.
BUCHANAN, J., dissents with separate opinion.
BUCHANAN, Judge, dissenting.
ISSUE ONE
I cannot agree with the majority's conclusion that the federal Davis-Bacon Act, 40 U.S.C. § 276a, provides a private right of action for wage earners. The majority relies upon McDaniel v. University of Chicago (7th Cir.1977), 548 F.2d 689. cert. denied 434 U.S. 1033, 98 S.Ct. 765, 54 L.Ed.2d 780, to support its conclusion. Decisions since McDaniel, however, demonstrate that there is no private right of action granted by the Davis-Bacon Act.
The court in United States v. Capeletti Bros., Inc. (5th Cir.1980), 621 F.2d 1309, considered the same question as McDaniel, and reached an opposite conclusion. Applying the United States Supreme Court's analysis for determining whether a statute implies a private right of action found in Cort v. Ash (1975), 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 and Cannon v. University *515 of Chicago (1979), 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560, the Fifth Circuit concluded that the Davis-Bacon Act did not contain an implied private right of action.
The district court in Weber v. Heat Control Co. (D.C.N.J. 1982), 579 F. Supp. 346, aff'd (3rd Cir.1984), 728 F.2d 599, in deciding whether to follow McDaniel or Capeletti, concluded that the analysis in Capeletti, supra, was superior and observed that recent United States Supreme Court and Seventh Circuit decisions cast serious doubt as to the continuing validity of McDaniel.
In Universities Research Ass'n v. Coutu (1981), 450 U.S. 754, 101 S.Ct. 1451, 67 L.Ed.2d 662, the Supreme Court considered whether the Davis-Bacon Act intended to confer to employees a private right of action when there had been an administrative determination that Davis-Bacon work had not been called-for. The Supreme Court concluded that there was no such implied right of action in the Davis-Bacon Act. Although the Supreme Court did not reach the question of whether McDaniel was correct, the Court opined: "While we recognize that some of our reasoning arguably applies to the question whether the Act creates any implied right of action, we have no reason to reach that broader issue here." Coutu, supra 450 U.S. at 769 n. 19, 101 S.Ct. at 1460 n. 19 (emphasis in original).
The Seventh Circuit, after the Supreme Court rendered its decision in Cannon, supra, determined that §§ 504 and 503(a) of Title V of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794 and 793(a), did not authorize a private right of action. Simpson v. Reynolds Metals Co., Inc. (7th Cir.1980), 629 F.2d 1226. The Seventh Circuit, observing that its analysis in Simpson was different than that used in McDaniel, reflected that the McDaniel decision was made "without the guidance of the Supreme Court's pronouncements in Cannon v. University of Chicago. ..." Simpson, supra at 1240 n. 27.
In Cannon, the Supreme Court had clarified the threshold inquiry of Cort, supra, as to whether the plaintiff was a member of the class for whose especial benefit the statute was enacted. The Cannon decision made clear that the question was answerable "by looking to the language of the statute itself...." Cannon, supra 441 U.S. at 689, 99 S.Ct. at 1953.
Thus, the flaw in McDaniel's analysis is apparent after a close examination of the Court's decision in Coutu. The initial question to be decided in determining whether a statute implies a right of action is whether the plaintiff is one of the class for whose especial benefit the statute was enacted. In McDaniel, the court determined that the Davis-Bacon Act was passed for the special benefit of wage earning construction workers because they were the primary beneficiaries of the act.
In Coutu, supra, the Supreme Court made the same inquiry, but reached a different conclusion. After recognizing that the Davis-Bacon Act was designed for the benefit of construction workers, the Court continued: "But the fact that an enactment is designed to benefit a particular class does not end the inquiry; instead, it must also be asked whether the language of the statute indicates that Congress intended that it be enforced through private litigation." Id. 450 U.S. at 771, 101 S.Ct. at 1461 (emphasis supplied). The Court concluded:
"that there `would be far less reason to infer a private remedy in favor of individual persons' where Congress, rather than drafting the legislation `with an unmistakable focus on the benefited class,' instead has framed the statute simply as a general prohibition or a command to a federal agency. [Cannon], [441 U.S.] at 690-692, 99 S.Ct., at 1954-55. Section 1 of the Davis-Bacon Act requires that certain stipulations be placed in federal construction contracts for the benefit of mechanics and laborers, but it does not confer rights directly on those individuals. Since § 1 is simply `phrased as a directive to federal agencies engaged in the disbursement of public funds,' 441 U.S., at 693, n. 14, 99 S.Ct., at 1955, n. 14, *516 its language provides no support for the implication of a private remedy."
Coutu, supra 450 U.S. at 772-73, 101 S.Ct. at 1462-63 quoting Cannon, supra 441 U.S. at 690-693, 99 S.Ct. at 1954-1956 (footnote omitted) (emphasis supplied). The analysis of McDaniel was incomplete because the court failed to consider the language of the statute. When the Supreme Court considered the language of the Davis-Bacon Act, it determined there was no implied right of action.
The Supreme Court unquestionably overruled the analysis of McDaniel in Cannon, and the Seventh Circuit recognized this in Simpson. The Supreme Court impliedly overruled McDaniel's holding in Coutu when it observed the analysis used in Coutu was applicable to the question considered in McDaniel. We should conclude that the Davis-Bacon Act does not imply that a private right of action is available to Keith and Wendell. Similarly, we should not use the flawed and obsolete analysis of McDaniel to conclude that the Indiana prevailing wage statutes, Ind. Code 5-16-7-1 to -5 (1990), also confer private causes of action to Keith and Wendell.
IC 5-16-7-3 provides that contractors who violate the act commit class B misdemeanors. IC 5-16-7-1 merely directs the government agencies employing the contractors to require the contractor to pay the statute's prevailing wage, just as the Davis-Bacon Act directs federal agencies to require contractors to pay the prevailing wage. Using the United States Supreme Court's analysis in Coutu, Cannon, and Cort, it is clear that our legislature did not intend to confer a private right of action to wage earners. This conclusion is supported by the existence of a criminal penalty for a violation of the act. See Cort, supra.
In light of Cannon and Coutu, the majority's reliance on McDaniel is a slender reed which collapses under the weight of all the federal cases on this subject. There are no Indiana cases.
ISSUE TWO
My disagreement with the majority's holding extends to issue two. The evidence demonstrates that Keith settled his claim against Stampco, and he should be held to his bargain.
While I would agree that an employee's right to receive prevailing wages cannot be waived by an employment contract, I do not agree with the majority's conclusion: "Because we have found an employee cannot waive the benefits of the prevailing wage statutes by an employment agreement to lower compensation, we also find an employee cannot release his right to receive prevailing wages." At 513 (emphasis supplied).
The record demonstrates that Keith did not release his "right to receive" prevailing wages, but rather, he released his claim for not having received prevailing wages. Keith executed his released on October 30, 1985, after his employment with Stampco had been terminated. The release provided:
"OCTOBER 30 1985
WAGE SCALE AFFIDAVIT:
I WENDLE [sic] KEITH GUFFY [sic] release STAMPCO CONSTRUCTION INC. from the scale of minimum wages established on all projects pursuant to minimum wages established by Chapter 319, Acts of the General Assembly, 1935. All said scale of prevailing wages have been paid including any and all overtime on all projects that I have worked on and was employed by STAMPCO CONSTRUCTION INC.
This wage scale affidavit also releases Everett Stamper from any and all claims for prevailing wages and any overtime as stated above and I have been paid in full.
/s/ W. Keith Guffey
Wendle [sic] Keith Guffy [sic]"
Record at 253 (emphasis supplied).
So the majority's characterization of the release as a release of Keith's right to receive prevailing wages is inaccurate. Keith executed the release in exchange for $2000, including a $500 cash payment and a promise to pay $1500. Record at 251. The *517 release was executed after Keith's employment had been terminated and after any right of action would have accrued. Keith did not have a "right to receive" prevailing wages because he was no longer employed. There is no known public policy precluding litigants from settling their claims. Keith entered into a negotiated settlement.
A release is a surrender of a claimant's right to prosecute a cause of action. Lechner v. Reutepohler (1989), Ind. App., 545 N.E.2d 1144. As our supreme court recognized in Indiana Bell Tel. Co. v. Mygrant (1984), Ind., 471 N.E.2d 660:
"[Releasees] do not make settlement and take general releases merely to pay the releasor the first installment on what he should have, leaving the matter open for the releasor to come back for more if his injuries prove serious. On the contrary, a settlement is made and a general release taken for the purpose of foreclosing further claims. The releasee does not stand in a fiduciary relationship to the releasor. The injured party is not required to make a settlement, and the general rule of freedom of contract includes the freedom to make a bad bargain."
Id. at 664, quoting Sanger v. Yellow Cab Co., Inc. (1972), Mo., 486 S.W.2d 477, 481-82.
Thus, there is no legal basis for denying Keith the right to settle any prevailing wage claims he might have had. The wisdom of Keith's decision to release any prevailing wage claim he might have had in exchange for the consideration he received is irrelevant to our determination. The majority's wholesale, conclusory determination that claims for prevailing wages cannot be settled is unsupportable in my opinion.
The trial court's judgment should be reversed.
NOTES
[1] This case was reassigned to this office on January 2, 1991.
[2] Other issues mentioned in the appellant's brief were not accompanied by cogent argument or citation to authority. Review of such issues is waived. Captain & Co. v. Stenberg (1987), Ind. App., 505 N.E.2d 88, 95, trans. denied; Ind. Appellate Rule 8.3(A)(7).
[3] 40 U.S.C. § 276a.
[4] We acknowledge the Seventh Circuit's statement in Simpson v. Reynolds Metals Co. (7th Cir.1980), 629 F.2d 1226, 1240, fn. 27, that McDaniel was decided without the guidance of Cannon v. University of Chicago, (1979), 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560. However, we note Simpson did not involve the Davis Bacon Act and that the Simpson court did not overrule McDaniel; therefore, we infer the McDaniel decision is still valid precedent. Although the United States Supreme Court dealt with a related issue regarding the Davis Bacon Act in Universities Research Ass'n v. Coutu (1981), 450 U.S. 754, 101 S.Ct. 1451, 67 L.Ed.2d 662, the Supreme Court clearly stated that the issue presented in McDaniel differed from the issue in Coutu. Id. at 768-69, n. 17, 101 S.Ct. at 1460, n. 17. The Supreme Court concluded in Coutu that Congress did not create a private right of action for an employee under a contract that did not contain prevailing wage stipulations. Id. at 770, 101 S.Ct. at 1461. The Supreme Court expressly refused to decide whether the act created an implied private right of action to enforce a contract that contained specific Davis Bacon stipulations. Id. at 769, 101 S.Ct. at 1460.
[5] A Barrett Law project is one which is a city or county improvement authorized pursuant to IND. CODE § 36-9-18-1 et seq.
[6] This amount was the result of a modification by the court when it granted a portion of Stampco's motion to correct errors.
[7] We note that the trial court erred when figuring the triple of $2,502.11 as $7,506.22, instead of $7,506.33. However, the judgment need not be corrected because the discrepancy is de minimis.
| {
"pile_set_name": "FreeLaw"
} |
789 F.Supp.2d 48 (2011)
Theresa Weston SAUNDERS, Plaintiff,
v.
DISTRICT OF COLUMBIA, et al., Defendants.
Civil Action No. 02-01803 (CKK).
United States District Court, District of Columbia.
June 6, 2011.
*49 Theresa Weston Saunders, Glendale, MD, pro se.
Wendy Lee Kahn, Zwerding, Paul, Kahn & Wolly, PC, Washington, DC, for Plaintiff.
Alex Karpinski, Office of the Attorney General for the District of Columbia, Washington, DC, Mark D. Back, Youth Services Administration, Laurel, MD, for Defendants.
MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY, District Judge.
Plaintiff Theresa Weston Saunders ("Saunders") commenced this action against the District of Columbia (the "District"), and two District officials, alleging among other things that she was retaliated against in violation of the Federal False Claims Act (the "F-FCA"), 31 U.S.C. §§ 3729 et seq., for disclosures she purportedly made concerning the use and management of federal funding by the District's Office of Chief Technology Officer.[1] Presently before the Court is the District's [77] Renewed Motion to Dismiss Plaintiff's Federal False Claims Act Retaliation Claim as Time-Barred ("Motion to Dismiss"). The focus of the District's motion is narrow the District argues only that Saunders failed to bring suit within the limitations period governing F-FCA retaliation claims. The extent of the parties' dispute is similarly narrow and presents a pure question of law: the District argues that a one-year limitations period applies, while Saunders maintains that a three-year limitations period applies. The parties are in agreement that Saunders' claim is untimely if the District is correct and timely if Saunders is correct. Accordingly, *50 the sole issue before the Court is the appropriate limitations period. Upon a searching review of the parties' submissions, the relevant authorities, and the record as a whole, the Court agrees with Saunders that her F-FCA retaliation claim is subject to a three-year limitations period. Based on that conclusion, the Court will deny the District's motion.
I. BACKGROUND
Because this motion turns on a pure question of law, the Court will limit itself to providing some context for its decision. The Court assumes familiarity with its prior opinions in this action, which set forth in detail the background of this case.
A. Factual Background
Saunders was employed by the District in various capacities from 1982 through 2000. See Am. Compl., ECF No. [18], ¶¶ 5, 10, 33. During her tenure in the Office of Chief Technology Officer, which occurred at the tail-end of her employment, Saunders allegedly discovered and reported numerous deficiencies in the District's use and management of federal funding. Id. ¶¶ 14, 32, 47. Her actions allegedly led to a series of reprisals, culminating in her termination in the summer of 2000. Id. ¶¶ 14-32.
B. Procedural Background
Saunders commenced this action on September 11, 2002. See Compl., ECF No. [1]. The District moved for dismissal early on. See Def.'s Mot. to Dismiss, ECF No. [9]. When Saunders in turn moved to amend her Complaint, the Court granted Saunders leave to file an amended complaint and denied the District's motion to dismiss without prejudice. See Order (Mar. 23, 2004), ECF No. [30]. The District later filed a renewed motion to dismiss. See Def.'s Mot. to Dismiss, ECF No. [31]. The Court resolved the majority of the District's motion, but held the motion in abeyance insofar as it sought dismissal of Saunders' F-FCA retaliation claim, directing the parties to submit further briefing on the sufficiency of Saunders' factual allegations and the applicable statute of limitations. See Saunders v. District of Columbia, 2005 WL 3213984, at *7-8 (D.D.C. Oct. 25, 2005). Upon consideration of the parties' supplemental briefing, the Court concluded that Saunders' factual allegations were sufficient to state a claim for retaliation under the F-FCA. See Saunders v. District of Columbia, 711 F.Supp.2d 42, 56-57 (D.D.C.2010). At the same time, the Court again found that the parties' briefing on the statute of limitations question was "woefully inadequate," preventing the Court from resolving the question on the record created by the parties. Id. at 53. The Court proceeded to outline the key questions that needed to be addressed, and again directed the parties to submit further briefing. See id. at 53-56.
The matter now comes before the Court upon the filing of the parties' second round of supplemental briefing on the statute of limitations question. See Def.'s Mem. of P. & A. in Supp. of Renewed Mot. to Dismiss, ECF No. [77-1]; Pl.'s Opp'n to Def. District of Columbia's Renewed Mot. to Dismiss, ECF No. [79]; Def.'s Reply to Pl.'s Opp'n to Def.'s Renewed Mot. to Dismiss, ECF No. [83]. The matter is fully briefed and ripe for a decision.
II. LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. (8)(a), "in order to `give the defendant fair notice of what the... claim is and the grounds upon which it *51 rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Rule 12(b)(6) provides a vehicle for parties to challenge the sufficiency of a complaint on the ground that it "fail[s] to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). "If the allegations ... show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim." Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).
III. DISCUSSION
Broadly speaking, the F-FCA confers a private cause of action upon an individual who has been retaliated against by her employer for engaging in activity that could reasonably lead to a viable false claims action. See 31 U.S.C. § 3730(h). Until relatively recently, Congress had never specified the limitations period governing F-FCA retaliation claims, requiring courts to "borrow" the statute of limitations applicable to the closest analog under state law. This motion turns on a pure question of law what is the limitations period that should apply to Saunders' F-FCA retaliation claim? The District argues that a one-year limitations period should apply; Saunders counters that a three-year limitations period should apply. Resolution of this disagreement is dispositive of this motion; the parties are in agreement that Saunders' claim is untimely if the District is correct, and timely if Saunders is correct.
The Court agrees with Saunders that her claim is subject to a three-year statute of limitations. In explaining why, the Court will divide its discussion into two parts. The Court will first ask whether there is even a need to "borrow" a statute of limitations from state law now that Congress has specified that F-FCA retaliation claims are subject to a three-year statute of limitations. Thereafter, the Court will explain why resolving that particular question is ultimately unnecessary. Even if the Court were to "borrow" a statute of limitations from District of Columbia law, it would borrow a three-year statute of limitations.
A. Because Congress Has Now Specified that a Three-Year Limitations Period Governs F-FCA Retaliation Claims, "Borrowing" a State Statute of Limitations Is Arguably Inappropriate
In ascertaining the statute of limitations applicable to a federal cause of action, the first question that must be asked is whether Congress has supplied a limitations period. Graham Cnty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409, 414, 125 S.Ct. 2444, 162 L.Ed.2d 390 (2005). Unsurprisingly, only when Congress has failed to supply a limitations period for a federal cause of action may one be "borrowed" from another source. Reed v. United Transp. Union, 488 U.S. 319, 324, 109 S.Ct. 621, 102 L.Ed.2d 665 (1989). Therefore, the threshold question for the Court is whether Congress has specified the statute of limitations governing F-FCA retaliation claims.
In 2005, the Supreme Court answered this very question, concluding that Congress had not supplied a statute of limitations for F-FCA retaliation claims, and directing that courts should instead "borrow" the statute of limitations governing the closest analog under state law. Graham Cnty., 545 U.S. at 417-18, 125 S.Ct. 2444. Since then, however, Congress has enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 *52 (the "Dodd-Frank Act" or the "Act"), Pub. L. No. 111-203, 124 Stat. 1376, which amended the F-FCA to supply an express statute of limitations for F-FCA retaliation claims.[2] As a result, the F-FCA now provides that "[a] civil action under [the F-FCA's anti-retaliation provisions] may not be brought more than 3 years after the date when the retaliation occurred." 31 U.S.C. § 3730(h)(3).
The effect of the amendment upon the timeliness of Saunders' F-FCA retaliation claim presents a difficult question. Analytically, the issue may be approached in at least two ways. One way is to ask whether the statute of limitations should be applied retroactively in this case, even though the amendment was not in effect either at the time Saunders' cause of action accrued or at the time she commenced this action. However, because statutes of limitations "lie on the cusp of the procedural/substantive distinction," a court must keep in mind that their retroactive application may upset legitimate reliance interests. Vernon v. Cassadaga Valley Cent. Sch. Dist., 49 F.3d 886, 892 (2d Cir.1995) (Cabranes, J., concurring). At the same time, the concerns that accompany the retroactive application of a statute of limitations may be less pronounced where, as here, "there had been no authoritative specification of which statute of limitations [previously] applied." Goodman v. Lukens Steel Co., 482 U.S. 656, 662-63, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987). In this case, the question of which statute of limitations applied to F-FCA retaliation claims prior to the enactment of the Dodd-Frank Act is one of first impression in this Circuit, see infra Part III.B, meaning that neither Saunders nor the District can lay claim to any concrete reliance interests. Further compounding the uncertainty, courts in other circuits have reached wildly divergent conclusions about which statute of limitations should apply to F-FCA retaliation claims. See infra Part III.B. Under these unique circumstances, there is at least some basis for suggesting that the three-year statute of limitations supplied by Congress in the Dodd-Frank Act should be applied retroactively to evaluate the timeliness of Saunders' pre-amendment F-FCA retaliation claim.[3]
*53 A second way of approaching the issue is to ask whether, separate and apart from the pure retroactivity question, the "borrowing" doctrine even applies where Congress later steps in to fill the interstices in a statutory scheme but remains silent as to how its gap-filling measures apply to past conduct. In this regard, the Court is mindful of the Supreme Court's admonition that courts, when tasked with closing interstices in federal law, should "borrow no more than necessary," including when they are asked to determine the statute of limitations applicable to a federal cause of action. West v. Conrail, 481 U.S. 35, 39, 107 S.Ct. 1538, 95 L.Ed.2d 32 (1987); see also Brown v. United States, 742 F.2d 1498, 1504 (D.C.Cir.1984) (en banc) ("Because the practice of borrowing presupposes a need to fill a deficiency in the federal scheme, a court must first look to see if there is indeed such a deficiency."), cert. denied, 471 U.S. 1073, 105 S.Ct. 2153, 85 L.Ed.2d 509 (1985). The rationale for this limiting principle is simple. The "borrowing" doctrine is designed to best effectuate the federal policies embodied in a federal cause of action when Congress has not itself supplied the complete legal framework necessary for the effectuation of those policies; but when Congress has supplied the framework, "borrowing" is unnecessary. Through the Dodd-Frank Act, Congress has brought its judgment to bear on how best to effectuate the policies underlying the F-FCA's anti-retaliation provisions, and in exercising that judgment, it has determined that a three-year statute of limitations is the best means of effectuating those policies. See 31 U.S.C. § 3730(h)(3). Given this development, it would be strange indeed to "borrow" the statute of limitations applicable to the closest analog under state law in an attempt to mimic the decision-making process that Congress has itself now performed-namely, balancing the policy considerations implicit in enacting a limitations period. In other words, the F-FCA now "stands on its own, ... and contains all the needed mechanisms to guarantee its effectiveness in forwarding the underlying federal policy." Am. Tel. & Tel. Co. v. N.Y.C. Dep't of Human Res., 736 F.Supp. 496, 500 (S.D.N.Y.1990). However, the Court is not aware of any precedent from this Circuit or another that has eschewed the "borrowing" doctrine in this particular context that is, when Congress has stepped in to fill the interstices in a statutory scheme but has remained silent as to how its gap-filling measures apply to past conduct.
Regardless of which analytical tack is taken, the effect of the Dodd-Frank Act upon the timeliness of Saunders' F-FCA retaliation claim presents novel and difficult questions about when a court may rely upon subsequent congressional enactments to fill the gap in the statutory scheme in effect at the time an action is commenced. Unfortunately, despite having been admonished by the Court in the past for failing to address the effect of amendments to the F-FCA (including this specific amendment), neither party has bothered to brief the question of whether the Dodd-Frank Act affects the limitations period applicable to Saunders' F-FCA retaliation claim. For the reasons set forth above, there is some reason to believe that Congress' specification of the applicable statute of limitations in the Dodd-Frank Act obviates the need to resort to the "borrowing" doctrine as to Saunders' pre-amendment F-FCA retaliation claim. But the answer is by no means self-evident, and *54 because the parties have failed to brief the issue, the Court declines to reach a conclusion on the merits. Fortunately, the uncertainty is ultimately immaterial, because the result would be the same regardless of whether the Court applied the three-year statute of limitations in the Dodd-Frank Act or instead "borrowed" the statute of limitations governing the closest analog under state law. As set forth immediately below, see infra Part III.B, the closest analog to an F-FCA retaliation claim under District of Columbia law is also governed by a three-year statute of limitations.
B. To the Extent "Borrowing" a State Statute of Limitations is Even Necessary, the Three-Year Statute of Limitations Applicable to Retaliation Claims Arising Under the District of Columbia False Claims Act Would Apply
When "borrowing" a statute of limitations becomes necessary, the district court will ordinarily apply the limitations period that would govern the state law claim that is most analogous to the federal cause of action at issue. Cephas v. MVM, Inc., 520 F.3d 480, 484 (D.C.Cir.2008). State law is always the "lender of first resort," and the presumption favoring state law may be overcome only where the application of the state limitations period would frustrate or interfere with federal policies or be at odds with the purpose or operation of the underlying federal statute. North Star Steel Co. v. Thomas, 515 U.S. 29, 34, 115 S.Ct. 1927, 132 L.Ed.2d 27 (1995). In that rare event, the district court must instead "borrow" a limitations period from the most analogous federal statute. Cephas, 520 F.3d at 485.
The first task before the Court, therefore, is to determine which cause of action under District of Columbia law is the closest analog to F-FCA retaliation claims. This is a question of first impression in this Circuit.[4] It is, moreover, one *55 that is unlikely to be revisited given that Congress has since amended the F-FCA to specify that F-FCA retaliation claims are subject to a three-year statute of limitations.
The Court agrees with Saunders that the anti-retaliation provisions of the District of Columbia False Claims Act ("DC-FCA"), D.C.Code §§ 2-308.13 et seq., are more analogous to the anti-retaliation provisions of the F-FCA than any of the other candidates identified by the parties,[5] and that borrowing the three-year statute of limitations applicable to claims brought under the anti-retaliation provisions of the DC-FCA fully comports with the overarching design of the F-FCA. Both the DC-FCA and the F-FCA are designed to discourage fraud against the government and, to that end, both prohibit an employer from taking an adverse employment action against an employee as a result of the employee's participation in protected activity pertaining to false claims (which under both statutes encompasses, broadly speaking, any activity that could reasonably lead to a viable false claims action). Indeed, a side-by-side comparison of the two statutes reveals that they are virtually identical in scope:[6]
DC-FCA F-FCA
COVERED INDIVIDUALS Any "employee." D.C.Code Any "employee." 31 U.S.C.
§ 2-308.16(b). § 3730(h) (2002).
COVERED ENTITIES Any "employer, including the Any "employer," whether public
District of Columbia." or private. 31 U.S.C. § 3730(h)
D.C.Code § 2-308.16(b). (2002).
PROTECTED ACTIVITY "[L]awful acts done by the employee "[L]awful acts done by the employee
on behalf of the employee on behalf of the employee
or others in disclosing information or others in furtherance of
to a government or law enforcement an action under this section, including
agency relating to, or investigation for, initiation
*56
in furtherance of, a false claims of, testimony for, or assistance
action, including investigation of, in an action filed or to be
initiation of, or testimony or assistance filed under this section." 31
in, an action to be filed U.S.C. § 3730(h) (2002).
pursuant to [D.C.Code] § 2-308.15."
D.C.Code § 2-308.16(b).
PROHIBITED CONDUCT "[D]is charg[ing], demot[ing], "[D]ischarg[ing], demot[ing],
suspend[ing], threaten[ing], harass[ing], suspend[ing], threaten[ing], harass[ing],
or in any other manner or in any other manner
discriminat[ing] against an discriminat[ing] against [the
employee in the terms and conditions employee] in the terms and conditions
of employment." of employment." 31
D.C.Code § 2-308.16(b). U.S.C. § 3730(h) (2002).
AVAILABLE RELIEF "[T]he relief necessary to make "[A]ll relief necessary to make
the employee whole, including the employee whole," "includ[ing]
reinstatement with the same seniority reinstatement with the
status that the employee same seniority status such employee
would have had but for the discrimination, would have had but for
two times the the discrimination, 2 times the
amount of back pay, interest on amount of back pay, interest on
the back pay, compensation for the back pay, and compensation
any special damage sustained as for any special damages sustained
a result of the discrimination as a result of the discrimination,
and, where appropriate (except including litigation costs
in the case of the District), punitive and reasonable attorneys' fees."
damages," as well as "litigation 31 U.S.C. § 3730(h) (2002).
costs and reasonable attorneys
fees, necessarily incurred."
D.C.Code § 2-308.16(c).
This substantial overlap between the DC-FCA and F-FCA comes as no surprise, given that the DC-FCA is indirectly based on the F-FCA. See Grayson v. AT & T Corp., 980 A.2d 1137, 1146 n. 25 (D.C.2009), vacated in part, 989 A.2d 709 (D.C.2010) (en banc) (per curiam). Indeed, this Court has previously had the opportunity to observe that the elements of the two causes of action are, if not identical, nonetheless "substantively similar," Kakeh v. United Planning Org., Inc., 655 F.Supp.2d 107, 115 n. 5 (D.D.C.2009), and, as a result, case law interpreting the F-FCA's anti-retaliation provisions is instructive when evaluating the analogous provisions under the DC-FCA, Payne v. District of Columbia, ___ F.Supp.2d ___, ___ n. 4, 2011 WL 1158724, at *6 n. 4 (D.D.C. Mar. 29, 2011). More broadly, in light of the commonality between the two statutes, the courts of the District of Columbia will look to case law interpreting the F-FCA when tasked with construing the terms of DC-FCA. See Grayson, 980 A.2d at 1146 n. 25.
For all these reasons, the anti-retaliation provisions of the DC-FCA provide an ideal candidate for purposes of "borrowing" a statute of limitations to govern F-FCA retaliation claims. Nonetheless, the District presses an alternative namely, adopting the statute of limitations governing claims under the District of Columbia Whistleblower Protection Act (the "DC-WPA"), D.C.Code §§ 1-615.01 et seq. While the District's argument is not without some merit, as the DC-WPA admittedly shares some characteristics with the F-FCA's anti-retaliation provisions, the argument is unavailing. In the final analysis, the DC-WPA simply is not as analogous to the F-FCA's anti-retaliation provisions as *57 are the nearly identical anti-retaliation provisions of the DC-FCA.
True, the DC-WPA is, like the F-FCA, broadly designed to encourage the reporting of waste or fraud in government. See D.C.Code § 1-615.51(1). However, the DC-WPA is at the same time both more expansive and narrower than the anti-retaliation provisions of the F-FCA: it protects a far narrower class of individuals; it covers a far narrower class of employers; it authorizes suits against individuals in their personal capacities; and it offers less robust remedies than the F-FCA. Whereas the F-FCA covers any employee, 31 U.S.C. § 3730(h) (2002), the protections of the DC-WPA may be invoked only by "a former or current District employee, or an applicant for employment by the District government," D.C.Code § 1-615.52(a)(3). Whereas the F-FCA covers any employer, 31 U.S.C. § 3730(h) (2002), the DC-WPA applies to a single employer the District of Columbia itself, D.C.Code § 1-615.54(a)(1). Whereas there is no individual liability under the F-FCA, see U.S. ex rel. Siewick v. Jamieson Sci. & Eng'g, Inc., 322 F.3d 738, 740-41 (D.C.Cir.2003), the DC-WPA permits an action to be brought against "any District employee, supervisor, or official having personal involvement in the prohibited personnel action," D.C.Code § 1-615.54(a)(1). And whereas the F-FCA permits a plaintiff to recover double back pay, 31 U.S.C. § 3730(h) (2002), the DC-WPA only permits a plaintiff to recover single back pay, D.C.Code § 1-615.54(a)(1)(E).
But perhaps most importantly, the DC-WPA protects a considerably more expansive set of disclosures than the F-FCA, reflecting the distinct, if nonetheless similar, orientations of the two statutes. The anti-retaliation provisions of the F-FCA prohibit an employer from taking an adverse employment action against an employee as a result of the employee's participation in protected activity pertaining to the presentation of false claims, with the aim of encouraging disclosures that might prevent others from making false claims for money or property upon the government or knowingly submitting false statements in support of such claims. To effectuate this end, the F-FCA is sensibly targeted towards protecting disclosures and activities that could reasonably lead to a viable false claims action. See U.S. ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 740 (D.C.Cir.1998). Meanwhile, the penumbra of the DC-WPA extends over a much wider field, encompassing disclosures including: gross mismanagement; the gross misuse or waste of public resources; abuse of authority in connection with the administration of a public program or the execution of a public contract; the violation of a law or regulation or a term of contract with a government contractor; and substantial and specific dangers to the public health and safety. See D.C.Code § 1-615.52(a)(6). As a result of these expansive protections, the DC-WPA may, for example, protect a government employee's disclosures concerning the stabling and negligent care of horses, see Mentzer v. Lanier, 677 F.Supp.2d 242, 250 (D.D.C.), aff'd, 408 Fed.Appx. 379 (D.C.Cir.2010) (per curiam), something that runs far afield of the concerns of the F-FCA. The sheer breadth and diversity of the subject-matter protected by the DC-WPA reveals that the statute is concerned with more than preventing fraudulent claims upon the government's funds and property; rather, it is designed to encourage disclosures concerning a broad universe of government misconduct and public safety issues. In this way, the DC-WPA departs significantly from the F-FCA.
*58 All of which should not be construed as suggesting that the DC-WPA is wholly dissimilar to the F-FCA. Quite the contrary, the two undoubtedly share similar aims and, in furtherance of those aims, create comparable private causes of action for retaliation. That conclusion, however, does not change the fact that District of Columbia law provides an even closer analog to the F-FCA in the form of the DC-FCA. For want of a better analogy, while the DC-WPA and F-FCA may be cousins, the DC-FCA and the F-FCA are siblings. As such, to the extent Congress may be said to have failed to supply a limitations period for retaliation claims under the F-FCA, the Court would borrow the statute of limitations period applicable to retaliation claims under the DC-FCA as the "state law claim that is most closely analogous to the federal claim in suit." Cephas, 520 F.3d at 484 (quotation marks omitted). But like its federal counterpart, the DC-FCA does not specifically identify the statute of limitations governing retaliation claims. See D.C.Code § 2-308.17(a) (specifying the statute of limitations applicable to qui tam actions arising under D.C.Code § 2-308.15, but remaining silent on the limitations period applicable to retaliation actions arising under D.C.Code § 2-308.16). Due to this statutory silence, retaliation claims under the DC-FCA are subject to the three-year "catch-all" statute of limitations under D.C.Code § 12-301(8). See District Cablevision Ltd. P'ship v. Bassin, 828 A.2d 714, 729 (D.C. 2003) (providing that three-year "catch-all" statute of limitations applies to claims that "are not `specially' governed by any other statute of limitations.") (quoting D.C.Code § 12-301(8)). Borrowing the three-year statute of limitations and applying it to the facts of this case, the parties agree that Saunders' F-FCA retaliation claim is timely.
IV. CONCLUSION
For the reasons set forth above, the Court concludes that Saunders' F-FCA retaliation claim is subject to a three-year statute of limitations. Because the parties agree that the claim is timely insofar as it is governed by a three-year statute of limitations, the District's [77] Motion to Dismiss will be denied. An appropriate order accompanies this memorandum opinion.
NOTES
[1] While Saunders is pursuing other claims in this action, this memorandum opinion only addresses her F-FCA retaliation claim.
[2] The amendment was a small part of the Dodd-Frank Act, which spans 2,319 pages and has been described as "sprawling." Pezza v. Investors Capital Corp., 767 F.Supp.2d 225, 226-27 (D.Mass.2011). As one court has observed, the legislative history of the Act "focus[es] on the bounty provisions ... and contain[s] very few substantive discussions of its anti-retaliation provisions." Egan v. TradingScreen, Inc., 2011 WL 1672066, at *4 (S.D.N.Y. May 4, 2011).
[3] To date, only two courts have addressed the retroactivity question in this context. One declined to resolve the issue on the merits. See Lindsay v. Technical Coll. Sys. of Georgia, 2011 WL 1157456, at *6 (N.D.Ga. Mar. 29, 2011). A second held that the statute of limitations prescribed by the Dodd-Frank Act should not be applied retroactively. See Riddle v. DynCorp Int'l Inc., 733 F.Supp.2d 743, 747-48 (N.D.Tex.2010). That court's holding rested largely on its conclusion that Congress' statement that the Act was "to take effect one day after its passage" should be construed as an affirmative statement that the amendment "is not retroactive." Id. at 748 (emphasis in original). That reasoning is in tension with Supreme Court precedent. See Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 318, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) ("[T]he mere promulgation of an effective date for a statute does not provide sufficient assurance that Congress specifically considered the potential unfairness that retroactive application would produce."); Landgraf v. USI Film Prods., 511 U.S. 244, 257, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) ("[S]tatement[s] that a statute will become effective on a certain date do[] not even arguably suggest that it has any application to conduct that occurred at an earlier date."). Meanwhile, the court did not expressly consider whether the retroactive application of the three-year statute of limitations would undermine the parties' reliance interests. The court's decision is presently on appeal to the United States Court of Appeals for the Fifth Circuit.
[4] Several courts in other jurisdictions have addressed the question, and in so doing have reached varying conclusions. See U.S. ex rel. Wall v. Vista Hospice Care, Inc., 778 F.Supp.2d 709, 723-25, 2011 WL 816632, at *8-9 (N.D.Tex. Mar. 9, 2011) (borrowing 180-day statute of limitations applicable to state whistleblower claims by hospital employees in lieu of the two-year "catch-all" limitations period); U.S. ex rel. Zemplenyi v. Grp. Health Coop., 2010 WL 3584444, at *3 (W.D.Wash. Sept. 10, 2010) (borrowing three-year "catch-all" statute of limitations without discussing alternatives); Riddle v. DynCorp Int'l Inc., 733 F.Supp.2d 743, 745-48 (N.D.Tex.2010) (borrowing 90-day statute of limitations applicable to state whistleblower claims in lieu of the limitations period applicable to personal injury actions); U.S. ex rel. Suter v. Nat'l Rehab Partners Inc., 2009 WL 3151099, at *2-3 (D.Idaho Sept. 24, 2009) (borrowing 180-day limitations period applicable to state whistleblower claims by public employees in lieu of "catchall" limitations period); Campion v. Ne. Utils., 598 F.Supp.2d 638, 645-53 (M.D.Penn. 2009) (borrowing two-year "catch-all" statute of limitations applicable to personal injury actions in lieu of the limitations period applicable to state whistleblower claims and wrongful discharge claims); U.S. ex rel. Smart v. Christus Health, 626 F.Supp.2d 647, 657-58 (S.D.Tex.2009) (borrowing 180-day statute of limitations applicable to state whistleblower claims brought by hospital employees in lieu of the two-year "catch-all" limitations period); Rutz v. Village of River Forest, 2007 WL 3231439, at *3-5 (N.D.Ill. Oct.25, 2007) (borrowing one-year statute of limitations applicable to tort claims brought by governmental employees in lieu of limitations periods applicable to personal injury claims and retaliatory discharge claims); U.S. ex rel. Smith v. N.Y. Presbyterian Hosp., 2007 WL 2142312, at * 12 (S.D.N.Y. July 18, 2007) (borrowing three-year statue of limitations applicable to personal injury actions in lieu of limitations period applicable to state whistleblower claims); U.S. ex rel. Hinden v. UNC/Lear Servs., Inc., 362 F.Supp.2d 1203, 1207-09 (D.Haw.2005) (borrowing 90-day statute of limitations applicable to state whistleblower claims in lieu of limitations period applicable to state wrongful discharge claims); U.S. ex rel. Smith v. Yale Univ., 415 F.Supp.2d 58, 99-102 (D.Conn.2006) (borrowing three-year statute of limitations applicable to state wrongful discharge claims in lieu of limitations period applicable to state whistleblower claims); U.S. ex rel. Ackley v. Int'l Bus. Machs. Corp., 110 F.Supp.2d 395, 402-05 (D.Md.2000) (borrowing three-year statute of limitations applicable to state wrongful discharge claims in lieu of limitations period applicable to administrative retaliation actions); U.S. ex rel. Lujan v. Hughes Aircraft Co., 162 F.3d 1027, 1035 (9th Cir.1998) (borrowing one-year statute of limitations applicable to state wrongful termination claims without discussing alternatives). Given that the objective of the "borrowing" doctrine is to find the closest analog under applicable state law, which will vary by jurisdiction, authorities engaging in this analysis in other jurisdictions are of limited persuasive value.
[5] While the Court will limit its discussion here to the candidates identified by the parties, the Court has not identified a closer analog through its independent research.
[6] While neither party directly addresses the question, the proper focus for comparison is the F-FCA in the form that it existed at the time Saunders' cause of action accrued and at the commencement of this action. As explained in greater detail below, see supra Part III.A, if the Court were to look at the F-FCA in the form that it exists today, there would be no need to "borrow" a statute of limitations at all, since Congress has since amended the F-FCA to specifically provide for a three-year statute of limitations. See 31 U.S.C. § 3730(h)(3). But the distinction is ultimately academic; even in its amended form, the F-FCA's closest analog under District of Columbia law remains the DC-FCA, as the anti-retaliation provisions under the two statutes are nearly coterminous in scope to this day. Compare D.C.Code § 2-308.16(b)-(c), with 31 U.S.C. 3730(h)(1)-(2).
| {
"pile_set_name": "FreeLaw"
} |
Slip Op. 03-170
United States Court of International Trade
USEC INC. and UNITED STATES Before: Pogue, Wallach, and
ENRICHMENT CORPORATION, Eaton, Judges
Plaintiffs, Court No. 02-00112; and Court
Nos. 02-00113, 02-00114 and
v. Consol. Court Nos. 02-00219; 02-
00221, 02-00227, 02-00229, and
UNITED STATES, 02-00233
Defendant.
[Motions for permission for interlocutory appeal pursuant to 28
U.S.C. § 1292(d) granted.]
Decided: December 22, 2003
Fried, Frank, Harris, Shriver & Jacobson (David E. Birenbaum, Jay
R. Kraemer, Mark Fajfar) for Plaintiffs and Defendant-Intervenors
Urenco Limited, Urenco Deutschland GmbH, Urenco Nederland B.V.,
Urenco (Capenhurst) Ltd., and Urenco, Inc.; Weil, Gotshal & Manges,
LLP (Stuart M. Rosen, Gregory Husisian, Jennifer J. Rhodes) for
Plaintiffs and Defendant-Intervenors Eurodif S.A., COGEMA, and
COGEMA, Inc.
Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, Jeanne E. Davidson, Deputy Director, Stephen C. Tosini,
Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, David R. Mason, Senior Attorney, Office of
Chief Counsel for Import Administration, U.S. Department of
Commerce, Of Counsel, for Defendant United States.
Steptoe & Johnson LLP (Sheldon E. Hochberg, Richard O. Cunningham,
Eric C. Emerson) for Defendant-Intervenors and Plaintiffs USEC Inc.
and United States Enrichment Corporation.
Shaw Pittman LLP (Stephan E. Becker, Nancy A. Fischer, Sanjay J.
Mullick, Joshua D. Fitzhugh) for Plaintiff-Intervenors Ad Hoc
Utilities Group.
Court No. 02-00112, 113, 114; Page 2
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
Opinion and Order
Pogue, Judge: In two prior opinions, this Court decided four
issues that critically affect the future of this litigation. The
parties now seek permission for an immediate interlocutory appeal
of the Court’s decisions. See 28 U.S.C. § 1292(d) (2000). For the
following reasons, we will grant the parties’ requests.
Background
The Court’s two prior opinions in this matter arose from
fifteen actions, consolidated under nine1 court numbers, all
challenging aspects of the final affirmative antidumping and
countervailing duty determinations of the Department of Commerce
(“the Department” or “Commerce”) with regard to low enriched
uranium (“low enriched uranium” or “LEU”) from France, Germany, the
Netherlands, and the United Kingdom2 or the related final injury
1
Only eight of those court numbers are contained in the heading
of this order. Court Nos. 02-00220 and 02-00236, consolidated as
Court No. 02-00220, involve specific issues which await
resolution of the “general” issues presented here for
certification. See Scheduling Order (Aug. 2, 2002); see also
infra n.3.
2
The determinations challenged in the original actions were Low
Enriched Uranium from France, 67 Fed. Reg. 6,680 (Dep’t Commerce
Feb. 13, 2002) (notice of amended final determination of sales at
less than fair value and antidumping duty order); Low Enriched
Uranium from France, 66 Fed. Reg. 65,877 (Dep’t Commerce Dec. 21,
2001) (notice of final determination of sales at less than fair
value) (“LEU from France”); Low Enriched Uranium from France, 67
Fed. Reg. 6,689 (Dep’t Commerce Feb. 13, 2002) (notice of amended
Court No. 02-00112, 113, 114; Page 3
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
determination of the International Trade Commission (“ITC”).3 This
Court remanded aspects of the Department’s determinations in USEC
Inc. v. United States, 27 CIT __, 259 F. Supp. 2d 1310 (2003)
(“USEC I”).4 In USEC Inc. v. United States, 27 CIT __, 281 F.
Supp. 2d 1334 (2003) (“USEC II”), the Court reviewed the remand
results, affirming-in-part and reversing-in-part the Department’s
remand determination.5
final determination and notice of countervailing duty order); Low
Enriched Uranium from France, 66 Fed. Reg. 65,901 (Dep’t Commerce
Dec. 21, 2001) (notice of final affirmative countervailing duty
determination); Low Enriched Uranium from Germany, the
Netherlands, and the United Kingdom, 67 Fed. Reg. 6,688 (Dep’t
Commerce Feb. 13, 2002) (notice of amended final determinations
and notice of countervailing duty orders); Low Enriched Uranium
from Germany, the Netherlands, and the United Kingdom, 66 Fed.
Reg. 65,903 (Dep’t Commerce Dec. 21, 2001) (notice of final
affirmative countervailing duty determinations).
3
Low Enriched Uranium From France, Germany, the Netherlands, and
the United Kingdom, 67 Fed. Reg. 6,050 (ITC Feb. 8, 2002). The
parties’ challenges to the ITC’s determinations are consolidated
as Court No. 02-00220.
4
In the Court’s original Scheduling Order for this matter, we
decided, and the parties agreed, to address initially “general
issues” affecting the Department’s threshold determinations, to
be followed later by issues which are not general, such as
“challenges to the Department of Commerce’s calculation results
and methods.” Scheduling Order at 5 (Aug. 2, 2002). The cases
in which these “general issues” were before the Court were
assigned to the current panel. See USCIT R. 77(e)(2) (“An action
may be assigned to a three-judge panel . . . when the chief judge
finds that the action raises an issue . . . [that] has broad or
significant implications in the administration or interpretation
of the law.”). Familiarity with the Court’s prior opinions is
presumed.
5
In reviewing the agency record in either an antidumping or
countervailing duty case, “the [C]ourt [of International Trade]
shall hold unlawful any determination, finding, or conclusion
Court No. 02-00112, 113, 114; Page 4
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
No party requests a further remand of the general issues
decided by the Court in USEC I and USEC II. Rather, the parties
now seek a statement pursuant to 28 U.S.C. § 1292(d) permitting
immediate appeal.6
found . . . to be unsupported by substantial evidence on the
record, or otherwise not in accordance with law.” 19 U.S.C. §
1516a(b)(1)(B)(i) (emphasis added). See also 28 U.S.C. § 1585
(“The Court of International Trade shall possess all the powers
in law and equity of, or as conferred by statute upon, a district
court of the United States.”). Under these statutes, this Court
has both the authority and the duty to make this final
determination after remand. To hold otherwise would be both
inconsistent with the statute and destructive of the need for
finality in litigation before the Court. Cf. Nippon Steel Corp.
v. Int’l Trade Comm’n, 345 F.3d 1379 (Fed. Cir. 2003) (holding
that the CIT abused its discretion by "interposing its own
[factual] determinations" rather than remanding to the ITC for
further fact-finding, where fact-finding was committed to the
agency by statute).
6
In their motions, the parties do not entirely agree on the
proposed statement of the issues for appeal. The United States
states the issue as:
Whether the United States Department of Commerce’s
determination that the foreign enricher is the appropriate
respondent, in antidumping duty proceedings, for determining
export price and constructed export price of Low Enriched
Uranium imported pursuant to enrichment transactions is
supported by substantial evidence and otherwise in
accordance with law.
Def.’s Mot. Stat. Pursuant to 28 U.S.C. § 1292(d)(1) at 3.
Plaintiffs and Defendant-Intervenors EURODIF S.A.Compagnie
Generale Des Matieres Nucleaires and COGEMA, Inc. (collectively,
“COGEMA”), USEC Inc. and the United States Enrichment Corporation
(collectively, “USEC”), and Intervenor the Ad Hoc Utilities Group
(“AHUG”) state the issues as the Court’s decisions on the general
issues regarding:
Court No. 02-00112, 113, 114; Page 5
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
Jurisdiction lies under 28 U.S.C. § 1581(c) (2000) and 19
U.S.C. § 1516a(a)(2)(B)(i) (2000).
The Issues
In USEC I and USEC II, the Court determined that the key
general issues decided by the Department in this matter involved
the initial applicability of the Department’s “tolling” regulation,
1. The Department of Commerce’s determination that the
antidumping duty petitions and the countervailing duty
petitions leading to the contested determinations were filed
on behalf of the U.S. low enriched uranium (“LEU”) industry;
2. The Department of Commerce’s determination that the
antidumping duty law is applicable to LEU delivered pursuant
to enrichment transactions; and
3. The Department of Commerce’s determination that the
countervailing duty law is applicable to LEU delivered
pursuant to enrichment transactions, and that a
countervailable subsidy determination can be based on
finding that prices paid pursuant to enrichment transactions
have been for more than adequate remuneration.
COGEMA’s, USEC’s, and AHUG’s Mot. Issuance Interlocutory Order at
2.
We attempt to resolve this disagreement by stating our view
of the issues decided by the Court. See infra pp. 5-6.
In addition, the government’s “Motion for a Statement
Pursuant to 28 U.S.C. § 1292(d)(1)” contains a proposed order
certifying a question for appeal. Def.’s Mot. Stat. Pursuant to
28 U.S.C. § 1292(d)(1). Conversely, the government, in replying
to COGEMA’s, USEC’s, and AHUG’s Motion also “request[s] that the
Court decline to certify any issues for interlocutory appeal.”
Def.’s Resp. to Pl.’s Mot. Issuance Interlocutory Order at 3.
The government’s filings do not explain this discrepancy.
Court No. 02-00112, 113, 114; Page 6
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
19 C.F.R. § 351.401(h).7 Specifically, the Court decided the
following four issues:
1. On the record here, the Department’s decision that the
enrichment of uranium feedstock pursuant to “SWU”8 contracts
constitutes a sale, rather than a subcontracting (or “tolling”)
arrangement, is unsupported by substantial evidence;
2. On the record here, the Department’s decision not to apply
its tolling regulation to determine whether the Intervenors (the
“utilities,” also the “Ad Hoc Utilities Group” or “AHUG”), rather
than the “enrichers,” should be designated as producers of LEU is
not in accordance with law;
3. On the record here, the Department’s reasons for declining
to apply the tolling regulation in the context of its industry
support determination, and thus, its application of a different
definition of “producer” from that used in establishing export or
constructed export price are reasonable and therefore in accordance
7
Title 19 C.F.R. § 351.401(h) states that Commerce “will not
consider a toller or subcontractor to be a manufacturer or
producer where the toller or subcontractor does not acquire
ownership, and does not control the relevant sale, of the subject
merchandise or foreign like product.” 19 C.F.R. § 351.401(h).
8
A SWU contract is a contract for a “separative work unit,” a
measurement of the amount of energy or effort required to
separate a given quantity of feed uranium into LEU and depleted
uranium at specified assays. USEC I, 27 CIT at __, 259 F. Supp.
2d at 1314; LEU from France, 66 Fed. Reg. at 65,884. Under a
SWU contract, a utility purchases separative work units and
delivers a quantity of feed uranium to the enricher. USEC I, 27
CIT at __, 259 F. Supp. 2d 1310, 1314.
Court No. 02-00112, 113, 114; Page 7
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
with law; and
4. On the record here, the Department’s interpretation that
the statutory countervailing duty provisions reach subsidies that
help to defray the costs of manufacturing imports of LEU is
reasonable, and accordingly, the Department’s determination that
the purchase of enrichment for more than adequate remuneration may
constitute a countervailable subsidy is in accordance with law.
We now consider the parties’ motions.
Discussion
Title 28 U.S.C. § 1292(d) permits interlocutory appeals, but
only where “a controlling question of law is involved with respect
to which there is a substantial ground for difference of opinion
and [where] an immediate appeal . . . may materially advance the
ultimate termination of the litigation.” Id. The instant case
meets each part of this statutory three-prong test.
First, general issues one and two involve controlling
questions of law because, absent further remand, these two issues
effectively terminate the country-specific antidumping cases at
issue here. Conversely, the decisions on general issues three and
four involve controlling questions of law because those decisions
permit cases to proceed that would otherwise have been remanded or
concluded. Moreover, further proceedings in this Court will not
moot these issues, and an incorrect disposition of these issues
Court No. 02-00112, 113, 114; Page 8
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
will require reversal of a final judgment based thereon. See 16
Charles Alan Wright et al., Federal Practice and Procedure § 3930,
at 423-24 (2d ed. 1996) (“There is no doubt that a question is
‘controlling’ if its incorrect disposition would require reversal
of a final judgment . . . .”).
Second, this is a case of first impression, in an area where
the law is complex, and there is undeniably a substantial
difference of opinion on each question.
Third, an immediate appeal may materially advance the ultimate
termination of this litigation. The four issues decided by the
Court define the scope and effect of the remaining questions which
may be raised in the underlying fifteen actions, and which remain
to be considered. Consequently, the Court’s decision on these four
issues sets the course for any further proceedings. Absent an
immediate appeal, the parties and this Court will spend substantial
resources and time on the remaining proceedings before a final
appealable judgment can be made. On the other hand, an immediate
appeal will significantly expedite proceedings by clarifying the
course of the proceedings and enabling the parties and the Court to
allocate resources efficiently. Accordingly, the Court finds that
the three-prong test set forth in 28 U.S.C. § 1292(d) is satisfied
here.
Court No. 02-00112, 113, 114; Page 9
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
Conclusion
In the circumstances present here, an immediate interlocutory
appeal will best serve the interests of all parties and of the
judiciary. Therefore, the Court will certify, for intermediate
interlocutory appeal, the Court’s decision on the four general
issues decided in USEC I and USEC II.
THEREFORE, this action having been duly submitted for
decision, and the Court, after due deliberation having rendered a
decision upon the issues identified, and no party having sought
further remand of the Court’s decision, and the Court having
determined that these issues involve controlling questions of law
with respect to which there is a substantial ground for
difference of opinion and that an immediate appeal from this
Court’s decision may materially advance the ultimate termination
of this litigation; now, in conformity with that decision, it is
hereby
ORDERED that
1. On the record here, the Department’s decision that the
enrichment of uranium feedstock pursuant to SWU contracts
constitutes a sale, rather than a subcontracting (or “tolling”)
arrangement, is unsupported by substantial evidence;
2. On the record here, the Department’s decision not to
apply its tolling regulation to determine whether the intervenors
(the “utilities,” also the “Ad Hoc Utilities Group” or “AHUG”),
rather than the “enrichers,” should be designated as producers of
LEU is not in accordance with law;
3. On the record here, the Department’s reasons for
declining to apply the tolling regulation in the context of its
industry support determination, and thus, its application of a
different definition of “producer” from that used in establishing
export or constructed export price are reasonable and therefore
in accordance with law; and
4. On the record here, the Department’s interpretation that
the statutory countervailing duty provisions reach subsidies that
help to defray the costs of manufacturing imports of LEU is
reasonable, and, accordingly, the Department’s determination that
the purchase of enrichment for more than adequate remuneration
may constitute a countervailable subsidy is in accordance with
law; and it is further
Court No. 02-00112, 113, 114; Page 10
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
ORDERED that the Court finds, pursuant to 28 U.S.C. §
1292(d), that the Court’s decision on the four issues stated
above involve controlling questions of law with respect to which
there is a substantial ground for difference of opinion and that
an immediate appeal from the Court’s decision may materially
advance the ultimate termination of this litigation; and it is
further
ORDERED that 28 U.S.C. § 1292(d) hereby permits appeal of
these issues.
________________________
Donald C. Pogue
Judge
________________________
Evan J. Wallach
Judge
________________________
Richard K. Eaton
Judge
Dated: December 22, 2003
New York, New York
| {
"pile_set_name": "FreeLaw"
} |
996 A.2d 560 (2010)
COM.
v.
WILSON.
No. 735 MDA 2009.
Superior Court of Pennsylvania.
March 23, 2010.
Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
448 N.W.2d 54 (1989)
STATE of Minnesota, Respondent,
v.
Michael W. FENNEY, Appellant.
Nos. C5-87-1393, C3-89-1011.
Supreme Court of Minnesota.
November 3, 1989.
*55 C. Paul Jones, State Public Defender, Elizabeth B. Davies, Asst. State Public Defender, Minneapolis, for appellant.
Hubert H. Humphrey, III, Atty. Gen., Paul R. Kempainen, Asst. Atty. Gen., St. Paul, for respondent.
Heard, considered and decided by the court en banc.
KEITH, Justice.
Defendant Michael Fenney appeals his convictions of first and second degree murder. Minn.Stat. §§ 609.185(2), 609.19(1) and (2) (1988). He was sentenced to life imprisonment on the charge of first degree murder and is presently serving his sentence in the Minnesota Correctional Facility at St. Cloud. On appeal, he claims reversible error in the post conviction hearing on the grounds that newly discovered evidence was material and would probably produce a more favorable verdict on retrial. He also claims reversible error because of (1) admission of (a) electrophoresis results, (b) mention of polygraph testing, and (c) one-man *56 photograph identification, (2) denial of cross examination on collateral matters that might implicate a third party in the crime, and (3) insufficient evidence. We affirm.
Mona Armendariz was murdered in her trailer home in Janesville, Minnesota during the early morning hours of July 29, 1986. Authorities found her body that day shortly after 11:00 a.m. Her body was naked from the waist down, her T-shirt was torn and pushed up over her breasts, and a curling iron was inserted in her vagina. She had been beaten and stabbed. She died from a slit throat.
Defendant Michael Fenney had connections in Janesville. He had lived there for over a year in 1983-1984 with foster parents and made friends in the community. After Fenney left his foster home, he occasionally returned to Janesville and visited a friend, Gordon Abbe, in his trailer home.
The evening before Armendariz's murder, Fenney visited her. He had arrived in Janesville that day, July 28, 1986 on his way South to look for work. He had planned to spend the night with his friend, Gordon Abbe, but when Abbe said he would have to be in by 10:00-10:30 p.m., Fenney decided to stay at Armendariz's instead. He would just leave his backpack at Abbe's. Whether the backpack was at Abbe's trailer all night or at Armendariz's, where Fenney says he placed it when he first visited her, is disputed. Fenney denies saying he would stay with Armendariz and denies that he placed his backpack in the Abbe trailer.
Fenney spent the evening until about 9:30 p.m. drinking beer with Armendariz. At that time he bicycled to downtown Janesville, because they needed more beer before the liquor store closed. While in town, he visited with acquaintances and his foster parents, drank some beer, then left for the Armendariz trailer around 11:00-11:30 p.m. Testimony from one witness places Fenney in the Armendariz trailer around 12:30 a.m. Fenney testified it was at 11:30 p.m. and that he only stayed five minutes to give Armendariz the remaining beer, then left to see a friend in town.
No other witness testified as to whether he remained in the trailer or was seen heading back to town. The first positive testimony as to his whereabouts later was given by Abbe and a co-worker who spent the night in his trailer. Both testified seeing Fenney enter the Abbe trailer about 2:30-3:00 a.m. Both also testified that Fenney explained his lateness by saying Armendariz kicked him out, but Fenney refutes the statement.
In addition to Fenney, Steven Sack, who had been living at the Abbe trailer, was in the trailer park in the middle of the night. He attempted to enter Abbe's trailer through a window around 1:00-1:30 a.m. because the door was locked. Abbe woke up and told him to leave. Sack left with his dufflebag and a buck knife which had a blade about six inches long and one and one-half inches wide.
Sack testified that while he stood on the trailer hitch just prior to entering Abbe's trailer, someone called to him, but he neither spoke to him nor recognized him. After leaving the trailer, Sack met no one, but heard angry voices.
Fenney, in uncorroborated testimony, described his own actions at that time as follows: He stated that when he returned from trying to see the friend of his in Janesville, he called to someone he saw on the trailer hitch of the Abbe trailer, then went up to the man whom he did not recognize. The stranger said something about going to the Armendariz trailer, because Armendariz owed him money. That reminded him of his backpack left at Armendariz's, so he walked with the man to the trailer, but asked the man to retrieve his backpack for him as he did not want to be involved in their argument. In spite of close proximity to the man, he could not describe him. While waiting outside, he heard various thumps and bumps inside, but no screams. He did not investigate. The man came out without the backpack and said, "You'll not like what you see, go get your backpack yourself." He did so and left. He made no attempt to find out what happened. He concluded his story by *57 stating that he then went to the Abbe trailer to sleep.
Fenney left early the next morning to continue south to look for work, although people with whom Fenney had spoken the previous day thought he was going to look for work in Janesville.
Later in the morning on July 29th, Sheriff Kubat found Armendariz's body under a bed in her trailer home. Fenney was arrested in Iowa the following day, July 30, 1986. Upon learning that he was wanted for murder, Fenney asked the trooper "[w]hat time of night he was supposed to have done it," even though nothing indicated to him that the murder occurred at night.
Later that evening, Fenney gave a statement to Agent Luttring. He claimed that he had come back from town with some beer and stopped at the Armendariz trailer, but when she did not answer he went on to the Abbe trailer to spend the night and did not see her again. Upon learning that Abbe had stated that Fenney had not entered the Abbe trailer until after 2:30 a.m., Fenney changed his story to say he sat on Abbe's car awhile before entering. He claimed further that he had seen someone climb into the Abbe trailer and that he said something to the person, but he gave no testimony that he accompanied this person to the Armendariz trailer to retrieve his pack.
At trial, Fenney contradicted the statements he had made to Agent Luttring. Instead, he admitted seeing Armendariz after 9:30 when he gave her the beer he had bought in town and he described his meeting with the unidentified man who had entered the trailer.
The Minnesota Bureau of Criminal Apprehension's (BCA) investigation of the crime scene led to discovery of Fenney's fingerprint(s) on two beer cans, one can of which was still on the table and could have been the same as those he had purchased in town. Prints of a pair of shoes seized from Fenney when he was arrested matched bloody footprints taken from the crime scene, although no blood appeared on the shoe soles. Clothes found in Fenney's pack had blood stains on them. Using electrophoresis, the BCA conducted blood sample tests on the stains from the clothes, on stains at the scene, and on liquid blood samples taken from Armendariz and Fenney. Blood samples from the scene were consistent with Armendariz's blood. Blood stains on Fenney's clothing were also consistent with Armendariz's blood, but inconsistent with Fenney's.
Evidence from the autopsy showed the condition of the body was consistent with death occurring between 1:00-3:00 a.m. The stab wounds were consistent with a knife blade approximately 1 and ½ inches long and one-half inch wide.
After deliberating for a day, the jury found Fenney guilty.
After filing his notice of appeal, defendant requested and obtained a remand in order to petition for post conviction relief based on a claim of newly discovered evidence. The trial court denied the petition.
1. Defendant claims error in admission of evidence linking blood stains on Fenney's clothing with Armendariz's blood. Defendant claims the evidence was inadmissible, because the electrophoretic process used to type the dried blood does not pass the Mack/Frye standard for admission of scientific evidence.
Admissibility of electrophoresis evidence depends on its general acceptance by the relevant scientific community as reliable. Minnesota has adopted the Frye rule, which requires that "`the thing from which the [expert testimony] deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.'" State v. Mack, 292 N.W.2d 764, 767 (Minn.1980) (quoting Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923)). Under the rule, "the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where experts in the field widely share the view that the results are scientifically reliable as accurate." Id. at 768 (emphasis added). We stated the rule more succinctly in State v. Anderson, 379 N.W.2d 70 *58 (Minn.1985) as: "The scientific technique on which expert testimony is based must be scientifically reliable and broadly accepted in its field." Id. at 79 (emphasis added). The test, then, requires neither unanimity nor acceptance outside its particular field.
The trial court in Fenney held a mid-trial Frye hearing on the issue. The hearing record included, by stipulation, the transcripts and exhibits from the pretrial evidentiary hearing in State v. Joon Kyu Kim, 398 N.W.2d 544 (Minn.1987). On the basis of the record and his findings, the trial judge ruled serum electrophoresis evidence admissible, because the electrophoresis process is accepted as reliable by the relevant scientific community consisting of criminal analysts and War Memorial Blood Bank personnel and the test was correctly performed.
The question of whether electrophoretic testing of dried bloodstains meets the Mack/Frye rule is one of first impression for this Court.[1] We review the issue de novo as it presents a question of law. Jadwin v. Minneapolis Star and Tribune Co., 367 N.W.2d 476, 483 (Minn.1985), appealed on other grounds, 390 N.W.2d 437 ((Minn. App.1986). To make a determination, we must consider development of the use of electrophoresis, the process itself, and its acceptance and reliability within the relevant community.
Forensic use of electrophoresis
Electrophoresis is a process of separating charged molecules. As early as 1937, it was used to separate mixtures of proteins. Note, The Admissibility of Electrophoretic Methods of Genetic Marker Bloodstain Typing Under the Frye Standard, 11 Okla. City U.L.Rev. 773, 782 n. 59 (1986) (hereinafter referred to as "Note"). In 1965, electrophoretic marker typing was introduced to the forensic science community by the Metropolitan Police Laboratory in London, England. Note at 775 n. 7. The Minnesota Bureau of Criminal Apprehension Laboratories ("BCA") began using electrophoresis in 1971. In particular, it began with the genetic markers PGM and EAP. In 1978, the BCA evaluated the multi-system method of electrophoretic typing and concluded it was reliable and reproducible and could be applied to casework. As of 1981, over 100 crime laboratories throughout the United States and Canada used electrophoresis. State v. Washington, 229 Kan. 47, 52, 622 P.2d 986, 990-91 (1981).
The Electrophoretic Procedure
Serum electrophoresis is a process that separates blood into its component proteins and enzymes[2] by the use of an electric current. A portion of the blood sample is placed on a gelatin-like substance that is mounted on a glass plate. Known blood samples are placed beside the unknown sample. An electric current is passed for a period of time through the samples and gel. The blood proteins assume positive, negative or neutral charges, then move toward the pole of the opposite charge. Because the proteins vary in size, shape, density and charge, they vary in mobility. Thus, they migrate in the electrical field at different speeds and stop migrating at different specific points. The result is that the particular proteins and enzymes are separated into banding patterns. Each banding pattern is distinctive for a particular protein/enzyme. After separation, chemical dyes are applied that react with the proteins/enzymes to make them visible to either the eye or under ultraviolet light. The patterns are then read by a trained analyst and the proteins/enzymes are typed.
At the BCA, any necessary control is provided by having another analyst read the results and make an independent determination. A photographic record of the banding is not usually made. If the forensic sample is completely used up in the *59 testing procedure, which may occur with small sample sizes, no retesting will be possible on that particular sample.
Two types of testing are done. One type is to test for several proteins at once using a method called the "multi-system" method. The other type tests for only one protein at a time. Use of the multi-system on PGM can compromise results, not in the sense of mistyping, but in the sense of causing inconclusive results, because the dye paper used to stain a particular protein can soak up PGM molecules.
Areas of Concern
Three major areas of concern exist when dealing with electrophoresis of forensic blood stains. One is the problem of contamination. Contamination of the blood sample may occur from substances such as dirt, gasoline, sweat and the like. For protein/enzyme typing, the problem of contamination is dealt with by the experience of the analyst in recognizing banding patterns. Internal variations in the banding pattern of a particular protein indicate to the analyst whether the pattern is being altered by contamination. When contamination is noted, a typing determination is not made and the result is classified as indeterminate.
A second area of concern is deterioration of the proteins as a blood sample ages. The proteins and enzymes lose their activity with age, but there is no conversion in form from one protein/enzyme to another. Therefore, there is no problem that a protein will be mistyped. Rather the banding pattern becomes so faint as to be unreadable. When the pattern becomes too faint, the result is classified as indeterminate.
The final area of concern is the fact that the sample is dried blood rather than liquid blood. Dried blood samples, however, have been determined to be more reliable than liquid samples, because they remain stable over longer periods of time.
Determination of reliability
In general, "`[t]he reliability of the methods and techniques used for typing and determination of genetic markers in blood and body fluid stains has been well established by appropriate and properly controlled scientific investigations.'" Note at 784 (quoting Report of the American Academy of Forensic Sciences, Ad Hoc Committee on Genetic Marker Typing 3 (March 23, 1984)). Those basic methods are not at issue. Rather, it is the effect of environmental factors on typing results that poses the problem. Before addressing that problem, however, we must consider the initial question of what constitutes the "particular field" within which the scientific technique must be widely accepted as reliable. According to testimony, electrophoretic testing of dried bloodstains is used mainly in connection with forensics. Taking forensics as the relevant field, then, those actually involved with electrophoretic typing of dried bloodstains constitute the experts who must widely share the view that the results are reliable.
Turning to the record made at trial, the State offered testimony of six witnesses who worked in forensic laboratories or engaged in forensic teaching, research, and analysis and who had had experience with electrophoresis on dried bloodstains. They testified not only with respect to their own opinions, but also with respect to acceptance by others in the field. The one witness presented by the defense had never done electrophoresis on dried bloodstains. Arguably, the defense witness was not an "expert" "in the particular field" as is required by the Mack/Frye standard. We do not need to decide that issue, however, because the "widely shared" view of all the experts who testified was that electrophoretic testing of dried aged bloodstains was reliable as long as certain standards were met and controls applied.
Their consensus accords with the holdings of most other jurisdictions that have considered the issue. See, e.g., People v. Reilly, 196 Cal.App.3d 1127, 1131, 242 Cal. Rptr. 496, 498 (1987) (holding that electrophoretic testing of dried bloodstains met Frye standard and technique was properly used in case); Annotation, Admissibility, in Criminal Cases, of Evidence of Electrophoresis of Dried Evidentiary Bloodstains, 66 A.L.R.4th 588, 593-601 (1988) (eleven of twelve jurisdictions addressing *60 the issue of admissibility of electrophoresis test results held it admissible).
Defendant relies not so much on the record made at the mid-trial Frye hearing, as on People v. Young, 425 Mich. 470, 391 N.W.2d 270 (Mich.1986), the only jurisdiction to find electrophoresis test results inadmissible. The Young decision is flawed from the Minnesota perspective because of the court's requirement that witnesses qualified to testify as members of the relevant scientific community must be "`disinterested and impartial'" experts whose "'livelihood [is] not intimately connected with the new technique.'" Id., 425 Mich. at 481, 483, 391 N.W.2d at 274, 276 (quoting People v. Tobey, 401 Mich. 141, 147, 145, 257 N.W.2d 537, 539 (1977); People v. Barbara, 400 Mich. 352, 358, 255 N.W.2d 171, 180 (1977). As a result of this requirement, the Young court did not consider testimony by three prosecution witnesses it classified as "technicians," but did consider testimony by three geneticists unfamiliar with electrophoresis of evidentiary bloodstains. Young, 425 Mich. at 481, 485, 391 N.W.2d at 274, 276-77. Minnesota's interpretation of Frye requires "experts in its field" and has no such narrow requirement of disinterestedness.
The opinion is also unpersuasive because it is a 3-2 decision, with two justices not participating in the decision. The strong dissent disagreed with the narrowness of the rule requiring disinterested and impartial experts and with the interpretation of earlier Michigan precedent as requiring disinterested scientists. Id. 425 Mich. at 511-12, 391 N.W.2d at 289 (J. Boyle dissenting with J. Riley concurring in dissent).
Finally, the majority opinion in Young relies heavily on the testimony of Dr. Grunbaum. Yet "Dr. Grunbaum is the first and only expert actually involved with electrophoretic typing of bloodstains to attack its reliability." Note, The Admissibility of Electrophoretic Methods of Genetic Marker Bloodstain Typing Under the Frye Standard, 11 Okla. City U.L.Rev. 773, 791 (1986). As the court in Reilly pointed out, the thrust of Dr. Grunbaum's opposition to the reliability of electrophoretic typing of evidentiary bloodstains is concern with the effects of aging, improper preservation and crime scene contaminates on the results of the tests. Reilly, 196 Cal.App.3d at 1141, 242 Cal.Rptr. at 505. These concerns have been met. Case law explains that the overall testing procedure rendering electrophoresis reliable already deals with the problem of aging and contamination through the use of proper procedures by well-trained analysts who are aware of the published literature warning of typing problems. See, e.g., Id. The record here echoes other case law.
Testing in Fenney
In the case before us, only the protein PGM differentiated Armendariz's blood from Fenney's. The PGM protein that was consistent with Armendariz's blood was found on all three items of Fenney's clothing that had been in his backpack: a sock, shirt and blue jeans.
At least 76 different enzymes detectable by electrophoresis have been cataloged. Note at 784 n. 66. The BCA tests for only six common types that are considered reliable and important enough in the differentiation of blood samples. The BCA used the single testing process called "isoelectric focusing" on PGM, which eliminated the problem encountered in multi-system testing where the dye filter paper absorbs PGM molecules.
Both witnesses called for the mid-trial Frye hearing testified extensively on the control protocols used by the BCA and followed in this instance. Mr. Ronald Enzenauer, who examined the samples in question here, had been working with serological electrophoresis for five years. He underwent one year of training before being authorized to read electrophoresis slides. He has examined "hundreds, if not thousands" of samples and has testified as to electrophoretic test results in approximately 30 cases in Minnesota. His readings were controlled by a second reading, as required by protocol. His training, in combination with the type of test used and the controls requiring second readings, assured accurate, reliable results.
*61 Considering the evidence of reliability and accuracy presented by expert testimony, the extent of the shared belief of the experts in that reliability, and taking note of decisions in other jurisdictions, we hold that electrophoretic typing of aged, dried blood samples as performed by competent analysts using sufficient controls are admissible under the Mack/Frye standard.
2. Defendant also alleges that evidence submitted at trial was insufficient to support the jury verdict. The evidence of guilt included evidence of (1) unexplained blood stains consistent with Armendariz's blood but inconsistent with Fenney's, (2) Fenney's footprint in blood on the floor of the Armendariz trailer, (3) his fingerprints on beer cans found at the scene, (4) the condition of Armendariz's body when found, (5) Fenney's activities that night, and (6) inconsistencies in Fenney's own testimony. Viewing the evidence in the light most favorable to the prosecution and assuming the jury believed the state's witnesses and disbelieved any contrary evidence, we hold that the evidence was sufficient.
3. Defendant raises as a third point of error that the trial court violated his due process rights by admitting identification testimony based on an impermissibly suggestive one-person photograph of Fenney shown to one of the witnesses. A threshold question, however, is whether the defense properly preserved this issue for appellate review. Pursuant to Minn.R. Evid. 103(a)(1), "Error may not be predicated upon a ruling which admits * * * evidence unless * * * a timely objection or motion to strike appears of record * * *." For an objection to admission of testimony based on a one-man photographic identification to be "timely," it must be made as soon as the grounds for it appear. State v. Senske, 291 Minn. 228, 231, 190 N.W.2d 658, 661 (1971). Otherwise, "[it] is deemed waived since it is impossible for the trial court subsequently to erase from the jury's memory the effect of the testimony." Id. Consequently, the claim of error was not preserved for appeal.
Nevertheless, where the error is an error in "fundamental law" or "plain error affecting substantial rights", we are free to consider an improperly preserved claim on appeal. State v. Malaski, 330 N.W.2d 447, 451 (Minn.1983) (quoting in part Minn. R.Evid. 103(d)).
Under the standard set forth in State v. Marhoun, 323 N.W.2d 729, 733 (Minn.1982), we hold that in this case there was no likelihood of irreparable misidentification. The witness had seen Fenney with his blue backpack in the trailer park at 5:00 p.m. the day before the murder. She described him to authorities on the following day. Upon being shown a one-person photograph of him, she recognized him as the person she had seen the previous day. Testimony reflected no doubt that Fenney was the person she had seen. Only a one day delay occurred between seeing Fenney in person and in the photograph. As we stated in Marhoun, it is "proper for police to take a picture of a person whom they strongly suspect of having committed a crime and show it to people who might have seen the person in the area of the crime * * *." Marhoun, 323 N.W.2d at 733.
Defendant also assigns as reversible error opinion testimony as to Fenney's demeanor upon being told he was accused of murder and evidence mentioning the work of polygraph testing. It has long been the rule that the results of polygraph tests as well as any direct or indirect references to the taking of or refusal to take such a test are inadmissible. State v. Kolander, 236 Minn. 209, 220-22, 52 N.W.2d 458, 464-66 (1952); State v. Perry, 274 Minn. 1, 12-13, 142 N.W.2d 573, 580 (1966).
In the instant case, reference to polygraph testing occurred in the context of laying a foundation for opinion testimony as to Fenney's reaction to being accused of murder. Both the polygraph testimony and demeanor testimony were wrongly admitted. Testimony that the defendant's reaction upon being charged with murder was "very unusual" and that he did not respond with "emphatic denial" had no real *62 probative value and the potential for unfair prejudice was high, particularly in light of the impermissible bolstering of Agent Luttring's testimony by reference to his experience administering polygraph tests. See Minn.R.Evid. 403; cf. State v. Fader, 358 N.W.2d 42 (Minn.1984). Although wrongly admitted, under the facts of this case the error was not reversible error.
5. Error is also asserted because the trial court did not permit the defense, whose theory of the case was that someone other than defendant had committed the murder, to cross-examine Steven Sack regarding knife threats made toward people other than the victim. This court has permitted the admission of evidence tending to prove another's guilt in a murder case where the issue is whether the defendant did in fact commit the murder, but a proper foundation must first be laid. State v. Hawkins, 260 N.W.2d 150, 158-59 (Minn. 1977).
Where the desired cross-examination did not relate to incriminating acts by Sack against the victim and the only conceivable, rational foundation connecting the witness to the crime was his presence in the trailer court that night and his possession of a knife which was too large to have been the weapon used in the murder, the defense failed to provide the necessary foundation. The trial court did not err in refusing to permit the cross-examination regarding knife threats.
6. Finally, defendant claims the trial court erred in denying a new trial based on newly discovered evidence. This court reviews an appeal of a post conviction denial of a new trial under the abuse of discretion standard, examining the evidence in light of the test set out in Race v. State, 417 N.W.2d 264, 266 (1987) and noting that the burden is on the defendant to establish the facts by a preponderance of the evidence as required by Minn.Stat. 590.04, subd. 3 (1988).
Examining the evidence as a whole, the defense did not meet the test. True, three items of new evidence were presented: (1) hearsay testimony that Joshua, Armendariz's son, told his child therapist in February 1988, that another woman had been in the Armendariz trailer the night of the murder, (2) testimony by Wade Abraham that a year after the murder a woman had told him she had been in the Armendariz trailer the night of the murder and that she and named others had committed the murder, and (3) testimony by a witness who had picked Fenney up hitch-hiking at 9:30 a.m. the morning of the murder that Fenney spoke of the murder to him at that time which was prior to discovery of the body.
A reading of the transcript, however, confirms that the first two items were doubtful. Expert testimony revealed that Joshua's testimony was unreliable and contaminated. Wade Abraham's testimony was tainted by bias, his own doubts about its validity, and lack of corroboration. The third item supported the verdict against Fenney by showing that he knew of the murder even before the body was discovered by the authorities. The defense did not meet its burden that the evidence would probably produce an acquittal or a verdict more favorable to defendant. Thus, the trial court did not abuse its discretion in denying a new trial.
Affirmed.
NOTES
[1] This Court did implicitly accept the reliability of electrophoresis, however, in dicta in State v. Joon Kyu Kim, 398 N.W.2d 544, 547, 549 (Minn. 1987) (in a case of criminal sexual misconduct, holding inadmissible opinion testimony as to the probability that semen was the defendant's, but noting in dicta that testimony as to the basic theory underlying [electrophoretic] blood testing was admissible).
[2] Most enzymes are a specific type of protein that act as a catalyst. Most forensic work deals with enzymes.
| {
"pile_set_name": "FreeLaw"
} |
J-S17010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
QUADIR JEFFRIES,
Appellant No. 880 EDA 2016
Appeal from the Judgment of Sentence of February 17, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005829-2014
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
QUADIR JEFFRIES,
Appellant No. 1111 EDA 2016
Appeal from the Judgment of Sentence of February 17, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005830-2014
BEFORE: OLSON, STABILE AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 12, 2017
Appellant, Quadir Jeffries, appeals from the judgment of sentence
entered on February 17, 2016. We affirm.
J-S17010-17
Within the trial court’s thorough and well-written opinion to this Court,
the trial court summarized the underlying facts of the case. According to the
trial court:
In early January[] 2014, [R.M.] was working as a pizza
delivery driver. At some point in early January 2014, [R.M.]
was driving his vehicle when he noticed a woman, later
identified as Kimberly Cook, walking down the street near
54th Street and Lansdown Avenue in Philadelphia. [R.M.]
honked his horn at Cook and pulled over his vehicle to talk
with her, hoping to exchange phone numbers and meet with
her later. At this time, Cook identified herself as “Zah.” [fn.1]
While [R.M.] and Cook were talking and exchanging phone
numbers, Cook noticed that [R.M.] had an amount of U.S.
currency on the passenger side floor of his vehicle.
[fn.1] Cook was also identified as “Zamirah Johnson.”
After meeting [R.M.], Cook told her boyfriend, co-defendant
Hakim Blatch, about the meeting and asked Blatch to rob
[R.M.]. Blatch agreed and arranged to have co-defendants
[Appellant] and Alonzo Wallace aid in the robbery. The plan
was for Cook to accompany [R.M.] to his house, while
Blatch, Wallace, and [Appellant] followed in a separate car.
Cook would then open the door for Blatch, Wallace, and
[Appellant] to enter and rob [R.M.].
On January 18, 2014, Cook called [R.M.] under the false
pretense of meeting [R.M.] to have sex. Cook arranged to
have [R.M.] pick her up near 56th Street and Lansdown
Avenue later that evening. Cook, Blatch, Wallace, and
[Appellant] then headed to 56th Street and Lansdown
Avenue in [Appellant’s] car. Also with them was Cook’s
friend, Crystal Collins. Cook wished to have Collins present
with her, as Cook did not know [R.M.] and was nervous
about meeting him alone. Blatch, [Appellant], and Wallace
waited in [Appellant’s] car around the corner from where
[R.M.] was waiting while Cook and Collins exited the vehicle
and met with [R.M.].
-2-
J-S17010-17
[R.M.] arrived at the corner of 56th Street and Lansdown
Ave[nue] and waited for approximately 45 minutes before
Cook arrived, accompanied by Collins. [R.M.] had both
women get into his car and drove to his apartment on the
4200 block of North 7th Street in Philadelphia. While [R.M.]
was driving, Cook was texting Blatch, providing directions
as to where [R.M.] was driving and the address at which
they stopped.
Upon arriving at [R.M.’s] apartment, [R.M.], Cook, and
Collins went inside and had a conversation about sex. While
they were talking, Blatch, [Appellant], and Wallace arrived
at [R.M.’s] apartment, finding the outside door locked, and
Blatch texted Cook to tell her to open the door. At this
time, Cook asked if she could go outside to smoke a
cigarette, and [R.M.] gave her the keys to his car, telling
her that he had a lighter inside of it. Cook then went
downstairs and opened the door for [Appellant] and Wallace
to enter the building and directed them to [R.M.’s]
bedroom. [Appellant] and Wallace entered the building and
went upstairs while Cook went to the street corner,
throwing away [R.M.’s] keys, where she was later joined by
Collins. As Collins left the building, Blatch entered.
After letting Cook out of the apartment and watching her go
down the steps, [R.M.] closed his door, only to reopen it
and see men rushing up the steps. [R.M.] attempted to
close his door, but [Appellant] and Wallace kicked the door
in, forcing [R.M.] to the ground. While [R.M.] was on the
ground, [Appellant] and Wallace pistol whipped him with
handguns while demanding that [R.M.] tell them where the
money was, and threatening to shoot him. Blatch joined
[Appellant] and Wallace while they were beating [R.M.].
The assailants rummaged through [R.M.’s] room looking for
cash, and found a cookie tin with marijuana and cash. They
failed to find the large sum of cash that was in [R.M.’s]
pocket.
[M.S.], who lived in the apartment across from [R.M.],
heard the commotion and opened his door to see what was
happening. [M.S.] saw two men standing in [R.M.’s] broken
doorway. Wallace, noticing [M.S.] open the door, turned
towards [M.S.] and shot at him. Closing the door as
Wallace turned, [M.S.] ducked and was shot through the
-3-
J-S17010-17
door, with the bullet striking his left arm. Had [M.S.] not
ducked, the bullet would have struck [M.S.] in his heart. As
the three robbers left the apartment building, [Appellant]
fired a shot at a security camera inside the front door.
Hearing the assailants leave, [R.M.] checked on [M.S.] while
[M.S.] called the police. Police responded and were let into
the house by [R.M.]. [M.S.] and [R.M.] were transported to
Temple University Hospital for medical treatment.
Police recovered one [nine-millimeter] fired cartridge case
and one [40 caliber] fired cartridge case from the first floor
hallway of the home. Police also recovered the video tapes
of the home surveillance system that covered the front
entryway into the building. The inside camera appeared to
be damaged by a gunshot. After his release from the
hospital, [M.S.] found the [40 caliber] bullet that had struck
him in his room and gave that bullet to the landlord, who
turned it over to police.
Later [on the night of the shooting], Blatch, Cook, Collins,
Wallace, and [Appellant] all met at a speakeasy on Jackson
and Taney Streets. While the group was together, they
discussed Wallace shooting [M.S.] and [Appellant] shooting
out the camera. At this time, Blatch stated that Wallace
and [Appellant] had already pistol-whipped [R.M.] by the
time Blatch got upstairs. [Appellant] gave Collins some
money at the speakeasy while Blatch gave Cook some
marijuana.
Police provided the media with a copy of the surveillance
video, in an effort to get public help in identifying the
robbers. Deputy Sheriff Martin Samuels, who knew both
Blatch and [Appellant] from his time patrolling the area,
watched the video of the assault and identified Blatch and
[Appellant] as two of the perpetrators. Police also
conducted an analysis of the phone [R.M.] had used to
contact Cook, and from that, were able to identify Cook as a
suspect in the case. Police put Cook’s photo in a photo
array and showed it to [R.M.], who identified Cook as the
person he stopped on the street and who set him up for the
robbery.
-4-
J-S17010-17
[Appellant] was arrested on February 23, 2014. Police
made several efforts to locate Blatch and Cook in February
and March 2014, but were unable to locate them. Blatch
and Cook were arrested on June 4, 2014. Wallace was
arrested on June 11, 2014. After her arrest, Cook provided
a statement to police, detailing her involvement in the
robbery. Cook also identified Blatch, Wallace, and
[Appellant] to police. A cell phone tower analysis of the
location of Blatch’s cell phone on the night of the robbery
corroborated Cook’s statement to the police regarding the
events surrounding the robbery.
Trial Court Opinion, 5/27/16, at 2-7 (internal citations and some internal
footnotes omitted).
At docket number CP-51-CR-0005830-2014 (hereinafter “docket
number 5830”), the Commonwealth charged Appellant with a number of
crimes, including aggravated assault against R.M., robbery, and burglary. 1
At docket number CP-51-CR-0005829-2014 (hereinafter “docket number
5829”), the Commonwealth charged Appellant with crimes including
attempted murder against M.S., aggravated assault against M.S., criminal
conspiracy, and firearms not to be carried without a license.2 Following trial,
the jury found Appellant guilty of aggravated assault, robbery, and burglary
at docket number 5830 and aggravated assault, criminal conspiracy, and
firearms not to be carried without a license at docket number 5829. The
jury found Appellant not guilty of attempted murder at the latter docket
____________________________________________
1
18 Pa.C.S.A. §§ 2702(a)(1), 3701(a)(1)(ii), and 3502(a)(1), respectively.
2
18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 903, and 6106(a)(1), respectively.
-5-
J-S17010-17
number. On February 17, 2016, the trial court sentenced Appellant to serve
an aggregate term of 20 to 40 years in prison for the above convictions.
Appellant filed a timely notice of appeal at both docket numbers and
the trial court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). Within Appellant’s Rule 1925(b) statement, Appellant
listed the following, relevant claims:
1. The evidence was insufficient to support the verdict.
Thus a judgment of acquittal should be granted.
...
4. The trial court erred in permitting Commonwealth
eyewitness [R.M.] to testify; in that, prior to trial there was
no discovery passed to the defense indicating that [R.M.]
would be an identification witness who could identify
[Appellant] as the perpetrator. Further, prosecutorial
misconduct occurred in that the assistant district attorney
prior to trial repeatedly indicated that he was not calling
[R.M.] as an identification witness. Thus a new trial is
warranted.
Appellant’s Rule 1925(b) Statement, 5/9/16, at 1-2 (some internal
capitalization omitted).
Appellant raises two claims on appeal:
1. Whether the [trial] court should have granted a mistrial
when Appellant’s due process rights were violated by an in
court identification of Appellant when the Commonwealth
was aware that this witness could make an identification
and did not disclose this information in discovery?
2. Whether the evidence presented was insufficient to
support the verdict of guilt beyond a reasonable doubt?
-6-
J-S17010-17
Appellant’s Brief at 5.
First, Appellant claims that the trial court erred when it denied his
request for a mistrial after the victim, R.M., made an in-court identification
of Appellant as one of his assailants. This claim fails.
This Court has summarized our standard of review with respect to this
claim:
A motion for a mistrial is within the discretion of the trial
court. A mistrial upon motion by one of the parties is
required only when an incident is of such a nature that its
unavoidable effect is to deprive the appellant of a fair and
impartial trial. It is within the trial court's discretion to
determine whether a defendant was prejudiced by the
incident that is the basis of a motion for a mistrial. On
appeal, our standard of review is whether the trial court
abused that discretion.
An abuse of discretion is more than an error of judgment.
On appeal, the trial court will not be found to have abused
its discretion unless the record discloses that the judgment
exercised by the trial court was manifestly unreasonable, or
the result of partiality, prejudice, bias, or ill-will.
Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008)
(internal citations and quotations omitted).
The trial court fully explained why Appellant’s claim on appeal fails:
[Appellant claims that the trial court] “erred in permitting . .
. [the victim, R.M.,] to testify[] in that, prior to trial[,] there
was no discovery passed to the defense indicating that
[R.M.] would be an identification witness who could identify
[Appellant] as the perpetrator. Further, prosecutorial
misconduct occurred in that the assistant district attorney
prior to trial repeatedly indicated that he was not calling
[R.M.] as an identification witness.” This claim is without
merit.
-7-
J-S17010-17
First, [Appellant] never argued in the trial court that [R.M.]
should not have been permitted to testify due to a discovery
violation. [Appellant] moved for a mistrial on the ground
that [R.M.] made an in-court identification of [Appellant]
while the discovery led counsel to believe that [R.M.] was
unable to identify any of the assailants. Counsel also
objected to the in-court identification. At no time did
[Appellant] seek to strike [R.M.’s] testimony or bar [R.M.]
from testifying.
Assuming arguendo that [Appellant] intended to challenge
the [trial court’s] denial of his mistrial motion, his claim is
without merit. Pennsylvania courts have “consistently held
that where it has been determined that the confrontation
between the accused and the [accuser] is uncontrived, any
spontaneous identification is proper.” Commonwealth v.
Cullen, 489 A.2d 929, 938 (Pa. Super. 1985). At trial, the
following exchange took place between the Commonwealth
and [R.M.] during [R.M.’s] direct examination:
Commonwealth: Did you get a look at any of [the
assailants] as they were coming up your steps?
[R.M.]: The one that was in the front.
Commonwealth: The one in the front, can you describe
the one in the front?
[R.M.]: Yeah. He wearing glasses in back of you.
Commonwealth: I’m sorry?
[R.M.]: He wearing glasses.
Commonwealth: The defendant that’s wearing the
glasses?
[R.M.]: Yes.
Commonwealth: Indicating the defendant, [Appellant].
Commonwealth: [R.M.], I asked you for a description,
what makes you say that it was [Appellant]?
-8-
J-S17010-17
[R.M.]: Because he’s the only face I saw.
[N.T. Trial, 12/3/15,] at 222-223. This was the first time
[R.M.] had made an identification in this matter.
Previously, [R.M.] had said he did not have his glasses on at
the time, could hardly see the criminals, and could only say
that the lead assailant had a “small young face.” For that
reason, he had not been shown a photo array and had not
been asked to attend a lineup. The identification in court
was both spontaneous and unexpected, as the [trial] court
explicitly found when denying the mistrial motion.
Moreover, since there was no prior reason to believe that
[R.M.] would make an identification, [Appellant’s] claim that
the prosecutor committed misconduct by not disclosing that
an identification would be made is frivolous.
During the argument on the mistrial motion, [Appellant’s]
trial attorney acknowledged that he did not have any
evidence that the Commonwealth intentionally orchestrated
the surprise in-court identification. Nor was there any
reason to believe that any discoverable material of any kind
was withheld from the defense. In addition, [Appellant]
was given ample opportunity to cross-examine [R.M.]
concerning lack of pre-trial identification, and all of the
statements that he had made pretrial.
Accordingly, the record demonstrates that there was no
prosecutorial misconduct, no discovery violations, and no
basis for the grant of a mistrial. No relief is due.
Trial Court Opinion, 5/27/16, at 9-11 (internal bolding and some internal
citations, corrections, and capitalization omitted).
We agree with the trial court’s able analysis and conclude that the trial
court did not abuse its discretion when it denied Appellant’s request for a
mistrial.
Next, Appellant claims that the evidence was insufficient to support his
convictions. This claim is waived, as Appellant’s Rule 1925(b) statement did
-9-
J-S17010-17
not sufficiently identify the error that Appellant intended to challenge on
appeal.
As this Court has consistently held:
If Appellant wants to preserve a claim that the evidence was
insufficient, then the [Rule] 1925(b) statement needs to
specify the element or elements upon which the evidence
was insufficient. This Court can then analyze the element
or elements on appeal. [Where a Rule] 1925(b) statement
[] does not specify the allegedly unproven elements[,] . . .
the sufficiency issue is waived [on appeal].
Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008),
quoting Commonwealth v. Flores, 921 A.2d 517, 522-523 (Pa. Super.
2007).
In this case, Appellant’s Rule 1925(b) statement simply declared, in
boilerplate fashion, that the evidence was insufficient to support his
convictions. See Appellant’s Rule 1925(b) Statement, 5/9/16, at 1-2. The
statement thus failed to specify which of Appellant’s multiple convictions he
was challenging and failed to “specify the element or elements upon which
the evidence was insufficient” to support the unidentified conviction. We
must conclude that Appellant’s sufficiency of the evidence claim is waived on
appeal. Williams, 959 A.2d at 1257.
Further, it is of no moment that the Commonwealth failed to object to
the defect in Appellant’s Rule 1925(b) statement.3 As we have held:
____________________________________________
3
We note that the trial court could not ascertain the sufficiency of the
evidence claim (or claims) Appellant wished to raise on appeal; thus, the
(Footnote Continued Next Page)
- 10 -
J-S17010-17
The Commonwealth’s failure [to object to the defect in the
Rule 1925(b) statement] and the presence of a trial court
opinion are of no moment to our analysis because we apply
Pa.R.A.P. 1925(b) in a predictable, uniform fashion, not in a
selective manner dependent on an appellee’s argument or a
trial court’s choice to address an unpreserved claim.
[Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005)],
Commonwealth v. Butler, 812 A.2d 631, 634 (Pa. 2002).
Thus, we find 1925(b) waiver where appropriate despite the
lack of objection by an appellee and despite the presence of
a trial court opinion. Castillo, 888 A.2d at 779, 780;
Butler, 812 A.2d at 634.
Williams, 959 A.2d at 1257.
Appellant’s final claim on appeal is thus waived.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2017
_______________________
(Footnote Continued)
trial court considered Appellant’s sufficiency of the evidence claim to be
waived on appeal. See Trial Court Opinion, 5/27/16, at 7 (“[h]ere, the
[c]ourt was given no clue as to what claims [Appellant] intends to raise on
appeal regarding the sufficiency of the evidence to sustain any of the
charges of which he was convicted. Accordingly, [Appellant’s] sufficiency of
the evidence claims are waived”).
- 11 -
J-S17010-17
- 12 -
| {
"pile_set_name": "FreeLaw"
} |
211 So.2d 593 (1968)
Elizabeth Reiff BUSSEY, Appellant,
v.
Frances Ruth Bennett SHINGLETON and Nationwide Mutual Insurance Company, an Ohio Corporation, Appellees.
No. J-14.
District Court of Appeal of Florida. First District.
June 6, 1968.
Rehearing Denied July 9, 1968.
Leo L. Foster and Seymour H. Rowland, Jr., of Parker, Foster & Madigan, Tallahassee, for appellant.
Helen C. Ellis of Keen, O'Kelley & Spitz, Tallahassee, for appellees.
JOHNSON, Judge.
This is an appeal from a final order of the Circuit Court of Leon County, striking all those portions of the complaint joining Nationwide Mutual Insurance Company as a party defendant to this cause and dismissing said Nationwide as a party to the cause.
There was an automobile accident wherein the appellant, who was plaintiff below, alleged in her complaint, that she was stopped in her lane of traffic behind a long line of traffic when the appellee Shingleton, one of the defendants below, ran into the back of appellant's automobile, doing property damage and physical damage to the plaintiff. The merits and demerits of this phase of the complaint is not before us at this time, as the case had not been tried when this appeal was taken.
In the complaint, the appellant further alleged that at the time of the accident, Nationwide Mutual Insurance Company, named as a codefendant with Shingleton, the insured, "had in full force and effect a policy of liability insurance written to cover said automobile of the defendant, Frances Ruth Bennett Shingleton, the owner and operator thereof, for injuries and property damages received in a single accident." This was not an indemnity policy, but a liability policy and so stipulated by the parties.
*594 The complaint further alleged in substance that said insurance policy insured the defendant Shingleton against liability because of bodily injuries and property damages sustained and due to the operation of said automobile; that said policy was written in favor of third persons who might suffer damages by virtue of the operation of said automobile, and that by virtue thereof, at the moment the accident occurred, the insurance policy inured to the benefit of the plaintiff (appellant).
The trial court granted the motion of the defendant (appellee) Shingleton to strike those portions of the complaint which had the effect of making the appellee Nationwide Mutual Insurance Company a party defendant, and of its own motion dismissed Nationwide from the cause.
In granting said motion and entering its order dismissing Nationwide as a party defendant, the court pointed out that it was "rejecting the plaintiff's contention that F.R.C.P. Rule 1.210(a) Florida Rules of Court, 1967 [30 F.S.A.], permits joinder of the defendant's insurance carrier as a party in a negligence case arising out of an automobile accident."
It is from this order, this appeal is taken.
Plainly stated, the question before this court is whether or not F.R.C.P. Rule 1.210(a), permits the joinder of an insurer under a liability insurance policy, as a party defendant, along with the insured, in an action for damages from alleged negligent operation of the insured automobile by the insured owner?
The trial court answered this question in the negative.
We feel that this question poses one of great importance still, although it has heretofore been treated by this court, by one or more of our sister District Courts of Appeal and by our Supreme Court.
From the previous cases from the above courts, it would appear that the trial court was correct in its order dismissing the insurance company as a defendant; but we feel that a new look should be taken into this question because of events happening subsequent to the decisions mentioned above, and subsequent legislative enactments and apparent changes in public policy.
We now have in the Supreme Court's files, briefs of insurance companies in Florida Supreme Court Case #35,524, wherein the insurance companies admit they are the real party in interest in cases involving their respective insureds. This admission we have not had before when the courts considered this question as outlined below. Whether the defendant, Nationwide Mutual Insurance Company, is such a real party in interest in the case sub judice or not, appears to us to be a question of fact to be determined from evidence submitted to a jury, and if it appears that said defendant is a real party in interest, then said defendant is properly made a defendant within the terms of F.R.C.P. Rule 1.210 (a), and if not a real party in interest then said defendant's attorneys would be engaged in unauthorized practice of law as prohibited by the Canons of Legal Ethics.
Closely allied in this question is the question of the unauthorized practice of law as defined in the Canons of Ethics of the Florida Bar, and with particular references to "house counsel" of insurance companies and "salaried counsel" of insurance companies defending damage suits for insured patrons of the insurance companies.
We are immediately confronted with the earlier decisions in which it has been held that the plaintiff could not combine in one action a cause sounding in tort against one defendant with a cause sounding in contract against another defendant.[1]
We are also confronted with the holding that there is no privity between the insurance carrier and the third party damaged *595 by an insured,[2] but consider the admissions referred to supra in Supreme Court Case #35,524.
The theory has been advanced also, that to allow the inclusion of the insurance company as a defendant, or to even let it be known to the jury that the party defendant is insured, renders the same prejudicial to the rights of the defendant. (If the insurance company is obligated to pay any damage assessed against the insured, how, then is the insured hurt by such prejudice if in fact such does exist?)
This prejudice theory has been somewhat dispelled, however, by the results shown in Wisconsin, where by statute a direct action is allowed against the insurance company, by the fact that the jury verdicts tended to be lower where the insurance company was made a party.
Let's pause here and read Rule 1.210(a), F.R.C.P., as follows:
"(a) Parties Generally. Every action may be prosecuted in the name of the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another of a party expressly authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought. All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs and any person may be made a defendant who has or claims an interest adverse to the plaintiff. Any person may at any time be made a party if his presence is necessary or proper to a complete determination of the cause. Persons having a united interest may be joined on the same side as plaintiffs or defendant, and when any one refuses to join, he may for such reason be made a defendant."
We see in said rule the provision that "any person may be made a defendant who has or claims an interest adverse to the plaintiff."
In 1966, the Florida Bar petitioned the Supreme Court for an additional rule to the rules governing conduct of attorneys, being designated in said court as Case No. 35,524, referred to supra. This proposed rule would have precluded a lawyer who was employed by a lay agency, personal or corporate, [including liability insurance carriers] in the scope of his employment, from rendering legal services to or for persons other than his employer. Very able lawyers argued this matter before the Supreme Court and very persuasive briefs were filed in support of and against the Florida Bar's petition for the new rule. It is the admissions made by the eminent counsel in their briefs, opposing the adoption of the rule, which attract our attention as having a bearing upon the question involved in the case sub judice. We think these open admissions in and to the Supreme Court as to the "direct financial interest" of the insurer, and the fact that there is "an identity and community of interest in the defense of any suit brought against the insured," are sufficient to warrant not only this court, but the other courts of this state to re-examine this question in the light of these admissions. Is not the insurer the real party in interest? Who will bear the burden of judgment and the costs of defense? The very able attorney, Mr. Raymond Ehrlich, in his brief filed on behalf of Liberty Mutual Insurance Company, in the Supreme Court Case #35,524 supra, [which brief was adopted by reference in the brief filed by the appellant herein] alleges this to be a fact and that by reason thereof the insurer obviously needs the right to control the defense of a suit.
Admittedly, these statements so found in the briefs above mentioned, do not have the force of precedent law, but we do believe *596 them to be very persuasive of the fact that the insurer is the real party in interest, and "has or claims an interest adverse to the plaintiff," and certainly these briefs constitute an admissible type of evidence which should be heard by the jury.
Some states have now recognized the insurer as being a proper party for direct action. Insurance of automobiles has become a requirement by law in many states, and in fact most states today have either a mandatory requirement for insurance ab initio, or after a first accident, so that we do not feel that the old bugaboo of prejudice is applicable any more. Practically all juries know there is a strong probability of insurance and an able plaintiff's attorney has many legitimate ways of indirectly getting across to a jury that there is insurance.
If the insurer has such an interest in the case brought against his insured, that it is authorized to defend or settle with or without the consent of the insured, as in the case sub judice, whether there is such breach of contract as mentioned in Artille v. Davidson et al., 126 Fla. 219, 170 So. 707 (Fla. 1936), or not, is immaterial in the light of the language of Rule 1.210(a).
The insurance company, by the terms of its policy has placed itself in the position that it has the right to control litigation against its insured, if there is a possibility, no matter how slight, of said insurance company incurring any liability as a result of said litigation, and by the same contract of insurance has obligated itself to defend the litigation, no matter how frivolous. Therefore, if the insurance company by the very nature of its contract of insurance has injected itself into the litigation as a real party in interest, then it should not be heard to deny the right of the plaintiff to point this out in a complaint for damages against an insured where it is known that such insurance policy does in fact exist.
Some, if not all policies contain an express provision similar to that in the case sub judice, to the effect that "this policy shall not give any right to join the company in any action to determine the liability of an insured person of organization," but we do not feel that a party, corporate or otherwise, can by such provision preclude proper legal action being brought against it, if the facts warrant an action.
We may also take judicial cognizance that the insurance companies today seek out, and usually, retain as their legal representatives, some of the recognized better lawyers of the state and as a result thereof, often times the injured party, who may be indigent or at least in less fortunate financial circumstances than the insurance company, is compelled to accept lesser able counsel or agree to larger contingent fees for this representation; therefore, if the insurer is going to furnish the costs of the defense and furnish counsel of its choice, and be liable for any resulting assessment of damages, then how can we honestly say that the insurance company does not have such interest adverse to that of the plaintiff that the insurance company can be brought out into the open as a real party in interest?
We feel that today there is a difference in the insurance required, calling for a different view from that heretofore, held by our courts. We feel it is time that our courts adopt a construction of the Rule to conform to that which is necessary to see the carrying out of justice. We must remember, there is no statutory law prohibiting the making of the insurer a defendant. It is case law and we may by case law change the rule to mete out justice. Such liability policies, as the one in this case is admitted to be, in view of the mandatory statutorial requirements for liability insurance in minimum specified amounts, and the demand therefor by public policy, and the injection of the insurance company as an interested party, by the policy itself, we think should be construed as quasi-third party beneficiary contracts, thereby giving the injured third party an unquestionable right to join such maker of such insurance policy as a party defendant. This may be accomplished by legislative act, but can *597 be accomplished by what we believe to be a proper construction of Rule 1.210(a), F.R.C.P. to include as a party defendant just those whom the Rule says: "Any person who has or claims an interest adverse to the plaintiff." If the insurance company is defending in behalf of itself and its insured, then there can be no question that said insurance company has an interest in the law suit, nor can there be any question but that such interest is adverse to that of the plaintiff.
We have referred to certain portions of briefs filed in the Florida Supreme Court in Case No. 35,524 wherein it was pointed out that the attorneys representing and employed by the insurance company were not guilty of unauthorized practice of law, as prohibited by the Canons of Legal Ethics because said attorneys were defending the rights of their clients, insurance companies, who had a real interest therein. If this be true, and we think it is, then we are confronted face on with the language of the Rule. So, either the insurance company attorney is guilty of violating the Canons of Ethics (which we do not think to be so) or their real clients, the insurance companies, are real parties in interest and should properly be made parties defendant to the action.
In this case the trial court held that inasmuch as by granting the motion to strike of the defendant Shingleton as to those portions of the complaint making Nationwide a party defendant, he would of his own motion strike Nationwide's answer and motion for judgment on the pleadings, but that if the matter was properly before the court, the court would grant the plaintiff's motion to strike the first and second defenses of the defendant, Nationwide Mutual Insurance Company's answer.
The complaint alleged facts, which if true, and we think and so hold, made Nationwide a proper party defendant. These allegations raise a question of fact which we think requires the taking of evidence and testimony to sustain or refute.
Therefore, we hold that the trial court was in error in granting the motion to strike and in dismissing Nationwide Mutual Insurance Company as a party defendant and the order appealed from is Reversed and the case remanded with directions for further proceedings consistent herewith.
WIGGINTON, Chief Judge, and SPECTOR, J., concur.
NOTES
[1] Artille v. Davidson, et al., 126 Fla. 219, 170 So. 707 (Fla. 1936).
[2] 29A Am.Jur., Insurance § 1485 (1960) and Thompson v. Safeco Insurance Company of America, 199 So.2d 113 (Fla.App. 4th, 1967).
| {
"pile_set_name": "FreeLaw"
} |
249 P.3d 717 (2011)
2011 WY 59
James P. WUNSCH, Appellant (Plaintiff),
v.
Kelly M. PICKERING, f/k/a Kelly M. Wunsch, Appellee (Defendant).
No. S-10-0004.
Supreme Court of Wyoming.
April 12, 2011.
*718 Representing Appellant: Matthew Giacomini and Andrew Reid, Springer and Steinberg, PC, Denver, Colorado. Argument by Mr. Reid.
Representing Appellee: Lea Kuvinka, Kuvinka & Kuvinka, PC, Jackson, Wyoming.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
BURKE, Justice.
[¶ 1] In this post-divorce case between James Wunsch and Kelly Pickering, formerly known as Kelly Wunsch, the district court resolved a dispute between the parties concerning an amount of money Mr. Wunsch owed Ms. Pickering pursuant to the provisions of their divorce settlement agreement. Mr. Wunsch challenges the district court's decision. We will affirm.
*719 ISSUES
[¶ 2] Mr. Wunsch presents these issues:
1. Did the district court abuse its discretion by issuing an order compelling Mr. Wunsch to produce documents that were irrelevant or not in his possession, custody, or control?
2. After the district court entered default against Mr. Wunsch as a sanction for failing to produce the documents as ordered, did the district court err as a matter of law by restricting Mr. Wunsch's participation in the subsequent hearing on damages?
3. Was the evidence sufficient to support the trial court's award of damages?
FACTS
[¶ 3] Before their divorce in 2004, Mr. Wunsch and Ms. Pickering owned and operated a financial services business, helping to invest their clients' funds in a wide variety of financial products, including mutual funds, stocks, bonds, annuities, and life insurance. The two were affiliated with LPL Financial Corporation, a financial investment company. During the divorce, the couple entered into a property settlement agreement that was later approved by the district court and incorporated into the divorce decree. The agreement provided generally that Mr. Wunsch would continue operating most of the financial services, while Ms. Pickering would receive payments to compensate for her share of the former business. The agreement, referring to Mr. Wunsch as "JIM" and to Ms. Pickering as "KELLY," included this fee-splitting provision:
The parties will share equally any fees earned on joint client accounts.... If JIM replaces any of the above joint client accounts, JIM and KELLY will share equally the fees on the replaced account ... until such time as KELLY has received in fees an amount equal to two times the annual earnings on the amount replaced, based on the fee charged before the replacement. At such time, KELLY shall no longer receive any fees on the replaced account.
[¶ 4] Not long after the divorce, disputes developed between the parties about the interpretation and administration of this agreement. The disputes were mediated, and many of them settled. In this mediation, the parties agreed to appoint an accountant as Administrator to perform the accounting required under the settlement agreement. The mediation did not resolve the parties' disagreement about the meaning of the phrase "two times the annual earnings on the amount replaced." That dispute was ultimately resolved in Wunsch v. Pickering, 2008 WY 131, 195 P.3d 1032 (Wyo.2008).
[¶ 5] The Administrator developed a list of approximately 165 joint accounts held by the parties as of the date of divorce. As long as clients' funds remained in the parties' joint account, the accounting was relatively simple. The financial services company could split the fees, and send one half directly to Mr. Wunsch and one half directly to Ms. Pickering. Both parties had access to information about the accounts and the fees received. The Administrator could use this information to reconcile the accounts and, when some adjustment was necessary because of medical expenses for the children, for example, the Administrator would facilitate payments from one party to the other to balance the accounts.
[¶ 6] The accounting was more difficult when clients removed their funds from the parties' joint accounts. A client might take the funds and reinvest in another financial product offered by Mr. Wunsch, such as insurance or annuities. In their settlement agreement, the parties referred to this as a "replaced" account. For a replaced account, Mr. Wunsch would continue to receive fees, and under the agreement, Ms. Pickering remained entitled to half of those fees. Because a replaced account was held by Mr. Wunsch individually, however, Ms. Pickering did not have the same access to information about it, and the fees would not be paid directly to her. She and the Administrator had to rely on information provided by Mr. Wunsch to determine what amount Ms. Pickering should receive pursuant to the settlement agreement.
*720 [¶ 7] However, a client might instead remove funds from the parties' joint account and, for example, keep the cash or reinvest through a different financial services company unrelated to Mr. Wunsch. For a "non-replaced" or "closed" account such as this, Mr. Wunsch would no longer earn any fees. According to Mr. Wunsch, he would, in turn, not owe Ms. Pickering any fee split under the terms of the settlement agreement.
[¶ 8] As noted above, the Administrator originally listed approximately 165 joint accounts held by the parties. By the time the current dispute arose, the Administrator had listed approximately 50 of those as "inactive" accounts that were no longer held in the parties' joint accounts. A dispute developed concerning these inactive accounts. Ms. Pickering pointed out that, if the accounts had been replaced and Mr. Wunsch was still earning fees on them, then she was still owed half of those fees. Mr. Wunsch claimed, to the contrary, that these accounts had not been replaced and he owed Ms. Pickering no fees relating to these accounts. The Administrator could tell that the clients' funds had been removed from the parties' joint accounts, but did not have adequate information to tell if the accounts had been replaced. He continued to calculate the "projected amount" Ms. Pickering would be owed if these accounts had been replaced, but he could not determine whether Ms. Pickering was actually owed these amounts.
[¶ 9] In 2009, Mr. Wunsch filed a motion asking the district court to clarify what, if anything, he owed Ms. Pickering on certain accounts. Ms. Pickering filed a response asserting that Mr. Wunsch had replaced these accounts, but had breached the settlement agreement by failing "to disclose sufficient information to [allow her or the Administrator] to follow the replaced accounts." Based on this alleged breach, she asked the district court to order Mr. Wunsch to pay the entire projected amount. The district court set a hearing on these issues for May 8, 2009.
[¶ 10] On March 24, 2009, Ms. Pickering served discovery requests on Mr. Wunsch. These included requests for admissions, interrogatories, and requests for production of documents. Among the documents requested were those referring to or relating to the "inactive" accounts, the tax returns and forms for Mr. Wunsch individually and for Wunsch Financial Services, Inc., and the commission statements Mr. Wunsch had received since August of 2005. Mr. Wunsch's response, delivered on April 28, 2009, was generally to object to the production of these documents, stating that the requests were "irrelevant and not calculated to lead to the discovery of admissible evidence and ... propounded only to harass and intimidate." Ms. Pickering filed an "Expedited Motion to Compel" on April 29, 2009, arguing that the objections were both untimely and without merit. Responding to the motion to compel, Mr. Wunsch defended his objections, but further explained that he had requested information about the 50 inactive accounts from LPL. LPL did not respond until April 28, 2009, when it informed Mr. Wunsch that it could not provide the requested information without a court order. Mr. Wunsch had obtained the court order and sent it to LPL, but had not yet received the documents.
[¶ 11] The district court held a brief hearing on the motion to compel on May 4, 2009. Both sides presented argument, with Ms. Pickering contending that she needed the requested documents in order to present her case at the May 8 hearing, and Mr. Wunsch contending that the documents were irrelevant, unnecessary, and unavailable. Mr. Wunsch also indicated that the documents requested from LPL should be delivered soon, and near the end of this hearing, the parties suggested that they could meet on the evening of May 7, just prior to the hearing, and attempt to work out their differences. Encouraging the parties to meet as scheduled, the district court took the motion to compel under advisement.
[¶ 12] The record does not explicitly reflect the parties' meeting on May 7, but their comments at the May 8 hearing suggest that they had met. They indicated that some documents had been received from LPL and delivered to Ms. Pickering. Based on information from the LPL documents, Mr. Wunsch had prepared a summary of the 50 inactive accounts, indicating the date the funds had been transferred from the joint *721 account, the amount transferred, and to whom the funds were paid. When Mr. Wunsch attempted to introduce this summary as a hearing exhibit, Ms. Pickering objected to the lack of foundation, stating that "this is exactly the type of material which we were not allowed discovery on." She argued that the underlying information had been compiled by an LPL employee who was not present to testify or be cross-examined, using documents that were not identified or produced. She objected that the exhibit was only a summary, and because it lacked any foundation or "backup material" to support it, it was inadmissible. Emphasizing that the backup materials were the same documents Mr. Wunsch had failed to produce in response to her discovery requests, Ms. Pickering offered a continuing objection to the summary document.
[¶ 13] Although the district court neither admitted nor excluded the disputed document, the hearing continued, with both parties questioning the Administrator. The district court then announced a short recess. Following the recess, the parties informed the court that they had "reached some agreements" about certain interim payments Mr. Wunsch would make to Ms. Pickering. They also informed the court that the parties "may still have discovery problems," but "could perhaps resolve them ... in time for another hearing." The district court agreed to continue the hearing, and scheduled the next round for September 30, 2009.
[¶ 14] Efforts to resolve the discovery dispute were apparently fruitless, as the next document in the record is Ms. Pickering's "Renewed Expedited Motion to Compel," filed September 2, 2009. This motion stated that Ms. Pickering had served additional discovery requests on July 29, 2009, and that Mr. Wunsch had responded on August 25, 2009. He objected to nearly every request as "overbroad, unduly burdensome and time consuming, irrelevant, not calculated to lead to the discovery of admissible evidence, [and] propounded only to harass and intimidate [Mr. Wunsch]." To the request for his commission statements, Mr. Wunsch also objected that the request sought "confidential, proprietary and privileged information," and claimed that he did not "have any of this information, he is not required to maintain this information and he no longer has access to the LPL system to obtain the information." In her renewed motion to compel, Ms. Pickering presented arguments similar to those made regarding the previous motion to compel. Mr. Wunsch's response likewise presented arguments similar to those previously employed.
[¶ 15] On September 17, 2009, the district court issued an order granting Ms. Pickering's renewed expedited motion to compel. Without further explanation, the district court concluded that Ms. Pickering's discovery requests were "proper and necessary." It ordered Mr. Wunsch to "make full and complete responses to the discovery served on him on July 29, 2009," and to serve the responses "no later than September 25, 2009."
[¶ 16] Mr. Wunsch provided a response by the court's deadline, but Ms. Pickering remained unsatisfied with the production. On September 28, 2009, she filed an "Expedited Motion for Sanctions; Motion for Entry of Default Judgment, Attorney's Fees and Costs," asserting that Mr. Wunsch's responses to her discovery request and the court's order remained deficient. She asserted that sanctions were appropriate, and suggested that default should be entered against Mr. Wunsch.
[¶ 17] The district court convened the hearing as scheduled on September 30, 2009, and proceeded to consider Ms. Pickering's motion for sanctions. Ms. Pickering reasserted that Mr. Wunsch's failure to provide the requested documents left her unable to make her case that the 50 inactive accounts had been replaced. Mr. Wunsch asserted that he had provided adequate responses to the discovery requests, in compliance with both the Wyoming Rules of Civil Procedure and the district court's order to compel. After taking a brief recess, the district court granted Ms. Pickering's motion for sanctions"I feel I have no other choice"and stated that a default would be entered against Mr. Wunsch. The district court then heard the parties' evidence and arguments concerning the amount of damages that *722 should be awarded. Ms. Pickering asserted that she should receive over $195,000, which included the amount calculated by the Administrator as the projected amount she was entitled to if all of the 50 inactive accounts had been replaced by Mr. Wunsch. After considering the parties' positions, the district court awarded damages in the amount requested by Ms. Pickering.
[¶ 18] Mr. Wunsch appealed from two of the district court's rulings in this matter. He challenges the grant of Ms. Pickering's motion to compel discovery, and he appeals the district court's award of damages on the bases that he was not allowed to participate fully in the damages hearing, and that there was insufficient evidence to support the district court's award. He has not appealed the entry of default.
DISCUSSION
1. Did the district court abuse its discretion by issuing an order compelling Mr. Wunsch to produce documents that were irrelevant or not in his possession, custody, or control?
[¶ 19] We review a district court's decision to compel production for abuse of discretion. Inskeep v. Inskeep, 752 P.2d 434, 436 (Wyo.1988). When we review for abuse of discretion, the ultimate issue is whether the district court could reasonably conclude as it did. Lieberman v. Mossbrook, 2009 WY 65, ¶ 64, 208 P.3d 1296, 1314 (Wyo.2009).
[¶ 20] Mr. Wunsch first asserts that the motion to compel should not have been granted because the documents Ms. Pickering requested through discovery were not relevant. The argument lacks merit. The documents requested by Ms. Pickering were plainly relevant to her claim that Mr. Wunsch had replaced certain joint accounts, and owed her fees on those accounts in accordance with the settlement agreement reached in the divorce.
[¶ 21] In her Renewed Expedited Motion to Compel, Ms. Pickering explained the relevance of the information she had requested about Mr. Wunsch's representative identification numbers:
In past and recent discovery, [Ms. Pickering] requested documentation on all rep ID numbers held by [Mr. Wunsch] individually, with others, or by his corporation. All commissions are paid through a registration known as a "rep ID" number. While the mediation agreement requires [Mr. Wunsch] to turn over commission statements, [he] can have other rep ID numbers with others, such as partners, and can have an unlimited amount of shared rep ID numbers. He would also receive another rep ID number when he changes affiliations, such as he recently did [by leaving LPL and becoming associated with another financial institution].
[Mr. Wunsch] has objected to producing this information twice. [Ms. Pickering] is only interested in tracking whether any of the joint accounts on which she is owed are still being held by [Mr. Wunsch].
[Ms. Pickering] requested production to ensure that accounts which she is to be paid on, and is not being paid on, are not generating income to which she is entitled through another rep ID number [that] is being paid to [Mr. Wunsch] alone.... [Ms. Pickering] is entitled to documentation on other rep ID numbers to ensure that commissions to which she is entitled are not making an end-run around the Administrator and being paid [to Mr. Wunsch] through another rep ID number.
She also explained why she sought to discover Mr. Wunsch's commission statements:
In addition to the rep ID tracking, commission statements are necessary for several reasons:
First, [Ms. Pickering] must establish which commissions she is or is not entitled to share in. [She] agrees that she is not entitled to accounts which [Mr. Wunsch] obtained after the divorce. In order to establish what commissions are from accounts in the accounting which should be shared vs. which commissions [she] does not share in, commission statements are necessary.
Second, commission statements will track not only investment account commissions, but also other replacement products covered by the divorce settlement. An example *723 of replacement products which are not investment accounts would be life insurance policies and a variety of other financial products.... In instances where the replacement is made [into Mr. Wunsch's] individual rep ID or an undisclosed rep ID because the account was moved with the consent of the client, [Ms. Pickering] is not privy to commission information unless [it is] produced as requested.
Finally, with respect to her request for tax information, Ms. Pickering provided this explanation to the district court:
[Ms. Pickering] has requested documents which should track with other materials with regard to commissions in order to assure there are no discrepancies. With tax returns, commission income is shown and 1099's will be received. These will cover all of [Mr. Wunsch's] income sources. The purpose of this request is not to make a claim against commissions in which [Ms. Pickering] should not share, but to reconcile the information [to] assure that [she] is receiving what she is entitled to. If, for instance, a 1099 is received from an insurance company commission, then [Ms. Pickering] can inquire whether that was for a joint account or not. She can match this with commission statements [and] eliminate commissions to which she is not entitled. If [Mr. Wunsch] is not required to produce this information, he can, without question, withhold [Ms. Pickering's] share of commissions.
[¶ 22] Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." W.R.E. 401. If the information sought by Ms. Pickering indicated that clients formerly invested in the parties' joint accounts had moved those investments through Mr. Wunsch's individual account, that would tend to make it more probable that those joint accounts had been replaced. To the extent the information related only to Mr. Wunsch's individual clients, that would tend to make it less probable that those accounts had been replaced. The district court could reasonably determine that the documents sought by Ms. Pickering were relevant. "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of the party seeking discovery." W.R.C.P. 26(b)(1). The district court did not abuse its discretion in granting the order to compel the production of these documents.
[¶ 23] The fact that Mr. Wunsch had produced some documents subpoenaed from LPL did not obviate the need for the additional documents requested by Ms. Pickering. Those documents indicated dates on which the joint accounts had been closed, the amount of funds in those accounts, and to whom the funds were paid. But as Ms. Pickering points out, if an account was closed and a check sent to the client, the client could still have used the money to purchase other financial products from Mr. Wunsch. Ms. Pickering adequately explained to the district court why the information from LPL was insufficient by itself, and why the additional documents she had requested were needed to develop her case.
[¶ 24] Mr. Wunsch's objection that the documents were not in his possession, custody, or control is unsupported by facts in the record. Mr. Wunsch never represented that the "rep ID numbers" were unavailable to him. With regard to the commission statements, he initially asserted that they were sent to him only in electronic format, and had all been deleted, and were therefore not in his possession. However, at the hearing held on September 30, 2009, Mr. Wunsch's counsel explained that "the commission statements from LPL, you know, I suppose we could try and get those from LPL, but he does not have them and they are not in his care, custody or control." This amounts to an admission of the seemingly obvious fact that, whether or not Mr. Wunsch had the commission statements in hand, he could have obtained copies from LPL.
[¶ 25] Later, during the same hearing, counsel for Mr. Wunsch told the district court, "Hopefully we can get the LPL commission statements that he did not have in his possession or available to him or on his computer." The district court pointedly asked,
*724 Where was all this stuff, [Counsel], this summer? I mean here we are you say you're going to get these things and so we're looking at maybe setting aside another day or half day [for another hearing]. But why aren't these thingsyou say you can get them or they're on their way why don't we have them now?
Counsel responded:
Because they were not requested by Mr. Wunsch and ... he did not understand that if he could ask for it and receive it then that would be in his control, he believed it was that if he had it in his possession or on his computer[,] that was what he had to produce.
Mr. Wunsch claims on appeal that the district court erred by ordering him to produce the commission statements because they were outside of his possession, custody, or control. We reject this claim not just because it lacks factual support in the record, but further, because it is contradicted by the facts of record.
[¶ 26] As to the tax records, it appears that Mr. Wunsch did produce all of the requested information except for the tax returns and 1099 Forms for 2008. Mr. Wunsch repeatedly represented that the 2008 tax returns were still being prepared, and so were not yet in existence. He asserted that his 1099 Forms for 2008 were unavailable for the same reason. From a practical standpoint, the assertion that the 1099 Forms for 2008 were still unavailable as of September 30, 2009, seems untenable. Although the district court did not specify this as one of the reasons for ordering these tax forms to be produced, it would not have been unreasonable to reject this assertion for lack of credibility. Moreover, in the hearing held on September 30, 2009, Mr. Wunsch's counsel stated that "The 1099 for 2008 has been ordered and should be here," another admission that the document was not beyond Mr. Wunsch's control.
[¶ 27] If the 2008 tax returns were the only documents at issue, we might agree with Mr. Wunsch that the district court erred in compelling production. However, as discussed above, Mr. Wunsch had failed to disclose his "rep ID numbers," his commission statements, and his 1099 forms for 2008. His assertion that all of these documents were beyond his possession, control, and custody, is unpersuasive.
[¶ 28] For these reasons, and after careful review of the record on appeal, we cannot say it was unreasonable for the district court to conclude that the documents requested by Ms. Pickering through discovery were relevant and within Mr. Wunsch's possession, custody, or control. It was not an abuse of discretion to issue an order compelling Mr. Wunsch to produce the disputed documents.
2. After the district court entered default against Mr. Wunsch as a sanction for failing to produce the documents as ordered, did the district court err as a matter of law by restricting Mr. Wunsch's participation in the subsequent hearing on damages?
[¶ 29] We note again that Mr. Wunsch has not appealed the district court's entry of default against him as a sanction for violation of its discovery order. However, we have previously recognized that an entry of default, establishing liability, is separate and distinct matter from a default judgment establishing the amount of damages. Spitzer v. Spitzer, 777 P.2d 587, 592 (Wyo.1989). Accordingly, while we cannot review the entry of default at this point, we may consider Mr. Wunsch's issues relating to the default judgment.
[¶ 30] Mr. Wunsch concedes that the district court's entry of default as a discovery sanction under W.R.C.P. 37 and 55 established that he was liable on Ms. Pickering's claims. Following the entry of default, he was no longer entitled to contest, or present evidence relating to, the issue of liability. But, he argues, he was still entitled to present evidence on the issue of damages:
An entry of default goes solely to liability and is, by definition, not a result of any trial on the merits.... In contrast, a default judgment is a ruling on the merits on the issue of damages. It is a wholly separate proceeding from the entry of default and, where damages are unliquidated, requires a sufficient showing of damages to *725 support a trial court's award. As a separate proceeding on the merits, a party who may have been foreclosed from a defense on the merits as a sanction for discovery non-compliance has the right to litigate damages, to fully participate and submit evidence in the evidentiary proceeding on unliquidated damages.
(Internal citations and emphasis omitted.) We agree that Mr. Wunsch's argument is consistent with our precedent. See, e.g., McGarvin-Moberly Construction Co. v. Welden, 897 P.2d 1310, 1315 (Wyo.1995) ("[I]n the assessment of damages following entry of default, a defaulting defendant has the right to participate in the proceedings and introduce affirmative evidence on its own behalf in mitigation of damages.").
[¶ 31] Mr. Wunsch claims that, during the hearing held on damages, the district court denied his right to participate in the proceedings by improperly prohibiting him from presenting evidence relating to the damages he owed Ms. Pickering. He asserts that the district court erred as a matter of law in restricting his participation in the hearing, and because this raises a question of law, it must be reviewed de novo. However, the record reflects that Mr. Wunsch was afforded an opportunity to participate in the damages hearing, and that he did participate. The real basis of his complaint is that the district court excluded most of the evidence he sought to introduce at that hearing. We therefore agree with Ms. Pickering that this is more properly cast as an evidentiary issue. We review a district court's rulings on the admission or exclusion of evidence for abuse of discretion. Cramer v. Powder River Coal, LLC, 2009 WY 45, ¶ 22, 204 P.3d 974, 981 (Wyo.2009).
[¶ 32] As the basis for his argument that he was improperly restricted from participating in the damages hearing, Mr. Wunsch asserts that Ms. Pickering was "permitted to testify at length as to her speculation that each of the [50 inactive] accounts had been replaced by Mr. Wunsch." In contrast, as he explains it, "Mr. Wunsch attempted to respond that he had not replaced those accounts and had, therefore, received no unreported income from them," but the district court "repeatedly sustained Ms. Pickering's objections to such evidence and ruled that the discovery sanction also foreclosed Mr. Wunsch from presenting such evidence."
[¶ 33] Mr. Wunsch's argument rests on a misconception about the effect of the district court's entry of default against him. Through her discovery requests, Ms. Pickering sought documents from which she could find evidence indicating which of the 50 inactive accounts had been replaced and which had not. Mr. Wunsch did not produce the requested documents. When the district court entered default against him, it was as a sanction for failing to provide the documents with which Ms. Pickering could prove which accounts had been replaced. The default, therefore, served to prohibit Mr. Wunsch from contesting that the accounts had been replaced.
[¶ 34] Because the effect of the entry of default was to establish that the disputed accounts had been replaced, evidence offered by Mr. Wunsch to show that the accounts had not been replaced was irrelevant. This example from the hearing is illustrative of the many relevancy objections sustained by the district court:
Q. [by counsel for Mr. Wunsch] Mr. Wunsch, on Exhibit EE, [Ms. Pickering's] calculation of damages here of a $195,000 penalty, whatthat assumes that all the accounts were replaced by you; is that right?
A. It does.
Q. And that all the accounts were somehow purchased by you?
A. It assumes that if every account was replaced by me that that is what I would owe [Ms. Pickering].
Q. And that every account on that list you somehow received compensation for?
A. That is what it assumes.
Q. And of ... So of these approximately 165 accounts in Exhibit EE how many of those did you actually transfer?
[by counsel for Ms. Pickering] I'm going to object, it's irrelevant. You've already ruled on the transfer issue and so you can't get intoit's irrelevant at this point.
*726 THE COURT: And I'm going to sustain that.
Because the entry of default decided the issue of whether the accounts had been replaced, and decided it against Mr. Wunsch, any evidence suggesting that the accounts had not been replaced was irrelevant, and the district court did not err in excluding it.
3. Was the evidence sufficient to support the trial court's award of damages?
[¶ 35] Mr. Wunsch correctly contends that, following the entry of default against him, Ms. Pickering still had the burden of proving her damages. Spitzer, 777 P.2d at 593. He asserts that Ms. Pickering failed to meet that burden because she "was unable to provide any evidence at all, other than her bare suspicions and speculations, that the 51 `inactive' joint client accounts that were the basis for her damages had ever generated any fees or income from which she could claim a share under paragraph 22A of the Settlement Agreement." When we are asked to consider whether the evidence was sufficient to sustain a damages award, we
assume that the evidence of the prevailing party is true. We give this evidence every favorable inference and leave out of consideration any conflicting evidence of the other party. The trial court's findings are presumed to be correct and will not be disturbed absent a showing that they are clearly erroneous, inconsistent, or contrary to the great weight of the evidence.
Examination Mgmt. Servs. v. Kirschbaum, 927 P.2d 686, 698 (Wyo.1996) (internal citation omitted).
[¶ 36] As with the previous issue, Mr. Wunsch's argument is based on a misconception of the effect of the entry of default against him. It amounted to a ruling that the inactive accounts had all been replaced by Mr. Wunsch. Ms. Pickering was no longer required to prove that any of the accounts had been replaced. She had to prove what her damages were if all the accounts had been replaced.
[¶ 37] Mr. Wunsch recognized, as shown in the quotation above from the damages hearing, that Ms. Pickering's "calculation of damages here of a $195,000 penalty, what that assumes that all the accounts were replaced." This calculation was done by the Administrator for the purpose of establishing the "projected amount" Ms. Pickering would be owed if the accounts were all replaced. After the district court entered default establishing, in effect, that all the accounts were replaced, this evidence was sufficient to prove Ms. Pickering's damages.
[¶ 38] Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 00-7181
ALLEN W. CRAWFORD,
Petitioner - Appellant,
versus
RICK JACKSON,
Respondent - Appellee.
Appeal from the United States District Court for the Western Dis-
trict of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CA-99-283-MU)
Submitted: May 17, 2001 Decided: May 22, 2001
Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Allen W. Crawford, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Allen W. Crawford seeks to appeal the district court’s order
denying his 28 U.S.C.A. § 2254 (West 1994 & Supp. 2000) petition as
untimely. We dismiss the appeal for lack of jurisdiction because
Crawford’s notice of appeal was not timely filed.
Parties are accorded thirty days after the entry of the dis-
trict court’s final judgment or order to note an appeal, see Fed.
R. App. P. 4(a)(1), unless the district court extends the appeal
period under Fed. R. App. P. 4(a)(5) or reopens the appeal period
under Fed. R. App. P. 4(a)(6). This appeal period is “mandatory
and jurisdictional.” Browder v. Director, Dep’t of Corrections,
434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361
U.S. 220, 229 (1960)).
The district court’s order was entered on the docket on August
12, 1999. Crawford’s notice of appeal was filed on November 24,
1999.* Because Crawford failed to file a timely notice of appeal
or to obtain an extension or reopening of the appeal period, we
deny leave to proceed in forma pauperis, deny a certificate of
appealability, and dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately
*
For the purpose of this appeal we assume that the date ap-
pearing on the notice of appeal is the earliest date it could have
been given to prison officials for mailing. See Fed. R. App. P.
4(c); Houston v. Lack, 487 U.S. 266 (1988).
2
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
3
| {
"pile_set_name": "FreeLaw"
} |
615 F.2d 1354
Piercev.Katz
No. 79-2186
United States Court of Appeals, Third Circuit
2/20/80
1
D.N.J.
DISMISSED
| {
"pile_set_name": "FreeLaw"
} |
537 U.S. 1030
CURREY ET AL.v.CITY OF DALLAS, TEXAS.
No. 02-505.
Supreme Court of United States.
November 18, 2002.
1
CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FIFTH DISTRICT.
2
Ct. App. Tex., 5th Dist. Certiorari denied.
| {
"pile_set_name": "FreeLaw"
} |
659 F.2d 251
212 U.S.App.D.C. 205
CBS, Inc.v.Copyright Royalty Tribunal
81-1002, 81-1129
UNITED STATES COURT OF APPEALS District of Columbia Circuit
6/23/81
Copyright Royalty Tribunal
REVERSED AND REMANDED
| {
"pile_set_name": "FreeLaw"
} |
506 F.2d 1115
UNITED STATES ex rel. Lois SERO et al., Petitioners-Appellees,v.Peter PREISER et al., Respondents-appellants.
No. 299, Docket 74-1944.
United States Court of Appeals, Second Circuit.
Argued Oct. 11, 1974.Decided Nov. 6, 1974, Certiorari Denied April 14, 1975, See95 S.Ct. 1587.
Ralph L. McMurry, New York City, (Louis J. Lefkowitz, Atty. Gen., on the brief, Samuel A. Hirshowitz, New York City, of counsel), for respondents-appellants.
Herman Schwartz, Amherst, N.Y. (Edward I. Koren, Amherst, N.Y., Elizabeth B. DuBois, Michael E. Smith, New York City, on the brief), for petitioners-appellees.
Before KAUFMAN, Chief Judge, and SMITH and TIMBERS, Circuit Judges.
IRVING R. KAUFMAN, Chief Judge:
1
This class action presents important procedural questions regarding the present scope of what once was termed 'the most celebrated writ in the English law.' Blackstone, Commentaries, Bk. III, 129. It also calls upon us to decide the more pressing human problem of the proper treatment to be afforded young adults sentenced under a New York statute, subsequently repealed, to four year reformatory terms after conviction for misdemeanors for which adults receive maximum terms of one year or less. The district court, after five opinions and more than two years of litigation, granted writs of habeas corpus ordering release or resentencing of all those serving reformatory sentences under New York Penal Law Article 75. For the reasons elaborated below, we affirm in part, and remand in part.
I.
2
Until very recently, New York provided a special sentence of imprisonment for most young adults, aged 16 to 21, regardless of the nature of the crimes they had committed. These youths would be given terms of unspecified duration, to terminate either upon discharge on parole, or after service of four years of confinement. N.Y. Penal Law, McKinney's Consol. Laws, c. 40, 75.00, 75.10 (McKinney 1967). Sentences were to be served in youth rehabilitation facilities (reformatories), which the Correction Law distinguished from state prisons. N.Y. Correction Law, McKinney's Consol. Laws, c. 43, 314 (McKinney 1968). See also id. 315. The purpose of this reformatory sentence was 'to provide education, moral guidance and vocational training for young offenders,' and to achieve this end the Department of Correction and the State Board of Parole employed special resources. Reformatories had special schools and shops, and parole officers working with young adult offenders had specialized caseloads. Thus, although the maximum terms that could be imposed upon adults for class A and class B misdemeanors were one year and three months respectively, N.Y. Penal Law 70.15 (McKinney 1967), the special four year reformatory sentence was thought to be justified as a means to effect the unique rehabilitative goals envisioned for young adults. Practice Commentary to N.Y. Penal Law 75.10 (McKinney 1967).
3
In 1970, the Correction Law was amended to abolish the distinction between reformatories and prisons. All institutions became correctional facilities, 'used for the purpose of providing places of confinement and programs of treatment for persons in the custody of the department.' N.Y. Correction Law Article 4 (70(2)) (McKinney Supp. 1974-75), replacing, inter alia, N.Y. Correction Law Articles 3-A, 3-B, 4, 5, 12A (McKinney 1968). Thereafter, inmates serving reformatory sentences as well as other prisoners could be assigned to any of New York's correctional facilities, where the two groups would work, sleep, eat, and spend recreation time together. The statutory scheme no longer provided young adults with educational or vocational training different from that offered adult prisoners; those serving reformatory sentences also became subject to the same regulations and disciplinary sanctions as older inmates. The commendable goal was to afford young adult offenders, and indeed all prisoners, treatment in accordance with the rehabilitative aims of the New York Correction Law, see N.Y. Correction Law 70(2); (McKinney Supp. 1974-75); 7 N.Y.C.R.R. 250.2(a) (1970).
4
After the 1970 reform of the Correction Law, Lois Sero, Vanessa Carney, and Rita Varner, inmates of the Bedford Hills Correctional Facility, began this action under the Civil Rights Act, 42 U.S.C. 1983 (1970), requesting the convening of a three-judge court, permission to proceed as a class action, and a declaratory judgment that the four year reformatory sentencing scheme, N.Y. Penal Law 75.00, 75.10, was unconstitutional.1 They claimed that the challenged sections violated the equal protection clause of the Fourteenth Amendment by authorizing a term of confinement for reformatory-sentenced misdemeanants which was substantially longer than that provided for adults by N.Y. Penal Law 70.15, since unique rehabilitative treatment was no longer provided to young adult inmates. The district court allowed the action to proceed on behalf of the class of reformatory-sentenced misdemeanants, Sero v. Oswald, 351 F.Supp. 522 (S.D.N.Y.1972), and directed that the issue be submitted to a three-judge court, Sero v. Oswald, 355 F.Supp. 1231 (S.D.N.Y.1973). After extensive discovery and argument of the case before the three-judge court, however, the Supreme Court decided, in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), that a challenge to the fact or duration of confinement could not be brought under 1983. Accordingly, the three-judge court was dissolved, and the case was remanded to Judge Lasker for disposition as a petition for habeas corpus. The district judge allowed the case to continue as a class action, United States ex rel. Sero v. Preiser, 372 F.Supp. 660 (S.D.N.Y.1974).2
5
Shortly after the petitioning class had moved for summary judgment, the four-year reformatory sentence provisions of N.Y. Penal Law Article 75 were prospectively repealed, N.Y. Laws 1974, ch. 652, 7. The bill calling for repeal was sponsored and drafted by the Department of Corrections. A memorandum submitted by Deputy Commissioner William C. Donnino to the State Assembly explained its purpose:
6
This bill is a logical culmination of the restructuring of the State correctional system which was commenced by the legislature in 1970 when it created the Department of Correctional Services and abolished the distinction between reformatories and State prisons.
7
As provided by the 1970 legislation, Article 4 of the Correction Law mandates that every institution operated by the Department of Correctional Services for the confinement of inmates . . . shall be a correctional facility maintained for the purpose of providing places of confinement and treatment with the objective of assisting inmates to live as law abiding citizens. Correctional facilities are classified by functions, such as residential treatment facilities, general confinement facilities and work release facilities. Individuals, regardless of the type of sentence they are serving, are confined in institutions best suited to their needs. For purposes of confinement, treatment, education and vocational training, persons serving reformatory or indeterminate sentences are treated in accordance with rehabilitative goals rather than the type of sentence they are serving. Since reformatories as well as the special purposes they historically served no longer exist, there is no longer a need for reformatory sentences.
8
Moreover, the sentence is unfair in that it treats young adults . . . more harshly than adults.
9
This memorandum was submitted on the motion for summary judgment, and upon this and other grounds, Judge Lasker granted writs of habeas corpus to the class. United States ex rel. Sero v. Preiser, 377 F.Supp. 463 (S.D.N.Y.1974).3 He found that, although longer sentences could, under some circumstances, be imposed on young offenders without violating the Constitution, New York's extended detention of the petitioning class ran afoul of the equal protection clause. He reasoned that since the treatment received by young adults, as well as all other conditions of custody, were the same as those afforded adult misdemeanants, any basis for longer periods of incarceration had disappeared. Thus, the court ordered the unconditional discharge of those who had already served adult-length terms, and provided for resentencing within thirty days of those who had not.4 Thereafter, this court denied a stay of the order of release but granted the respondents' motion for an expedited appeal. We required, however, that those discharged report their addresses monthly to the releasing institution or parole office. By September 3, 1974, more than 500 members of the class had either been freed from correctional facilities or parole, or were in the process of being resentenced.
II.
10
Although this case presents a number of difficult procedural problems, resolution of several of those questions will be assisted by a more exact understanding of the nature of the petitioners' substantive claim. Consequently we shall turn directly to the merits of the constitutional issue. The circumstances upon which the class relies in charging a denial of equal protection are relatively uncomplicated. Although the four-year reformatory sentence provisions of New York Penal Law Article 75 were prospectively repealed this year, each member of the class was sentenced under that Article to a term substantially in excess of the adult penalty for the same misdemeanor. And while prior to the 1970 reform of the Correction Law these extended sentences would have been served in reformatories, the petitioners claim that the treatment they now receive, as well as all other conditions of their custody, are identical to those afforded adult misdemeanants. It is the combination of these two factors to which they point as a deprivation of their fourteenth amendment rights.
11
We state preliminarily that neither of the conditions relied upon, considered separately, would entitle the class to the relief it seeks. The claim that longer periods of confinement may not constitutionally be imposed on young offenders has been frequently raised under the parallel provision of the Federal Youth Corrections Act, 18 U.S.C. 5010 (1970), and uniformly rejected. See, e.g., Caldwell v. United States, 435 F.2d 1079 (10th Cir. 1970); Abernathy v. United States, 418 F.2d 288 (5th Cir. 1969); United States v. Rehfield, 416 F.2d 273 (9th Cir. 1969), cert. denied, 397 U.S. 996, 90 S.Ct. 1137, 25 L.Ed.2d 405 (1970); United States v. Dancis, 406 F.2d 729 (2d Cir.), cert. denied, 394 U.S. 1019, 89 S.Ct. 1640, 23 L.Ed.2d 44 (1969); Carter v. United States, 113 U.S.App.D.C. 123, 306 F.2d 283 (1962). The justification for this was best stated by Chief Justice (then Judge) Burger:
12
The basic theory of that Act is rehabilitative and in a sense this rehabilitation may be regarded as comprising the quid pro quo for a longer confinement but under different conditions and terms than a defendant would undergo in an ordinary prison.
13
Carter v. United States, supra, 306 F.2d at 285. Nor is it necessary in this case to decide whether it is permissible or wise to confine youths in the same facility with adult offenders. Recently we upheld against an equal protection challenge the procedures by which juveniles were adjudicated delinquent under the New York Family Court Act, and committed to institutions also housing inmates prosecuted as adults. United States ex rel. Murray v. Owens, 465 F.2d 289 (2d Cir. 1972), cert. denied, 409 U.S. 1117, 93 S.Ct. 930, 34 L.Ed.2d 701 (1973). See also Sonnenberg v. Markley, 289 F.2d 126 (7th Cir. 1961), allowing the confinement in a federal penitentiary of youths convicted under the Federal Juvenile Delinquency Act, 18 U.S.C. 5031 et seq. (1970).5 We are, consequently, presented with two questions on this appeal: whether there is any basis in fact for disputing the claim that these young adult misdemeanants are given identical treatment under the same conditions as adults who have committed the same offenses; and whether the combination of this circumstance with the extended reformatory sentence for young adults only, amounts to a denial of equal protection. We conclude that it does.
THE CONDITIONS OF CONFINEMENT
14
The proper response to the respondents' claim that reformatory-sentenced inmates are in fact confined under conditions different from those imposed on adults can best be formulated by projecting the treatment of these petitioners against the background of the New York Correction Law and its elaboration in the Correctional Department's Rules and Regulations, 7 N.Y.C.R.R. (1974). Not only does the Correction Law fail to give special treatment of any sort for young adult offenders, but the implementation of the departmental rules explicitly providing for confinement under indentical conditions of both adult prisoners and those serving reformatory-length terms demonstrates that there is little merit to any claim that, despite the statutorily authorized treatment, there is a de facto segregation of young adults from older inmates.
15
The facilities established by the recent restructuring of the Correction Law are classified in several ways. Because the institutions within the department must be maintained with due regard for the safety of the community and of those in custody, the law provides for maximum, medium, and minimum security prisons. N.Y. Correction Law 70(6)(a) (McKinney Supp. 1974-75). Regardless of security classification, facilities are also designed to serve one or several of seven functions. Id. 70(6)(b). Three of these uses-- as reception, detention, and diagnostic and treatment centers-- are only of a transitory nature, since transfer may be effected once the contemplated temporary end has been served. See id. 2(5), (7), (9). The remaining four-- residential treatment facilities, correctional camps, general confinement facilities, and work-release facilities-- are the heart of the correctional system. In different ways, they are intended to effect the ends for which custody is imposed. Obviously, each confines the inmates for purposes of punishment, deterrence, and isolation from the community to which they might occasion danger. N.Y. Penal Law 1.05(4, 5) (McKinney 1967). Each is also intended to rehabilitate the offender. Id. 1.05(5). Thus the general confinement facilities aim at 'treatment of persons under institutional programs oriented to education, vocational training and industry;' N.Y. Correctional Law 2(10) (McKinney Supp. 1974-75); correctional camps are 'maintained for the purpose of including conservation work in the program of inmates.' Id. 2(8). Residential treatment facilities allow inmates 'to go outside the facility during reasonable and necessary hours to engage in any activity reasonably related to (their) rehabilitation,' which may include on-the-job training and employment. Id. 73(1), (2). Work-release facilities may conduct work-release programs to achieve the same goal. Id. 2(11).
16
The statute also provides another method of classification: departmental regulations must specify the age and sex of persons who may be confined at any of the different institutions. Id. 70(5). No indication is given, however, that the division according to age should parallel the distinction elsewhere made by length of sentence between adults and young adults between the ages of 16 and 21.
17
Respondents contend that the failure of the Correction Law specifically to provide unique treatment for the class of young adults is not fatal, since the Department of Corrections has implemented that Law in order to confine almost all the class members in institutions reserved for offenders of similar age. More particularly, they claim that 90% Of reformatory-sentenced misdemeanants are sent to the Elmira Correctional Facility, the Coxsackie Correctional Facility, or one of the camps under the jurisdiction of the Department. An examination of the departmental regulations makes clear, however, that even within those institutions youths between 16 and 21 are confined indiscriminately with adult offenders, although they must serve longer terms for indentical crimes.
18
Pursuant to the statutory mandate, N.Y. Correction Law 70(5) (McKinney Supp. 1974-75), that correctional facilities be classified according to the criteria discussed above, the Department of Corrections promulgated its Designation and Classification of Correctional Facilities, 7 N.Y.C.R.R. Subchapter A (1974). Respecting the institutions in which respondents claim most reformatory-sentenced inmates are confined, those provisions state:
19
100.35 . . . The Elmira Correctional and Reception Center shall be classified as a medium security facility to be used for the following functions:
20
. . . .. T
21
(b) General confinement facility for males between the ages of 18 and 30; provided, however, that males between the ages of 16 and 18 and males older than 30 may be placed therein for general confinement purposes in accordance with Part 100 of this Chapter; and
22
. . . .do
23
(d) Work release facility for eligible inmates. 100.45 . . . (b) (The Coxsackie Correctional Facility) shall be a correctional facility for males between the ages of 16 and 21; provided, however, that males over the age of 21 may be placed therein for general confinement purposes in accordance with Part 150 of this Chapter.
24
(c) Coxsackie Correctional Facility shall be classified as a medium security correctional facility to be used for the following functions: General confinement facility . . . 100.65 . . . (a) There shall be in the department four (correctional camps) . . .. (b) Such institutions shall be correctional facilities for males between the ages of 16 and 25.
25
(c) (The four camps) shall be classified as minimum security correctional facilities to be used for the function of correctional camps. Part 150, referred to in connection with the Elmira and Coxsackie Correctional Facilities, provides: 150.1 . . .
26
(a) The age ranges set forth in this Chapter are basically indicators of inmate maturity level. In any case where an inmate is not within the age range specified for an institution, such inmate may nevertheless be confined therein upon specific written approval of the commissioner or of a deputy commissioner if:
27
(1) There are reasonable grounds to believe that such person fits in with the maturity level indicated by the age range specified for that institution; or
28
(2) Said institution offers a special program that can be of substantial benefit to the health, care or rehabilitation of the inmate.
29
We also note that Bedford Hills, the institution in which all representatives of the class are confined, is presently the only state prison for women. As to it the provisions state:
100.80
30
. . . .e t
31
(b) Such institution shall be a correctional facility for females 16 years of age or older.
32
(c) Bedford Hills . . . shall be classified as a medium security correctional facility to be used for the following functions:
33
(1) General Confinement facility;
34
. . . . Co
35
(4) Work release facility for eligible inmates.
36
Several obvious conclusions emerge from this brief review of the departmental regulations. Most significant is that, with the exception of Coxsackie, there is no institution in which young adult misdemeanants may not be mixed without distinction among older offenders. Moreover, even at Coxsackie Part 150 allows the detention of misdemeanants above the age of 21 who either may benefit from the program there, or are found to be at a level of maturity similar to the younger prisoners.6 Finally, we emphasized the admitted fact that there is no segregation of adults from young adults within the various facilities where the members of the class are confined. In each institution listed in response to the petitioners' Request for Admissions, reformatory-sentenced inmates are commingled with adults at work, in sleeping quarters, and in the mess hall. Nor are the petitioners provided separate recreational facilities, educational programs, vocational training, counselling, drug addiction, or other programs. All inmates, regardless of the type of sentence being served, are subject to the same rules and disciplinary sanctions and enjoy the same privileges.
37
Perhaps even more significant than the integration of class members with adult criminals at the institutions mentioned, though, is the fact that no young adult can be assured that he will remain in-- or indeed that he will be initially sent to-- one of those facilities. The Rules and Regulations provide, for example, that each of the maximum security prisons can be used as a detention center for those 16 and older, and as a general confinement facility for members of the petitioning class in accordance with the provisions of Part 150. 7 N.Y.C.R.R. 100.5 (Attica), 100.10 (Auburn), 100.15 (Clinton), 100.20 (Green Haven), 100.25 (Ossining). Similar regulations apply to the other medium and minimum security institutions, 7 N.Y.C.R.R. 100.27-100.94, most of which allow general confinement of young adults even without the approval required by Part 150. Nor is the likelihood of imprisonment in one of these facilities an empty threat. The Deputy Commissioner for Program Services in the Department of Correctional Services stated that 10% Of those initially sent to Elmira, Coxsackie, or the correctional camps would be transferred after a determination that 'the best interest of such inmate(s) requires a program with stronger custodial emphasis.' Finally, we find it difficult to credit to any firm departmental policy even the alleged present distribution of class members among the available facilities. For the only detailed survey-- made by the Department's Bureau of Research Statistics-- of the places of confinement of misdemeanants serving reformatory sentences demonstrated that as of December 31, 1971, more than half of the 316 such offenders were in facilities other than those mentioned by the Deputy Commissioner. Seventy-eight young adults were confined in maximum security prisons like Attica, Clinton and Green Haven, and only 22 were in the four correctional camps.
THE REHABILITATIVE Quid Pro Quo
38
What we have said thus far leads us to the conclusion that there can be no rational support for the respondents' final argument. Their contention is
39
that the quid pro quo of the extended reformatory sentence is rehabilitative treatment, and it is essentially irrelevant that a program of rehabilitation fitted to the needs of an individual inmate is either shared by other inmates or that a custodial regime suitable to the reformatory sentenced inmates may also be suitable for other inmates, or that reformatory sentenced inmates are not segregated from other inmates.
40
It is, of course, commendable that New York attempts to rehabilitate all convicted misdemeanants sentenced to terms of imprisonment. It is also praiseworthy that the state has tried to gear the various facilities within the jurisdiction of the Department of Corrections to achieve this end in a way which takes account of maturity, need, and the inmate's willingness to change. And yet to uphold the provisions of Article 75 would mean that one sentenced pursuant to it could be confined for four years in the same institution, under identical conditions, and with exactly the same rehabilitative program as an adult whose term could not under the law exceed three months to one year.
41
Respondents attempt to justify the extended confinement of young offenders by arguing that the class also receives the benefit of a correspondingly longer rehabilitative program. We are unable to follow this sleight of hand. We do not deny that, where the conditions of detention cannot be characterized as punitive, such an argument has some force. In such instances an extended sentence afford youthful offenders 'not heavier penalties and punishment than are imposed upon adult offenders, but the opportunity to escape from the physical and psychological shocks and traumas attendant upon serving an ordinary penal sentence while obtaining the benefits of corrective treatment, looking to . . . social redemption and restoration.' Cunningham v. United States, 256 F.2d 467, 472 (5th Cir. 1958).
42
Such was in fact the situation under the pre-1970 law applicable to young adult offenders. As the Practice Commentary to Section 75.10-- written by the present Commissioner of Corrections, Peter Preiser-- stated: the 'law did not recognize any distinction based upon type of offense in dealing with . . . convicted young offenders. The four-year period . . . provided was selected as a reasonable and meaningful period for the (rehabilitative) purposes' of the statute. Rather than serving punitive ends, the law sought to offer every young misdemeanant 'education, moral guidance and vocational training' through the 'specialized and concentrated resources' provided by the reformatories in which all were confined. Pracitice Commentary, supra.
43
But as is the practice elsewhere, New York has consistently recognized that its other penal institutions serve purposes in addition to rehabilitation. Explicit reference is made to the fact that confinement in those prisons serves the ends of punishment, isolation, and deterrence, N.Y. Penal Law 1.05(4, 5) (McKinney 1967).7 For precisely that reason, adult sentences have been tailored to the gravity of the offense-- not to the individual's need for or amenability to rehabilitation. Id. at 1.05(4). With the repeal of N.Y. Penal Law Article 75 (McKinney 1967), repealed, N.Y.Laws 1974, ch. 652, 7, the state acknowledged the necessity of employing a similar limiting principle in sentencing young adults who, since 1970, have been confined in the same correctional facilities as adults.
44
Thus the present penal and correctional scheme leaves the class of reformatory-sentenced misdemeanants in the anomalous position of serving extended terms when 'reformatories as well as the special purposes they historically served no longer exist . . ..' They are, it is true, given rehabilitative treatment; but they are subject as well to the same punitive, deterrent, and isolating conditions as adult prisoners for substantially longer periods of time, and for this treatment we are unable to find any quid pro quo.
III.
45
Having examined the merits of the petitioners' claims, we must still consider several vexing procedural issues: whether this habeas corpus proceeding is maintainable as a class action; whether, in light of 28 U.S.C. 2241(d) (1970), the class may appropriately embrace all young adult misdemeanants held in custody by the state of New York, or must instead be limited to those in custody or convicted and sentenced in the Southern District of New York, where the action below was brought; and, finally, what action may be deemed to satisfy the exhaustion requirements upon which federal collateral relief to state prisoners is conditioned. For the reasons stated below, we find that the class was properly allowed to proceed as defined by the district court.
CLASS ACTION
46
Although habeas corpus proceedings are referred to as 'civil proceedings,' the Federal Rules of Civil Procedure are applicable only 'to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in civil actions.' Fed.R.Civ.P. 81(a)(2). The relevant statutory provisions, 28 U.S.C. 2241 et seq. (1970), offer little help when the petitioners are numerous. Moreover, the 'conformity' provision of Rule 81 has been interpreted by the Supreme Court to dictate explicit applicability of the Rules only in those areas of habeas practice which prior to the enactment of the Rules had utilized the modes of civil practice. Harris v. Nelson, 394 U.S. 286, 294, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969). Relying upon the significant expansion of the discovery provisions in the 1938 Rules, as well as the burden which their full implementation would impose upon prison officials, the Harris Court decided that the conformity clause did not permit use of Rule 33 interrogatories in habeas actions. Similar considerations impel us to conclude that the class action device should not be imported into collateral actions, at least in its full vigor as contemplated by Rule 23. Like Rule 33 discovery, even the original and more restrictive version of Rule 23 which was adopted by the Rules Enabling Act represented a rather 'bold attempt' to encourage class actions, a form of relief traditionally confined to equity practice. C. Wright, Law of Federal Courts, 72 at 306 (2d ed. 1970); Advisory Committee Notes, Fed.R.Civ.P. 23. There is little evidence, moreover, that even the narrower pre-1938 multi-party proceedings enjoyed any considerable application in habeas corpus actions. Note, multiparty Federal Habeas Corpus, 81 Harv.L.Rev. 1482, 1493 (1968). Finally, we would hesitate to impose on judicial and correctional officials, by approving full employment of Rule 23, the very substantial burdens of discovery and proof which would be required to rebut even the most frivolous allegations-- made 'generally without the guidance or restraint of members of the bar,' Harris, supra, at 297, 89 S.Ct. at 1089-- that an inmate's complaint involved predominant questions of law or fact applicable to numerous other prisoners.
47
To say that the precise provisions of Rule 23 do not apply to habeas corpus proceedings, however, is toto caelo different from asserting that we do not have authority to fashion expeditious methods of procedure in a specific case. Harris confirms the power of the judiciary, under the All Writs Act,28 U.S.C. 1651 (1970), to fashion for habeas actions 'appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage.' 394 U.S. at 299, 89 S.Ct. at 1090. We find in the unusual circumstances of this case a compelling justification for allowing a multi-party proceeding similar to the class action authorized by the Rules of Civil Procedure. Our conclusion is badsed in large measure upon the nature of the claim here presented by Sero and the other young adult misdemeanants whom she would represent. As the discussion of that claim in the preceding section made clear, the charge that the four-year reformatory sentence violates equal protection is applicable on behalf of the entire class, uncluttered by subsidiary issues. Since the 1970 restructuring of the correctional system the treatment which young adults have received, as well as all other conditions of custody, have been identical to those afforded adult misdemeanants.
48
A number of other persuasive justifications enforce our conclusion that the class action device was appropriately used in this case. Because many of those serving reformatory sentences are likely to be illiterate or poorly educated, and since most would not have the benefit of counsel to prepare habeas corpus petitions, it is not improbable that more than a few would otherwise never receive the relief here sought on their behalf. See Developments in the Law-- Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1170-71 (1970); Adderly v. Wainwright, 58 F.R.D. 389, 405 (M.D.Fla.1972). Considerations of economy also argue persuasively for such a result. The considerable expenditure of judicial time and energy in hearing and deciding numerous individual petitions presenting the identical issue is thereby avoided, Williams v. Richardson, 481 F.2d 358, 631 (8th Cir. 1973), as is the expense which would be incurred in appointing counsel for each individual who proceeded on his own.8
49
Although we trust it is clear that the precise provisions of Rule 23 are not applicable to these proceedings, our conclusion that an analogous procedure may be employed in this case is bolstered by the Federal Rules' delineation of the circumstances which make multi-party actions appropriate. Four prerequisites to a class action are specified by Fed.R.Civ.P. 23(a): (1) the class must be so numerous that joinder of all members is impracticable; (2) there must be questions of law or fact common to the class; (3) the claims of the representative parties must be typical of those made by the class; and (4) it must be shown that the representative parties will fairly and adequately protect the interests of the class. There is no question but that joinder in this case would have been impracticable, if not impossible. The more than 500 members of the class-- many of them unidentifiable at the time the action was commenced-- far surpass the requirements of numerousness which have been imposed in more straight-forward civil actions. See e.g., Cypress v. Newport News Gen & Nonsectarian Hosp. Assn., 375 F.2d 648, 653 (4th Cir. 1967) (eighteen); Citizens Banking Co. v. Monticello State Bank, 143 F.2d 261, 264 (8th Cir. 1944) (forty). And although we believe that more stringent standards may be appropriate in deciding whether a habeas action presents substantial and common questions of law or fact, it is apparent that the complaint of the representative parties in this suit states a clear and unitary allegation on behalf of all young adult misdemeanants. Cf. Gesicki v. Oswald, 336 F.Supp. 371 (S.D.N.Y.1971), aff'd, 406 U.S. 913, 92 S.Ct. 1773, 32 L.Ed.2d 113 (1972). Although we are informed that the facilities at Bedford Hills differ from those at many of the other state correctional institutions, that factor is irrelevant to our purposes. This is so because the petitioners do not charge that the state has failed to confine them in the existing institutions best suited to their needs, but that an unconstitutional distinction is made among inmates of each institution-- all receiving the same treatment-- solely by reason of age. Finally, we find it clear that the representative parties have fairly and adequately protected the interests of the class. The district court found, and we agree, that the parties have been represented throughout by conscientious and experienced counsel, 351 F.Supp. at 528, and they have vigorously prosecuted the claim on behalf of the other members.9
SECTION 2241(d)
50
Even if this action may be appropriately maintained as a class action, the respondents claim that the district court did not have jurisdiction over all the members of the class to whom its decree would extend. Although all the representative petitioners were, at the time this action was begun, confined at the Bedford Hills Correctional Facility, we are told that some members of the class were neither confined nor convicted within the Southern District of New York. Therefore, the argument concludes, the district court was deprived of jurisdiction as to these persons by 28 U.S.C. 2241(d) (1970), which provides:
51
Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him . . ..
52
A proper understanding of 2241(d) requires a brief elucidation of its relationship to 2241(a).
53
The general grant of habeas corpus jurisdiction has long provided that the Supreme Court, any of its justices, any circuit judge, or any district court could grant the writ 'within their respective jurisdictions.' 28 U.S.C. 2241(a) (1970), formerly 28 U.S.C. 452 (1940). See Act of Feb. 13, 1925, ch. 229, 6, 43 Stat. 940; Rev.Stat. 752; Act of Feb. 5, 1867, ch. 28, 14 Stat. 385. In 1948 that provision was interpreted to mean that a district court lacked subject matter jurisdiction to grant the writ on behalf of a prisoner who was not confined within its territorial boundaries. Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948). It rapidly became apparent, however, that Ahrens was a self-inflicted judicial wound. The court nearest the place of confinement was, perhaps more often than not, by no means the most convenient forum for resolution of the dispute raised by a habeas petition. All the material events would usually have taken place, and all the records and witnesses were generally to be found, near the court which had originally imposed the confinement. Moreover, restriction of jurisdiction to the locus of confinement had the singular disadvantage of imposing on those district courts near detention facilities the burden of entertaining all collateral actions brought by inmates in those prisons. In an effort to rescue the courts from a calamity of their own making, Congress in 1966 enacted 2241(d), which specified that a habeas corpus petition could also be filed in the federal district in which the court which had entered judgment and sentence was located. See S. Rep. No. 1502, 89th Cong., 2d Sess. (1966); H. R. Rep. No. 1894, 89th Cong., 2d Sess. (1966).
54
Helpful though it was, the remedy was not complete enough to undo the damage done by Ahrens's narrow jurisdictional interpretation of 2241(a). The inadequacy was most convincingly demonstrated by the problem of interstate detainer. In Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), an inmate confined in an Alabama state prison after a felony conviction applied for habeas corpus relief in the Federal District Court for the Western District of Kentucky, seeking to attack a pending Kentucky indictment. Relying in large measure upon the liberalization of intrastate habeas effected by 2241(d), as well as the post-Ahrens provision of 28 U.S.C. 2243 (presence of petitioner not required when application presents only issues of law), the Court held that:
55
So long as the custodian can be reached by service of process, the court can issue a writ 'within its jurisdiction' (for purposes of 2241(a)) . . ., even if the prisoner himself is confined outside the court's territorial jurisdiction.
56
410 U.S. at 495, 93 S.Ct. at 1130. With respect to Braden's claim the state of Kentucky was the real custodian, since for purposes of the detainer pursuant to the pending indictment the Alabama correctional officials acted only as agents. Thus the federal district court in Kentucky had jurisdiction to issue the writ.
57
This straightforward reading of 2241(a), as the Court certainly realized, was not without its effect upon the interpretation to be given 2241(d). If the original jurisdictional grant in 2241(a) was to be construed as coextensive with the scope of service of process, see Fed.R.Civ.P. 4(f), then a jurisdictional reading of 2241(d) would render that subsection merely repetitious. The Braden Court recognized, further, that the 1966 amendment was motivated, at least in part, by 'a desire to insure that the disputes could be resolved in the most convenient forum,' 410 U.S. at 497 n. 13, 93 S.Ct. at 1131, i.e. by considerations traditionally proper to venue. We think it clear, from both the Court's language and the language of 2241(d), that it makes more sense to read this section as a provision fixing venue and aimed at problems of judicial administration whose solution lies in the balance of convenience among various courts. Cf. 83 Harv.L.Rev. at 1161-65.
58
Before proceeding to a discussion of the venue requirements for this class action, however, we feel constrained to indicate that we need not rest our decision that the district court had jurisdiction over the entire class upon our interpretation of 2241(d). For even if-- contrary to the clear implication of Braden-- that section is to be read as jurisdictional, we find compelling reasons for concluding that Congress did not intend the section to preclude determination in one forum of multi-party actions. The parallel practice in Rule 23 class actions provides a basis for our decision. Although the statutory grant of diversity jurisdiction, 28 U.S.C. 1332 (1970), has from its inception been interpreted to require complete diversity among opposing parties, Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806), it is almost equally well-settled that a class action may satisfy 1332 if there is diversity only between the representative plaintiffs and the defendants. Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673 (1921). The distinction is not difficult to fathom. Limitation of the class in order to achieve diversity would also
59
result in the determination of the rights of most of the class by a decree rendered upon a theory which may be repudiated in another forum as to a part of the same class.
60
. . . If the decree is to be effective and conflicting judgments are to be avoided, all of the class must be concluded by the decree.
61
Id. at 366-367, 41 S.Ct. at 342. Similar considerations argue persuasively for a like interpretation of 2241(d), if, indeed, it is to be read as jurisdictional. The interests of judicial economy, the need for fairness among prisoners similarly situated, and the desirability of certainty in the law, all demand a conclusion that will not deal with only some members of the petitioning class, while it leaves others open to the possibility of contrary result in another court.10 Since the representatives of the class in this case-- all inmates at the Bedford Hill Correctional Facility-- could properly have proceeded individually in the court below, we find that Judge Lasker correctly concluded that he had jurisdiction over the entire class.
62
Whether venue in the Southern District of New York was proper as to all class members is a question which need not detain us. The practice in Rule 23 class actions once again furnishes a guide to our decision. Although the same statutory provisions determine venue for Rule 23 as for nonclass actions,28 U.S.C. 1391(a) (1970) (diversity actions may be brought only in the district where all plaintiffs or all defendants reside, or in which the claim arose) may be satisfied if only the named parties to a class action meet its requirements. 3B Moore's Federal Practice P23.96 (1974); C. Wright, Law of Federal Courts 72, at 315 (2d ed. 1970). See Dale Electronics, Inc. v. R.C.L. Electronics, Inc., 53 F.R.D. 531, 538 (D.N.H.1971); Research Corp. v. Pfister Assoc. Growers, Inc., 301 F.Supp. 497, 501 (N.D.Ill.1969). Here too, the rationale is not difficult to comprehend. The same need for consistency, fairness and economy which dictated a common-sense construction of the jurisdictional provisions applies as well to those determining venue.
63
It is clear to us that the representative petitioners satisfy the habeas corpus venue requirements, whether they are to be defined by 2241(d) or otherwise.11 Each named petitioner was confined in the district in which the action was brought. Moreover, little added inconvenience was imposed upon the respondents by requiring them to defend against the other class members' claims, whether were identical to those of the representative parties.
EXHAUSTION
64
The requirement that a state prisoner must first exhaust all state remedies before proceeding with a collateral attack in the federal court is set forth in 28 U.S.C. 2254(b). The exceptions to this rule are instances where 'there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.' Id. It is clear that two of the named plaintiffs, Lois Sero ad Rita Varner, as well as another member of the class, Myletta Joyner, have fully complied with the provisions of 2254(b). See 351 F.Supp. at 525 n. 3. Thus, the only question with which we are presented is whether their actions may be taken to fulfill the exhaustion requirements on behalf of the class. We find that they may.
65
The statutory exhaustion provisions serve two salutary purposes. Depriving state courts of the first opportunity to pass on federal constitutional questions would eventually have the unhappy effect of making those courts callous to and ignorant of federal claims. Moreover, other considerations of federalism make clear that it is wise that a federal court decline to inject itself into the orderly administration of state judicial business. But state remedies have been characterized as 'ineffective' for purposes of 2254(b) not only because they were procedurally inadequate, but also where recent state holdings on a question of substantive law demonstrated that relitigation of the same issue would have proven futile. See, e.g., Reed v. Beto, 343 F.2d 723 (5th Cir. 1965), aff'd on other grounds sub nom., Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Evans v. Cunningham, 335 F.2d 491 (4th Cir. 1964); Dana v. Tracy, 360 F.2d 545, 548 (1st Cir.) (dictum), cert. denied, 385 U.S. 941, 87 S.Ct. 311, 17 L.Ed.2d 221 (1966). This 'futility' doctrine, of course, comports with the policies underlying the demand for exhaustion in the ordinary case. We must be sure that the state court has had the opportunity recently to consider the identical claim. Moreover, its decision of the issue must be so clear that any further consideration given similar cases by the state court is likely to be summary, so that a federal court entertaining such a case is not likely to disrupt state judicial administration.
66
These same considerations lead us to the conclusion that the exhaustion requirements for the petitioning class have been met by the actions of Sero, Varner, and Joyner. The state court proceedings brought by these three presented an identical challenge to the constitutionality of 75.00 and 75.10. Applications for leave to appeal to the New York Court of Appeals were denied on April 20 and on May 16, 1972, less than six months before Judge Lasker's first decision permitting class status. Under these conditions, we are unwilling to impose upon other members of the class the burden of inundating the state courts with applications which would be as time-consuming as they would be useless.
IV.
67
What we have said thus far demonstrates that issuance of writs granting release was proper as to those young adults-- either in confinement or on parole-- who served more time in correctional facilities than the maximum terms provided for adults guilty of the same misdemeanors. We also believe it is clear that those who on the effective date of the district court's decree had not yet been released on parole, but had at that time served less than the corresponding adult terms, were properly entitled to resentencing.12 There remains to be determined, however, that treatment due those class members who were already on parole at the time of the decree below, after having served shorter terms in prison than would have been given to adult class A and class B misdemeanants. As to this group the district judge granted release to those whose total time in custody exceeded the maximum adult sentence, and ordered resentencing for the remainder. With this latter determination, we do not agree.
68
Although extensive discovery was had on the issue of treatment given young adults in correctional facilities, the only evidence relevant to the conditions of parole discloses an issue which we are unable to resolve on the record before us. See United States ex rel. Bradshaw v. Alldredge, 432 F.2d 1248 (3d Cir. 1970). The Statement of Substantial Undisputed Facts submitted by the petitioners on their motion for summary judgment states:
69
17. There is no special parole service for reformatory-sentenced offenders except that assigned case loads of 'Youthful Offenders' (males only) are made to certain parole officers in New York City.
70
The respondents' answer, however, 'dispute(d) the allegation that the only special parole service which is available to reformatory sentenced inmates concerns Youthful Offenders.' Although Judge Lasker properly found that identical conditions of confinement justified release or resentencing as to part of the class, he made no such determination regarding the parole services available to young adults and adults respectively. Because the provision of unique services would under some circumstances justify a longer period of parole, we remand this issue for further factual determinations and disposition consistent with this opinion. In all other respects we affirm.
1
The inmates also attacked as unconstitutional the provisions of the N.Y. Correction Law, 803, 804 (McKinney 1968) granting good behavior allowances only to those offenders serving indeterminate and definite sentences. This claim has been rendered moot by the enactment of N.Y.L.1974, chs. 652, 653, retroactively granting such time off to members of the petitioning class
In addition, the class claimed a violation of due process in New York's failure to provide a hearing on reformability before the imposition of a reformatory sentence. Because of the disposition it reached in the equal protection claim, the district court found it unnecessary to rule on this issue.
2
Judge Lasker also permitted the class to proceed simultaneously with its declaratory judgment claim under 1983
3
We find unpersuasive respondents' argument, raised for the first time on appeal, that the district court improperly considered Donnino's statement in granting summary judgment and the writs requested. The answer to the petitioners' Statement of Substantial Undisputed Facts submitted on the motion for summary judgment admitted that, in making the statement to the Assembly, Donnino had acted as the agent of the Commissioner of Corrections
4
The district court also granted summary judgment on the 1983 claim, declaring Article 75 unconstitutional to the extent that it authorized the imposition of extended sentences on members of the class. Because of our conclusion on the habeas corpus claims of the reformatory-sentenced inmates, we need not consider whether such a declaratory judgment would be permitted under Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and Presider v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)
5
It is interesting to note, however, that the act also provides: 'Such commitment shall not exceed the term which might have been imposed had he been tried and convicted of the alleged violation.' 18 U.S.C. 5034 (1970). See also Harvin v. United States, 144 U.S.App.D.C. 199, 445 F.2d 675 (enbanc) (interpreting parallel provision of the Youth Corrections Act), cert. denied, 404 U.S. 943, 92 S.Ct. 292, 30 L.Ed.2d 257 (1971)
6
We emphasize that the integration of adults and young offenders provided for by the department's rules is carried out in practice. The affidavit (dated May 10, 1974) of Edward Elwin, Deputy Commissioner for Program Services in the Department of Correctional Services, admits that the Elmira, Coxsackie, and correctional camp facilities 'are basically established and operated for the rehabilitation of young offenders. Although individuals up to 30 years of age might be placed in Elmira, the other facilities are primarily for individuals 21 years of age or younger.' As 7 N.Y.C.R.R. 100.65 makes evident, the correctional camps are used for the detention of those between the ages of 16 and 25. And some idea of the frequency with which Part 150 is used at the Coxsackie Correctional Facility may be gathered from the fact that, as of December 31, 1971, 13% Of those confined there were serving indeterminate sentences
7
Indeed, it has been more than once suggested that the prisons of our country have not been rehabilitating prisoners. See, e.g., W. Amos, The Philosophy of Corrections: Revisited, 38 Federal Probation 43, 45 (1974); I. Kaufman, Prison: The Judge's Dilemma, 41 Fordham L.Rev. 495, 499-503 (1973); Hearings before the Sen. Jud. Comm. on Juvenile Delinquency, 91st Cong., 1st Sess., 5194 (1971)
8
In finding class treatment appropriate we do not ignore two further peculiarities of the statutory provisions applicable to habeas corpus proceedings. It is true that, although two earlier versions of the Great Writ were phrased in the plural, Act of Aug. 29, 1842, ch. 257, 5. Stat. 539; Act of Mar. 2, 1833, ch. 57, 7, 4 Stat. 634, the present Code speaks only in the singular, see, e.g., 28 U.S.C. 2241 (1970). It seems clear, however, that the change was intended to be more stylistic than substantive, and the courts have frequently entertained joint applications by petitioners convicted at a joint trial. See, e.g., United States ex rel. Poret v. Sigler, 361 U.S. 375, 80 S.Ct. 404, 4 L.Ed.2d 380 (1960); Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923); United States ex rel. Kozicky v. Fay, 248 F.2d 520 (2d Cir. 1957), cert. denied, 356 U.S. 960, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958)
A less frivolous objection to issuance of the writ on behalf of a large class is that 28 U.S.C. 2242 (1970) requires that an 'application . . . be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf.' We find here, however, convincing reasons for holding that the application for the petitioners-- all between the ages of 16 and 21 at conviction-- has been executed by 'someone acting in (their) behalf.' This court has recognized for more than half a century that 'there are many instances and circumstances under which it may not be possible nor feasible that the detained person shall sign and verify the complaint. Inability to understand the English language or the situation . . ., impossibility of access to the person, or mental incapacity are all illustrations of a proper use of the 'next friend' application.' United States ex rel. Bryant v. Houston, 273 F. 915, 916 (2d Cir. 1921). It would seem appropriate to recognize that the age and competence of most members of the class make it unlikely that they would avail themselves of the relief here sought on their behalf.
9
What we have said, supra, concerning the nature of the claim made by all members of the class confirms our view that this action is at least as appropriate for class treatment as those to which the further provisions of Rule 23 would apply. It is clear that subsection 23(b) states conditions in addition to those set out in the first subsection of the rule, since it defines the nature of claims most appropriately entertained in a unitary proceeding. But the situation before us is strongly analogous to the (b)(2) class action, in which 'the party opposing the class has acted or refused to act on grounds generally applicable to the class . . ..' Fed.R.Civ.P. 23(b)(2). Further, a decision on the constitutionality of detention under Article 75 would, as a practical matter, most likely be dispositive of the interests of the other members not parties to the adjudication. Cf. Atlantis Dev. Corp. v. United States, 379 F.2d 818, 826-829 (5th Cir. 1967); Nuesse v. Camp, 128 U.S.App.D.C. 172, 385 F.2d 694, 701-702 (1967)
10
We are mindful of the Supreme Court's recent ruling affording stricter enforcement to the jurisdictional provisions defining 'amount in controversy,' 28 U.S.C. 1332 (1970). Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973). See also Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). These decisions, however, rested in large measure on the need to protect the jurisdictional limitation against expansion by aggregation of claims, 394 U.S. at 339-340, 89 S.Ct. 1053, or by allowing "one plaintiff (to) . . . ride in on another's coattails." 414 U.S. at 301, 94 S.Ct. at 512. This consideration is irrelevant to the present action. We do not have before us a case where the class action device would admit into the federal court petitioners who otherwise would be unable to meet jurisdictional requirements, since each member could proceed independently in the jurisdiction of his confinement or conviction. A reading of 2241(d) consistent with Supreme Tribe of Ben-Hur not only avoids the undesirable inconsistencies upon which that decision turned, but also has the advantage of reducing litigation which could otherwise go forward only in numerous individual actions
11
In Braden-- since the case involved the problem of interstate detainer-- there was no applicable venue statute. The Court nonetheless based its choice of forum upon 'traditional venue considerations.' 410 U.S. at 493, 499 n. 15, 93 S.Ct. 1123
12
Because we find it impossible to assess the likelihood that these inmates will be released on parole before they have served adult-length sentences, we find resentencing a more appropriate treatment than that given the remainder of the class, infra
| {
"pile_set_name": "FreeLaw"
} |
610 F.Supp. 585 (1985)
WESTERN SYSTEMS, INC., et al., Plaintiffs,
v.
DYNATECH CORPORATION and Lyle Bergquist, Defendants.
Civ. A. No. 82-JM-906.
United States District Court, D. Colorado.
May 8, 1985.
*586 Lawrence R. Reno, Bader & Cox, Denver, Colo., for plaintiffs.
Arthur A. March and Robert E. Purcell, Rogers, Hoge & Hills, Englewood, Colo., for defendants.
*587 ORDER
JOHN P. MOORE, District Judge.
This matter is before me on defendants' motion for summary judgment on claims asserted by Western Systems, Inc. ("Western") and Thomas McCasland ("McCasland"), the only remaining plaintiffs in this anti-trust action. The issues have been fully briefed. Jurisdiction is proper under 28 U.S.C. § 1337.
This action was initiated by Western, McCasland, Hexco International, Inc. ("Hexco") and Hughes Capital Corporation ("Hughes") for declaratory relief and monetary damages for violations of 15 U.S.C. §§ 1 & 2, referred to herein as §§ 1 & 2 of the Sherman Act. Plaintiffs' seventh and eighth claims for relief invoke the court's pendent jurisdiction.[1] The complaint is filed pursuant to § 4 of the Clayton Act, 15 U.S.C. § 15, which permits the recovery of treble damages by "[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws ..."
A synopsis of the facts[2] reveals the gradual but continual attrition of this action since its initial filing in June 1982, shortly before defendants Dynatech, Inc. ("Dynatech") and Lyle Bergquist ("Bergquist") sought a hearing on their motion for a preliminary injunction in the state court. The market in question is that for helium sampling and analysis services, an admittedly limited but accepted technique in the oil and gas industry.[3]
In 1978, plaintiff Western, a Colorado corporation, whose President was McCasland, hired the defendant, Lyle Bergquist, an expert in helium sampling, to develop this market for the corporation. Late in 1981, when conflict arose between McCasland and Bergquist, the parties executed a Termination Agreement in which McCasland signed a two year world-wide covenant not to compete in the helium sampling business to be enforced by an injunction to restrain Western from engaging in a similar business. [See Exhibit A, plaintiffs' complaint].
In tandem with the McCasland-Bergquist transaction were the negotiations between plaintiffs and Dynatech for Dynatech to purchase the assets of Western. Upon the breakdown of these negotiations, Dynatech hired Bergquist who assigned his covenant not to compete to Dynatech. A week later, Hughes, a corporation in the business of buying up existing operations, purchased Western and set up a new corporation, Hexco, to continue in the helium sampling and analysis business. Dynatech, as assignee of Bergquist's covenant not to compete, then sought its enforcement in the state district court for Jefferson County. The state court denied injunctive relief along with a motion to stay, pending my resolution of the federal action.
In prior orders, defendants' motion to dismiss on the issue of whether plaintiffs had alleged an injury within the meaning of the anti-trust laws was denied. At that stage of discovery and pleading, the case was not ripe for a remedy. Upon a later submission of a stipulation of dismissal, plaintiffs Hughes and Hexco were dismissed without prejudice from the action. Only Western and McCasland remain to prosecute the anti-trust and pendent state claims.
Defendants' motion for summary judgment is premised on the contention that the remaining plaintiffs, Western and McCasland, lack standing to prosecute an antitrust action. In a two pronged argument, defendants asseverate that plaintiffs' alleged anti-trust injury, the filing of the *588 state court action with the consequent attorneys fees incurred, is not an injury cognizable under the anti-trust statute, and that McCasland, a former employee of the now-dismissed co-plaintiffs, and Western, an officially dissolved Colorado corporation, lack standing to invoke Sherman Act protection.
Plaintiffs respond that defendants' filing of the state action naming Western and McCasland, individually, sufficiently exposed them to liability flowing from the defendants' alleged anti-trust violation i.e. the enforcement of an illegal restraint of trade, to assure their standing in this action. Moreover, plaintiffs contend that its allegations concerning the state court action comply with the Tenth Circuit's requirements in Hydro-Tech Corporation v. Sundstrand Corporation, 673 F.2d 1171 (10th Cir.1982) and divest protection of that proceeding from the Noerr-Pennington Rule.[4]
Because summary procedures should be used sparingly in complex litigation, Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1964), "[t]he general standards for the granting of summary judgment become even more strict in the antitrust context ..." Calnetics Corp. v. Volkswagen of America, Inc., 532 F.2d 674 (9th Cir.1976). Nevertheless, defendant's burden is not insurmountable. Where plaintiff fails to present significant probative evidence to demonstrate that a genuine issue of material fact exists, summary judgment is appropriate. Joe Regueira, Inc. v. American Distilling Co., 642 F.2d 826 (5th Cir.1981); C.A.R. Leasing, Inc. v. First Lease, Inc., 394 F.Supp. 306 (N.D.Ill. 1975). When the gist of a case turns on documentary evidence and involves conclusions of law, summary judgment may be granted. U.S. v. Beatrice Foods Co., 344 F.Supp. 104 (D.Minn.1972), aff'd 493 F.2d 1259 (8th Cir.1974), cert. denied, 420 U.S. 961, 95 S.Ct. 1350, 43 L.Ed.2d 438. Summary judgment is appropriate in anti-trust cases in which the plaintiff can offer only vague and conclusory charges. Rodrigue v. Chrysler Corp., 421 F.Supp. 903 (D.La. 1976). Nevertheless, where motive and intent and a myriad of other factual issues may grow from the fertile grounds of an anti-trust allegation, summary judgment should be used with caution.
While § 4 of the Clayton Act seems to grant a private right of action to "any person" who can prove injury to his "business or property" caused by an anti-trust violation, the courts have imposed a standing requirement on the "by reason of" language to signify legal causation. See generally, Berger and Bernstein, "An Analytical Framework for Anti-Trust Standing," 86 Yale L.J. 809 (1977). Underlying judicial restraint of anti-trust standing is the concern that mandatory treble damages may exact a penalty not contemplated by the Congress in all cases, or, indeed, too speculative or remunerative under the circumstances.
In the most recent case, the Supreme Court comprehensively reviewed the doctrine of standing since its earlier enunciations in Brunswick Corp. v. Pueblo Bowl-O-Mat, 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977); Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977); and Blue Shield of Virginia, Inc. v. McCready, 457 U.S. 465, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982), and further constricted the standing requirement. Associated General Contractors of California v. California State Council, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). Justice Stevens, in a comprehensive analysis of the statutory language and history, underscored the requisite showing the anti-trust plaintiff must make to enable a court "to evaluate the plaintiff's harm, the alleged wrongdoing by the defendants, and the relationship between them." Id. at 907 (footnote omitted). Among the factors favoring judicial recognition of an antitrust *589 claim are a causal connection between the anti-trust violation and the harm to the plaintiff, the defendant's improper motive, the nature of the plaintiff's alleged injury, and the directness or indirectness of the injury. Reversing the Court of Appeals for the Ninth Circuit, the Court concluded that plaintiff Union's allegations of harm were insufficient as a matter of law to be cognizable under the Sherman Act. "Other relevant factors" fueled this decision: the nature of plaintiff's injury, the potential for duplicative recovery or complex apportionment of damages, and the existence of more direct victims of the alleged conspiracy. Id. at 913.
Brunswick (supra.) and its progeny delineate the seminal inquiry I must make to determine whether plaintiffs have standing to prosecute this lawsuit. "Plaintiffs must prove anti-trust injury of the type the anti-trust laws were intended to prevent and that flows from that which makes the defendants' acts unlawful." Brunswick 429 U.S. at 490, 97 S.Ct. at 698. See also, Central National Bank v. Rainbolt, 720 F.2d 1183 (10th Cir.1983). Not just any injury, but anti-trust injury alone is the causal connection for § 4 Clayton jurisdiction.
To determine whether anti-trust injury is present i.e. whether the plaintiff has standing, the lower federal courts have elaborated on Brunswick, and created a "factual matrix" in which to judge a plaintiff's claim. Cromar Co. v. Nuclear Materials & Equipment Corp., 543 F.2d 501, 506 (3rd Cir.1976). The factors to be examined in the factual matrix are (1) the nature of the industry involved; (2) the relationship of the plaintiff to the alleged violator; and (3) the alleged effect of the anti-trust violation on the plaintiff. Mindful that anti-trust activity affects all of society, the matrix then focuses on the plaintiff, asking whether this plaintiff is the one whose protection is the fundamental purpose of the anti-trust laws. Id.
In their Amended Complaint, plaintiffs aver that the individuals or entities providing helium sampling services are small; that another Colorado and a Washington state company work only on specific requests for the service; and that the sole other large competitor is a Canadian corporation. The service, apparently, is a limited one, used by some mineral exploration companies seeking new geothermal locations. Plaintiffs' specific product line is marketed as "Air Alive." Plaintiff's complaint is devoid of allegations of the nature of the industry with regard to the alleged anti-competitive effect of the sale, the effect on pricing and the predatory nature of the competition.
The remaining factors merge into the fundamental question whether this is the proper plaintiff whose protection is the fundamental purpose of the anti-trust laws. After the sale of Western's assets and most of its liabilities, Western applied for and received a certificate of dissolution in November of 1982. By this act, Western evidenced its decision not to continue in the helium sampling business and not to compete further in the market. Western's contention that Colo.Rev.Stat. § 7-8-122 confers standing on dissolved corporations to sue and be sued within two years of the dissolution cannot invest Western with federal standing under the Sherman Act.
In a similar case, Chrysler Corp. v. Fedders Corp., 643 F.2d 1229 (6th Cir.1981), Chrysler argued that it had been eliminated from competition by the destruction of its Airtemp Division and affiliated subsidiaries. In fact, Chrysler had entered into an agreement with Fedders Corporation to sell virtually all of the assets of its Airtemps Division. After execution of the contract, Chrysler became dissatisfied with the agreement and filed suit under § 4 of the Clayton Act. The Sixth Circuit held that by its agreement to sell Airtemps, Chrysler voluntarily withdrew from competition in the market. "It did not contemplate continuing to compete in that market and in fact covenanted not to do so ..." Id. at 1235.
Similarly, in A.D.M. Corp. v. Sigma Instruments, Inc., 628 F.2d 753 (1st Cir.1980) and Synco, Inc. v. Penn Central Corp., *590 551 F.Supp. 949 (E.D.Pa.1982), the courts examined the purported anti-competitive effect of the sale of the assets of a business. Two distinctions were drawn. The A.D.M. court noted:
If the sale of plaintiff's assets had an effect on competition, it would have occured whether or not [plaintiff] was harmed. There is thus lacking the essential connection between injury and the aims of the anti-trust laws necessary to give [plaintiff] standing.
Id. at 754. The Synco court emphasized the necessity of distinguishing between the alleged business torts which may occur in the sale of the assets of a company and the purported anti-competitive effect of the transaction.
To infuse the "shell" of Western with anti-trust standing in the light both of its corporate demise and later falling out with its successor would render the standing requirement of § 4 a nullity. That Western was a named plaintiff in the state action confers no anti-trust injury cognizable under the Sherman Act.
When the focus shifts to co-plaintiff McCasland, the result is no different. In response to interrogatories, McCasland stated that he considered himself to be an employee with no special bonus or stock provisions written into his position. [See defendant's Exhibit B]. Although the courts are uniform in denying Clayton standing to former shareholders or shareholders of a corporation, McDonald v. Johnson & Johnson, 722 F.2d 1370 (8th Cir.1983) some disagreement whether former employees have standing to maintain a federal anti-trust action. Whether the employment interest constitutes "business or property" generally turns on the relationship between the employee's claim and the nature of the alleged anti-trust violation. See Areeda & Turner, Anti-Trust Law, 334, 338; See also, Perry v. Hartz Mountain Corp., 537 F.Supp. 1387 (S.D.Ind. 1982); Harsh v. CPC International, 395 F.Supp. 578, 580 (N.D.Tex.1975). McCasland's exposure to liability in the state action related to his alleged breach of the covenant not to compete. There are no allegations that plaintiff was forced to sell because of threats or other predatory conduct. "The transmutation of state law torts into federal anti-trust violations would have to be based upon a finding that the injuries for which compensation is sought have an unreasonable effect on competition, as well as on a particular competitor." A.D.M. Corp. at 754. (court's emphasis) (citation omitted).[5]
The facts of the instant complaint in its present posture compel the conclusion that the protection fundamental to the purposes of the anti-trust laws is not available to the remaining plaintiffs. Accordingly, I conclude that plaintiffs lack standing to assert their first through sixth claims for relief. Without federal jurisdiction, the surviving pendent claims for tortious interference with contract and tortious interference with a prospective business advantage, being questions of state law, are more properly addressed in the state court.
Upon the foregoing, it is
ORDERED that defendants' motion for summary judgment, filed December 11, 1984, is granted on plaintiffs' first through sixth claims for relief, and it is
FURTHER ORDERED that plaintiffs' seventh and eighth claims for relief are dismissed for lack of jurisdiction.
NOTES
[1] Plaintiffs' 7th claim for relief is for tortious interference with contract; their 8th claim is for tortious interference with a prospective business advantage.
[2] In my order of May 30, 1983, the facts were set forth up to that stage of the pleading and discovery.
[3] Helium sampling analysis is utilized in locating geothermal resources, oil, natural gas and uranium deposits.
[4] The Noerr-Pennington rule is a court-made doctrine that exempts certain attempts to influence the government, including the filing of court actions, from attack under the Sherman Act.
[5] It is unnecessary to reach defendant's contention that the state action is a protected use of the judicial process as enunciated by Hydro-Tech (supra.).
| {
"pile_set_name": "FreeLaw"
} |
593 F.Supp. 175 (1984)
UNITED STATES ex rel., Alan D. ROBINSON, Petitioner,
v.
Kenneth McGINNIS and Neil Hartigan, Respondents.
No. 83-2433.
United States District Court, C.D. Illinois, Danville Division.
August 20, 1984.
*176 George Taseff, Bloomington, Ill., for petitioner.
Kenneth A. Fedinets, Asst. Atty. Gen., Chicago, Ill., for respondents.
ORDER
BAKER, District Judge.
This matter is before the court on the petitioner's motion for summary judgment. The motion presents two issues: (1) Whether it is constitutionally permissible in a state criminal prosecution for the trial judge to refuse to permit material alibi witnesses to testify because the defense failed to give timely notice of its intended alibi defense, and (2) whether it is constitutionally permissible in a state criminal prosecution for the trial judge to refuse to allow the defendant to testify concerning his whereabouts on the date in question because the defense failed to give timely notice of its intended alibi defense.
I. PROCEDURAL POSTURE
The petitioner, Alan D. Robinson, an inmate at the Logan Correctional Center, filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in the Circuit Court, Ninth Judicial Circuit, Knox County, Illinois, the petitioner was convicted of delivery of more than thirty (30) grams of cocaine in violation of Ill.Rev.Stat. ch. 56½, § 1401(a)(2) (1979). Following his conviction, the plaintiff was sentenced to a term of imprisonment of twenty years.
The petitioner filed an appeal from the judgment of conviction to the Appellate Court of Illinois, Third District. On appeal, the petitioner raised eight separate grounds for reversal. The Appellate Court rejected each of the petitioner's claims and affirmed his conviction. People v. Robinson, 104 Ill.App.3d 20, 59 Ill.Dec. 756, 432 *177 N.E.2d 340 (1982). Subsequently, the petitioner filed this petition for writ of habeas corpus, alleging that he was denied his constitutional right to testify, to present a defense, and to call witnesses on his own behalf. See Petition at p. 5.
II. STATEMENT OF FACTS
The relevant facts are as follows: On November 6, 1979, Ronald Guerrero was arrested for selling one-half gram of cocaine. He offered to assist the police in setting up a drug buy with his dealer in return for leniency. On November 13, 1979, the petitioner allegedly delivered cocaine to Guerrero in his home in Galesburg, Illinois, and was filmed on video tape by a camera previously installed by the police with Guerrero's consent. The camera was placed upon a living room shelf pointing towards the kitchen. The film showed a man, allegedly the petitioner, primarily in profile, giving Guerrero a bag in exchange for money. During the transaction, the seller stated that he might be able to get some more cocaine for Guerrero. On December 5, 1979, pursuant to a court order, the police installed a wire tap on a hotel telephone in Galesburg from which Guerrero called the petitioner three times to try to arrange a purchase of cocaine. The transaction, however, was never completed.
The petitioner was charged with delivery of cocaine on January 8, 1980, but he was not arrested until June of 1980. Subsequently, the petitioner was ordered to file an answer to the State's pre-trial discovery request by August 5, 1980. The petitioner filed no response until 4:00 p.m. on Friday, October 3, at which time he submitted a discovery answer indicating that he would present an alibi defense consisting of evidence that he was in Peoria at the time of the offense and that he would call John Stringer as an alibi witness. The petitioner's trial was scheduled for October 6, 1980, three days after the plaintiff submitted his discovery answer. Immediately prior to trial, defense counsel explained that he had first learned Stringer's name on October 2. He also added that the petitioner had been in a different town, Creve Coeur, the night of the offense, and not in Peoria as previously stated. Defense counsel stated that Stringer was in the courthouse and available to the State for an interview. The trial court, however, granted the State's motion in limine and excluded the alibi defense on the grounds that it was not timely filed and that the State would not have an adequate opportunity to investigate the asserted alibi.
The trial began on Monday, October 6, but was recessed for one week when the petitioner was injured in an automobile accident on October 7, 1980. Late on Friday, October 10, defense counsel filed a motion to reinstate the alibi defense and listed a second witness. The court denied the motion as untimely, and the trial was reconvened on Tuesday, October 14.
III. DISCUSSION
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether summary judgment is proper, a court ordinarily must view the record in the light most favorable to the party opposing the motion, drawing all inferences most favorable to that party. Rose v. Bridgeport Brass Co., 487 F.2d 804, 808 (7th Cir.1973).
A. EXCLUSION OF DEFENDANT-PETITIONER'S WITNESSES
Illinois Supreme Court Rule 415(g) grants trial courts the authority to exclude evidence if it is brought to the attention of the trial court that a party has failed to comply with an applicable discovery rule. Ill.Rev.Stat. ch. 110A, § 415(g)(i) (1979).[1]*178 The Illinois Supreme Court held in People ex rel. Carey v. Strayhorn, 61 Ill.2d 85, 329 N.E.2d 194 (1975), that the Supreme Court Rules for discovery in criminal cases, including Rule 415, apply to the defense of alibi.
It is well-settled that the right of an accused in a criminal trial to present witnesses in his defense is a fundamental right guaranteed by the Sixth Amendment of the United States Constitution and made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In the present case, the State trial court precluded the defense from calling alibi witnesses as a discovery sanction. The Illinois Appellate Court affirmed the trial court and stated:
Whether alibi evidence should be excluded in a particular case is, of course, a matter for the discretion of the trial judge who must weigh all applicable factors in order to reach a just result. Some cases have stated that it was error, in the circumstances there present, to exclude alibi witnesses if the witnesses were disclosed in time for the prosecution to interview them before they testified. However, there are other cases which have held that exclusion of alibi witnesses was an appropriate sanction, justified by the facts and circumstances of those cases. (Citations omitted.)
People v. Robinson, 104 Ill.App.3d at 23, 59 Ill.Dec. 756, 432 N.E.2d 340.
In People v. Williams, 55 Ill.App.3d 752, 13 Ill.Dec. 234, 370 N.E.2d 1261 (1977), the Illinois Appellate Court reversed the conviction of a defendant for rape and burglary, where all defense witnesses were excluded from testifying because the defense had failed to comply with the discovery procedures in Ill.Rev.Stat. ch. 110A, § 415(g) (1971). In Williams, defense counsel became involved as counsel for the defendant one week before the trial with the understanding that the case was to be dismissed by the State due to the difficulty the State had in locating the complaining witness. As a result, the defense counsel claimed that he did not know who his witnesses would be. Moreover, the State had included one of the defendant's alibi witnesses on its list of witnesses even though the State did not call that witness to testify. The defense counsel tendered no list of alibi witnesses to the state prior to trial; however, counsel offered to let the State interview all defense witnesses before they testified. Williams, 55 Ill.App.3d at 757, 13 Ill.Dec. 234, 370 N.E.2d 1261.
In reversing the conviction, the Appellate Court held:
Even without the presence of these factors, we would still hold that the imposition of the particular sanction in the case at bar was an improper exercise of the trial judge's discretion. The exclusion of all the defense witnesses effectively deprived defendant of an opportunity to present a defense. Such a result offends our system's fundamental tenets of due process. We doubt that the Committee, in drafting our Supreme Court rules, intended this particular sanction to be applied where it would result in the complete elimination of an accused's right to present a defense. Rather, the trial judge could have applied a sanction that was not as harsh and would still have promoted the enforcement of our discovery process. (Emphasis supplied.)
55 Ill.App.3d at 757-58, 13 Ill.Dec. 234, 370 N.E.2d 1261.
*179 Likewise, in People v. Osborne, 114 Ill. App.3d 433, 71 Ill.Dec. 513, 451 N.E.2d 1 (1983), the Illinois Appellate Court held that the sanction of excluding the testimony of alibi witnesses was extreme and constituted error. In Osborne, the defendant was convicted of two counts of forgery and one count of misdemeanor theft. The State's evidence showed that the defendant and three confederates obtained checks belonging to a Dennis Goodwin. Between April 24, 1982, and April 26, 1982, the defendant signed Goodwin's name to two of the checks and one of his confederates cashed the checks. The proceeds were then divided among the defendant and two of his partners. One partner, Bowen, was the principal witness against the defendant and testified that she had pleaded guilty to attempt theft and had received probation for her part in the offenses. Forgery counts against her were dismissed. 114 Ill.App.3d at 434, 71 Ill.Dec. 513, 451 N.E.2d 1.
Subsequently, informations were filed against Osborne. He was later arraigned, and the cause was set for jury trial. On June 4, 1982, the State filed its motion for discovery. On July 16, 1982, the defendant filed his answer to the State's motion for discovery and in it raised an alibi defense: "2. Defendant did not commit the offenses as charged, and at the time of the alleged offenses, he was at Pierson Construction Company, Quincy, Illinois." 114 Ill.App.3d at 435, 71 Ill.Dec. 513, 451 N.E.2d 1. The defendant also stated:
6. Defendant attaches a copy of his time sheet for employment at Pierson Construction and a copy of his W-4 form is not in possession of defense counsel at this time, but will be provided when that document is received.
7. Defendant intends to use an alibi defense, namely that he was, at the time of the alleged offense, at the location of Pierson Construction Company near Quincy, Illinois.
114 Ill.App.3d 435, 71 Ill.Dec. 513, 451 N.E.2d 1.
The defendant's trial began on August 19, 1982. However, it was not until August 16 three days prior to trial that the defendant filed a supplement to his discovery answer in which he stated that he intended to call as a witness Diane Dade Buckner. At the conclusion of the State's evidence, the prosecutor successfully moved to exclude Buckner as a witness. In ruling to exclude Buckner, the trial judge stated:
... I don't believe that the response to the State's motion for discovery complies with the rule, because they don't give a specific place. They name an employer, but that is all.
Accordingly, I'm going to sustain Mr. Cameron's [State's Attorney] motion to exclude the testimony of Miss Buckner as it relates to accompanying the defendant to the Quincy Soybean Company on the day of April the 26th of 1982.
114 Ill.App.3d at 436, 71 Ill.Dec. 513, 451 N.E.2d 1.
The Illinois Appellate Court stated that the disclosure of an alibi defense by a defendant "is almost precisely analogous to answering an interrogatory in a civil case. The remedy for an incomplete or evasive answer is well known: an objection to the answer and a motion to make it more definite and certain." 114 Ill.App.3d at 436, 71 Ill.Dec. 513, 451 N.E.2d 1. Arguing that the purpose of the notice of alibi statute was to avoid vague generalities which would be humanly impossible to investigate, the court continued:
In the instant case the information furnished delineated prima facie a specific location within the knowledge of the defendant and if the State's Attorney found it inadequate, it was his duty to seek clarification. Under Supreme Court Rule 415(b) (87 Ill.2d R. 415(b)) there is a continuing duty to disclose on both parties. We believe there is a corollary duty on both parties to seek clarification of disclosure which they deem inadequate or evasive. In this context the instant case is unlike People v. Braxton (1980), 81 Ill.App.3d 808, [36 Ill.Dec. 924] 401 *180 N.E.2d 1062, and People v. Short, (1978), 60 Ill.App.3d 640, [18 Ill.Dec. 236] 377 N.E.2d 389, both cited by the State for its position. In each of those cases the defendant completely failed to notify the State of any asserted alibi prior to trial.
... It is a fundamental right of a defendant to present his theory of the case, no matter how over blown or specious it might appear.
114 Ill.App.3d at 437, 71 Ill.Dec. 513, 451 N.E.2d 1.
Federal courts have also held that discovery rules similar to the Illinois notice-of-alibi statute cannot be enforced against a noncomplying defendant by precluding testimony. In Fendler v. Goldsmith, 728 F.2d 1181 (9th Cir.1983),[2] the trial court refused to permit the petitioner to call certain defense witnesses because he had not listed their addresses on his pre-trial list. Listing defense witnesses was required by State discovery rules. The court noted that it was unclear whether the Sixth Amendment strictly prohibited witness preclusion as a discovery sanction or rather required an examination of all the attendant circumstances. 728 F.2d at 1185-87. Applying a balancing test, the court held that the trial court had committed constitutional error.[3] One of the defendant's witnesses was a key witness on a crucial issue in the case. The court further found that the prosecution would not have been prejudiced by the witness' testimony since the prosecution already had the witness' name and lacked only his address. 728 F.2d at 1189. But assuming arguendo that the defendant's noncompliance was willful, the court stated that the preclusion of witnesses was "too high a price to pay to exact for failure to comply with discovery orders issued pursuant to general discovery rules." 728 F.2d at 1190.
Finally, in United States ex rel. Enoch v. Lane, 581 F.Supp. 423 (N.D.Ill.1984), a district court held that an Illinois state court denied a defendant convicted of rape and aggravated kidnapping due process and a fair trial by precluding the testimony of a material defense witness whose name had not been included on the pre-trial discovery list. The witness' identity was first learned by defense counsel after the State had rested. The excluded witness, Patricia Griffin, would have testified about an altercation she had observed between the victim of the alleged rape and a man other than the defendant-petitioner which took place on the morning of the alleged rape. In holding that the exclusion of Griffin's testimony was unconstitutional, Judge Marshall reasoned:
... [A]s we have noted, there is no evidence that petitioner willfully withheld Griffin's name from the court or the prosecution. There was no suggestion of prejudice by the prosecution, and nothing indicating that any great delay would have been occasioned had Griffin been permitted to testify ... though the prosecution was surprised by the mention of Griffin, surprise in itself means nothing; surprise becomes meaningful only where it causes prejudice. There was no showing of prejudice here. Thus, even applying a balancing test, the trial court based its ruling on the showing by the state that was inadequate to overcome the presumption against exclusion of otherwise probative and admissible defense evidence. See Washington v. Texas, 388 U.S. [14] at 19, 87 S.Ct. [1920] at 1923 [18 L.Ed.2d 1019]; Fendler, 728 F.2d at 1188. We hold that the state court committed constitutional error in precluding Griffin's testimony. (Citations omitted.)
Enoch, 581 F.Supp. at 432.
In the case at bar, it is the petitioner's position that on October 3, 1980, defense *181 counsel filed his answer to the State's motion for discovery, indicating that petitioner's defense would be "that he could not be proven guilty of the alleged offense beyond a reasonable doubt in that Petitioner was in Peoria, Illinois, at the time of the offense (C. 136)." Petitioner's Memorandum in Support of Summary Judgment Motion, p. 6. The petitioner's discovery answer named three prospective witnesses, including John Stringer.
The trial began on October 6, 1980, and prior to jury selection, defense counsel discussed the alibi defense which he intended to present. (Record 12-13.) At that time, defense counsel stated that he had just learned of John Stringer's name on October 2, 1980, and that Stringer was in the courthouse available to the State for an interview. (R. 12.) Counsel also corrected the location of the alibi to show that the petitioner was in Creve Coeur, Illinois, rather than Peoria, Illinois. (R. 12-13.) Counsel represented that the petitioner, himself, would testify as to the alibi defense. (R. 14.) Finally, defense counsel disclosed Stringer's prior conviction in accordance with Illinois Supreme Court Rules.
Defense counsel also stated that Jim Henderson of Canton, Illinois, of whom counsel had just learned that morning, would also testify as to the petitioner's whereabouts on the date in question. (R. 13.) Counsel explained that the petitioner had been seeking these witnesses since August, 1980, but had just recently located them. (R. 17-18.) Despite defense counsel's representations to the court, the State moved to exclude the presentation of alibi testimony on the grounds of untimeliness and the trial court granted the motion. (R. 21.)
The petitioner argues that there is nothing in the record of the proceedings to indicate that the petitioner's failure to give timely notice of his intended alibi defense was "willful and deliberate". The petitioner argues that no such finding was ever made by the trial court in considering whether to permit or to exclude the alibi defense. "In fact, the only finding made was that the notice was `late' and the defense was excluded. (R. 20-21)." Petitioner's Memorandum, at p. 7. After reviewing the transcript of the petitioner's trial and the supporting documents filed by the parties in this lawsuit, the court concludes that the petitioner's argument is meritorious.
There was no suggestion of prejudice by the prosecution or any indication that great delay would have been occasioned had the petitioner's witnesses been allowed to testify. Cf. Enoch, 581 F.Supp. at 432. Moreover, as the petitioner points out, there is nothing in the record of the proceedings to indicate that his failure to give timely notice of his intended alibi defense was "willful and deliberate". In fact, defense counsel represented to the trial court that he had learned the name of one witness on the day before the defense submitted a discovery answer indicating that there would be an alibi defense. Defense counsel learned the identity of a second witness on the morning of the petitioner's trial.
The court concludes that exclusion of the petitioner's witnesses was too severe a punishment for failure to comply with the Illinois notice-of-alibi statute in light of the court's limited inquiry into the petitioner's failure to raise an alibi defense in a timely fashion. Cf. Fendler, 728 F.2d at 1190.
The respondents argue that the court should follow a line of cases which upholds the severe sanction of precluding witnesses from testifying because a party has failed to comply with a discovery rule. The court finds the respondents' argument unpersuasive.
The respondents rely principally on the case of United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975), and People v. Braxton, 81 Ill.App.3d 808, 36 Ill.Dec. 924, 401 N.E.2d 1062 (1980). In Nobles, the question presented was whether a federal trial court may compel the defense to reveal the relevant portions of an investigator's report for the prosecution's use in cross-examining him. The Nobles court did not pass on the question raised in the case sub judice. Consequently, *182 the respondents' reliance on Nobles is helpful only inasmuch as it supports the general proposition that failure to comply with discovery requirements may serve as a bar to the presentation of evidence in a criminal action. Cf. Nobles, 422 U.S. at 229-30, 95 S.Ct. at 2165-66.
Regarding People v. Braxton, the case at bar is distinguishable on its facts. In Braxton, defense counsel sought to amend his discovery answer to assert an alibi defense on the day of trial. Defense counsel sought to include the wife of the defendant as a witness. The trial court refused to allow the defendant to amend his discovery answer to add the alibi defense. The Illinois Appellate Court, in affirming the trial court, commented:
Here, the defendant waited until the 117th day of his term to notify the State of his alibi defense. The sudden discovery of the alibi and production of his wife as an alibi witness at this late date suggests recent fabrication, particularly in light of the fact that the defendant and his wife were married two days prior to trial. Furthermore, no evidence was produced showing that the defendant was unaware of his alibi defense and the existence of the alibi witness prior to this date. Therefore, the trial judge did not abuse his discretion in denying the motion to amend the answer to discovery.
81 Ill.App.3d at 815, 36 Ill.Dec. 924, 401 N.E.2d 1062.
In the instant case, defense counsel did not seek to raise an alibi defense on the date of trial; he had indicated that he would present an alibi defense on Friday, October 3, when he submitted his discovery answer. In Braxton, however, defense counsel made no mention of an alibi defense until the morning of trial. The Braxton court denied the motion to amend the discovery answer because it feared that the alibi defense had been recently fabricated. 81 Ill.App.3d at 815, 36 Ill.Dec. 924, 401 N.E.2d 1062.
The respondents' assertions and arguments notwithstanding, the court is of the opinion that the state trial court's limited findings do not support the conclusion that the petitioner's failure to give timely notice of his intended alibi defense was "willful and deliberate". This court concludes that the trial court committed constitutional error on October 6, 1980, when the petitioner first sought to present his alibi defense and on October 10, 1980, when defense counsel filed a motion to reinstate the alibi defense. The committee which drafted the Illinois Supreme Court Rules did not intend that the petitioner be denied the opportunity to present witnesses in his defense because the identity of those witnesses was not known until the week preceding his trial. Such an application of Illinois Supreme Court Rule 415(g) violates the Sixth Amendment to the United States Constitution.
B. EXCLUSION OF DEFENDANT'S TESTIMONY
In its rulings of October 6, 1980, and October 14, 1980, the trial court in People v. Robinson, not only refused to permit material alibi witnesses to testify on behalf of the defendant but also precluded testimony by the defendant regarding his alibi defense. The court finds that this ruling by the trial court also violated the plaintiff's Sixth Amendment right to testify and to present a defense.
In Alicea v. Gagnon, 675 F.2d 913 (7th Cir.1982), the Seventh Circuit held that it was unconstitutional to prevent a defendant from testifying on his own behalf as a sanction for noncompliance with a state notice-of-alibi rule. In Alicea, the defendant failed to notify the prosecution that he intended to raise an alibi defense. At trial, the defendant sought to testify in his defense that he was at home at the time the alleged robbery occurred. The prosecution objected to the admission of this alibi testimony because the trial court had granted the prosecution's motion in limine to exclude alibi testimony. The trial court sustained the prosecution's objection and ruled that the petitioner could not testify in his own defense about his alibi because he had failed to give timely notice to the state as *183 required by Wisconsin's notice-of-alibi statute. At trial, however, Alicea did manage to testify that he was at home at the time the crime was committed. He also denied committing the robbery. The jury was not instructed as to his alibi defense, however, and the defendant was convicted.
In ruling that the defendant was entitled to testify in his own behalf, the Court of Appeals applied a balancing test, weighing the competing interests underlying Wisconsin's alibi-notice rule and the constitutional policies favoring the petitioner's right to testify. 675 F.2d at 923. The court stated:
To be sure, Wisconsin has a legitimate interest in preventing the truly guilty from escaping justice by means of fabricated alibis. But we cannot see how that interest is promoted by precluding a defendant's testimony for failure to give notice. The principal reason for notice rules, as we noted at the outset of this opinion, is prevention of surprise to the state, not punishment of the accused for mere technical errors or omissions. In this situation it is difficult to see how the government can claim surprise....
In addition, we do not consider Wisconsin's interest in facilitating the orderly administration of justice sufficiently important to override the accused's right to tell his version of the story. If a defendant takes the stand and denies his presence during the crime, the state can readily rebut his denial on cross-examination by asking the defendants to address the state's evidence....
675 F.2d at 923-24.
In this action, the state cannot claim that it was surprised by the alibi defense. Defense counsel did notify the court and the prosecutor of the intended alibi defense in the discovery answer. Even though defense counsel filed the discovery answer in the week preceding petitioner's trial, it is not unreasonable to expect that the government could have anticipated that the petitioner might testify, particularly since the trial court excluded all of the defense's material witnesses. Additionally, this court does not consider Illinois' interest in facilitating the orderly administration of justice sufficiently important to override the petitioner's fundamental right to tell his own version of the occurrence in question. Cf. Alicea, 675 F.2d at 924. The court concludes that the trial court violated the petitioner's Sixth Amendment right to testify when the court refused to permit the petitioner to take the stand and testify concerning his whereabouts at the time of the alleged drug transaction.
C. HARMLESS ERROR
In light of the court's holding that the preclusion sanctions as applied to the petitioner violated his constitutional right to testify and to call defense witnesses on his behalf, the court must address the state's argument that the constitutional error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967). The test is:
"Whether there is a reasonable possibility" that the error affected the jury's verdict. In answering this question, the court must assess the "probable impact of the [error] on the minds of an average jury." Allison v. Gray, 603 F.2d 633, 634 (7th Cir.1979) (quoting Chapman, 386 U.S. at 24, 87 S.Ct. at 828, and Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969)).
Enoch, 581 F.Supp. at 432.
After reviewing the evidence presented at trial and the representations of counsel, this court cannot conclude beyond a reasonable doubt that the state trial court's error was harmless. Cf. Chapman, 386 U.S. at 24, 87 S.Ct. at 828. Here, the petitioner was charged with the delivery of more than thirty grams of cocaine on January 8, 1980, but he was not arrested until June, 1980. Additionally, the respondents claim that the state video taped a drug buy which shows the petitioner delivering cocaine to a state informant. However, the petitioner's counsel represented to this court, without contradiction, *184 that the jury deliberated for more than eight hours even though it saw the video tape. This court has reviewed the video tape and finds that, standing alone, the tape is not conclusive that Alan D. Robinson is the person shown in the tape. In fact, without corroborating testimony from other witnesses it would be impossible to conclude that the person seen in the video tape was the petitioner, Alan D. Robinson. Consequently, the court must conclude that there was a reasonable possibility that the trial court's constitutional error affected the jury's verdict. Cf. Allison v. Gray, 603 F.2d 633, 634 (7th Cir.1979).
IV. CONCLUSION
In summary, the court finds that the state trial court committed constitutional error in denying the petitioner's request to present his alibi defense, to call witnesses on his behalf, and to testify in his own defense. The court further finds that the trial court committed error of such significance that habeas corpus should be granted. Consequently, the petitioner's motion for summary judgment is allowed. See Fed.R.Civ.P. 56(c). See also 28 U.S.C. § 2241(a).
IT IS THEREFORE ORDERED that the petitioner's motion for summary judgment be, and hereby is, allowed.
IT IS FURTHER ORDERED that the petition for a writ of habeas corpus be, and hereby is, allowed.
IT IS FURTHER ORDERED that the petitioner, Alan D. Robinson, be discharged from custody, unless, within one hundred twenty (120) days after the entry of this order, the petitioner is retried for the offenses for which he is currently incarcerated.
NOTES
[1] The Illinois notice-of-alibi statute, Ill.Rev.Stat. ch. 110A, § 413(d) provides that:
Within a reasonable time after the filing of a written motion by the State, defense counsel shall inform the State of any defenses which he intends to make at ... trial and shall furnish the state with the following material and information within his possession or control:
(i) The names and last known addresses of persons he intends to call as witnesses ...; and
....
(iii) And if the defendant intends to prove an alibi, specific information as to the place where he maintains he was at the time of the alleged offense.
[2] See also United States v. Davis, 639 F.2d 239 (5th Cir.1981); Hackett v. Mulcahy, 493 F.Supp. 1329 (D.N.J.1980).
[3] The Fendler balancing test begins with a presumption against the exclusion of witnesses and then considers the following factors: (1) was the defendant's failure to comply with the discovery order "willful"; (2) how important was the witness; and (3) was the possible prejudice (to the prosecution) substantial enough to overcome the defendant's Sixth Amendment right to present a defense? 728 F.2d at 1188-90.
| {
"pile_set_name": "FreeLaw"
} |
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 12-1419
__________
FRANK DOMBROSKI,
Appellant
v.
J.P. MORGAN CHASE BANK, N.A.
__________
On Appeal from the United States District Court
for the District of New Jersey
(District Court No. 2:11-CV-03771)
District Judge: Honorable Stanley R. Chesler
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
December 17, 2012
___________
Before: McKEE, Chief Judge, SLOVITER and VANASKIE, Circuit Judges
(Filed: February 4, 2013)
___________
OPINION
___________
McKEE, Chief Judge
Frank Dombroski appeals the district court’s January 24, 2012 order denying leave
to amend his Amended Complaint alleging a breach of contract. The court initially
dismissed Dombroski’s Amended Complaint, without prejudice, and ordered that he seek
leave to further amend. The court’s January 24th order denied leave to amend based on
the court’s conclusion that a second amendment would be futile. For the reasons
discussed below, we will affirm. 1
I.
Since we write primarily for the parties who are familiar with this case, we only
briefly recite essential facts. 2
Dombroski claims that the contractual disclaimer in Chase’s Code of Conduct is
not sufficiently prominent and clear to preclude formation of a contract between him and
Chase. His argument is essentially a claim that the disputed language of the disclaimer
could have been clearer and more prominent. We do not doubt that is true. However, it
is apparent that the language was sufficiently prominent and clear to negate Dombroski’s
attempt to claim that the Code of Conduct was a contract that Chase breached. In the
opinion filed January, 24, 2012, the district court adequately explained why Chase was
1
Dombroski’s appeal of the district court’s denial of his motion for leave to further
amend encompasses the underlying ruling on the merits of his contract claim. See, e.g.,
Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993) (reviewing the merits of
appellant’s underlying claim on an appeal from a district court’s denial of leave to amend
complaint based on, among other things, futility).
2
The district court had original jurisdiction on grounds of diversity under 28 U.S.C. §
1332(a), and we have jurisdiction pursuant to 28 U.S.C. § 1291.
2
entitled to judgment as a matter of law on Dombroski’s breach of contract claim.
Accordingly, we will affirm the district court’s rejection of that claim substantially for the
reasons set forth in its opinion.
We do, however, believe the district court’s analysis of Dombroski’s judicial
estoppel claim is flawed. The court relied upon our decision in G-I Holdings, Inc. v.
Reliance Ins. Co., 586 F.3d 247, 262 (3d Cir. 2009), in concluding that judicial estoppel
does not apply unless the party to be estopped prevailed in the prior litigation in which it
took a position contrary to the position it was currently taking before the court. See
Dombroski v. J.P. Morgan Chase Bank, N.A., No. 11-3771, 2012 WL 214343, at *2-3
(D.N.J. Jan. 24, 2012). That misinterprets our decision in G-I Holdings.
In denying Dombroski’s judicial estoppel claim, the district court relied on the fact
that the district court in G-I Holdings “never accepted Hartford’s prior [contradictory]
position.” 586 F.3d at 262. However, the district court here failed to appreciate that that
was not the basis of the holding. Rather, in G-I Holdings, we noted that “Hartford
withdrew [the contradictory] position and asserted its new one . . . before the Court ruled
on its motion to dismiss.” Id. Moreover, the district court here failed to appreciate that
the analysis in G-I Holdings specifically noted that: “in Krystal Cadillac-Oldsmobile
GMC Truck, Inc. v. General Motors Corp., 337 F.3d 314 (3d Cir. 2003), a bankruptcy
case, we applied judicial estoppel even though no court had ever relied on the debtor’s
position.” G-I Holdings, 586 F.3d at 262.
3
Accordingly, the district court erred in holding that judicial estoppel does not
apply based on Chase’s unsuccessful assertion of a contradictory position in Pinsky v. JP
Morgan Chase & Co., 576 F. Supp. 2d 559, 563 (S.D.N.Y. 2008).3
Moreover, in G-I Holdings, we also explained that, we “apply [judicial estoppel]
to neutralize threats to judicial integrity however they may arise.” Id. Here, judicial
integrity is not threatened by refusing to create a contract between Dombroski and Chase.
In fact, the opposite is true. We cannot ignore the plain disclaimer in the Code of
Conduct and fashion a contract that was not intended. “[E]stoppel will not operate to
create a contract that never existed [and] the court will not write a new contract for the
parties by estoppel.” Ayer v. Bd. of Ed. of Cent. Sch. Dist. No. 1, 330 N.Y.S.2d 465, 468-
69 (Sup. Ct. 1972) (internal citations omitted); see also Fin. Tech. Int’l, Inc. v. Smith, 247
F. Supp. 2d 397, 409 n.8 (S.D.N.Y. 2002) (“estoppel may not be used to create rights
where they do not already exist, but simply to prevent a party from enforcing rights
which would result in a fraud or injustice.”) (internal citations omitted).4
Thus, despite the district court’s misinterpretation of G-I Holdings, and even
though Chase does appear to be taking a position here that is inconsistent with the prior
3
In Pinsky, Chase asserted that its “Code of Conduct, although not an employment
contract, sets forth terms and conditions of employment with J.P. Morgan.” Defendant’s
Answer to First Amended Complaint and Counterclaims at 13, Pinsky, 576 F. Supp. 2d
559 (No. 07-CV-3328). Chase’s breach of contract claim referenced no agreement
except for the Code of Conduct. See id. Since J.P. Morgan argued that its employee’s
violation of the Code of Conduct was a breach of contract, Chase necessarily contended
that the Code of Conduct constitutes a contract.
4
The parties agree that New York law controls the interpretation of Chase’s Code of
Conduct, and the district court applied New York law. See Brief of Appellant at 20-29;
Brief of Appellee at 12; Dombroski, N.A., 2012 WL 214343, at *2.
4
position it took in the Pinsky litigation in New York, it is clear that the district court was
correct in refusing to create a contractual relationship between Dombroski and Chase, in
dismissing Dombroski’s complaint and in concluding that Dombroski’s attempt to amend
the complaint would have been futile. Accordingly, the district court did not err in
dismissing Dombroski’s complaint for failure to state a claim.5
II.
For the reasons set forth above, we will affirm the district Court’s dismissal of the
Amended Complaint and its refusal to allow leave to further amend.
5
We exercise plenary review over the dismissal of a complaint for failure to state a claim.
See Toll Bros., Inc., 555 F.3d 131, 137 (3d Cir. 2009); Winer Family Trust v. Queen, 503
F.3d 319, 325 (3d Cir. 2007). Where, as here, denial of leave to amend is based on
“futility,” it essentially means that a “complaint, as amended, would fail to state a claim”
for relief. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 231 (3d Cir. 2011). Since it is
clear on this record that the Code of Conduct was not an enforceable contract, the district
court correctly concluded that any amendment to the Amended Complaint would have
been futile.
5
| {
"pile_set_name": "FreeLaw"
} |
36 So.3d 112 (2010)
DEPARTMENT OF BUSINESS
v.
UNITED SOUTHERN BANK.
No. 5D09-2482.
District Court of Appeal of Florida, Fifth District.
May 18, 2010.
Decision Without Published Opinion Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
181 So.2d 704 (1966)
George FOULK, Appellant,
v.
Lottie D. PERKINS, Administratrix and surviving widow of Julian C. Perkins, Deceased, Appellee.
No. 5248.
District Court of Appeal of Florida. Second District.
January 12, 1966.
Henderson, Franklin, Starnes & Holt, Fort Myers, for appellant.
Smith, Carroll, Vega, Brown & Nichols, Naples, for appellee.
WILLIS, BEN C., Associate Judge.
The plaintiff, Lottie D. Perkins, the surviving widow of Julian C. Perkins, and administratrix of his estate, brought suit against the defendant Foulk to recover for the wrongful death of her husband under *705 F.S. 768.01, 768.02, F.S.A., and also for damages to the decedent's estate pursuant to F.S. 45.11, F.S.A. The action arose out of fatal injuries to Mr. Perkins from an accident involving a truck owned by the defendant and operated by his employee, whose negligence was alleged to have proximately caused the fatality. Defenses of denial of negligence and of contributory negligence and assumption of risk by decedent were asserted.
Following presentation of all the evidence, the trial judge on his own motion struck the defenses of contributory negligence and assumption of risk. He also declined to permit argument to the jury on those subjects, and refused to give requested instructions on those defenses. A jury verdict in favor of the plaintiff in both capacities in which she was suing was rendered, motion for new trial was denied, and judgment on the verdicts were entered, from which an appeal is brought to this court.
The appellant-defendant presents two points which he contends entitle him to a reversal:
(1) The action of the trial court in eliminating consideration by the jury of the defenses of contributory negligence and assumption of risk; and
(2) Because of the employment status of the decedent and the defendant's truck driver, the defendant was not a third party tort-feasor under F.S. 440.39, F.S.A., against whom the plaintiff may prosecute an action for damages.
The evidence on the pertinent facts is not in material conflict. Plaintiff's decedent was employed as a bulldozer operator for Hendry County Rock Company at a place where wet marl was being dumped from trucks owned by the defendant and operated by his employees. After the marl was dumped and when a sufficient quantity of it was accumulated, the plaintiff's decedent would bulldoze it into a pit. Hendry County Rock Company was engaged in moving this wet marl from one location it owned to another location owned by it a short distance away. It had contracted with defendant to provide two trucks and drivers to effect the transfers. At the place where the marl was located the rock company had a drag line, with an operator, which dug out the marl and loaded it on the defendant's trucks. It was then taken and dumped at the place where the plaintiff's decedent, Mr. Perkins, had the bulldozer.
On May 2, 1963, one of defendant's trucks was driven into an area near the pit and it became stuck. In attempting to pull the truck out its bumper and front end were damaged. In this disabled state the truck remained where it was while its driver and another employee of the defendant undertook to repair it.
The other truck of defendant continued to make trips hauling the wet marl, and made several deliveries while the disabled truck remained where it had become stuck. These deliveries continued until after dark. A single artificial light, probably 300 watts, was attached to a pole which was stuck in a mound of dirt 30 to 50 feet from the disabled truck.
The accident happened when defendant's driver was backing his 10-wheel truck, with blinker lights flashing, at something less than 3 miles per hour. Apparently he was aiming along a course which would have taken him to the dumping area and would have easily cleared the disabled truck, but the wet marl and general muddy state of the ground caused the truck to slip and skid off course so that its rear struck the front of the stationary truck. At this moment, defendant's other two employees were working underneath or near the front end of the disabled truck, each having a light which was pointed straight up beneath the truck near where they were working. Immediately after the collision, the driver moved his truck forward a few feet and it was then discovered that Perkins was lying badly injured between the two trucks. He died a few moments later from injuries *706 which obviously he had incurred in being struck by the truck.
Perkins had been in and around the disabled truck from time to time and would on occasion during the dumping of the marl stand nearby and even comment upon or make suggestions to the truck operators. However, at the time of the accident none of the other persons at the scene knew where he was or what he was doing, though he was known to be in the general vicinity of the disabled truck.
It is in substance contended that the factual situation was such that the jury could have inferred that the decedent was so inattentive to his own safety and otherwise contributorily negligent that the plaintiff is barred from recovery. Also it is contended that there were allowable inferences of assumption of risk by the decedent to forestall recovery.
No contention is made that the evidence failed to establish a prima facie case of negligence on the part of the defendant's truck driver which proximately caused the death of Mr. Perkins. The record shows substantial competent evidence on this issue. The problem thus presented is whether there is evidence of facts from which reasonable men could lawfully conclude that defendant's own lack of due care was a proximate contributing cause of his death.
After examining the evidence we conclude that the trial judge was not in error in ruling as he inferentially did, that there was no substantial competent evidence to support the defendant's affirmative defenses.
The evidence is clear that decedent was fatally injured by being crushed between the two trucks. There is no evidence from which it could be inferred that when he was first struck he was at any place other than at some point close to and directly in front of the disabled truck. He had a right to be there and had no reason to anticipate that the moving truck would be driven on a course to collide with the front of the stationary truck. On the contrary he had every reason to expect that he was at the one place the truck would not be driven. This would be true regardless of how noisy and illuminated the moving truck may have been. The sound of the engine and flashing of lights from the truck does not raise an inference that the decedent was alerted to the fact that the truck was off course and endangering his safety. Such circumstances would be equally indicative that the truck was on course and no threat of any kind.
It is not contributory negligence to fail to look out for danger when there is no reason to apprehend any. Berlin v. Southgate Corp., Fla.App. 1962, 142 So.2d 362; Mertz v. Krueger, Fla., 58 So.2d 160; First Federal Savings & Loan Ass'n of Miami v. Wylie, Fla., 46 So.2d 396; Dempsey-Vanderbilt Hotel v. Huisman, 153 Fla. 800, 15 So.2d 903; Sears, Roebuck & Co. v. Geiger, 123 Fla. 446, 167 So. 658; Crosby v. Donaldson, 95 Fla. 365, 116 So. 231; Southern Express Co. v. Williamson, 66 Fla. 286, 63 So. 433, L.R.A. 1916C, 1208; J.G. Christopher Co. v. Russell, 63 Fla. 191, 58 So. 45. The law presumes that one injured by another's negligence did everything that a reasonably prudent man would have done under the circumstances to protect his own safety. Murden v. Miami Poultry & Egg Co., 113 Fla. 870, 152 So. 714. This presumption is not overcome by mere speculative and conjectural inferences. "[A]n inference recognizable in law cannot be based upon evidence that is so uncertain or speculative as to raise merely a conjecture or possibility." Sirmons v. Pittman, Fla.App. 1962, 138 So.2d 765.
We are fully aware of the well-established rule that it is only necessary that there is some evidence tending to show negligence on the part of the plaintiff to make the question of contributory negligence one for the jury. Garris v. Robeison, Fla.App. 1962, 146 So.2d 388; Redwing Carriers, Inc. v. Helwig, Fla.App. 1959, 108 So.2d 620. However, in the case before us we find there was no evidence from which *707 the jury may have concluded that the plaintiff was guilty of contributory negligence.
The defense of assumption of risk is found to be equally unsupported by the evidence.
The action of the trial court in striking the defenses may have been a procedural error, but if it was it was harmless. The trial court properly regarded these pleaded defenses as unsubstantiated by the proofs and that jury instructions on those subjects would be unwarranted. "Charges must square with the rule of law arising from the facts developed at the trial of the case. Derived from any other source they are as apt to mislead as they are to lead the jury aright." Green v. Atlantic Co., Fla. 1952, 61 So.2d 185.
The contention that the plaintiff is barred from pursuing this cause because her decedent and the operator of defendant's truck were both statutory employees of Hendry County Rock Company, thus limiting her to Workmen's Compensation benefits, is without merit. Hendry County Rock Company was not a "contractor" and the defendant was not a "subcontractor" as those terms are used in F.S. 440.10(1), F.S.A., so as to confine the plaintiff to Workmen's Compensation benefits as provided in F.S. 440.11, F.S.A. The mere fact that plaintiff's decedent and defendant's truck driver were working on the same general project does not make them employees of a common employer, and as Hendry County Rock Company had no primary obligation under a contract with another party, a portion of which it was passing on to defendant, it was not a "contractor" who would become the statutory employer of defendant's employees. Jones v. Florida Power Corp., Fla. 1954, 72 So.2d 285. The defendant was a mere independent contractor performing services directly for Hendry County Rock Company. See also: Cromer v. Thomas, Fla.App. 1960, 124 So.2d 36 (cert. denied Fla., 135 So.2d 420); State ex rel. Auchter Company v. Luckie, Fla.App. 1962, 145 So.2d 239 (cert. denied Auchter Co. v. Luckie, Fla., 148 So.2d 278).
Under the facts in this case the defendant was a "third party tortfeasor," as that term is used in F.S. 440.39, against whom the plaintiff may bring these actions. The cases of Younger v. Giller Contracting Co., 143 Fla. 335, 196 So. 690, and Smith v. Poston Equipment Rentals, Fla.App. 1958, 105 So.2d 578, urged by the appellant in support of its contentions on this question, are not in point.
The judgment appealed from is hereby
Affirmed.
ALLEN, C.J., and LILES, J., concur.
| {
"pile_set_name": "FreeLaw"
} |
88 F.2d 757 (1936)
BROTHERHOOD OF RAILROAD TRAINMEN et al.
v.
NATIONAL MEDIATION BOARD et al.
No. 6665.
United States Court of Appeals for the District of Columbia.
Argued November 13, 1936.
Decided December 21, 1936.
*758 Albert F. Beasley and A. Lane Cricher, both of Washington, D. C., for appellants.
Leslie C. Garnett, U. S. Atty., of Washington, D. C., and Leo F. Tierney, Sp. Asst. to Atty. Gen., for appellees.
Before MARTIN, C. J., and ROBB, VAN ORSDEL, GRONER, and STEPHENS, JJ.
GRONER, J.
By Act of June 21, 1934,[1] Congress amended the Railway Labor Act for the avowed purpose of correcting defects which had become evident as the result of eight years' experience. The Act of 1926 (44 Stat. 577) had created certain definite legal obligations enforceable by judicial proceedings for the purpose, among other things, of safeguarding the rights of employees to bargain collectively with the carrier through representatives of their own choosing without interference by the carrier. Virginian Railway Co. v. System Federation, etc., (C.C.A.) 84 F.(2d) 641, 645. The amendment provided for a Board called the National Mediation Board, to which might be referred any dispute arising among the carrier's employees as to who was the representative of such employees in making contracts and working agreements with the carrier in accordance with the requirements of the act. The Board is authorized in such a case to investigate the dispute and to certify the name of the organization authorized to represent the employees involved, and to this end to cause a secret ballot of the employees in such manner as should insure a choice without interference or coercion. And in the election the Board is authorized to establish rules to govern the election and to "designate" who shall participate. Section 2, paragraph fourth, of the act provides that the majority of any craft or class shall have the right to determine who shall be the representative of the craft or class for the purposes of the act.
In the spring of 1935 a dispute arose among the road conductor employees of the Norfolk & Western Railway Company as to who should be the representative of that craft or class. At that time the conductors were represented by the Order of Railway Conductors, and the brakemen employees by appellant, the Brotherhood of Railroad Trainmen. As the result of the dispute, the Brotherhood invoked the jurisdiction of the Board for the certification of the proper representative of the craft. The Board, having assumed jurisdiction, promulgated a ruling limiting the conductor employees eligible to vote to those "regularly assigned as Road Conductors or on Road Conductors' Extra Boards * * * as of August 22, 1935."
Out of a total of 605 employees on the conductors' roster, only 294 were listed by the Board as qualified to vote, since only that number were regularly assigned as conductors or on conductors' extra boards on that date. The remainder, as the record discloses, worked a portion of their time as part-time, extra, or emergency conductors and the balance of the time as brakemen. In the election held by the Board a large majority of the 294 regular conductors voted for representation by the Order of Railway Conductors, and a certificate to that effect from the Board to the carrier followed.
The question on this appeal is whether the decision of the Board, excluding part-time conductors from participation in the election, was a mistake of law so clearly *759 erroneous as to make the decision arbitrary. There are other points made, one of which we shall notice.
In the railroad business the employees have for many years been divided into crafts, and in many instances these crafts form a continuous line of employments through which an employee may progress from the lower ranking crafts to the higher. The craft of brakemen comes immediately beneath the craft of conductors, and in the case of the Norfolk & Western, as doubtless also in the case of the other railroads, the custom has been at different periods to hold examinations among the senior ranking brakemen, and such brakemen as qualify are entitled to be and are placed on the company's roster of conductor employees, are given certificates as conductors, and are eligible for service as conductors when called. They acquire seniority as conductors from the date of their certification as such, and they also continue to acquire seniority as brakemen; but unless and until jobs are open they continue to work as brakemen. Seniority is the test for availability to a particular job, and so the highest ranking men on the conductors' seniority list are regularly assigned as conductors. The next highest ranking conductors are first called to fill vacancies, and when extra boards are established, the names of these conductors are placed on what are called "extra boards" and are drawn therefrom. When more men than are assigned regularly as conductors and on conductors' extra boards are needed for emergency, part-time, or irregular work as conductors, they are drawn in the order of seniority from those persons on the conductors' list who are then working as brakemen. The demand for such emergency conductors fluctuates seasonally and otherwise.
The bill alleges in the case of four of the emergency conductor employees who joined the Brotherhood in bringing this suit that in the eight months preceding the election one of them was assigned to work 203 working days, of which he worked 179 days as conductor and 24 as brakeman; that another was assigned to work 246 days, of which he worked as conductor 217 days and 29 as brakeman; another was assigned 266 days, of which 243 were worked as conductor and 23 as brakeman; still another, that he was assigned 336 days, of which 156 were worked as conductor and 180 as brakeman. Each of these employees alleged he was not permitted to vote because he was not "regularly assigned as a road conductor" or on the "extra board" on August 22, 1935, and each alleged that he was in fact then a member of the craft or class of conductor employees and vitally interested in any dispute affecting that craft. The bill further alleged that all the 308 excluded conductor employees had been assigned and served the railway in the capacity of conductor "a substantial portion of their time from January 1, 1935, up to and including the date on which said election was held"; and that many of them had served a greater portion of their time in such capacity as conductors than they had in the capacity of brakemen. As to all it is charged in the bill that they are in the employ of the carrier and hold certificates as road conductors and are carried on the company's roster as conductor employees; that they are governed and controlled by the carrier as to their services under the terms of the working agreement between the company and its conductor employees; that they have earned and are continuing to earn and will in the future earn seniority rights as conductors; that they serve and are required to serve as brakemen when there are no available assignments as conductors as provided in the working agreement between the company and the conductor employees, and are entitled in the order of seniority to the first available assignment as conductors; and on this basis it is claimed that they have a present, vested, and vital interest in any dispute involving the craft or class of conductor employees of the carrier.
The Board, in reaching a decision of eligibility to vote, placed its determination upon what is said to be its settled practice of limiting those eligible to vote for representation of a class or craft to "those who have a present interest in the wages, rules and working conditions of the class whose representation is to be determined." And this brings us to a consideration of the act and the existing working agreement which is made an exhibit with the bill.
The general purpose of the Labor Act was to promote peaceful and conciliatory consideration of labor disputes and especially to secure the right of collective bargaining, through a representative chosen by a majority of the employees in a particular craft or class. It is not going too far to say that the basic and underlying purpose of the act was to insure representation *760 in accordance with established custom to those employees whose interests are involved. But the act leaves uncertain the precise or exact meaning of the words "class or craft," and we think obviously for the reason that it was intended by Congress to adopt the designation of class or craft as determined by the then current working agreement between the railroad and particular groups or classes of its employees. And we find justification for this conclusion in paragraph 7 of section 2, which provides that: "No carrier, its officers or agents shall change the rates of pay, rules, or working conditions of its employees, as a class as embodied in agreements except in the manner prescribed in such agreements or in section 6 of this Act." In other words, that no carrier shall change the terms of its working agreement with any class of employees, as that class is embodied in and declared to exist by the working agreement, except in accordance with the terms of the agreement or in conformity with the act. In the light of this provision and of the general scheme of the act as a whole we think it is obvious that how classes are to be formed and who shall compose them are matters left to the employees themselves; and so we think that by reference to the terms of the working agreement which the employees have made, is to be found at least some evidence of who are members of the craft or class covered by that agreement. The Board also recognizes that this is a criterion, for in its First Annual Report to Congress, after noting that the act does not give it authority to define the crafts or classes, it says: "So far as possible the Board has followed the past practice of the employees in grouping themselves for representation purposes and of the carriers in making agreements with such representatives."[2]
An examination of the working agreement in the present case reveals that the term "conductor" as a class includes not only regularly assigned and extra board conductors but emergency conductors as well. For example:
Article 26, 1(a): "Conductors will be considered in line of promotion in accordance with seniority, ability, and fitness."
Article 26, 1(c): "The rights of conductors will commence on the day they pass the required examinations. * * *"
Article 26, 1(f): "Conductors may not voluntarily relinquish their rights as conductors and assert seniority as brakemen without losing their rights as conductors thereby."
Article 26, 1(l): "Seniority lists of conductors in road service will be posted semi-annually, in January and July of each year."
Article 26, 3: "On divisions or seniority districts where there is maintained an extra list of conductors, no emergency conductors will be used, except in case of extreme emergency where no extra conductor can be obtained."
Article 26, 2(a): "When increasing the extra conductor lists at Crewe, Roanoke, Bluefield, Portsmouth, and Joyce Avenue, the oldest emergency conductor, or conductors on the seniority district will be assigned * * *
"At terminals where extra conductor lists are not maintained, permanently vacant or newly put on pool runs will be filled by assigning thereto the oldest emergency conductor or conductors on the seniority district. * * *"
And by a supplementary agreement, effective November 1, 1932, the purpose of which was to relieve unemployment, the monthly mileage limitation agreement was amended to provide that: "1(c). The maximum monthly mileage limitation applying to men who work part time as conductor and part time as trainman in the same calendar month shall be 3500 miles, or its equivalent. * * *"
These references to the subsisting agreement between the craft and the carrier show, we think, that the excluded emergency conductors are in fact included under that agreement and that when they work as conductors they are controlled by its terms. In that agreement they have a present interest varying in degree according to the amount of work done under it. As to some of them, as the bill shows, their wages and terms of service for the greater part of their time were controlled and regulated by the agreement. In this view it seems clear that, applying the Board's own test to the facts of the case, these individual appellants show a present interest of a substantial nature. But as we shall later point out, there is nothing in the agreement itself which shows definitely who participated in electing the representative *761 to act for the conductors in its making, that is to say, whether all or only a part were then considered eligible to vote.
The Board, as we have seen, confined the right to participation to those conductors regularly assigned or on the extra boards on August 22, 1935. But no reason is given for making a distinction between conductors on the extra boards and emergency conductors; but, as opposed to that distinction, we find in the agreement that extra boards are not maintained in all lines of service on all seniority districts, and that when no such boards are maintained the senior emergency conductors on the district are assigned to fill vacancies. In the absence of anything to the contrary, upon which a proper distinction can be based, it is a fair conclusion that emergency conductors, when there are no extra boards, have the same "present interest" as those conductors on the extra boards when such boards are maintained. But because it is impossible to determine this question without a fuller disclosure of the facts, we express no opinion on the question and suggest it only as showing the necessity for a fuller hearing than was had.
In addition to this, it is charged in the bill that the Board declined and refused to inform appellants of the facts upon which the Board based or made its designation or rule as to who were eligible to participate in the election on the ground that this information was obtained through its examiner and should not be divulged. This, in our opinion, was wrong, for, as was said by Mr. Justice Brandeis in United States v. Abilene & S. R. Co., 265 U.S. 274, 288, 44 S.Ct. 565, 68 L.Ed. 1016, "Nothing can be treated as evidence which is not introduced as such."
We perfectly recognize that the intent of Congress was to clothe the Board with large discretionary powers in the conduct of elections for the appointment of representatives between the carrier and the craft, and we have no desire to impinge upon or curtail this very proper discretion. The subject is an involved one, and this fact is recognized by the Board and pointed out in plain language in its report to Congress to which we have referred. But this fact all the more shows the necessity of full hearings whenever a dispute arises. And obviously the lack of such a hearing in the present case has left us, as it must have left the Board, without the necessary data on which to form an opinion. In this circumstance, if the matter of interest alone is to be adopted as the test, we should hesitate to hold that an emergency conductor whose service time on the railroad is spent 50 per cent. as conductor and 50 per cent. as brakeman should not be classified, for the purposes of agreement making, as a conductor. But, as we have seen, the intent of Congress, in leaving undefined by the act the personnel of the class authorized to choose a representative, was to adopt and confirm the grouping as it then was recognized and established by mutual agreement of employee and carrier. And this introduces another element as to which the record is wholly silent. We do not know if, in the character of grouping we have mentioned, emergency conductors were voting members of the conductor group as of the time of the passage of the act or whether at that time they were regarded by the men themselves for agreement making as members only of the brakemen group, and nothing in the so-called hearing afforded by the Board throws any light upon the subject. From all of this it is obvious that the Board acted in this dispute without affording appellants any real hearing, and this, it is needless to say, was the sort of arbitrary action which no court when its jurisdiction is invoked can approve.
In this situation, our conclusion is that the case should go back to the District Court with directions to set aside its former order and remand the case to the Board with instructions to annul its certification and to afford the contesting employees and Brotherhood a full hearing and then to reach a decision based only on evidence adduced at the hearing and supplemented by a finding of facts on which it rests its conclusion. When this has been done it may appear that the result of the election would have been the same, so that no new election will be required; but in any event the courts, if then called upon to review the matter, will have before them a record on which to determine whether the decision is arbitrary or capricious. Enough appears here to justify us in finding, for the reasons stated above, that the present decision especially if made, as alleged, as the result of information only in the possession of the Board and withheld from appellants is without legal effect and should be corrected in the way we have indicated.
Reversed and remanded.
NOTES
[1] 48 Stat. 1185, 45 U.S.C.A. § 151 et seq.
[2] First Annual Rep. p. 20.
| {
"pile_set_name": "FreeLaw"
} |
513 F.2d 1001
30 A.L.R.Fed. 860
UNITED STATES of America, Plaintiff-Appellee,v.Lawrence Jerome RING, Defendant-Appellant.
No. 74-1277.
United States Court of Appeals,Sixth Circuit.
April 2, 1975.
Jerry D. Kizer, Jr. (Argued), Spragins, Menzies & Rainey, Jackson, Tenn. (Court appointed), for defendant-appellant.
Thomas F. Turley, U. S. Atty., Glen G. Reid, Jr., (Argued) Memphis, Tenn., for plaintiff-appellee.
Before PHILLIPS, Chief Judge, McCREE, Circuit Judge, and RUBIN*, District Judge.
McCREE, Circuit Judge.
1
This is an appeal from a conviction, by jury, of mailing threatening letters in violation of 18 U.S.C. § 876, par. 3.1 Appellant contends, inter alia, that the district court erred in admitting, during the prosecution's case in chief, evidence that he had previously threatened over the telephone a person other than the recipient of the threatening letters that were the reason for the indictment. The dispositive issue is whether this evidence of prior threats was admissible to show the accused's criminal intent. We hold that it was not, and that evidence that the accused had made threats in the past was inadmissible under the "intent" exception to the general rule excluding evidence of prior misconduct. Although intent is an element of the offense charged in the indictment, intent was not a genuinely contested issue in the case because appellant had not asserted mistake or an innocent state of mind as a defense. When no such defense is asserted, the element of intent may be inferred from the act of mailing but may not be proved in the prosecution's case in chief by similar act evidence.
2
The significant facts are not disputed and may be stated briefly. Appellant was indicted by a federal grand jury and charged with depositing in the United States mails, on or about May 14 and May 15, 1971, two unsigned, undated, threatening letters addressed to Walter Brock of Jackson, Tennessee. At trial, Brock testified that he received two letters reading:
Letter No. 1
3
Brock: Hiding at home behind your wife's skirts won't help you. I have an army rifle and two rifle grenades so all I have to do is to place one into the front windshield of your car. If your family gets killed in the process, I'm sorry, but you've taken away my family. I don't know when it'll be, but rest assured, YOU ARE GOING TO DIE.
Letter No. 2
4
Brock: Before too much longer you will see a sign indicating that I mean exactly what I've said. You are going to die! . . . After I've killed you, I will turn myself over to the police for I have nothing to live for right now except to kill you (sic) ass.
5
The government introduced evidence that appellant's fingerprints were found on the two envelopes and the letters that Brock received. The only other evidence offered to the jury to prove that appellant had prepared and mailed the letters was the testimony of Peggy Dunavan that appellant had threatened her eight or nine times over the telephone about six months before the threatening letters were received by Brock. Although appellant testified at trial, he shed no light on his involvement in the mailing of the letters in May 1971, because he claimed amnesia for all events before August 23, 1971. For this reason the record is almost barren of evidence illuminating the circumstances under which the letters were mailed or indicating whether appellant, or anyone else, had a motive for mailing threatening letters to Brock.
6
The questions presented for review are: (1) whether the district court erred in admitting the evidence of prior threats made by appellant; (2) whether the evidence was sufficient to support the jury's verdict; and (3) whether appellant, although apparently suffering from amnesia, was competent to stand trial.
7
As a general rule, in jury trials, evidence of a criminal defendant's prior misconduct is inadmissible in the prosecution's case in chief to show the accused's bad character or criminal propensity. The reason is "not because it has no appreciable value but because it has too much." 1 J. Wigmore, Evidence § 194 (3d ed. 1940). It tends to confuse the issue of guilt or innocence of the specific offenses charged and to weigh too heavily with the jury. Mr. Justice Jackson in Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 218, 93 L.Ed. 168 (1948), stated the general rule and its rationale:
8
The state may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice. (Footnotes omitted).
9
See also People v. Zackowitz, 254 N.Y. 192, 172 N.E. 466 (1939). (Cardozo, J.).
10
Exceptions to this rule, however, let in evidence of a defendant's prior misconduct to show motive, intent, absence of mistake or inadvertence, identity of the offender or a common plan, pattern or scheme.2 United States v. Nemeth, 430 F.2d 704 (6th Cir. 1970); United States v. Wells,431 F.2d 432 (6th Cir. 1970); United States v. Birns, 395 F.2d 943 (6th Cir. 1968); United States v. Neal, 344 F.2d 254 (6th Cir. 1965). See also People v. Molineux, 168 N.Y. 264, 61 N.E. 286 (1901) (a leading American decision discussing the exceptions). See generally 2 J. Wigmore, Evidence §§ 300 et seq. (3d ed. 1940); McCormick, Evidence § 157 (1954); Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv.L.Rev. 988 (1938). The exceptions, when properly applied, are justified by a legitimate need for the evidence that outweighs the perils of undue prejudice to the accused. In reaching this accommodation, the law naturally seeks to shield the accused from unnecessary prejudice. Accordingly, the admission of evidence of a defendant's prior acts of bad conduct, under the specified exceptions, requires limiting instructions cautioning the jury not to consider the evidence for improper purposes. United States v. Nemeth, supra; United States v. Sims, 430 F.2d 1089, 1092 (6th Cir. 1970).
11
The mere recitation by the prosecution that evidence of the accused's bad acts is offered under an exception is not sufficient for its admission. In United States v. Birns, 395 F.2d 943 (1968), for example, we considered whether evidence that the accused had been previously convicted for income tax fraud was admissible in a prosecution for perjury under the exceptions "to show intent, design, scheme, motive, or knowledge on the part of the defendant." 395 F.2d at 945. We held the evidence inadmissible because the prior tax fraud convictions had "no logical tendency" to establish that the defendant had committed perjury and were only prejudicial. To show "intent" with evidence of other misconduct, there must be a substantial similarity between the offenses charged in the indictment and the prior misconduct. United States v. Birns, supra; United States v. Kasouris, 474 F.2d 689 (5th Cir. 1973); United States v. Johnson, 453 F.2d 1195 (5th Cir. 1972). See generally 2 J. Wigmore, Evidence § 302, at p. 200 (3d ed. 1940). We have also held that "to show a consistent pattern of conduct relating to the offense charged the evidence must be of prior similar acts reasonably near in time to the offense charged." United States v. Nemeth, 430 F.2d 704, 705 (1970). And, evidence of prior misconduct may not be admitted under any exception unless the matter for which the evidence is offered is "in issue", United States v. Nemeth, supra at 705. Finally, even when it is admissible under an exception, the trial court, in its discretion, may exclude the evidence of defendant's prior misconduct if its potential to foster unfair prejudice against the accused outweighs the probative value to be gained by its admission. See generally, McCormick, Evidence § 157, supra at p. 332-33.3
12
Here, the evidence of threats against Peggy Dunavan was offered, in the prosecution's words, to show "state of mind, motive and intent, and propensity to commit the offenses charged." This evidence was inadmissible to show appellant's bad character or propensity to threaten others, since it was introduced during the prosecution's case in chief and the defendant had not opened the issue of his character. Michelson v. United States, supra. The district court expressly instructed the jury that the evidence of prior threats could not be considered in determining whether appellant committed the "substantive acts" charged but, instead, only to show the defendant's "motive or intention."4 The question thus narrows to whether the prior threats were admissible for these purposes.
13
Proof of motive, meaning an impetus to perform the criminal act, may aid the jury in establishing the defendant's identity as the person who committed the offense charged and may also demonstrate "deliberateness, malice, or a specific intent constituting an element of the crime." McCormick, Evidence § 157, p. 330 (1954). Cf. Spies v. New York, 317 U.S. 492, 498, 63 S.Ct. 364, 87 L.Ed. 418 (1943). Thus, evidence that appellant harbored ill will against Brock and had strong reason to threaten him would be relevant not only to establish that appellant mailed the letters to Brock but also, if the act were conceded or proven, to negative any claim of mistake or inadvertence.
14
Here, Peggy Dunavan testified, on direct examination, not that appellant had reason to threaten Brock but only that appellant had threatened her by telephone several times:
15
Q Let me ask you, if, during the period of September, 1970, whether or not you received any threatening communications from Lawrence Jerome Ring?
16
A Yes, sir.
17
Q On one occasion or more than one occasion?
18
A On about eight or nine, in all.
19
Q Okay.
20
And how did you receive them?
21
A By telephone.
22
Q And what was the substance of these communications?
23
A I don't understand you, what do you mean?
Q Well, what Well, let me ask you:
24
If the person on the other end of the telephone identified himself?
25
A Yes, sir. He always said it was "Jerry Ring."
26
Q Okay.
27
Had you known Jerry Ring prior to these telephone conversations?
28
A Yes, sir.
29
Q Did you recognize the voice of the individual making the telephone call?
30
A Yes, sir.
31
Q And who was, or who was the person making the telephone call, according to your various recognition?
32
A Jerry.
33
Q What did he say to you?
34
A Well, the first time he told me he could shoot me down, and, just like he shot the Vietcongs down, and laugh at me die.
35
Q All right.
36
A And the next time, that happened that night, and the next day he changed it to where:
37
"Peggy, you had better get your affairs in order, because you don't have long to live."
38
Or something like that.
39
On cross-examination she added that the only reason she could find for appellant threatening her was "over a woman" named Joyce. Other testimony at trial indicated that Brock's wife was named Joyce.
40
The government argues that the evidence of prior threats showed a motive for appellant to threaten Brock because "(t)he threatening letters involved in the indictment concerned the wife of one of the parties involved," and "Peggy Dunavan testified that the threats made to her by the defendant involved 'Joyce' ", which was the name of the victim's wife. But the letters received by Brock do not indicate that the sender had any relationship with Brock's wife. Instead, the letters suggest, if anything, that Brock had interfered in some way with the sender's family. From all that appears in the record, the prior threats have "no logical tendency" to show a motive, cf. United States v. Birns, supra, and, accordingly, we hold that the evidence was inadmissible for that purpose.
41
It remains to be considered whether the prior threats were admissible to show appellant's criminal intent. We find no merit in appellant's argument that threats by telephone six months before the charged mailing of threatening letters were not sufficiently similar to the offenses charged and not reasonably close in time. See 2 J. Wigmore, Evidence § 302 supra. But we conclude the admission of the challenged evidence was erroneous for the more fundamental reason that intent was not a genuinely contested issue.
42
The government apparently does not dispute the proposition that evidence of prior misconduct is admissible to show intent only when intent is in issue. It cites the following statement of the rule in United States v. Nemeth, 430 F.2d 704, 705 (1970) (emphasis added).
43
The general rule is that evidence of prior criminal activity is inadmissible to prove the commission of a later offense. The only exceptions to that rule are that when intent, motive, or lack of mistake are in issue, evidence of prior similar and related offenses tending to show a consistent pattern of conduct is admissible if accompanied by appropriate cautionary instructions. (Citations omitted).
44
The emphasized language makes it clear that evidence of prior bad acts may not be introduced unnecessarily as a pretext for placing highly prejudicial evidence of a defendant's bad character before the jury.
45
Yet, the government argues that the mere fact that intent is an element of the offenses charged is in itself sufficient for purposes of invoking the exception permitting evidence of a defendant's prior misconduct to show intent. The dispositive issue, in our view, is this: May the "intent" exception be invoked by the prosecution to permit admission of evidence of an accused's prior misconduct where the requisite criminal intent would normally be inferred from the criminal act, if proven, of mailing threatening letters and where, at the same time, the defendant has not asserted the defense of an innocent state of mind? We conclude it may not.
46
Certainly, intent is in issue whenever it cannot readily be inferred from proof of the criminal act charged. This class of cases was aptly described in the leading decision of People v. Molineux, supra:
47
. . . There are cases in which the intent may be inferred from the nature of the act. There are others where willful intent or guilty knowledge must be proved before a conviction can be had. Familiar illustrations of the latter rule are to be found in cases of passing counterfeit money, forgery, receiving stolen property and obtaining money under false pretenses. An innocent man may, in a single instance, pass a counterfeit coin or bill. Therefore, intent is of the essence of the crime, and previous offenses of a similar character by the same person may be proved to show intent. (Commonwealth v. Jackson, 132 Mass. 16; Commonwealth v. Bigelow, 8 Metc. 235; Commonwealth v. Stone, 4 Metc. 43; Helm's Case, 1 City Hall Rec. 46; Smith's Case, 1 City Hall Rec. 49; Coffey's Cases, 4 City Hall Rec. 52; Dougherty's Case, 4 City Hall Rec. 166.) So in a case where the defendant is charged with having received stolen property, guilty knowledge is the gravamen of the offense and scienter may be proven by other previous similar acts. (Commonwealth v. Johnson, 133 Pa. 293, 19 A. 402; Coleman v. People, 58 N.Y. 555; Copperman v. People, 56 N.Y. 591; People v. McClure, 148 N.Y. 95, 42 N.E. 523.) In cases of alleged forgery of checks, etc., evidence is admissible to show that at or near the same time that the instrument described in the indictment was forged or uttered the defendant had passed, or had in his possession, similar forged instruments, as it tends to prove intent. (Commonwealth v. Russell, 156 Mass. 196, 30 N.E. 763; People v. Everhardt, 104 N.Y. 591, 11 N.E. 62; Reg. v. Colclough, 15 Cox Crim.Cas. 92.) On the trial of an indictment for obtaining goods by false representations, similar representations made by the defendant to creditors from whom goods had been previously purchased by him were held admissible to prove intent. (Mayer v. People, 80 N.Y. 364.) It will be seen that the crimes referred to under this head constitute distinct classes in which the intent is not to be inferred from the commission of the act and in which proof of intent is often unobtainable except by evidence of successive repetitions of the act. (Emphasis added).
48
Here, on the contrary, if the act were proven, intent would naturally be inferred from the mailing of the threatening letters. What was said in Molineux, supra, 168 N.Y. at 299, 61 N.E. at 296, which held inadmissible evidence of prior crimes to show intent in a prosecution for poisoning, applies, as well, in this case:
49
Could proof of any number of repetitions of this act add anything to the conclusive inference of criminal intent which proof of the act itself affords? Can it be possible that in the face of such irrefragable indicia of murderous intent it is still necessary or proper to prove the commission of other similar crimes to establish intent? These questions carry their own answers. If intent may not be inferred from such an act as this, then there is no such thing as inference of intent from the character of the act.
50
A different case would be presented if the defendant had raised the issue of intent by pleading that the act, if done, was done innocently, by mistake or accident. It might have been argued, for example that appellant wrote the letters, decided not to mail them, and they were then mailed inadvertently. No such defense was raised here, however, and we find pertinent the observations of Lord Sumner in Thompson v. The King, (1918) App.C. 221, 232, cited in McCormick, supra at 331 n. 24:
51
"Before an issue can be said to be raised, which would permit the introduction of such evidence so obviously prejudicial to the accused, it must have been raised in substance if not in so many words, and the issue so raised must be one to which the prejudicial evidence is relevant. The mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose. The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice."
52
Squarely in point is United States v. Fierson, 419 F.2d 1020 (7th Cir. 1969). There, the defendant was convicted of impersonating an FBI officer. At trial, over defendant's objection, the government in its case in chief elicited testimony that eleven months before the date of the offense charged, the defendant had impersonated an FBI officer under circumstances similar to those alleged in the indictment. Although declining to conclude that the passing of eleven months time required exclusion of the evidence as too remote, the court went on to hold as follows:
53
More than this, however, is required. Obviously intent must be an element of the offense to justify the admission of this type of evidence. Prior criminal acts cannot be proved to show intent when intent is not an element of the offense charged. . . .
54
Equally obvious is the fact that when intent is a material element of the offense, it is part of the prosecuting attorney's case to be proved in chief lest he find himself out of court at the close of his evidence.
55
However, to justify admission into evidence of an accused's prior criminal acts to establish willfulness and intent, it is necessary that willfulness and intent be more than merely formal issues in the sense that the defendant is entitled to an instruction thereon. . . .
56
When, as in this case, the government has ample evidence to take the case to the trier of fact for its deliberation, a plea of not guilty cannot, by itself, be construed as raising such a keen dispute on the issue of willfulness and intent so as to justify admission of this type of evidence. . . .
57
419 F.2d at 1022-23 (citations omitted). See also United States v. Magee, 261 F.2d 609 (7th Cir. 1958). We find this reasoning persuasive and we agree.
58
There is, however, some ambiguous authority. 2 J. Wigmore, supra § 307, at p. 207, states:
59
§ 307. Order of Evidence; Chief or Rebuttal. In a number of rulings involving these principles, the question has been raised whether it is proper to introduce the evidence of other offenses during the prosecution's case in chief. The argument against doing so is that if the accused's evidence should deny the doing of the act, then no issue of Intent can arise, hence that the evidence of former offences could only prejudice the accused unless it involved Motive or Design. The answer is that intent in virtually all offences is material, and is therefore a part of the case to be proved in chief; and that unless the precise defence be disclosed in advance, the prosecution may in fairness assume that Intent may come into issue.
60
Although we think this statement is valid insofar as it concerns the class of cases where intent is not normally inferable from the nature of the act charged, if the act is proven, we expressly decline to follow it if it is interpreted to suggest that intent is in issue whenever it is an element of the offense charged. An exception this broad would virtually swallow the rule against admission of evidence of prior misconduct. Evidence of prior bad acts is generally excluded because, although bad character has some probative value in determining guilt, the evidence is simply too prejudicial. When some other issue of which prior misconduct is probative is raised and the evidence is therefore needed for a purpose other than to show bad character, the balance shifts toward admissibility, aided by appropriate cautionary instructions, despite the dangers of prejudice. But intent is not in issue when evidence of intent is inferable if the proscribed act is proven and defendant does not claim mistake or inadvertence.
61
We reach our decision not because the trial court abused its discretion in weighing relevancy and prejudice but because the exceptions relied upon by the government are inapplicable.5 The evidence of prior threats did not show a motive in appellant, and was not required to prove intent because, if the act of mailing were proven, intent would not be at issue because of the nature of the crime and because the defense of an innocent mind was not asserted by the defendant.
62
Appellant also asserts that the evidence presented at trial was insufficient to sustain the conviction because the sole proof that appellant mailed the letters was the presence of his fingerprints on the envelopes when they were received by Brock. Appellant contends that the statutory element of mailing the letters was not proven by any independent evidence, as he contends is required by Freeman v. United States, 20 F.2d 748 (3d Cir. 1927), and Whealton v. United States, 113 F.2d 710 (3d Cir. 1940). However, it is well established that proof of mailing and causing mailing may be made by circumstantial evidence. Petschel v. United States, 369 F.2d 769 (8th Cir. 1966); Marvin v. United States, 279 F.2d 451, 454 (10th Cir. 1960); Greenbaum v. United States, 80 F.2d 113, 125 (9th Cir. 1935); Cochran v. United States, 41 F.2d 193, 205 (8th Cir. 1930).
63
In Petschel, supra, the defendant's own testimony disclosed that he wrote the letter, enclosed it in an envelope addressed to the victim, and placed it in the hands of one Scott, who according to the defendant, was to personally deliver it to the victim. The court held that the jury was warranted in determining that the defendant set in motion forces which foreseeably would involve the use of the mails. Cf. Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1953).
64
We have held that evidence, though largely circumstantial, was sufficient to convict a defendant of murder by sending through the mails a bomb which exploded when the victim opened the package containing the bomb. United States v. Stifel, 433 F.2d 431 (6th Cir. 1970). Although the defendant denied making the device and there was no direct evidence of the mailing of the bomb, receipt of the package and evidence of other threats against the decedent were shown.
65
In the case before us now, the undisputed testimony discloses the receipt by Brock of two unsigned letters sent through the mails. The letters were tied to defendant Ring through the existence of his fingerprints on both notes and envelopes. As the district court observes, "the only reasonable inference to be drawn was that Ring caused, or was directly associated with the mailing of the threatening letters." We agree with the district court on this issue. It is our duty to review the evidence supporting jury verdicts of guilty from the point of view most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). We are convinced there is sufficient evidence to prove the mailing element.
66
We also decline to reach the competency issue raised by appellant since it is unnecessary for our disposition, and on retrial appellant may no longer have amnesia.6
67
Reversed and remanded for a new trial.
*
The Honorable Carl B. Rubin, United States District Judge, Southern District of Ohio, sitting by designation
1
18 U.S.C. § 876, par. 3 provides in pertinent part:
Whoever knowingly so deposits or causes to be delivered as aforesaid, any communication with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another, shall be fined not more than $1,000.00 or imprisoned not more than five years, or both.
2
Compare United States v. Woods, 484 F.2d 127 (4th Cir. 1973), holding that evidence of prior misconduct in that case was admissible under a specified exception, but stating, in dictum, that the decision rested on the broader proposition, often advanced by commentators, that "evidence of other offenses may be received, if relevant for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime." 484 F.2d at 134. See generally McCormick, Evidence § 157, supra at p. 332. We are not called upon in this appeal to determine whether the categorical exceptions stated in our opinion above are exhaustive of the situations when evidence of prior bad acts may properly be admitted. See generally Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv.L.Rev. 998 (1938); Note, Developments in Evidence of Other Crimes, 7 U.Mich.J.L.Ref. 535 (1974)
3
McCormick cites as illustrating this principle the following statement from State v. Goebel, 36 Wash.2d 367, 218 P.2d 300, 306, syl. 5 (1950) (Hill, J.):
. . . (T)his class of evidence, where not essential to the establishment of the state's case, should not be admitted, even though falling within the generally recognized exceptions to the rule of exclusion, when the trial court is convinced that its effect would be to generate heat instead of diffusing light, or, . . . where the minute peg of relevancy will be entirely obscured by the dirty linen hung upon it. This is a situation where the policy of protecting a defendant from undue prejudice conflicts with the rule of logical relevance, and a proper determination as to which should prevail rests on the sound discretion of the trial court, and not merely on whether the evidence comes within certain categories which constitute exceptions to the rule of exclusion.
4
Following the admission of Ms. Dunavan's testimony, the court instructed the jury as follows:
THE COURT: Ladies and gentlemen, the Court has previously instructed you that you will not regard any testimony or purported testimony with respect to any alleged wrongful activities attributed to the defendant for any purposes considering whether or not he performed any of the substantive acts that are charged against him in this indictment. Mr. Ring is here and subject only to the matter and charges, and your consideration only pertains to the matters and charges contained in the indictment. Therefore, if it were testified with respect to any other activities, or alleged wrongful activities, on the part of the defendant, they have no bearing and will not be considered by you as to guilt or innocence on the doing of any of the acts charged in the indictment.
They may be considered only if they are related to the nature of the charges here made as to the motive or intention of the defendant.
5
As McCormick, supra 332-33, has stated:
Accordingly, some of the opinions recognize that the problem is not merely one of pigeon-holing, but one of balancing, on the one side, the actual need for the other-crimes-evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes-evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility.
Such a balancing calls for a large measure of individual judgment about the relative gravity of imponderables. Accordingly, some opinions stress the element of discretion. It should be recognized, however, that this is not a discretion to depart from the principle that evidence of other crimes, having no substantial relevancy except to ground the inference that accused is a bad man and hence probably committed this crime, must be excluded. The lee-way of discretion lies rather in the opposite direction, empowering the judge to exclude the other crimes evidence, even when it has substantial independent relevancy, when in his judgment its probative value for this purpose is outweighed by the danger that it will stir such passion in the jury as to sweep them beyond a rational consideration of guilt or innocence of the crime on trial. (Footnotes omitted).
6
An accused is generally competent to stand trial unless he is "unable to understand the proceedings against him or properly to assist in his own defense," within the meaning of 18 U.S.C. § 4244. The Supreme Court in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), elaborated on this standard:
(The) test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as a factual understanding of the proceedings against him.
Here, the district court considered two pretrial psychiatric examinations of appellant and competency hearings, the testimony of physicians at the trial, and the judge's own observation of appellant. The court determined that appellant's amnesia was "apparently genuine," but that appellant was nevertheless competent to stand trial since he had "an ability to understand and ability to assist his capable counsel with respect to the charges made against him, and most phases of the case except the happening and incidence directly connected on or about May 14 and May 15, 1971, with the alleged criminal activity."
Appellant argues that, because of his amnesia, he was unable to recall any pertinent events occurring before Brock received the threatening letters and that, for this reason, he could not meaningfully consult and assist his counsel. He maintains, therefore, that the standard of competency applied to him violated his constitutional rights to effective assistance of counsel and to due process of law. Although it is unnecessary to resolve them in this case, we recognize that this argument raises substantial and important questions. See e. g., United States v. Sullivan, 406 F.2d 180 (2d Cir. 1969); Wilson v. United States, 129 U.S.App.D.C. 107, 391 F.2d 460 (1968); United States ex rel. Parson v. Anderson, 354 F.Supp. 1060 (D.Del.1972.).
| {
"pile_set_name": "FreeLaw"
} |
464 F.3d 1297
Bennett S. GREENSPAN, Petitioner,v.DEPARTMENT OF VETERANS AFFAIRS, Respondent.
No. 05-3302.
United States Court of Appeals, Federal Circuit.
September 8, 2006.
Robert L. Hess, II, Husch & Eppenberger, LLC, of Jefferson City, Missouri, argued for petitioner. With him on the brief was Harvey M. Tettlebaum.
Kenneth M. Dintzer, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Harold D. Lester, Jr., Assistant Director, and Kelly B. Blank, Attorney. Of counsel on the brief was Daniel C. Rattray, Attorney, Office of Regional Counsel, United States Department of Veterans Affairs, of St. Louis, Missouri.
Before NEWMAN, MAYER, and RADER, Circuit Judges.
Opinion for the court filed by Circuit Judge NEWMAN.
Dissenting opinion filed by Circuit Judge RADER.
NEWMAN, Circuit Judge.
1
Dr. Bennett S. Greenspan petitions for review of the decision of the Merit Systems Protection Board, Docket No. CH1221010192-B-1, denying his request for correction of disciplinary actions taken in retaliation for certain critical statements that he made while he was Medical Director of the Nuclear Medicine Section at the Harry S. Truman Memorial Veterans Hospital in Columbia, Missouri. He invokes the protection of the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8) (the WPA). The Board upheld the agency's position that the letter of reprimand and reduced proficiency rating would have been given because of the manner in which the protected disclosure was made, independent of the content of the disclosure; thus the Board ruled that Dr. Greenspan was not entitled to the protection of the WPA.1 We conclude that the Board erred in law, for the WPA does not contemplate removal of protection when protected subject matter is stated in a blunt manner. We remand to the Board for application of the protection of the WPA to Dr. Greenspan, and determination of appropriate remedy.
BACKGROUND
2
Dr. Greenspan was elected by the Truman Hospital's medical staff to serve as Medical Staff Representative to the hospital management. The events at issue occurred at a Medical Staff meeting on March 1, 1999. A few months earlier the Medical Staff had taken a vote of "No Confidence in the leadership" of Ms. Pat Crosetti, Chief Executive Officer of Veterans Integrated Service Network 15 (VISN), a network of eight veterans hospitals and forty clinics, headquartered in Kansas City, Kansas. This was Ms. Crosetti's first visit to the Truman Hospital after that vote, and she had been informed of the result. The purpose of her visit, Ms. Crosetti testified before the MSPB, was to "hear concerns and issues and let the medical staff know the strategic direction and the fiscal well-being, or lack thereof, of the budget, and the management issues we were going to raise and that we were going to address for the next couple of quarters and usually out a year or two." At the meeting Ms. Crosetti spoke to the staff, and then the floor was opened for a question and answer session. Dr. Greenspan spoke for about five minutes, making the statements here at issue. Following are his remarks as recorded at the staff meeting and played at the MSPB hearing, as transcribed in the record:
3
Dr. Greenspan: As you probably know, I have been trying to change some things in this Network for quite awhile, and I have had — I've got a number of observations and complaints, and I think it's useful for other people to know about this.
4
First of all, I think that we have a very fine staff here in this hospital (inaudible), and we work very well as a team. I'm not sure the managers are on the same team. It seems that the majority of our staff members have not been pleased with the way things have been run in the last couple of years. And it's not just a small local minority. I've been quite loud about this, but I'm willing to speak up. A lot of people aren't. But that doesn't mean they're not dissatisfied with things. An overwhelming majority of our full time physicians voted no confidence a few months ago, and we're not the only hospital that feels that way. There are a number of physicians in St. Louis, Leavenworth, and Topeka that feel the same way. And the physicians in Kansas City voted overwhelmingly for a professional union for the same reasons we did. Lack of physician input, lack of participation in the decision-making process. And I think that needs to change.
5
You know, you're — you don't have much of a background in medicine, and I think that you can't possibly understand a lot of the nuances that probably provide good medical care. That by itself is okay, but you haven't been willing to listen, and if we tell you something, it's because we're trying to provide the best possible care to our veterans. I think that to ignore that is a prescription for disaster.
6
In addition, there a number of other — there are a number of other (inaudible). For one thing, I think when you started here, you should have gone around observing the Network better. You should have gone around the Network and realized that — to try to take positive advantage of all of the good programs we've had throughout the Network. Our cardiology program is certainly one of them. Geriatrics is another one. I think you should have realized that this is a dual position. And instead of trying to dismantle our cardiac program, you should've tried to support it. We sure got the feeling that you were trying to dismantle it by taking our proposal and sending it out throughout the Division and having other people bid on it. And there is no possible way that the private hospitals could match our costs because our costs are less than Medicare rates, and they've got to make a profit, which we don't have to do.
7
But in general, there has been a major problem with lack of input, and when we do provide input, it hasn't been listened to. We're also having problems with loss of veterans' preference jobs at the same time Congress is trying to support that and promote it. What I'm referring to specifically is the deal with Canteen Service, where you've mandated Canteen Service and the nutrition service merge throughout the VISN. There's a problem with that. For one thing, it's a loss of veterans' preference jobs. For another thing, it turns out that there is a conflict of interest there because Mayi Canales, who is the business director of the VISN, is married to a guy that who is high up in the Canteen Service, and so at the very least there's a conflict. At worst, there is public loss for private gain. That's a prohibitive personnel practice.
8
And on top of that, there have been other prohibitive personnel practices such as nepotism with your husband being the Chief Dental Advisor, and this is after he was — he's not on the Dental Examiner's Board, but (inaudible). This in itself is probably okay, although I don't know why the (inaudible) also couldn't be the subject-matter of (inaudible), but to make him the Chief Dental Advisor was fully above and beyond reason. And he did step down on December 2nd, by the way.
9
And then there have been issues of reprisal, which are also prohibitive, and we want this to stop. It's got to stop. Again, because we have a high quality of staff here, and we're trying to do the best we can to provide care to our veterans and that kind of stuff doesn't really belong here frankly. I mean, our position is to try and do the best job we can with the resources we have. I realize though that it's difficult to — we have (inaudible) problem coming up, but that doesn't mean we should do things that are illegal (inaudible).
10
Unidentified Speaker: Do you have a question?
11
Dr. Greenspan: Do I have a question? Well, I guess I do. It's a little bit off the wall, but I understand you are working on a Ph.D. and my question is — I've heard a rumor that the topic is on ethics. Is that true?
12
Unidentified Speaker: That's personal.
13
Dr. Greenspan: Well, the reason I asked you this is that there is a problem of ethics in the way things have been run. There are a lot of things that have been done that's (inaudible), and that's got to stop also.
14
Tom Sanders: I am publicly humiliated by the — you haven't brought up anything new regarding — you're rehashing stuff that has been there for ages and everybody has talked about, and I don't know what the purpose of that would be except to try to publicly humiliate someone, and I am ashamed.
15
Dr. Greenspan: But I'm trying to point out there are some issues here that we do need to address and we do need to correct. For example, in terms of clinical activities —
16
Tom Sanders: Let's get to — if you are arguing specific (inaudible) specific (inaudible) that haven't been rehashed, that's what we're here for.
17
Dr. Greenspan: One of them is the (inaudible) business where we have been — up until recently, we have been sending those tests across the street to (inaudible). And as most of you probably know, this is a test to look at hemoglobin A1c testing and handling their blood sugar levels. The lab across the street is one that — Dr. Goldstein has been providing that for us for a long time. I understand now that we're mandated to do the test here also. The problem is that the test here doesn't have the same accuracy rate, and we're concerned that it may turn a very accurate test into a marginal — a marginally useful one.
18
MSPB Record at 266-74. The record states that three other physicians also criticized the management of the hospital at that meeting. The meeting ended when Ms. Crosetti left the room.
19
The minutes of the meeting, signed by Dr. Philip B. Dobrin, the Chief of Staff of the Truman Hospital, stated that "Dr. Bennett Greenspan engaged in a personal attack upon the network management present, and accused the Chief Executive Officer of engaging in illegal activities and unethical practices." He described Dr. Greenspan's statements as "grossly inappropriate." Dr. Edward Adelstein wrote an addendum to the minutes, stating his "disagreement" with "the description of the role that Dr. Greenspan played in the emotional outburst displayed by Mrs. Crosetti," and that, "[w]hile the entire staff is sorry for any emotional discomfort that we caused the VISN director, her actions were driven by interactions with Drs. Demmy, Watson and Parker as well as Dr. Greenspan."
20
Dr. Greenspan also added a statement to the minutes, stating that "Dr. Parker also stated that our VISN CEO had to take some ownership for consequences of her decisions made in the VISN office," after which Ms. Crosetti "lost her composure, essentially threatened our entire hospital, and stormed out of the meeting." Dr. Greenspan wrote that the issues he had raised reflected the concerns of the "overwhelming majority of our medical staff." Another written comment to the minutes, by Dr. Terry S. Hoyt, states: "Both Dr. Adelstein's and Dr. Greenspan's comments are pertinent."
21
Several of those in attendance wrote apologies to Ms. Crosetti; for example, Dr. Gail Wright wrote that "the doctors who spoke are a small and much too vocal faction"; Dr. Karen Zanol wrote that "Drs. Greenspan and Parker were both inappropriate in their remarks." Dr. Greenspan also wrote to Ms. Crosetti: "My personal comment regarding your Ph.D. thesis was inappropriate, and I am sorry for making that comment. Some of my other comments were of a personal nature, which was also inappropriate, and for that also I am sorry. I realize that my comments were disruptive ...."
22
Three weeks after the meeting, on March 22, 1999, Mr. Campbell, Director of the Truman Hospital, issued a Notice to Dr. Greenspan stating: "I am, therefore, suspending you for three days for your conduct at this open meeting in which you engaged in a personal attack on the Network CEO." This Notice was rescinded for "procedural errors" and on March 31, 1999 a new Notice was issued, proposing that Dr. Greenspan would be suspended for one day for making "unfounded statements which were defamatory about a senior VA official," and stating that he had the right to reply orally or in writing. Dr. Greenspan replied orally on June 29, 1999 to Dr. Carol Lake, Chief of Staff at Roudebush VA Medical Center in Indianapolis, Indiana, who was appointed as Hearing Officer by Mr. Kenneth Clark, the Chief Network Officer and designated deciding official. Upon consideration of Dr. Greenspan's reply, Dr. Lake recommended that Dr. Greenspan instead should receive "positive" disciplinary action in the form of attendance at a formal program on the business of medicine, and mentoring about organizational behavior and effective communication. Mr. Clark rejected Dr. Lake's recommendation and issued a formal letter of reprimand on September 17, 1999.
23
In the reprimand Mr. Clark acknowledged Dr. Greenspan's entitlement to express opinions at a medical staff meeting, but criticized the "statements about a senior VHA management official at the March 1, 1999, Medical Staff meeting" that were presented in "a derogatory, inflammatory and inappropriate manner." On August 16, 1999 Dr. Hoyt, Dr. Greenspan's immediate supervisor, completed Dr. Greenspan's proficiency evaluation for the year ending July 7, 1999; Dr. Hoyt rated Dr. Greenspan as "High Satisfactory" in all categories. On August 19, 1999 Dr. Dobrin lowered Dr. Greenspan's proficiency rating for "Personal Qualities" from "High Satisfactory" to "Satisfactory."
24
Dr. Greenspan filed a request for corrective action with the Merit Systems Protection Board, claiming that the agency had retaliated for his "whistleblowing" by issuing the letter of reprimand and by reducing his proficiency rating. On March 20, 2001 the administrative judge dismissed the petition for lack of jurisdiction on the grounds that the lowering of a proficiency rating was not a personnel action under the WPA, and that the letter of reprimand was outside of the Board's jurisdiction because the record showed that Dr. Greenspan had elected to pursue that aspect through grievance under a collective bargaining agreement.
25
Dr. Greenspan appealed to the full Board, which held that he had made nonfrivolous allegations that he had engaged in protected activity and that protected disclosures were a contributing factor in the agency's disciplinary action. The Board rejected the administrative judge's conclusion that Dr. Greenspan had elected the grievance procedure, finding that the record did not support this conclusion. The Board held that Dr. Greenspan had established its jurisdiction under the WPA.
26
The Board, at this stage of the proceedings, presumed that Dr. Greenspan's disclosures were protected, that the agency's actions were adverse personnel actions within the meaning of § 2302, and that his disclosures were a contributing factor to the agency's actions. To prevail on these premises, the agency had to establish that it would have taken the same actions in the absence of the protected disclosures. Horton v. Dep't of the Navy, 66 F.3d 279, 284 (Fed.Cir.1995). The Board remanded to the administrative judge for determination of whether the agency could establish, by clear and convincing evidence, that it would have taken the same actions in the absence of protected disclosures. The Board instructed that if this defense were not established, the administrative judge should determine whether the disclosures were protected and whether the agency took actions that constitute personnel actions under the WPA because of those protected disclosures.
27
On remand, the administrative judge noted that Dr. Greenspan had resigned in July 2000 and the disciplinary actions had been removed from his personnel file, but his "request for corrective action" was not thereby moot "because he may be entitled to an award of consequential damages if he prevails." Greenspan, 2004 MSPB LEXIS 2871, at *2 n. 1. The administrative judge held a hearing, and found that the agency would have taken the same disciplinary actions even if Dr. Greenspan's statements were not protected, because his conduct was rude and disrespectful. The administrative judge dismissed Dr. Greenspan's appeal, and the full Board denied review. This appeal followed.
DISCUSSION
28
The WPA prohibits the taking of any adverse personnel action because of "any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences — (i) a violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety ...." 5 U.S.C. § 2302(b)(8)(A). Dr. Greenspan argues that there was not substantial evidence to support the Board's holding that the agency would have issued the Letter of Reprimand and reduced his proficiency rating for Personal Qualities in the absence of the protected disclosures.
29
When determining whether the agency action would have been taken in the absence of the employee's whistleblowing disclosures, the Board in Geyer v. Department of Justice, 70 M.S.P.R. 682, 688 (1996), aff'd, 116 F.3d 1497 (Fed.Cir.1997) (Table), identified several factors that may be considered, including the strength of the agency's reason for the personnel action when the whistleblowing is excluded; the existence and strength of any motive to retaliate for the whistleblowing, and any evidence of similar action against similarly situated employees for the non-whistleblowing aspect alone. In Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed.Cir.1999), the Federal Circuit endorsed the analytic parameters set forth in Geyer for determining whether "an agency has carried its burden of establishing by clear and convincing evidence that it would have taken the personnel action at issue in the absence of the disciplined employee's protected disclosure(s)."
30
The agency does not dispute that the actions against Dr. Greenspan were taken in retaliation for his statements at the March 1 staff meeting. Indeed, the Letter of Reprimand charged Dr. Greenspan with making "unfounded statements which were defamatory." The agency argues that he was disciplined for derogatory, inappropriate, and disrespectful "conduct," not for the content of his words. The agency states that Dr. Greenspan was on notice that this "conduct" was the basis of the disciplinary action because it was referenced in the Notice of Proposed Suspension, which stated: "(3) In a very blunt and arrogant manner you accused Ms. Crosetti of performing prohibited personnel practices and conducting illegal contracting activities ...." The agency stresses it was the "unfounded nature" of Dr. Greenspan's statements, not the "content" of those statements, that resulted in the reprimand, and that it would have reprimanded Dr. Greenspan for making unfounded statements even if the statements were not protected whistleblowing disclosures.
31
The administrative judge, finding that Dr. Greenspan had made "inappropriate" comments and behaved with "open disrespect," Greenspan, 2004 MSPB LEXIS 2871, at *23-24, deemed it irrelevant that the letter of reprimand did not mention these aspects, but instead incorporated "Reason (1) to (4) as stated in the notice of proposed suspension":
32
At the Medical Staff meeting held on March 1, 1999, you made unfounded statements which were defamatory about a senior VA official:
33
(1) You accused Patricia A. Crosetti, VA Heartland Network 15 CEO, of specific illegal activities including nepotism with regard to her husband and;
34
(2) You accused Ms. Crosetti of a conflict of interest regarding the consolidation of the Food Production program with the VA Canteen Service since the Network Business Office Director, Ms. Mayi Canales, is married to the Assistant Director of the National VA Canteen Service and;
35
(3) In a very blunt and arrogant manner you accused Ms. Crosetti of performing prohibited personnel practices and conducting illegal contracting activities and;
36
(4) You bluntly accused Ms. Crosetti of unethical practices. You asked her, "I understand that you were studying for a Ph.D. In what area was that Ph.D.?" Dr. Dobrin interrupted you by saying that that was a personal matter. You then stated, "I understand that it was Ethics and you are not ethical!"2
37
Dr. Greenspan states that the grounds argued by the agency to the MSPB and on this appeal are not the same as the grounds stated by the agency in the letter of reprimand, "unfounded statements which were defamatory," for the agency now argues that his statements were unfounded and "disrespectful." He points to extensive evidence that his statements were well founded, citing the remarks of other staff physicians about management of the hospital. He states that he expressed these concerns not only for himself but as the designated spokesman for the medical staff. He stresses that the disciplinary actions were attributed to the content of his remarks, and that the present posture that he was properly disciplined for "disrespect" cannot be separated from the content of his whistleblowing criticisms of management.
38
A personnel action is reviewed on the grounds on which the agency based the action when it was taken. See Hawkins v. Smithsonian Inst., 73 M.S.P.R. 397, 401 (1997) ("the Board cannot consider or sustain charges or specifications that are not included in the notice of proposed adverse action"). Here the agency, after rescinding its first Notice, stated the ground of "unfounded statements which were defamatory" in its Notice and Decision letter. Dr. Greenspan was not charged with "disrespect." The Board cannot change the agency's grounds from those Noticed by the agency at the time of the discipline. See King v. Nazelrod, 43 F.3d 663, 666 (Fed.Cir.1994) ("We have mandated that the agency must prove all of the elements of the substantive offense with which an individual is charged"). Although Dr. Greenspan in his letter of apology described his remarks as "disruptive" he was not disciplined on that ground, and the MSPB did not, in its analysis, impose a "disruptive" component in addition to the grounds stated by either the agency or the administrative judge.
39
The agency argues that even if the statements were protected whistleblowing, discipline was appropriate if the protected statements were "unfounded and defamatory." Dr. Greenspan argues that there was no evidence that his statements were defamatory. The Board has defined defamation as the "unprivileged publication of false statements which naturally and proximately result in injury to another." Bonanova v. Dep't of Educ., 49 M.S.P.R. 294, 301-02 (1991). The Board did not find that Dr. Greenspan's statements were false, and the agency apparently did not attempt to prove falsity. However, the agency argues that Dr. Greenspan's statements were "unfounded," citing his testimony before the Board that he did not know with certainty whether Ms. Crosetti had actually "lobbied" to place her husband in charge of dental services, and that he did not know whether anyone had personally benefitted from the restructure of the VA's Canteen Service. The agency argues that his statements on these issues were "unfounded" because he did not have "concrete or specific knowledge" of wrongdoing. Dr. Greenspan responds that his criticisms were not of wrongdoing, but of possible conflict of interest, and that his statements on these issues were not "unfounded statements which were defamatory." The agency responds that it has a legitimate interest in reprimanding employees that make unfounded statements, whether or not the statements meet the criteria of protected whistleblowing.
40
The purpose of the WPA is to shield employees who are willing to speak out and criticize government management, to "freely encourage employees to disclose that which is wrong with our government." Marano v. Dep't of Justice, 2 F.3d 1137, 1142 (Fed.Cir.1993). The WPA by its terms includes and protects "any" disclosure that an employee "reasonably believes" evidences misconduct or mismanagement, 5 U.S.C. § 2302(b)(8)(A). There was no evidence or allegation that Dr. Greenspan's statements were not "reasonably believed," and the record shows that several other physicians had similar concerns. Although wrongful or disruptive conduct is not shielded by the presence of a protected disclosure, see Watson v. Dep't of Justice, 64 F.3d 1524, 1528 (Fed.Cir. 1995), and Marano, 2 F.3d at 1142 n. 5, when the disclosure is protected the burden is on the agency to show, by clear and convincing evidence, that it would have disciplined the employee for reasons unrelated to the protected disclosure. In this case, the charges are anchored in the protected disclosures themselves. See, e.g., Briley v. National Archives and Records Admin., 236 F.3d 1373, 1378 (Fed.Cir. 2001) (the agency must establish that it would have taken the same personnel action in the absence of the protected disclosure).
41
When a disclosure is of protected subject matter, it is more likely than not to be critical of management, perhaps highly critical. The WPA protects those employees who are willing to speak out on subjects that could incur retaliation if unshielded. We have not been shown substantial evidence in support of the agency's burden to establish by clear and convincing evidence that it would have taken these disciplinary actions absent the protected disclosures. The Board's contrary finding cannot be sustained. We reverse the Board's decision, and remand for further proceedings including determination of the remedy appropriate to the improper disciplinary actions.
REVERSED and REMANDED
Notes:
1
Greenspan v. Dep't of Veterans Affairs, No. CH1221010192-B-1, 2004 MSPB LEXIS 2871 (June 8, 2005).
2
The transcript,supra, does not match this statement.
42
RADER, Circuit Judge, dissenting.
43
Because the Board correctly found that the agency would have reprimanded Dr. Greenspan even in the absence of protected disclosures, I must respectfully dissent.
44
During a staff meeting, Dr. Greenspan attacked his supervisor, Ms. Crosetti. Everyone at the meeting, including Dr. Greenspan himself, considered his personal attacks very inappropriate. Specifically, following the meeting, Dr. Greenspan sent Ms. Crosetti an apology, admitting that some of his comments were "inappropriate," "disruptive," and "personal in nature."
45
Because those comments may have been protected disclosures, this court today holds that Dr. Greenspans' inappropriate, personal, and disruptive comments cannot support a reprimand. Majority Opinion, ____. In other words, because Dr. Greenspan's comments may fall within the WPA, he may freely disrupt and disturb agency meetings. In this instance, Dr. Greenspan's conduct supports the reprimand upheld by the Board. In fact, disrespectful conduct merits a separate charge under the Agency's Table of Penalties. Thus, the agency, as the Board held, would have reprimanded Dr. Greenspan for his disruptive conduct regardless of the nature of his disclosures. In sum, the agency's decision to reprimand Dr. Greenspan for his conduct outweighed any evidence that the proposing and deciding officials held retaliatory motives against him. Thus, the Board was, by no means, arbitrary in upholding that reprimand.
46
In addition to a letter of reprimand, the Board also upheld a lowered performance rating. The record, however, shows that Dr. Greenspan's overall proficiency rating was not lowered. Instead the agency changed Dr. Greenspan's rating for personal qualities from high satisfactory to satisfactory. Dr. Greenspan's supervisor made this change because his conduct at the March 1999 meeting was "really out of line." The supervisor also testified that Dr. Greenspan regularly failed to follow the proper chain of command in airing his complaints. Once again, the record underscores the propriety of these changes in Dr. Greenspan's personal qualities rating. From my vantage point, this court must really stretch to find the Board's decision arbitrary or unsupported by substantial evidence.
| {
"pile_set_name": "FreeLaw"
} |
694 So.2d 613 (1997)
Hoyet Lynn CHANCE, Plaintiff-Appellee,
v.
Bonnie Sue Hand CHANCE, Defendant-Appellant.
No. 29591-CA.
Court of Appeal of Louisiana, Second Circuit.
May 7, 1997.
*615 Barry G. Feazel, Shreveport, for Defendant-Appellant.
Love, Rigby, Dehan & McDaniel by Kenneth Rigby, Shreveport, for Plaintiff-Appellee.
Before NORRIS, HIGHTOWER and WILLIAMS, JJ.
HIGHTOWER, Judge.
An April 1992 divorce judgment ended the thirty-one-year marriage of Dr. Hoyet Chance and Bonnie Chance and, retroactively to February 3, 1992, terminated the community of acquets and gains. After stipulations resolved several aspects of the subsequent partition litigation, the remaining issues came before the trial court in March 1996. Concerning six facets decided adversely to her at that hearing, the former wife now appeals. Finding no error in the rulings, we affirm.
DISCUSSION
In valuating and allocating assets and liabilities to partition community property, the trial court shall act within its broad discretion to consider the source and nature of each asset or liability, the financial situation of each spouse, and any other relevant circumstances. La. R.S. 9:2801(4)(c); Hare v. Hodgins, 586 So.2d 118 (La.1991). Likewise, the trial court is not required to accept at face value a spouse's valuation of assets, debts, or claims against the community. Bedenbender v. Bedenbender, 28,579 (La.App.2d Cir. 08/21/96), 679 So.2d 506; Barrow v. Barrow, 27,714 (La.App.2d Cir. 02/28/96), 669 So.2d 622, writ denied, 96-1057 (La. 06/21/96), 675 So.2d 1080. Furthermore, absent manifest error or unless clearly wrong, a trial court's factual findings or credibility *616 determinations may not be set aside by an appellate court. Id.
Mortgage Payments on 1991 GMC Pickup Truck
At the partition hearing at hand, the former spouses valued their 1991 GMC pickup truck at $10,000 and agreed that Dr. Chance would retain the asset. The parties also concurred that, after termination of the community, the ex-husband paid installments on the vehicle. Consequently, for one-half of those expenditures, he sought reimbursement. Although conceding the correctness of the amount requested ($4,887), appellant cites Gachez v. Gachez, 451 So.2d 608 (La. App. 5th Cir.1984), writ denied, 456 So.2d 166 (La.1984), in contending that mortgage payments on a depreciable asset are not reimbursable.
We disagree. Under La. C.C. art. 2358, upon termination of a community property regime, a spouse may assert reimbursement claims against the other spouse. More directly, if separate property of a spouse has been used to satisfy a community obligation, that spouse, upon termination of the community property regime, is entitled to reimbursement for one-half of the amount or value that the property had when used. La. C.C. art. 2365.
Here, Dr. Chance paid a community debt, the note on the truck, from his separate estate. Although he enjoyed the exclusive use of this vehicle, it continued to be an asset of the community after the judgment of separation. Apparently, our colleagues of the third, fourth, and fifth circuits have elected to treat such reimbursement claims differently, depending upon whether the mortgage payments pertain to movable or immovable property.[1] Even so, we concur with the first circuit that La. C.C. art. 2365 makes no such distinction. See Williams v. Williams, 509 So.2d 77 (La.App. 1st Cir.1987). Thus, the trial judge did not err in granting Dr. Chance the reimbursement in question.
Rental Value for Use of Family Residence
Mrs. Chance next asserts that the district court wrongly refused her a credit for the fair rental value of the former family home. But, inasmuch as appellant failed to submit such a request prior to the partition hearing, we find no error in the ruling.
On February 28, 1992, in a combined rule nisi and answer to the divorce petition, Mrs. Chance applied for use of the matrimonial domicile. The next month, a judgment granted her occupancy of the home until June 6, 1992, when Dr. Chance would move into the residence. Neither party sought nor did they receive, at that time, an award for the fair rental value of the house while inhabited by the other spouse. Later, on two separate occasions, Mrs. Chance raised other issues concerning the residence but never demanded rent from her ex-husband. Finally, at the partition hearing, she proposed for the first time that she be granted a credit for the rental value of the home. The lower court concluded, and we agree, that this request came too late.
Once the community of acquets and gains has been dissolved by separation, the spouses become co-owners, or owners in indivision, of the marital home. As such, they are entitled to the use, enjoyment, and disposition of the property. La. C.C. arts. 477, 480; McConathy v. McConathy, 25,542 (La.App.2d Cir. 02/23/94), 632 So.2d 1200, writ denied, 94-0750 (La. 05/06/94), 637 So.2d 1052. A corollary right permits use and occupancy of the property by the co-owner without the payment of rent. McConathy, supra; Jones v. Jones, 605 So.2d 689 (La. App. 2d Cir.1992), writ denied, 607 So.2d 571 (La.1992). Of course, pursuant to La. R.S. 9:374, the trial court may order rental payments on the family home. Such an order, however, must be made at the time of the award of use and occupancy. The trial court does not have, at the time of partition, blanket discretion to order retroactive rental payments. Id. Clearly, then, the district judge did not err in denying Mrs. Chance's tardy request.
*617 Interest in Dr. Chance's Medical Practice
The next issue concerns a twenty percent community interest in the ex-husband's medical practice, Urology Associates. After considering the testimony of two certified public accountants regarding this asset, the trial court accepted the valuation established by Dr. Chance's expert, Steven Bayer. Appellant argues that Charles Gibson's calculations, presented by her and based upon a capitalization of earnings, should have been recognized as more appropriate.
Where expert testimony differs, it is the trier of fact who must determine the more credible evidence, and factual findings based upon that determination may not be overturned unless manifest error appears in the record. Hebert v. Southwest Louisiana Elec. Membership Corp., 95-405 (La.App. 3d Cir. 12/27/95), 667 So.2d 1148, writ denied, 96-0798 (La. 05/17/96), 673 So.2d 608; Caravalho v. Dual Drilling Services, Inc., 93-560 (La.App. 3d Cir. 02/02/94), 631 So.2d 725, writ denied, 94-0878 (La. 05/13/94), 637 So.2d 1074. The fact-trier is entitled to assess the credibility and accept the opinion of an expert just as with other witnesses, unless the stated reasons of the expert are patently unsound. Hickman v. Exide, Inc., 28,495 (La.App.2d Cir. 08/21/96), 679 So.2d 527. Of course, the effect and weight to be given such expert testimony depends upon the underlying facts and rests within the broad discretion of the trial judge. Adams v. Commercial Nat'l. Bank, 27,360 (La.App.2d Cir. 09/27/95), 661 So.2d 636. Moreover, in deciding to accept the opinion of one expert and reject that of another, a trial court can virtually never be manifestly erroneous. Hebert, supra.
To valuate the medical practice, Bayer assigned values to the various components and holdings of the partnership. Although Mrs. Chance's expert, Gibson, began with this same approach, he eventually added approximately $830,000 to represent the future cash flow of the business. That figure resulted from capitalizing, or applying a 2.5 multiple to, Dr. Chance's earnings for the last twelve months preceding the community's termination. Appellee asserts that this sum represents "goodwill" and should not be included in the assessment.
It is well-settled that goodwill does not form a part of the corporate assets of a medical practice in that the goodwill results from the physician's professional medical competence and his relationship with patients, not from any affiliation between the corporation and the patient. See Preis v. Preis, 94-442 (La.App. 3d Cir. 11/02/94), 649 So.2d 593; Pearce v. Pearce, 482 So.2d 108 (La.App. 4th Cir.1986), writs denied, 484 So.2d 140 (La.1986); cf. Barrow, supra. As indicated in Karageorge v. Cole, 565 So.2d 502 (La.App. 2d Cir.1990)[2], goodwill is the value of a business over and above the value of its physical property. Though disagreeing with that definition, appellant's expert conceded that the $830,000 figure constituted a value assigned in excess of the physical assets involved. This method of capitalizing earnings, as Gibson acknowledged, also assumes that future operations will be similar to current operations. Such a supposition obviously would be inappropriate here; Dr. Chance's present health significantly curtails his ability to practice medicine.
Very importantly too, Bayer's valuation utilized the same technique twice recently employed in separate arms-length transactions, when one physician bought into the practice and when another doctor sold out.[3] We thus find no error in the trial court's conclusion that this method provided the more reliable indication of value.
Accounts Receivable of Urology Associates
Next, in addressing the medical practice's accounts receivable, appellant again challenges the trial court's acceptance of the value assigned by Bayer rather than Gibson. Both accountants subtracted certain contractual discounts (Medicare, private insurance, etc.) and granted further reductions *618 for debts considered bad or uncollectible. Gibson then calculated a 70.13 percent historical collection rate, while Bayer actually utilized an average collection rate of 80 percent. Even so, Mrs. Chance's expert arrived at a greater value by choosing not to assign any cost of collections, in contrast to Bayer.[4]
This court has previously approved the use of average collection ratios in valuing accounts receivable. See Barrow, supra. And, as for the district court's conclusion that Bayer properly discounted his figure by the cost of collection, we find no error in that determination. Under such circumstances, the acceptance of one expert's opinion over that of another is not clearly wrong. See Hebert, supra.
Prostate Center Income
For ultrasound testing procedures, the physicians at Urology Associates refer their patients to the Prostate Center ("PC"). This limited partnership is owned one-half by the general partner, Urology Associates, while the other fifty percent interest is held by various children and spouses of the physicians. PC profits, thus, are logically distributed according to the ownership percentages. Those proceeds received by Urology Associates eventually flow to the physicians there, based upon their productivity. For example, if a doctor fails to refer any patients to PC, he receives none of this income. Similarly, if the patients of one urologist account for thirty percent of PC's business, that physician collects thirty percent of Urology Associate's share of the profits.
Dr. Chance, although a partner in Urology Associates, participates in any PC profits only in the above-mentioned manner. As a result, the trial judge held those distributions, after termination of the marital regime, to be appellee's separate income. Not oddly, appellant disagrees with that conclusion. Arguing that the manner of allocation cannot change the character of the income, Mrs. Chance contends that monies received from PC are returns on a community investment, i.e., civil fruits, and thus comprise community property. See La. C.C. art. 2338.
As reflected by his ruling, however, the trial judge concluded that Dr. Chance's disbursements from PC are generated by his professional skill and effort, and, thus, constitute separate property. We discern no error in that determination. When referring individuals to the testing facility, the doctors accompany their patients, supervise the procedures, and interpret the results. Further, as noted by Dr. Chance, if his efforts produce no income for PC, he receives no portion of the profits. Cf. Ogden v. Ogden, 331 So.2d 592 (La.App. 1st Cir.1976), writ denied, 337 So.2d 523 (La.1976), reaching a different result where the division of profits bore no apparent relationship to work performance.
Disability Income
Mrs. Chance finally contests the trial court ruling that her ex-husband's monthly disability benefits became his separate property after termination of the marital regime. She argues that, inasmuch as the premiums for the disability insurance policy had been paid with community funds, the proceeds belong to the community.
The determination that such a policy has been acquired with community monies, however, does not necessarily classify the disability benefits as community. Brant v. Brant, 26,508 (La.App.2d Cir. 01/25/95), 649 So.2d 111. Indeed, unlike retirement income, disability payments present special problems. Johnson v. Johnson, 582 So.2d 926 (La.App. 2d Cir.1991). Proper designation requires careful examination to determine if such disability payments represent deferred compensation in the nature of retirement or pension income. Brant, supra. If so, the proceeds should be categorized as community to the extent they are attributable to years of service performed during the existence of the community. Johnson, supra.
The policy in the instant case clearly does not accord deferred compensation or retirement. Instead, its benefits are payable only for total physical disability. In fact, the *619 insurer has acknowledged that Dr. Chance's medical condition renders him totally disabled under the policy, and, thus, eligible for benefits until such time as his health improves. Cf. Brant, supra; Mercer v. Mercer, 95-1257 (La.App. 3d Cir. 04/03/96), 671 So.2d 937.
Disability payments that do not qualify as deferred income, such as those sub judice, should be characterized in accordance with the approach utilized for tort damages and worker's compensation benefits. Thus, concerning injuries sustained by a spouse during the existence of the community, that portion of any award designed to compensate for loss of earnings would be community property during the existence of the marital regime, but separate property following termination. Id. In the present matter, then, the trial court did not err in treating the disability insurance benefits payable to Dr. Chance subsequent to the community termination as his separate property.
CONCLUSION
Accordingly, for the foregoing reasons, the judgment below is affirmed at appellant's costs.
AFFIRMED.
NOTES
[1] See Preis v. Preis, 94-442 (La.App. 3d Cir. 11/02/94), 649 So.2d 593; Meyer v. Meyer, 553 So.2d 943 (La.App. 4th Cir.1989); Gachez, supra.
[2] Disapproved on other grounds in Barrera v. Ciolino, 92-2844 (La. 05/05/94), 636 So.2d 218.
[3] The purchase occurred about a year and a half before the termination of the community, and the sale transpired six months after the termination date.
[4] Bayer based his appraisal on the contractual agreement of the physician shareholders concerning valuations when a practitioner withdraws from the practice.
| {
"pile_set_name": "FreeLaw"
} |
Unable to extract the content from this file. Please try reading the original. | {
"pile_set_name": "FreeLaw"
} |
949 F.2d 966
UNITED STATES of America, Appellee,v.Robert Ersel CONEY, Appellant.
No. 91-1980.
United States Court of Appeals,Eighth Circuit.
Submitted Oct. 17, 1991.Decided Nov. 20, 1991.
James E. Ostgard, Minneapolis, Minn., argued for appellant.
Nathan Petterson, Minneapolis, Minn. argued (Thomas B. Heffelfinger and Nathan P. Petterson, on brief), for appellee.
Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.
FAGG, Circuit Judge.
1
Robert Ersel Coney appeals his conviction and guidelines sentence for embezzlement from a federal reserve bank in violation of 18 U.S.C. § 656. We affirm.
2
Coney worked for an armored car company that contracted with the Minneapolis Federal Reserve Bank to deliver money to other financial institutions. Coney worked on one of the company's armored cars as a "messenger" responsible for accepting and distributing the car's currency or cargo. One day Coney received a bag containing $25,000 he was supposed to deliver to a local bank, but the person responsible for signing out each day's cargo to the messengers failed to have Coney sign for the bag. Coney stole the money.
3
A federal court jury convicted Coney under 18 U.S.C. § 656, which makes it a felony for persons "connected in any capacity with any Federal Reserve bank ... [to] embezzle[ ], abstract[ ], purloin[ ] or willfully misappl[y] any of the moneys, funds or credits of [the] bank." On appeal Coney contends he was not "connected in any capacity" with the Minneapolis Federal Reserve Bank, and thus cannot be guilty of embezzlement under section 656. We disagree.
4
As an employee of the armored car company responsible for transporting the bank's currency, Coney was personally entrusted with Federal Reserve funds. Thus, Coney was clearly connected to the Minneapolis Federal Reserve Bank in a capacity captured by the broad language of section 656. See United States v. Prater, 805 F.2d 1441, 1446 (11th Cir.1986) (holding in case involving related statute "that the phrase 'connected in any capacity' should be construed broadly to effectuate congressional intent by protecting federally insured lenders from fraud"); United States v. Harris, 729 F.2d 441, 445 (7th Cir.1984) (construing phrase in related statute broadly because "the danger of embezzlement is no less when the embezzler happens to be an employee not of the federal agency that owns the property but of a contractor who has custody of it"); United States v. Rice, 645 F.2d 691, 693 (9th Cir.) (related statute read broadly to include consultant working for a savings and loan), cert. denied, 454 U.S. 862, 102 S.Ct. 318, 70 L.Ed.2d 160 (1981); United States v. Edick, 432 F.2d 350, 352 (4th Cir.1970) (employee of bank's subsidiary who was in a position of trust fell within the ambit of section 656).
5
Coney next contends the district court committed reversible error by giving an erroneous jury instruction. The district court instructed the jury that to find Coney guilty under section 656 it must first find "that [Coney] was an employee of [the armored car company] and was connected with the Minneapolis Federal Reserve Bank." Coney asserts this instruction mislead the jury to believe that because he worked for the armored car company he was "connected in any capacity" with the bank as required by section 656. This argument is without merit.
6
"It is well established that a defendant is not entitled to a particularly worded instruction.... A district court has wide discretion in formulating jury instructions and that discretion is not abused when the instructions as a whole accurately and adequately state the relevant law." United States v. Sleet, 893 F.2d 947, 949 (8th Cir.1990) (citations omitted). In this case we are satisfied the district court accurately set forth the relevant law. The district court's instruction clearly states that to convict Coney, the jury must find Coney was both an employee of the armored car company and was connected with the Minneapolis Federal Reserve Bank. In our view there is no danger the jury was mislead by the language of the district court's instruction. Thus, the district court did not abuse its discretion in instructing the jury.
7
Finally, Coney contends the district court committed error by increasing his guidelines offense level by two levels under U.S.S.G. § 2B1.1(b)(5) for more than minimal planning. Whether a defendant engaged in more than minimal planning is a factual determination we review for clear error. United States v. Strickland, 941 F.2d 1047, 1050 (10th Cir.1991). In this case the district court found Coney had stolen money from the armored car's cargo on several earlier occasions and had taken substantial steps to conceal his thefts, including the final theft of $25,000. Given these circumstances, the district court did not commit error by increasing Coney's offense level for more than minimal planning under U.S.S.G. § 2B1.1(b)(5). See United States v. Callaway, 943 F.2d 29, 31 (8th Cir.1991) (increase for more than minimal planning proper when defendant engaged in repeated illegal acts over a period of time); United States v. Culver, 929 F.2d 389, 393 (8th Cir.1991) (defendant's attempt to conceal crime sufficient to support increase for more than minimal planning).
8
Accordingly, we affirm Coney's conviction and sentence.
| {
"pile_set_name": "FreeLaw"
} |
738 F.2d 435
*Davisv.Flowers
84-1192
United States Court of Appeals,Fifth Circuit.
7/3/84
1
N.D.Tex.
AFFIRMED
2
---------------
* Fed.R.App.P. 34(a); 5th Cir.R. 34.2.
| {
"pile_set_name": "FreeLaw"
} |
149 N.W.2d 81 (1967)
Joe McALLISTER et al., Appellants,
v.
INDEPENDENT SCHOOL DISTRICT NO. 306 OF HUBBARD COUNTY et al., Respondents.
No. 40211.
Supreme Court of Minnesota.
March 3, 1967.
*82 Whitney E. Tarutis, Bemidji, for appellants.
Peterson & Popovich, St. Paul, for respondents.
OPINION
PER CURIAM.
This is an appeal from a judgment dismissing plaintiffs' cause of action[1] entered pursuant to an order granting defendants' motion for summary judgment. The motion was made under Rule 56, Rules of Civil Procedure. However, the notice of motion was admittedly not served upon plaintiffs the full 10 days prior to the return date and hearing thereon.[2] Because we hold that the stated time for notice is mandatory, absent a clear waiver by the adversary, the judgment must be reversed.
Defendants are a school district and members of its board of education, and plaintiffs are dissident voters and taxpayers. On April 19, 1963, defendants conducted an election for authorization to issue $125,000 in school building bonds, and the voters duly approved it. On January 22, 1965, the validity of this election was upheld in Lindahl v. Independent School Dist. No. 306, 270 Minn. 164, 133 N.W.2d *83 23. On June 17, 1965, plaintiffs petitioned defendant board to conduct an election to rescind its prior proceedings. At a special meeting on July 1, 1965, the board "tabled" the petition and resolved, instead, for the calling of a bond sale on July 22, 1965. On July 21, 1965, plaintiffs obtained a temporary restraining order against the bond sale and the making of any contracts for construction of the proposed school building. The complaint and order to show cause were served upon defendants on July 21, 1965, and the order for hearing on plaintiffs' motion for a temporary injunction was made returnable August 24, 1965.
Defendants mailed their notice of motion for summary judgment to plaintiffs on August 17, 1965, the notice stating that the hearing on the motion would be had on August 24, 1965.[3] The time of service fell 5 days short of the time required by the Rules of Civil Procedure.[4]
Defendants urge that, notwithstanding the admitted untimeliness of their motion for summary judgment, it qualified as a timely motion for judgment on the pleadings pursuant to Rule 12. They assert that both court and counsel so treated it and that "this is what the order was intended to be." This is disputed by plaintiffs, at least with respect to their position. That the trial court treated the motion as one for summary judgment under Rule 56 is plain both from its order[5] and from the judgment[6] itself.
The trial court, moreover, considered matters outside the pleadings, thus making it necessary to treat the motion as one for summary judgment under Rule 56.[7] Three lengthy affidavits, together with numerous incorporated documents, were presented to the trial court and cover more than half the printed record. An affidavit of defendants' attorney and bond consultant was specifically directed and relevant to their motion to require plaintiffs to file a surety bond. However, an affidavit of defendants' superintendent of schools was unrestricted and relevant mainly *84 to the merits of the action itself. An "affidavit of merit and reply" by plaintiffs was by its terms "a reply to the Answer" of defendants, quite obviously filed to support plaintiffs' own motion for a temporary injunction.
Defendants further urge that no objection was made by plaintiffs to hearing defendants' motion and that, therefore, this objection was waived. Plaintiffs deny this, asserting that the hearing of defendants' motion was vigorously protested and claiming that plaintiffs had other evidence to submit. They were of course present at the hearing in support of their own motion for a temporary injunction, duly noticed for that date. There is nothing in the record indicating their consent to a hearing upon any other motion. Plaintiffs' affidavit of merit and reply in support of their own motion falls short of constituting a waiver of objection to the timeliness of a motion for summary judgment.[8]
Although the Rules of Civil Procedure are to be construed to secure a just, speedy, and inexpensive determination of actions,[9] any other result would in this case equally thwart the clear mandate of Rule 56.03 under the guise of construction. Our opinion that the motion, order, and judgment herein were fatally defective for want of timeliness does not intimate either that plaintiffs' pleadings are beyond successful attack by appropriate motions or that a temporary injunction should necessarily have issued on their own pending motion. We hold only that plaintiffs were in this instance denied their day in court.
Reversed.
NOTES
[1] The judgment included an allowance to defendants of $50 for costs and $150 for an attorney's fee.
[2] Rule 56.03 provides in part: "The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law."
[3] The notice of motion also stated that defendants would seek an order requiring the plaintiffs to file a surety bond protecting the school district or its taxpayers, or the other defendants, from damage which might be caused by the pendency of the action. That part of the motion was timely. Minn.St. 562.02.
[4] Rule 56.03 provides that the motion shall be served at least 10 days before the time fixed for the hearing, and Rule 6.05 provides that when notice is served by mail, 3 days shall be added to the prescribed period.
[5] "IT IS HEREBY ORDERED that the motion of the defendants for summary judgment be and the same is hereby in all things granted upon the grounds and for the reason that there is no genuine issue as to any material fact."
[6] "The above entitled matter came on for hearing pursuant to an Order to Show Cause requesting the defendants to show cause why a temporary restraining order should not be made, and pursuant to a Motion by the defendants that they have summary judgment pursuant to Rule 56 of the Rules of Civil Procedure for the District Courts of the State of Minnesota. * * * The Court having heard the arguments of counsel and being fully informed of all of the files, records, affidavits and proceedings herein, made its Order on August 24, 1965.
"NOW, THEREFORE, PURSUANT TO SAID ORDER, IT IS HEREBY ADJUDGED AND DECREED:
"1. That the cause of action of the plaintiffs be dismissed and that the defendants have judgment of dismissal herein pursuant to the Motion for Summary Judgment; and that the cause of action of the plaintiffs is and hereby shall be dismissed in every respect."
[7] Rule 12.03 provides: "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on such motion, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided for in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."
[8] There is otherwise ample authority to hold that, in the absence of objection to the service of the motion less than 10 days before the return date, the defect will be deemed waived. Feng Yeat Chow v. Shaughnessy (S.D.N.Y.) 151 F.Supp. 23, 25, note 2; Oppenheimer v. Morton Hotel Corp. (6 Cir.) 324 F.2d 766. In Anderson v. Twin City Rapid Transit Co., 250 Minn. 167, 184, 84 N.W.2d 593, 604, we noted that the principle of waiver is applicable to both procedural and substantive law.
[9] Rule 1.
| {
"pile_set_name": "FreeLaw"
} |
51 F.3d 638
63 USLW 2620, 41 Fed. R. Evid. Serv. 1060
Peggy GRUCA, formerly known as Peggy Poole, individually andas administrator of the Estate of Stephen Poole, deceased,Heather Renae Poole and Kelly Jean Poole, minors, by theirmother, Peggy Gruca, formerly known as Peggy Poole, as nextfriend, Plaintiffs-Appellants,v.ALPHA THERAPEUTIC CORPORATION, a foreign corporation, MilesLaboratories, Inc., a foreign corporation doing business asCutter Laboratories, Inc., a foreign corporation, ArmourPharmaceutical Company, a division of Rorer, Inc., a foreigncorporation, and Baxter Travenol Laboratories, Inc., doingbusiness as Hyland Therapeutics Division, Defendants-Appellees.
No. 94-1893.
United States Court of Appeals,Seventh Circuit.
Argued Jan. 17, 1995.Decided March 24, 1995.
William J. Harte (argued), Joan M. Mannix, Harte & Associates, Chicago, IL, for Peggy Gruca, Heather R. Poole, Kelly J. Poole.
Martha D. Owens, Anne G. Kimball, Mary E. Ruether, Wildman, Harrold, Allen & Dixon, Howard T. Brinton, Brinton & Fedota, Chicago, IL, Edwin W. Green, Bronson & McKinnon, Los Angeles, CA, David I. Bell, Knapp, Peterson & Clarke, Glendale, CA, Lindley J. Brenza (argued), Adam L. Hoeflich, Fred H. Bartlit, Jr., Bartlit, Beck, Herman, Palenchar & Scott, Chicago, IL, for Alpha Therapeutic Corp.
Thomas H. Fegan, Mindy Kallus, Kevin J. Greenwood, Pamela L. Gellen, Mary E. Lopez, Johnson & Bell, Chicago, IL, Duncan Barr, O'Connor, Cohn, Dillon & Barr, San Francisco, CA, for Miles Laboratories, Inc.
Douglas F. Fuson, Sara J. Gourley, Lory A. Barsdate, Steven J. Ellison, Sidley & Austin, Chicago, IL, for Armour Pharmaceutical Co.
John P. Scotellaro, Bell, Boyd & Lloyd, Chicago, IL, Marla S. Persky, Baxter Travenol Laboratories, Inc., Deerfield, IL, Richard L. Berkman, Robert A. Limbacher, Dechert, Price & Rhoads, Philadelphia, PA, Charles G. Albert (argued), Allison L. Wood, Albert, Bates, Whitehead & McGaugh, Chicago, IL, for Baxter Travenol Laboratories, Inc.
Before BAUER, CUDAHY and KANNE, Circuit Judges.
BAUER, Circuit Judge.
1
During closing argument of a seven-week jury trial, the defendants' lead counsel asserted that the plaintiffs' attorney "selected the defendants. He could have sued the FDA." Rather than sustaining the plaintiffs' immediate objection, the district court overruled it, instructing the jury that "[g]overnment entities are sued all the time." Because these improper remarks and the district court's erroneous instruction substantially prejudiced the plaintiffs, we reverse the jury's verdict in favor of the defendants and remand for a new trial.
I.
2
Hemophilia is a congenital disorder of blood clotting. Stephen Poole was a hemophiliac who had a severe deficiency of Factor VIII, a protein necessary for clotting, in his plasma, the liquid portion of blood. From 1972 until his death in 1987, Poole used a commercially prepared product called Factor VIII concentrate prescribed by his physician to treat bleeding episodes. Factor VIII concentrate is a highly condensed, freeze-dried form of cryoprecipitate, which is a portion of plasma rich in the Factor VIII protein. Cryoprecipitate is produced by spinning the plasma of thousands of donors in a centrifuge. Factor VIII concentrate is administered through intravenous injection after being mixed with sterile water.
3
Manufacturers of Factor VIII concentrate, or "fractionators," are regulated by the Food and Drug Administration ("FDA"). Each fractionator is licensed by the FDA to process and distribute Factor VIII concentrate. The FDA must approve the release of each lot of Factor VIII concentrate before the lot may be distributed for use. The FDA must further approve any change in a fractionator's manufacturing process or in the labeling of the product. The FDA also regulates the plasma centers from which each fractionator obtains plasma.
4
From 1978 until late 1984, Poole used Factor VIII concentrate manufactured exclusively by the defendant Alpha Therapeutic Corporation ("Alpha"). Poole began using Factor VIII concentrate manufactured by the defendant Cutter Laboratories, Inc. ("Cutter") in September or October 1984. Poole had knee surgery in Chicago in January 1985. During his hospitalization for the surgery, Poole received Factor VIII concentrate manufactured by the defendant Baxter Travenol Laboratories, Inc. ("Baxter"). Poole also testified in a deposition that he received one vial of Factor VIII concentrate manufactured by the defendant Armour Pharmaceutical Company ("Armour") during his hospitalization, although this fact was disputed by Armour at trial.
5
Poole was diagnosed with Acquired Immune Deficiency Syndrome ("AIDS") in March 1986 after his physician discovered that Poole had an opportunistic infection resulting from a weakened immune system, or an AIDS-related illness. Poole then tested positive for the presence of antibodies to the Human Immunodeficiency Virus ("HIV"), the virus which causes AIDS. Poole developed several other opportunistic infections after this diagnosis and died of an AIDS-related illness on July 10, 1987, at the age of thirty-two.
6
Peggy Gruca, Poole's widow, filed suit in the district court on behalf of herself, Poole's estate, and their two minor children, Heather Renae Poole and Kelly Jean Poole, against the defendants, all manufacturers of Factor VIII concentrate possibly used by Poole during his lifetime. Jurisdiction was premised upon diversity of citizenship. The complaint sought damages for (1) Poole's pain and suffering from the time Poole was diagnosed with AIDS until his death; (2) Poole's wrongful death; (3) Poole's funeral and burial expenses under the Illinois Family Expense Act, 750 ILCS 65/15; and (4) Gruca's emotional distress resulting from her risk of contracting HIV during her marriage to Poole.
7
The complaint alleged that the defendants negligently (1) solicited plasma from paid donors who had a high risk of transmitting hepatitis, AIDS, and other viral diseases; (2) failed to warn users of the risk of contracting hepatitis, AIDS, and other viral diseases through Factor VIII concentrate; (3) failed to treat Factor VIII concentrate to reduce the presence of viruses in the product; (4) marketed untreated and heat-treated Factor VIII concentrate made from the plasma of paid donors who had a high risk of transmitting HIV, despite industry-wide knowledge of the risk; and (5) failed to determine whether any lots of Factor VIII concentrate contained plasma from a paid donor whose blood was later rejected at a plasma center because of the donor's risk of transmitting HIV.
8
The complaint sought damages under two theories of liability, negligence1 and alternative liability.2 Although these counts were treated separately in the complaint, the underlying tortious conduct of the plaintiffs' alternative liability claims was negligence. At the close of all the evidence, the district court, with the plaintiffs' consent, directed a verdict in favor of the defendants with respect to the plaintiffs' negligence claims. The district court also directed a verdict in favor of the defendants on the plaintiffs' claim that Poole's death was hastened by additional exposure to HIV after his initial infection. The jury returned a verdict in favor of all defendants on the plaintiffs' remaining alternative liability claims. In response to a special verdict form submitted by the district court, the jury found that none of the defendants had been negligent in any of the ways charged by the plaintiffs. The plaintiffs filed a motion for a new trial on several grounds, which the district court denied.
II.
9
The parties agree that Illinois substantive law governs in this diversity case. See Heller Int'l Corp. v. Sharp, 974 F.2d 850, 856 (7th Cir.1992) (federal courts sitting in diversity apply the substantive law of the state in which the suit is filed, including the state's choice of law rules). Although the plaintiffs assert several grounds of error, our disposition of this appeal requires us to consider only two issues.
10
The plaintiffs challenge the district court's directed verdict in favor of the defendants on their wrongful death claim brought under the theory of "antigenic stimulation." A person who is infected with HIV at first suffers no symptoms of any AIDS-related illness while the virus is replicating itself in sequestered sites within the body. The plaintiffs presented expert scientific testimony at trial that, under the theory of antigenic stimulation, an infected person's exposure to additional HIV, other viruses, or foreign proteins shortens this asymptomatic period, provokes increased replication of HIV, and leads to a quicker death from an AIDS-related illness. The plaintiffs asserted that, under this theory, Poole's death was hastened through his use of Factor VIII concentrate manufactured by the defendants after his initial HIV infection.
11
The district court directed a verdict on this claim, instructing the jury as follows:
12
One of the issues raised by the testimony in this case is whether the disease process in a person infected with the HIV virus can be accelerated or aggravated by additional exposure to the same or a different strain of the virus. Whatever the merits of the dispute as a scientific matter, I instruct you that there is insufficient evidence in this case that Stephen Poole's disease process was, in fact, accelerated or aggravated by multiple exposures.
13
The evidence is undisputed that he was infected with the HIV virus, but there is insufficient evidence of any reinfection. Therefore you should not find any defendant liable on the theory of aggravation, acceleration, or reinfection.
14
Tr. at 5050-51. As a result of this directed verdict, the only issue before the jury on the plaintiffs' wrongful death claim was whether any defendant was liable for Poole's initial HIV infection under the alternative liability doctrine.
15
Federal law controls our review of the district court's directed verdict. Mayer v. Gary Partners and Co., Ltd., 29 F.3d 330, 335 (7th Cir.1994). A directed verdict should be granted only "[i]f reasonable persons could not find that the evidence justifies a decision for a party on each essential element." Id. We conclude that the directed verdict was erroneous under this standard and therefore reverse.3
16
The plaintiffs presented evidence that only a very small fraction, probably less than two percent, of persons infected with HIV develop an AIDS-related illness within one year, and the approximate average time between HIV infection and development of an AIDS-related illness is between seven and ten years. A person in this stage of AIDS has a reduced number of red blood cells and certain white blood cells called lymphocytes. When Poole was hospitalized for knee surgery in January 1985, his red and white blood cell counts were normal. Poole was not tested for the presence of antibodies to HIV during this hospitalization because he had no symptoms of any AIDS-related illness. Yet fourteen months later, in March 1986, Poole had an opportunistic infection. A lymphocyte count performed on Poole in April 1986 was extremely low. The plaintiffs also presented evidence that the Factor VIII concentrate used by Poole from January 1985 until his death, which was manufactured by Baxter, Cutter, and Armour, contained HIV and other viruses.
17
None of the evidence at trial established the date of Poole's initial HIV infection. Poole could have been infected with HIV several years prior to March 1986 and developed AIDS in a normal manner. The jury, however, could have found from the circumstantial evidence presented by the plaintiffs that Poole's sudden decline in health after January 1985 was caused by exposure to additional viruses through his use of Factor VIII concentrate. The district court's directed verdict therefore was improper. Mayer, 29 F.3d at 335.
18
Perhaps anticipating our conclusion that the directed verdict was erroneous, the defendants assert that the district court should have excluded the plaintiffs' expert scientific testimony concerning the antigenic stimulation theory under Daubert v. Merrell Dow Pharmaceuticals, Inc., --- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In Daubert, the Supreme Court established the standard for the admissibility of expert scientific testimony under Rule 702 of the Federal Rules of Evidence.4 The Court concluded that the test set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), which held "inadmissible expert testimony based on a scientific technique unless that technique is generally accepted as reliable in the relevant scientific community," Porter v. Whitehall Labs., Inc., 9 F.3d 607, 612-13 n. 3 (7th Cir.1993), did not survive the enactment of the Federal Rules of Evidence. Daubert, --- U.S. at ----, 113 S.Ct. at 2794.
19
Under Daubert, the district court must conduct a two-part analysis. First, the district court must "determine whether the expert's testimony pertains to scientific knowledge. This task requires that the district court consider whether the testimony has been subjected to the scientific method; it must rule out 'subjective belief or unsupported speculation.' " Porter, 9 F.3d at 614 (quoting Daubert, --- U.S. at ----, 113 S.Ct. at 2795). The Court in Daubert set forth a nonexclusive list of factors which the district court should consider when making this determination: (1) whether the theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) the general acceptance of the theory in the scientific community. Daubert, --- U.S. at ---- - ----, 113 S.Ct. at 2796-97. Under the second prong of the Daubert test, the district court must "determine whether the evidence or testimony assists the trier of fact in understanding the evidence or in determining a fact in issue. That is, the suggested scientific testimony must 'fit' the issue to which the expert is testifying." Porter, 9 F.3d at 616. See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1315 (9th Cir.1995); O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1106 (7th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 2711, 129 L.Ed.2d 838 (1994). The defendants contend that the plaintiffs' expert scientific testimony does not meet the first prong of the Daubert test.
20
Although the defendants' challenge to the admissibility of the plaintiffs' scientific testimony concerning antigenic stimulation under Daubert was raised below, the district court expressly declined to rule on it and instead directed a verdict on the merits of the plaintiffs' claim. This approach was improper. When "[f]aced with a proffer of expert scientific testimony," the district court must determine at the outset, pursuant to Federal Rule of Evidence 104(a),5 whether the reasoning or methodology underlying the testimony satisfies the Daubert test. Daubert, --- U.S. at ----, 113 S.Ct. at 2796. Under Daubert, the district court is to perform a gatekeeping function with respect to the admission of scientific evidence. Id. at ---, 113 S.Ct. at 2798; id. at ---, 113 S.Ct. at 2800 (Rehnquist, C.J., concurring in part and dissenting in part) ("I do not doubt that Rule 702 confides to the judge some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony."). The district court abdicated its responsibilities under Rule 104(a) by failing to conduct a preliminary assessment of the admissibility of the plaintiffs' expert testimony concerning antigenic stimulation before permitting the plaintiffs' experts to testify. We therefore remand the plaintiffs' antigenic stimulation claim to the district court with directions to evaluate this evidence under the Daubert framework.
21
Our conclusion that the district court's directed verdict on the plaintiffs' antigenic stimulation claim was erroneous should not be read as an implied endorsement of the theory under Daubert. We merely hold that, assuming the admissibility of the plaintiffs' expert testimony under Rule 702, the plaintiffs introduced sufficient evidence of antigenic stimulation to present their claim to the jury. We leave to the district court the task of determining the admissibility of the plaintiffs' expert testimony in the first instance, as Daubert contemplates.
III.
22
At the close of all the evidence, the district court granted each defendant ten minutes of surrebuttal argument limited solely to the issue of proximate causation, on which the defendants bore the burden of proof under the alternative liability doctrine. During Alpha's surrebuttal argument, its counsel argued as follows:
23
MR. GREEN [counsel for Alpha]: This case is merely one between these defendants. Mr. Ring selected the defendants. He could have sued the FDA. He could have sued any one of these defendants.
24
MR. RING [counsel for the plaintiffs]:6 Judge, I object to that, who I could have sued. The FDA is not one that he could have sued. It is a government entity.
25
THE COURT: Well, I don't know that you can't sue a government entity. Government entities are sued all the time, but I will overrule the objection.
26
MR. GREEN: The point here is, ladies and gentlemen, the array of defendants that you see are solely the selection of Mr. Ring.
27
Tr. at 5024-25. The plaintiffs contend that these remarks and the district court's instruction deprived them of a fair trial. We agree.
28
Federal law governs our review of the district court's denial of the plaintiffs' motion for a new trial. Mayer, 29 F.3d at 334; Davis v.FMC Corp., Food Processing Mach. Div., 771 F.2d 224, 232 (7th Cir.1985). We review the district court's denial of the plaintiffs' motion for an abuse of discretion. Canada Dry Corp. v. Nehi Beverage Co., Inc. of Indianapolis, 723 F.2d 512, 527 (7th Cir.1983). Improper remarks during a closing argument warrant reversal of the judgment only if the remarks " 'influenced the jury in such a way that substantial prejudice resulted to' the opposing party."7 Arcor, Inc. v. Textron, Inc., 960 F.2d 710, 713 (7th Cir.1992) (quoting Fenolio v. Smith, 802 F.2d 256, 258 (7th Cir.1986)). Statements made during closing argument must be plainly unwarranted and clearly injurious to constitute reversible error. Lockley v. Deere & Co., 933 F.2d 1378, 1388 (8th Cir.1991).
29
An incorrect jury instruction is reversible error if, " 'considering all the instructions, the evidence and the arguments that the jury heard, it appears that the jury was misled or did not have a sufficient understanding of the issues and its duty to determine them.' " Heller, 974 F.2d at 856 (quoting Simmons, Inc. v. Pinkerton's, Inc., 762 F.2d 591, 597 (7th Cir.1985)). Reversal of the judgment " 'is inappropriate unless the jury's understanding of the issues was seriously affected to the prejudice of the complaining party.' " Id. (quoting Wilk v. American Medical Ass'n, 719 F.2d 207, 218-19 (7th Cir.1983), cert. denied, 467 U.S. 1210, 104 S.Ct. 2398, 81 L.Ed.2d 355 (1984)).
30
The defendants at trial presented evidence and argued that their ability to improve the safety of Factor VIII concentrate was limited by the FDA, which was slow to react to the onset of AIDS in the early 1980s. For example, the FDA did not require plasma collection centers to screen donors who had a high risk of transmitting HIV until March 1983. The FDA refused requests to perform surrogate tests on Factor VIII concentrate. A surrogate test is a test for the presence of a "marker" that may have been associated with the presence of HIV. The FDA's position was that there was no data demonstrating that surrogate tests would prevent the spread of AIDS. The FDA also did not approve any warning of the risk of AIDS on the labels of Factor VIII concentrate until December 1983.
31
The district court's instruction defining "reasonable care" permitted the jury to consider the FDA's regulatory conduct in determining the defendants' liability. This instruction stated as follows:
32
When I use the words "reasonable care," I mean the care that would be used by reasonably careful collectors of blood or plasma and processors of Factor VIII concentrate under circumstances similar to those shown by the evidence at and prior to the time Stephen Poole contracted the HIV virus.
33
The law does not say how reasonably careful collectors of blood or plasma and processors of Factor VIII concentrate would act under those circumstances. That is for you to decide.
34
In determining whether any defendant exercised reasonable care under the circumstances, you may consider the following:
35
* * * * * *
36
The Food and Drug Administration's regulations governing licensing, manufacturing methods, and labeling.
37
Tr. at 5047. During their closing arguments, each of the defendants emphasized the FDA's regulatory role. For example, Alpha's counsel argued that "you can't just dream up an idea and put it to the FDA who regulates this industry on behalf of you and me and the hemophiliacs and everyone else and get their approval." Tr. at 4858.
38
Alpha's surrebuttal argument that the plaintiffs' counsel "selected the defendants" and "could have sued the FDA" was improper, unwarranted, and a misstatement of law. The only question before the jury was whether any of the defendants was negligent in any of the ways charged by the plaintiffs. The plaintiffs did not allege, and did not attempt to prove, that the defendants' negligence related to the conduct of the FDA prior to the time Poole was infected with HIV. Whether the FDA was negligent in its regulation of fractionators was not an issue before the jury. By directing the jury's attention to the FDA's regulatory role and away from the defendants' own conduct, Alpha suggested that the FDA's actions absolved the defendants from liability for negligence. Such an argument is impermissible. Davis, 771 F.2d at 233. Nothing in the plaintiffs' closing argument invited these improper comments. The district court erred by overruling the plaintiffs' objection to these remarks.
39
Alpha's statement that the plaintiffs "could have sued the FDA" became a statement of the district court when the plaintiffs' objection was overruled. The district court then compounded its error by instructing the jury that "[g]overnment entities are sued all the time." Both statements were misstatements of law. Although negligence claims are actionable under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346(b), 2671 et seq., the FDA is immune from suit under the FTCA for discretionary administrative functions. 28 U.S.C. Sec. 2680(a);8 see United States v. Varig Airlines, 467 U.S. 797, 813-14, 104 S.Ct. 2755, 2764-65, 81 L.Ed.2d 660 (1984); cf. Heckler v. Chaney, 470 U.S. 821, 837-38, 105 S.Ct. 1649, 1658-59, 84 L.Ed.2d 714 (1985) (holding that the FDA's decision not to take enforcement actions to prevent violations of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. Sec. 301 et seq., is not subject to judicial review under the Administrative Procedure Act, 5 U.S.C. Sec. 500 et seq.).
40
Alpha's improper remarks and the district court's erroneous instruction substantially prejudiced the plaintiffs and therefore compel a new trial. The jury was instructed that it could consider the FDA's regulations in determining whether any defendant exercised reasonable care. Alpha's statement that the plaintiffs "could have sued the FDA" implied that the FDA was the only party to blame for Poole's HIV infection. This misstatement of law was adopted by the district court, which overruled the plaintiffs' objection and instructed that "[g]overnment entities are sued all the time." Alpha then repeated this point, asserting that "the array of defendants that you see are solely the selection of Mr. Ring." Since these statements were made during surrebuttal argument, the plaintiffs had no opportunity to reply. The jury thus was left with the misimpression that the FDA's failure to respond to the outbreak of AIDS more quickly negated the defendants' liability. This mistaken view of the law could have directly resulted in the jury's verdict in favor of the defendants.
41
In its order denying the plaintiffs' motion for a new trial, the district court wrote that it "was impressed with the high quality of this jury. They were attentive and took extensive notes and listened with obvious amusement to the banter that occurred from time to time during the long trial." If the district court's observations are accurate, then neither Alpha's remarks nor the district court's instruction escaped the jury's attention. The resulting prejudice to the plaintiffs is clear and substantial. The district court abused its discretion in denying the plaintiffs' motion for a new trial.
42
The judgment of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion. The case will be assigned pursuant to Circuit Rule 36.
43
REVERSED AND REMANDED.
1
To properly state a cause of action for negligence under Illinois law, a plaintiff must establish that the defendant owed a duty of care, a breach of that duty, and an injury proximately caused by the breach. Curatola v. Village of Niles, 154 Ill.2d 201, 181 Ill.Dec. 631, 634, 608 N.E.2d 882, 885 (1993)
2
Under the doctrine of alternative liability,
[w]here the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.
Restatement (Second) of Torts Sec. 433B(3) (1965); see also Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). The district court, in granting the plaintiffs leave to amend an earlier complaint, ruled that the Supreme Court of Illinois would allow the plaintiffs to proceed under this doctrine. 696 F.Supp. 351, 356 (N.D.Ill.1988).
3
The defendants assert that the plaintiffs have waived any challenge to the directed verdict on their antigenic stimulation claim by failing to object to the district court's instruction. Waiver is the intentional relinquishment of a known right. Heller, 974 F.2d at 861. Our review of the transcript of the jury instructions conference reveals that the defendants' position is incorrect as a matter of law and is simply not worthy of extended discussion
4
Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
5
Rule 104(a) provides:
Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
6
The plaintiffs were represented by attorney Leonard M. Ring in the district court, who died during the pendency of this appeal
7
The district court, in denying the plaintiffs' motion for a new trial, acknowledged that Alpha's remarks were improper but concluded that no prejudice resulted to the plaintiffs. We also review this finding for an abuse of discretion. Canada Dry, 723 F.2d at 527
8
Section 2680(a) provides:
The provisions of this chapter and section 1346(b) of this title shall not apply to--
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
| {
"pile_set_name": "FreeLaw"
} |
76 N.Y.2d 761 (1990)
The People of the State of New York, Respondent,
v.
Gary Fields, Appellant.
Court of Appeals of the State of New York.
Argued May 1, 1990.
Decided June 12, 1990.
Edward J. Nowak, Public Defender (Peter J. Pullano of counsel), for appellant.
Howard R. Relin, District Attorney (Mark W. Pedersen of counsel), for respondent.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
*762MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant was convicted, upon a jury verdict, of burglary in the second degree and criminal mischief in the fourth degree. The Appellate Division affirmed defendant's conviction, rejecting defendant's argument that the trial court improperly denied his requests for a missing witness charge. On appeal defendant contends that the trial court should have granted his requests to charge with respect to two police officers, Bevere and Ruvio, who defendant maintains witnessed the station house interrogation of defendant by Detective D'Ambrosio. We agree with regard to one of the officers but, nevertheless, affirm on the ground that the error of the trial court was harmless.
At trial, Detective D'Ambrosio testified that during the station house interrogation defendant confessed to committing the completed crime of burglary. On cross-examination, it was developed that Detective D'Ambrosio had testified inconsistently at a pretrial hearing to the effect that defendant had stated only that he had thought about committing the crime. In this same respect D'Ambrosio's trial testimony was inconsistent with the pretrial hearing testimony of Officer Bevere and with written police reports which, according to D'Ambrosio, had been prepared by Detective Ruvio who, concededly, had witnessed the entire interrogation. It is undisputed that Officer Bevere, unlike Ruvio, walked in and out of the interrogation room and could not have heard the entire questioning.
*763In seeking a missing witness charge defendant had the burden to prove "[1] that [the] uncalled witness[es were] knowledgeable about a material issue pending in the case, [2] that such witness[es could] be expected to testify favorably to the opposing party and [3] that such party has failed to call [them] to testify." (People v Gonzalez, 68 N.Y.2d 424, 427.) Once defendant has made a prima facie showing of entitlement to the charge, "it becomes incumbent upon the [People], in order to defeat the request to charge, to account for the witness[es's] absence or otherwise demonstrate that the charge would not be appropriate. This burden can be met by demonstrating that the witness[es were] not knowledgeable about the issue * * * [or that] the testimony would be cumulative to other evidence" (id., at 428). Under these facts, we conclude that defendant was entitled to a missing witness charge, but only with respect to Detective Ruvio who was present during the entire interrogation. There is no question that the testimony regarding defendant's inculpatory statements involved material issues in the case and that Ruvio, as a police officer, would have been expected to testify favorably to the People. Thus, there was a prima facie showing of entitlement to the charge.
To defeat this showing, the People contend, and the lower courts concluded, that Detective Ruvio's testimony would have been merely cumulative. We disagree. This case is unlike People v Buckler (39 N.Y.2d 895), upon which the People and the Appellate Division rely, where "there was no showing that the uncalled witness would have given different testimony." (Id., at 897.) Here, to the contrary, there was evidence that if Ruvio were called, his testimony would have been inconsistent with D'Ambrosio's testimony. In addition to the other noted inconsistencies with the trial testimony and the pretrial accounts of the interrogation, the written police reports prepared by Ruvio were inconsistent with the trial testimony.
But, we do agree with the People that the error was harmless in this case in view of the overwhelming evidence of guilt: the testimony of an eyewitness identifying defendant as the man he saw fleeing from the house which was burglarized, the defendant's own written statement that he "was thinking of breaking into" the house, the evidence that defendant's palm print was found at the house, and that defendant was apprehended, within minutes, near the crime scene (People v Crimmins, 36 N.Y.2d 230).
Order affirmed in a memorandum.
| {
"pile_set_name": "FreeLaw"
} |
485 S.E.2d 351 (1997)
Barbara MANEY, Plaintiff,
v.
Robert Brice MANEY, Defendant.
No. COA96-889.
Court of Appeals of North Carolina.
June 3, 1997.
James R. Carpenter and Barrett O. Poppler, Gastonia, for Plaintiff-Appellee.
Arthurs & Foltz by Douglas P. Arthurs and Ann Brittian McClellan, Gastonia, for Defendant-Appellant.
EAGLES, Judge.
The sole issue raised on appeal is whether the trial court properly calculated the number of overnights the children spend with each party per year. Defendant argues that because the children are at his residence from 8:00 p.m. on Sunday until the second following Monday morning, the children spend an annual total of 201 overnights with him and 164 with plaintiff. Plaintiff concedes *352 the children spend Sunday nights during the school year with defendant. Plaintiff argues, however, that returning the children on Sunday nights is a matter of convenience to both parties and does not create a significant increase in economic cost to defendant.
"It is well established that the determination of child support must be done in such a way that reflects fairness and justice for all concerned." Plott v. Plott, 65 N.C.App. 657, 662, 310 S.E.2d 51, 54 (1983), rev'd in part on other grounds, 313 N.C. 63, 326 S.E.2d 863 (1985). The trial court may consider the conduct of the parties, the equities of the given case, and any other relevant facts. Warner v. Latimer, 68 N.C.App. 170, 172-73, 314 S.E.2d 789, 791 (1984). The ultimate determination as to the amount of child support is within the discretion of the trial court and will not be disturbed on appeal in the absence of a clear abuse of discretion. E.g., Beall v. Beall, 290 N.C. 669, 673-74, 228 S.E.2d 407, 410 (1976). "A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).
In the present case, the parties agreed to share custody of their children on a week to week alternating basis. The parties' agreement clearly states that the parties intended to share equally in both the custody and support of their children. In its order of 17 July 1996, the trial court found that
the directives regarding the interpretation regarding the child support guidelines include directions that the Court use practical sense in applying the guidelines to each individual situation. The Court finds that the instructions for completing Child Support Worksheet B notes that "to be a true sharing of physical custody, costs for the child should be divided between the parents based on their respective percentage shares of income." Consequently, it appears that the sharing of costs is the primary focus for determining the sharing of custody and the mere fact that the child[ren] [are] physically in one parent's home for the purposes of sleeping as a[n] accommodation should not be conclusive for purposes of setting child support obligations.
We conclude the trial court properly exercised its discretion in recognizing the economic realities of the parties' custody arrangement and in considering the fairness and justice of this particular case. The trial court's finding was not "so arbitrary that it could not have been the result of a reasoned decision." White, 312 N.C. at 777, 324 S.E.2d at 833.
Affirmed.
WALKER and MARK D. MARTIN, JJ., concur.
| {
"pile_set_name": "FreeLaw"
} |
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 20 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHN A. AMERIKS; GORDON
BARTEK, Trustee/Beneficiary for X-
Ray Associates P.C. Profit Sharing
Plan & Trust/Bartek Section; RUTH No. 98-4221
BARTEK, Trustee/Beneficiary for X- (D.C. No. 88-CV-1017)
Ray Associates P.C. Profit Sharing (D. Utah)
Plan & Trust/Bartek Section;
RONALD N. BOYLE, Trustee for
Ronald N. Boyle M.D. Unincorporated
Profit Sharing Plant; RONALD N.
BOYLE PC, Trustee for Ronald N.
Boyle M.D. P.C. Pension Trust
Defined Contribution; CLAYTON
CHING, Trustee for Clayton T.M
Ching M.D. Inc., Defined Benefit
Pension; DAVID COLLINS, Trustee
for Collins and Johnson Defined
Benefit Trust; KAREN JOHNSON,
Trustee for Collins and Johnson
Defined Benefit Trust; EUGENE A.
DOERR, Trustee for Eugene A. Doerr
D.D.S., Inc. Pension & Profit Sharing
Plan; JOHN W. EMMETT, Trustee for
John W. Emmett M.D. Keogh H.R. 10-
Retirement Trust; J.W. EMMETT,
Trustee for Logan Radiology
Associates Inc. Retirement Trust;
JAMES T. SHAW, Trustee for Logan
Radiology Associates, Inc. Retirement
Trust; JOSEPH J. ERRAMOUSPE,
Trustee for Joseph J. Erramouspe
D.D.S. P.C. Restated Employees Profit
Sharing Plan; J. J. ERRAMOUSPE,
Trustee for Joseph J. Erramouspe
D.D.S. P.C. Restated Employee
Pension Plan; AURELIUS ARTHUR
FERMELIA, Trustee for A. Arthur
Fermelia D.D.S. P.C. Restated
Employees Pension Plan; AURELIUS
A. FERMELIA, Trustee for A. Arthur
Fermelia D.D.S. P.C. Restated
Employees Profit Sharing Plan &
Trust; FIRST INTERSTATE BANK, a
Nevada banking corporation, as
Trustee of Agent for Stanley A. Ames
Money Purchase Pension Plan; Stanley
A. Ames, M.D. Chartered Defined
Pension Plan & Trust; Paul D. Bandt
Pension Plan; Paul D. Bandt Profit
Sharing Plan; Brent B. Birkin Pension;
Richard Ellis Pension Plan; Taylor,
Knudsen & Lum Pension Plan for
Ellis, Ralph J. Litton Profit Sharing
Plan; Ralph H. Litton Pension Plan;
Ralph J. Litton Profit Sharing Trust;
Marasso, Miller, Ltd. Money Purchase
Pension Trust; Marasso, Miller, Ltd.
Profit Sharing Plan & Trust; Douglas
S. Wong Pension Plan; Taylor,
Knudsen & Lum Profit Sharing Trust
for Wong; Taylor, Knudsen & Lum
Pension Trust for Wong; L. Keith
Gates, Trustee for Gates, Jensen &
Warren, Inc. Employee Retirement
Plan; ROBERT L. JENSEN, Trustee
for Gates, Jensen & Warren, Inc.
Employee Retirement Plan; DENNIS
P. GORDON, Trustee for Dennis P.
Gordon; JOHN J. HEIECK, Trustee
for Plastic & Reconstructive Surgery
Profit Sharing Trust and Trustee for
Plastic & Reconstructive Surgery
Pension Trust; WILLIAM F.
HOPKINS, Trustee for Urology
Services of Tri-Cities Defined Benefit
-2-
Pension Plan; JOAN HULME, Trustee
for Joan Hulme, M.D. P.C. Defined
Benefit Trust; JAMES LUM, Trustee
to Knudsen Family trust f/k/a Taylor,
Knudsen & Lum Pension & Profit
Plans for Knudsen; DONALD R.
MACKAY, Trustee for Donald R.
Mackay, M.D. Ltd. Pension & Profit
Sharing Trust; JOSEPH H. NELSON,
Trustee for Joseph H. Nelson Profit
Sharing Keogh Plan, Trustee for
Joseph H. Nelson Retirement Trust;
ALBERT G. NOORDA, Trustee for
Albert G. Noorda, M.D. Chartered
Employees Profit Sharing Plan &
Trust, Trustee for Albert G. Noorda,
M.D. Chartered Money Purchase
Pension Plan & Trust; JOYCE
NOORDA, Trustee for A.G. Noorda,
M.D. Chartered Employees Profit
Sharing Plan & Trust, Trustee for
Albert G. Noorda, M.D. Chartered
Money Purchase Pension Plan &
Trust; JUEL A. PARKER, Trustee for
Juel A. Parker, D.D.S. Ltd. Pension
Trust; K. DAVID PERKINS, Trustee
for Pathology Consulting Services
Retirement Trust; BOB SOROKOLIT,
Trustee for Bob Sorokolit, M.D. P.A.
Employees Pension Trust; ANDREW
J. WELCH, Trustee for Southwest
Orthopedic & Sports Clinic P.C.
Pension Plan; MARILYN S. WELCH,
Trustee for Southwest Orthopedic &
Sports Clinic P.C. Pension Plan;
ROBERT N. WELLS, Trustee for
Robert N. Wells, M.D. Inc. Pension
Trust; MARY LUCILE BISHOP;
STEVEN H. HODSON; STEPHEN A.
-3-
KOLLINS, General Partner for Miklat
Enterprises; DAVID A. MULKEY,
Trustee for Associated Pathologists
Chartered Profit Sharing Plan; General
Partner for P.F. Partnership, aka
Mulkey Limited Partnership; HENRY
J. NAVE; LINDA R. NAVE; DANIEL
R. SUCHY; CARL M. FISHER,
Plaintiffs - Appellants,
vs.
ZIONS FIRST NATIONAL BANK,
Defendant - Appellee
ORDER AND JUDGMENT *
Before EBEL and KELLY, Circuit Judges, and ELLISON, ** District Judge.
Plaintiffs-Appellants are trustees of pension plans and individuals who
purchased promissory notes or limited partnership interests in partnerships
syndicated by a now-defunct corporation known as Coordinated Financial
Services (“CFS”). Defendant-Appellee Zions First National Bank served as
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable James O. Ellison, Senior District Judge, United States
District Court for the Northern District of Oklahoma, sitting by designation.
-4-
indenture trustee for the partnerships. After CFS went bankrupt, Plaintiffs sued
Zions under a number of theories, including violations of ERISA and the Trust
Indenture Act, breach of fiduciary duty, breach of contract, constructive fraud,
negligence, violation of federal and state securities laws, common law fraud,
negligent misrepresentation, and a claim for an accounting. The parties are
familiar with the detailed facts and the arguments raised upon appeal; we need
not restate them here.
In two orders, the district court granted summary judgment in favor of
Zions on all counts. See Add. to Aplt. Br. 1, 34 (Aug. 27, 1996) & 35, 70-71
(Sept. 30, 1998). We review the grant of summary judgment de novo. In doing
so, we apply the same standard as the district court to determine whether there is
a genuine issue of material fact, and whether defendant is entitled to judgment as
a matter of law. See Southwestern Bell Wireless, Inc. v. Johnson County Bd. of
County Comm'rs , 199 F.3d 1185, 1189 (10th Cir. 1999). We examine the entire
factual record and any reasonable inferences which may be drawn from it in the
light most favorable to the Plaintiffs. See Chessin v. Keystone Resort
Management, Inc. , 184 F.3d 1188, 1191-92 (10th Cir. 1999).
Guided by these standards, we have carefully reviewed the materials
provided to us, and conclude that the district court was correct in entering
summary judgment in favor of Zions on all claims. We affirm the for
-5-
substantially the same reasons contained in the district court’s orders cited above.
It is thus unnecessary to review the district court’s denial of class certification.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-6-
| {
"pile_set_name": "FreeLaw"
} |
454 F.Supp. 552 (1978)
Khodadad ADIBI-SADEH, Individually and on behalf of all others similarly situated
v.
BEE COUNTY COLLEGE et al.
Civ. A. No. C-78-35.
United States District Court, S. D. Texas, Corpus Christi Division.
May 2, 1978.
*553 Sauer & Hormachea, Nancy Hormachea, Houston, Tex., for plaintiffs.
Kleberg & Weil, Lev Hunt, Corpus Christi, Tex., Handly & Williams, Marion E. Williams, Jr., Beeville, Tex., for defendants.
MEMORANDUM AND ORDER
OWEN D. COX, District Judge.
On March 23, 1978, the Plaintiff, Khodadad Adibi-Sadeh, filed this lawsuit individually and on behalf of all others similarly situated seeking to enjoin Bee County College and the other Defendants[1] from continuing to conduct disciplinary proceedings against them at the college.
The application of the originally named Plaintiff, Adibi-Sadeh, for temporary restraining order was denied on March 23, 1978. Thereafter, a hearing on the preliminary injunction was commenced on April 6, 1978. On April 7, 1978, the Court, without objection from any of the parties, consolidated the trial on the merits with the hearing on the preliminary injunction, pursuant *554 to Rule 65(a)(2), Federal Rules of Civil Procedure. Then, the trial was recessed until the 13th day of April, 1978. On that date the Court certified the Plaintiffs' class in accordance with Rule 23(c), Federal Rules of Civil Procedure, and identified the class as ninety (90) Iranian students arrested in the gymnasium at Bee County College on the 9th day of March, 1978, and who thereafter went before the college disciplinary committee and were either dismissed from school or otherwise punished.
Whereupon the Court proceeded with the trial on the merits. The transcript of the taped testimony of certain Plaintiffs given during the administrative proceedings before the appropriate Defendants was admitted in evidence. At the conclusion of the evidence presented before this Court, the parties rested. The Court then announced that it would take the case under advisement. The purpose of this memorandum is to set forth the Court's findings of fact and conclusions of law herein.
Findings of Fact
1. The Plaintiffs, who have been designated as a class, are enrolled as students at Bee County College, Beeville, Texas. They were lawfully admitted to the United States with non-immigrant student visas issued by the Immigration and Naturalization Service of the United States Department of Justice.
2. Bee County College (hereinafter referred to as BCC) is a state-supported junior college located in Beeville, Bee County, Texas. It has an enrollment of approximately 2100 students who pursue various vocational and technical programs. Approximately ten percent (10%) of the student body are Iranian citizens. The sole purpose of BCC is to offer educational opportunities to the students enrolled there.
3. Sometime prior to March 7, 1978, Grady Hogue, President of BCC, began receiving complaints about the Iranian students enrolled in the college. The complaints came from local police and postal authorities, local citizens and businessmen, various college administrators and teachers, and non-Iranian students at BCC.
4. The complaints alleged failure to pay rent, bad checks, unauthorized phone calls to Iran on college telephones, unlawful filling of private mailboxes with the Iranian Student Association newspaper Resistance, intimidation of non-Iranian students by Iranian students, and cheating on college examinations.
5. On March 7, 1978, Grady Hogue notified one of the Iranian students, Mr. Afzali, that he wanted to talk with all of the Iranian students about the complaints he had received. Mr. Hogue had Mr. Afzali prepare notices written in the Persian language (the students' native language) to the effect that the Iranian students were to meet with Mr. Hogue in the BCC gymnasium on March 9, 1978, at 11:30 a. m. The notices were posted and the meeting was held as scheduled.
6. Approximately one hundred (100) Iranian students and ten (10) Iranian non-students attended the meeting. They were seated in bleachers on the floor of the gymnasium. Mr. Hogue explained to the students that he had received numerous complaints about their behavior, and that their behavior was creating a bad image not only for themselves but also for BCC. He asked them to try to determine among themselves who was creating the problems and then put a stop to it.
7. After Mr. Hogue finished his talk with the Iranians and had left the building, a foreign language teacher repeated in the Persian language what Mr. Hogue had said. After the teacher concluded translating Mr. Hogue's comments, the students remained seated in the bleachers.
8. At approximately 1:00 p. m. on the same day, the students were still in the gymnasium. Mr. Hogue returned to the gymnasium at the request of the Academic Dean. At that time the students demanded that Mr. Hogue answer their questions regarding the alleged misconduct, and he did so. However, after ten or fifteen minutes of this activity, Mr. Hogue told the students that he would no longer answer questions *555 because physical education classes were scheduled in the gymnasium and they would have to get out to accommodate the classes. The students still refused to leave, and there was considerable chanting and clapping.
9. Between 1:00 p. m. and 2:45 p. m., the students were repeatedly asked to clear the gymnasium by Mr. Hogue, several teachers, and finally, the Chief of Police of Beeville, Texas. The students remained steadfast in their refusal to budge. During this period of time several regularly scheduled physical education classes were unable to meet because of the students' occupation of the gymnasium. The bleachers were occupied by the students and could not be moved off the gymnasium floor. So, the scheduled fencing and badminton classes could not be held.
10. Mr. Hogue also testified that a large group of non-Iranian students gathered near the gymnasium. They were angered by the actions of the Iranian students and wanted to enter the gymnasium and physically remove the Iranians. In order to prevent a confrontation between these two groups, Mr. Hogue ordered the gymnasium closed.
11. At approximately 2:45 p. m., after the Iranian students had refused to comply with the repeated, official demands to vacate the gymnasium, they were arrested and taken to jail. The majority of the Iranians had no identification on them when arrested and initially gave the police officers false names. However, the true names of those arrested were soon ascertained.
12. On March 13, 1978, the Dean of Student Services, George F. Elam, and the Chairman of the Student Affairs Committee, Douglas Bryant, met. A complaint had been made regarding the Iranian students' behavior on March 9, 1978, and Elam told Bryant that the Student Affairs Committee (SAC) should be convened to hear the complaint. Bryant and Elam were aware of the need to satisfy due process requirements and, considering the number of persons involved, they decided to hold the initial hearing on March 21, 1978, at 9:00 a. m. Thus, there was time for adequate notice to the students involved.
13. In order to fully advise the students implicated, Mr. Elam prepared a form letter addressed to those involved in the March 9 incident (Plaintiffs' Exhibit # 1), which explained that they had been placed on disciplinary probation because of their participation in the incident. The allegations of their unacceptable conduct were based on reports from the President and Academic Dean of BCC and the records of the Beeville Police Department. The letter informed the students that their action was "in violation of the college `Policy of Rights, Conduct, and Responsibilities' as stated on pages 57-59 of the 1977-78 catalog of Bee County College, paragraphs (a), (b), (g), and (1)." (Plaintiff's Exhibit # 1) The students were further advised by such letter that a hearing would be held on March 21, 1978, at 9:00 a. m. in the Fine Arts Auditorium, BCC, before the Student Affairs Committee. Also, the procedure to be followed was outlined. The college officials would present the formal charges and, subsequently, the students could present their answers. The students were also advised that they could have someone to assist them at this hearing and a record of the proceedings could be made. The letter went on to explain that, after the March 21st hearing, the SAC would make a recommendation of action to Mr. Elam who would decide what course of action to take. Any student dissatisfied with Mr. Elam's decision could appeal. The letter also set out the range of disciplinary action possible.
14. The above-described letter prepared by Mr. Elam was mailed, on Wednesday, March 15, 1978, to ninety-five (95) Iranian students by certified United States mail, return receipt requested, restricted delivery. Although the testimony was conflicting as to when actual delivery was made of the letters, the Court finds that most of the letters were delivered no later than Friday, March 17, 1978. The testimony was uncontradicted that some (the exact number being unknown) of the letters were returned to BCC undelivered.
*556 However, notice of the March 21 hearing was given to the offenders in two other ways. In addition to mailing the form letter, copies of it were hand-delivered to many of the Iranian students on or before March 17, 1978. The Iranian students involved in the March 9 incident were advised by notices posted on the campus that they should seek messages directed to them at specific locations on the campus. Taking into account the size of the college, the several reasonable ways notice to the offenders had been given, and the reasonable assumption that the Iranian community at the school is closely knit, the Court finds all of the members of the class had fair and adequate notice of the hearing.
15. On Tuesday, March 21, 1978, the hearing commenced as scheduled before the Student Affairs Committee. That committee consists of four faculty members and four student members who hear cases involving student disciplinary action.
16. At the initial hearing, all the Iranian students who were charged with disciplinary violations were present and represented by an attorney of their choice. As the students first appeared for the hearing, each was given written notice that he or she would be entitled to have an individual hearing following the presentation of the charges and evidence against them by the college. This notice gave the date, time, and place of each individual hearing. The students were advised that they could respond to the charges, bring legal counsel or someone else to represent them and make a recording of the proceeding. They were further advised that they could appear or refuse to appear, as they so chose, but if they did not appear, a decision would be made without their testimony.
17. The initial hearing commenced with Mr. Elam representing BCC and acting in the role of prosecutor. At the outset, he went into great detail explaining the nature of the proceedings and the exact charges against the students. The charges against the students were:
(a) "disrupting or obstructing, or attempting to disrupt or obstruct, any lawful activity of the College, or violating H.B. 141, as enacted by the 61st Texas Legislature."
(b) "interfering with or attempting to interfere with, the lawful exercise of freedom of speech, freedom of movement, freedom of peaceable assembly, or other rights of individual or groups."
(c) "engaging in any obscene, profane, reckless, tumultuous, destructive, or unlawful course of conduct." and
(d) "refusing or failing to comply with a lawful order of any College or public official acting in the performance of his duties in the administration and enforcement of these policies."
Mr. Elam explained specifically the regulations violated and the basis for each charge made against the students.
18. Mr. Elam then called witnesses, who testified concerning the disruptive activities of the Iranian students on March 9 at the gymnasium. Mrs. Hormachea, the attorney representing the students, was given an opportunity to cross-examine each witness, but she refused to do so. She stated that she wished to cross-examine each of the witnesses who appeared on March 21st at each separate hearing. To grant her request would have required each witness for the school to repeat their testimony many times. Her request to do this was not reasonable and was properly denied. Ms. Hormachea made a judgment determination in refusing to cross-examine the school witnesses at the time provided for such examination, and by doing so she waived cross-examination of the witnesses who were called by Mr. Elam.
19. Following the initial hearing of March 9th, the separate hearings as to the unruly Iranian students were held on March 21, 22, and 23, 1978. Each individual student was given the opportunity to present his or her side of the story. Six or seven of the students did this. The others refused to testify at the individual hearings, electing instead to assert their Fifth Amendment right against self-incrimination because of pending criminal trespass charges which had been filed against them.
*557 20. At the conclusion of the individual hearings, the Student Affairs Committee sustained the recommendation of the Dean of Student Services of immediate dismissal for all but six of the Iranian students. The SAC decision as to those six students was that they remain on disciplinary probation for varying periods of time. The evidence established that some, but not all, of the students who elected to testify were continued on probation. There was no evidence whatsoever that the students' assertion of their Fifth Amendment rights was used against them.
21. The students have appealed the decision of the SAC and a final decision has not yet been made by BCC officials.
Conclusions of Law
1. The Court has jurisdiction of this matter by virtue of 28 U.S.C. §§ 1331, 1343, and 2201; venue is proper by virtue of 28 U.S.C. § 1391.
2. This action was properly brought as a class action pursuant to Rule 23, Federal Rules of Civil Procedure, because the class represented by the named Plaintiff consists of approximately ninety (90) students at BCC; joinder of this many people would be impracticable. The questions of law and fact are the same for all ninety (90) students and the named Plaintiff. The Court is also of the opinion that the named Plaintiff fairly and adequately protected the interests of the class. In addition, the Defendants acted on grounds applicable to the entire class, thereby making appropriate a final determination with respect to the class as a whole. The class represented by the named Plaintiff, Khoadadad Adibi-Sadeh, was thus certified in open court as the group of approximately ninety (90) Iranian students who were arrested at the BCC gymnasium on March 9, 1978, and against whom disciplinary action was taken by the SAC, resulting in either dismissal from BCC or other punishment.
3. The first complaint made by the Plaintiffs herein is that their First Amendment rights of freedom of speech and assembly were violated by the BCC officials and that they were punished for exercising said rights. Although it is without doubt that students enjoy First Amendment rights, it is equally clear that those rights do not allow students to "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966); Tinker v. Des Moines School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1968). The Plaintiffs created a substantial and material interference with the operations of BCC on March 9, 1978, by forcing the cancellation of several classes and the ultimate closing of the gymnasium. Such action was not protected by the First Amendment.
4. The Plaintiffs also allege that the procedures implemented by the Defendants in the course of the disciplinary proceedings were constitutionally defective in a number of respects. It is contended by the Plaintiffs that they did not receive prior notice of the hearing, the nature of the charges and the evidence and witnesses that would be used against them. They further contend that they were denied the right to counsel and the right to cross-examination. The Plaintiffs also contend that they were denied their right to remain silent and were punished for asserting their right to remain silent. This Court finds that the findings of fact previously made refute such allegations.
5. There is no doubt that in a situation such as the present case, where students face the possibility of suspension or expulsion from a state-supported school, account must be taken of the Due Process Clause. Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1974). "Once it is determined that due process applies, the question remains what process is due." Morrissey v. Brewer, 408 U.S. 471 at 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484. It has long been the rule that the concept of due process is a very flexible one which must be examined in light of the facts of each individual case. Goss v. Lopez, supra; Cafeteria Workers v. McElroy, 367 U.S. 886, 81 *558 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). "Basic fairness and integrity of the fact finding process are the guiding stars." Burnside v. Byars, supra.
6. The rights to notice and a hearing before expulsion from a tax-supported college were first secured in the Fifth Circuit in Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961), cert. den., 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193. After holding that notice and a hearing were required, the Court sets out the requirements of due process in such a case. Those requirements are:
(a) a statement in the notice of the specific charges and grounds which, if proven, would justify expulsion under the college's regulations.
(b) a hearing which (in the case of a charge of misconduct) "gives the Board or the administrative authorities of the college an opportunity to hear both sides in considerable detail . . .. This is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses, is required." Dixon, supra, at 159.
(c) "the names of the witnesses . . . and an oral or written report on the facts to which each witness testifies." Dixon, supra, at 159 (emphasis supplied).
(d) the opportunity to present a defense including either oral testimony or written affidavits.
(e) "If the hearing is not before the Board directly, the results and findings of the hearing should be presented in a report open to the student's inspection. If these rudimentary elements of fair play are followed in a case of misconduct of this particular type, we feel that the requirements of due process of law will have been fulfilled." Dixon, supra, at 159.
7. It is the opinion of this Court that the Defendants complied with the above requirements in a commendable fashion and that the Plaintiffs were, therefore, afforded ample due process.
(a) On March 15, 1978, Mr. Elam mailed each member of the class a letter notifying him (her) of the March 21 hearing, the charges, the right to bring counsel, and whose reports were the basis of the charges. Notice of the same facts was also given by personal delivery of a copy of the letter and by posting notices around the BCC campus informing the students of a message for them and where to obtain the message.
(b) The initial group hearing and the individual hearings which followed gave the SAC an opportunity to hear both sides of the story in considerable detail. The students were represented by counsel at the hearing and afforded an opportunity for cross-examination. They chose, through counsel, to forego this opportunity to cross-examine.
(c) The students were notified in Mr. Elam's letter of the names of some of the witnesses who submitted reports which resulted in the disciplinary proceedings. At the initial hearing, prior to the individual hearings, the students heard each witness testify as to the facts of the March 9 incident.
(d) The students were all given individual hearings with the opportunity to tell their side of the story and present their own witnesses. Some did testify but most refused, asserting their Fifth Amendment right to remain silent. Having chosen to remain silent, the students cannot now complain that they were deprived of the right to testify in their own behalf. Nor can they assert such right as a means of preventing the committee from considering the evidence before it.
(e) The hearing was held before the SAC, which committee was charged with deciding whether to accept or reject the recommendation of dismissal. *559 The students were present at the hearing and heard the evidence.
8. The Court having found that the Plaintiff and the class he represents were afforded ample due process, judgment shall issue that Plaintiff take nothing.
9. Any finding of fact that is also a conclusion of law is hereby adopted as a conclusion of law; any conclusion of law that involves a finding of fact is hereby adopted as a finding of fact.
IT IS SO ORDERED.
NOTES
[1] Named Defendants are: BEE COUNTY COLLEGE; GRADY HOGUE, President, Bee County College, Individually and in his official capacity; FRANK JOSTES, Chairman, Board of Trustees, Bee County College, Individually and in his official capacity; R. W. DIRKS, Vice-Chairman, Board of Trustees, Bee County College, Individually and in his official capacity; HENRY MEDINA, Secretary, Board of Trustees, Bee County College, Individually and in his official capacity; ROBERT J. BEASLEY, Trustee, Bee County College, Individually and in his official capacity; FRED C. LATCHAM, JR., Trustee, Bee County College, Individually and in his official capacity; PETER S. MARECEK, Trustee, Bee County College, Individually and in his official capacity; E. C. SPELLMAN, Trustee, Bee County College, Individually and in his official capacity; GEORGE F. ELAM, Dean of Student Services, Bee County College, Individually and in his official capacity; ALGIA ALLEN, Academic Dean of Bee County College, Individually and in his official capacity; MR. BRYANT, Individually and Chairman of Student Affairs Committee, AND OTHER UNKNOWN MEMBERS OF THE STUDENT AFFAIRS COMMITTEE, Bee County College, Individually and in their official capacities.
| {
"pile_set_name": "FreeLaw"
} |
56 F.3d 1385
Broussardv.Hebert*
NO. 94-30596
United States Court of Appeals,Fifth Circuit.
May 22, 1995
Appeal From: M.D.La., No. CA-93-836-A-1
1
REVERSED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
| {
"pile_set_name": "FreeLaw"
} |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0221n.06
No. 09-3764 FILED
Apr 08, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
JOSEPH KIJOWSKI, )
)
Plaintiff-Appellant, )
)
v. ) On Appeal from the United States
) District Court for the Northern
CITY OF NILES et al., ) District of Ohio
)
Defendants, )
)
CRAIG AURILIO, )
)
Defendant-Appellee. )
Before: KEITH, BOGGS, and GRIFFIN, Circuit Judges.
BOGGS, Circuit Judge. Joseph Kijowski was arrested during a donnybrook at a
wedding reception. According to Kijowski, police officers dragged him from a truck, threw him to
the ground, shocked him twice with a Taser, and kicked him repeatedly. Kijowski subsequently
brought suit in state court, claiming he was entitled to damages under 42 U.S.C. § 1983 because the
officers violated his Fourth Amendment right to be free from the use of excessive force. The case
was then removed to federal court, where Officer Craig Aurilio, one of the defendants, asserted
qualified immunity and moved for summary judgment. The district court granted his motion, and
Kijowski now appeals. Viewing the facts in the light most favorable to Kijowski, Officer Aurilio’s
No. 09-3764
Joseph Kijowski v. City of Niles et al.
conduct was objectively unreasonable and violated a clearly established constitutional right. We
therefore REVERSE and REMAND for further proceedings.
I
On October 28, 2006, things got out of hand at Aulizio’s Banquet Center in Warren, Ohio.
That night, the Banquet Center hosted a wedding reception, at which Kijowski was a guest.1 What
should have been a wholly joyous occasion soured after Reuben Shaw, an off-duty police officer
hired by the Banquet Center to provide security, observed the groom urinating in the parking lot.
Officer Shaw approached the groom and suggested that he “use the restrooms inside.”
Someone—possibly Kijowski’s brother, possibly the groom’s—then grabbed Officer Shaw from
behind, telling him that the man he was speaking to was the groom and that he “better respect that.”2
The situation escalated when the interloper called Officer Shaw “a security guard” and pushed him
with both hands. The pair then “locked up for a short struggle.” Officer Shaw eventually wrestled
his opponent to the ground, but this prompted the groom to jump on Officer Shaw’s back. Although
Officer Shaw was able to shake him off, three more wedding guests joined the fight. Wisely, Officer
Shaw radioed for backup.
In response to Officer Shaw’s call for help, the entire shift of the Warren Police Department,
as well as members of other nearby departments, arrived at the Banquet Center. One of the
1
The district court concluded that the wedding reception was that “of Kijowski’s brother[.]”
However, Kijowski’s affidavit appears to indicate that, though his brother was in attendance, he was
not the groom. Officer Aurilio’s brief suggests that the groom’s name was Robert Peyatt.
2
Exactly which man micturated and which confronted Officer Shaw is somewhat unclear.
The precise role of each in the altercation is, however, irrelevant.
-2-
No. 09-3764
Joseph Kijowski v. City of Niles et al.
responders was Officer Aurilio,3 a member of the City of Niles Police Department. According to
his affidavit, Officer Aurilio arrived to find that members of the Warren Police Department had
already taken several subjects into custody. He also alleges that police were attempting to arrest a
number of others “who were actively resisting.” Officer Aurilio’s affidavit indicates that he
proceeded to “assist[] Warren police officers in subduing a man who was extremely combative and
resisting the attempts of the Warren officers to handcuff him.” To do so, Officer Aurilio “deployed
[his] Taser in drive stun mode on [the] suspect male which allowed Warren officers to handcuff
him.” Officer Aurilio was later “informed by the Warren Police Department that the aforementioned
suspect was [Kijowski].”
Kijowski’s account of the evening is quite different and begins in the Banquet Center.
Kijowski claims that, during the initial altercation involving Officer Shaw, he was inside cleaning
up. In his affidavit, Kijowski states that he then left the Banquet Center and got into a truck, where
he was joined by the groom. At that point, he alleges, “several members of various Trumbull County
police departments—probably Howland, Warren, and Niles—appeared at the Banquet Center” and
began spraying Mace into a crowd that had gathered outside. Because police were “beating and
[M]acing party-goers,” Kijowski claims that he reported what he saw, whereupon he was transferred
to Warren dispatch. After briefly conversing with Kijowski, the dispatcher contacted officers on the
scene, stating that Kijowski was on the phone “bothering [him].”4
3
With Officer Aurilio was Officer Jaisan Holland, who submitted an affidavit substantially
corroborating Officer Aurilio’s account.
4
This portion of the call was recorded, and it is consistent with Kijowski’s narrative.
-3-
No. 09-3764
Joseph Kijowski v. City of Niles et al.
As a result, Kijowski contends, a number of police officers, including Officer Aurilio,
approached the truck.5 Some of them “began pounding on the truck, yelling at [Kijowski] to hang
up the phone and get out of the truck.” Telling officers he was afraid to get out, Kijowski spotted
Officer Crank, a member of the City of Niles Police Department whom Kijowski knew. Kijowski
contends that he called Officer Crank over and that Officer Crank “told the other officers that
[Kijowski] was O.K. and that [he] was not making trouble[.]”
Officer Crank then left, Kijowski claims, and just as he did, Kijowski “felt [him]self being
dragged out of the truck and thrown to the ground face first[.]” The officers then crushed Kijowski’s
phone, and “[t]he next thing he felt was a sudden jolt of electricity to [his] mid back, and boots
kicking [his] left side[.]” “As soon as [his] muscles turned weak,” he says, “[he] felt the jolt again.”
After he was shocked for a second time, “[t]he officers continued kicking [him][.]” According to
Kijowski, he then heard someone say, “the State boys are here,” at which point the “beating
stopped[.]”
A report prepared by Officer Shaw indicates that, following the incident, Kijowski was
arrested for assault. However, Kijowski was never indicted on assault charges. He did face an
indictment for disorderly conduct, but neither party asserts that he was found guilty of any crimes
stemming from the episode.
5
Kijowski does not explicitly say that Officer Aurilio was one of the officers who came up
to the vehicle. Rather, he claims, “[W]ithin seconds of speaking with Warren dispatch, police
officers began pounding on the truck, yelling at me to hang up the phone . . . . That is, on finding
out from the 911 operator that I called emergency services, Craig Aurilio and the John Does sought
me out[.]” A natural implication of this statement is that Officer Aurilio was among the group of
officers who confronted Kijowski.
-4-
No. 09-3764
Joseph Kijowski v. City of Niles et al.
On October 24, 2008, Kijowski filed a complaint against Officer Aurilio, the City of Niles,
the City of Niles Police Department, and several unnamed officers, raising, inter alia, an excessive
force claim under 42 U.S.C. § 1983. The suit was filed in the Trumbull County Court of Common
Pleas, but on November 24, 2008, it was removed to the United States District Court for the
Northern District of Ohio.
The district court held a case management conference, at which it directed the parties to brief
the issue of qualified immunity, and discovery was stayed pending resolution of the matter. One
month later, Officer Aurilio moved for summary judgment, and Kijowski opposed. Despite
Kijowski’s opposition, the district court granted Officer Aurilio’s motion, precipitating this appeal.
II
“We review a district court’s decision granting summary judgment de novo.” Vance v. Wade,
546 F.3d 774, 781 (6th Cir. 2009) (quoting Burchett v. Kiefer, 310 F.3d 937, 941 (6th Cir. 2002)).
Summary judgment is warranted “if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “In deciding a motion for summary
judgment, this court views the factual evidence and draws all reasonable inferences in favor of the
nonmoving party.” McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000) (citing
Northland Ins. Co. v. Guardsman Prods., Inc., 141 F.3d 612, 616 (6th Cir. 1998)). “In qualified
immunity cases, this usually means adopting . . . the plaintiff’s version of the facts.” Scott v. Harris,
550 U.S. 372, 378 (2007).
With respect to the issue of qualified immunity, the proper standard of review is also de novo.
-5-
No. 09-3764
Joseph Kijowski v. City of Niles et al.
See Flint ex rel. Flint v. Ky. Dep’t of Corr., 270 F.3d 340, 346 (6th Cir. 2001) (“Qualified immunity
is a question of law . . . to be reviewed de novo by this [c]ourt.”); Dickerson v. McClellan, 101 F.3d
1151, 1157 (6th Cir. 1996) (“We conduct de novo review because the issue whether qualified
immunity is applicable to an official’s actions is a question of law.”).
III
To prevail on his § 1983 claim, Kijowski “must establish that a person acting under color of
state law deprived [him] of a right secured by the Constitution or laws of the United States.” Smoak
v. Hall, 460 F.3d 768, 777 (6th Cir. 2006) (citing Waters v. City of Morristown, 242 F.3d 353,
358–59 (6th Cir. 2001)). A defendant may assert “the defense of qualified immunity, which shields
government officials from ‘liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.’” Ibid.
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Indeed, “[i]n qualified immunity cases,
the plaintiff bears this burden; he must show that the defendant is not entitled to qualified
immunity.”6 Wysong v. City of Heath, 260 F. App’x 848, 852 (6th Cir. 2008) (citing Wegener v. City
of Covington, 933 F.2d 390, 392 (6th Cir. 1991)).
When determining whether the allegedly injured party has met this burden, “this court
typically employs a two-step analysis,” asking: “‘(1) whether, considering the allegations in a light
most favorable to the party injured, a constitutional right has been violated, and (2) whether that right
6
Of course, if Officer Aurilio had not invoked the defense of qualified immunity, Kijowski
would be under no obligation to refute it. See Harlow, 457 U.S. at 815 (“Qualified or ‘good faith’
immunity is an affirmative defense that must be pleaded by a defendant official.”).
-6-
No. 09-3764
Joseph Kijowski v. City of Niles et al.
was clearly established.’” Smoak, 460 F.3d at 777 (quoting Estate of Carter v. City of Detroit, 408
F.3d 305, 310-11 (6th Cir. 2006)).7 We may consider either step first. See Pearson v. Callahan, 129
S. Ct. 808, 818 (2009).
A
Kijowski alleges that, in twice shocking him with a Taser, Officer Aurilio violated his Fourth
Amendment rights.8 “The Fourth Amendment prohibits the use of excessive force by arresting and
investigating officers.” Smoak, 460 F.3d at 783. In evaluating whether this prohibition has been
violated, we employ an “objective reasonableness” test, which requires consideration of the totality
of the circumstances. See Graham v. Connor, 490 U.S. 386, 397 (1989) (“[T]he question is whether
the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting
7
As we noted in Grawey v. Drury, “[s]ome panels of the Sixth Circuit have employed a third
step requiring the court to determine whether the plaintiff has offered sufficient evidence to indicate
that what the official allegedly did was objectively unreasonable in light of the clearly established
constitutional right.” 567 F.3d 302, 309 (6th Cir. 2009). “In excessive force cases, however, because
the defendant’s conduct must have been objectively unreasonable to find a constitutional violation,
the third step is redundant. Thus, qualified immunity in excessive force cases is a two-step analysis.”
Ibid. (internal citations omitted).
8
Kijowski suggests that the police also violated his rights by pulling him from the truck,
slamming him to the ground, and kicking him. See Appellant’s Br. at 22. However, the only conduct
he specifically attributes to Officer Aurilio is use of the Taser. Because “[e]ach defendant’s liability
must be assessed individually, based on his or her own actions[,]” Dorsey v. Barber, 517 F.3d 389,
399 n.4 (6th Cir. 2008), we confine our analysis to the actions Officer Aurilio is claimed to have
taken. Admittedly, “[t]his court has held . . . that a police officer who fails to act to prevent the use
of excessive force [by another officer] may still be held liable[.]” Floyd v. City of Detroit, 518 F.3d
398, 406 (6th Cir. 2008). But liability for failure to prevent the use of force only attaches “where
‘(1) the officer observed or had reason to know that excessive force would be or was being used, and
(2) the officer had both the opportunity and the means to prevent the harm from occurring.’” Ibid.
(quoting Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997)). As Kijowski has alleged none of the
requisite elements, he cannot rely on this theory.
-7-
No. 09-3764
Joseph Kijowski v. City of Niles et al.
them, without regard to their underlying intent or motivation.”); Summerland v. County of
Livingston, 240 F. App’x 70, 76 (6th Cir. 2007) (“The ultimate question is ‘whether the totality of
the circumstances justified a particular sort of search or seizure.’” (quoting Tennessee v. Garner, 471
U.S. 1, 8–9 (1985))). “The test is fact specific, not mechanical, and the three most important factors
for each case are: (1) the severity of the crime at issue; (2) the threat of immediate danger to the
officers or bystanders; and (3) the suspect’s attempts to resist arrest or flee.” Wysong, 260 F. App’x
at 854.
Furthermore, “[t]he ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396. This inquiry must be conducted with sufficient respect for the fact that
police officers often confront exceedingly perilous situations where detached rumination risks loss
of life. See id. at 396–97 (“The calculus of reasonableness must embody allowance for the fact that
police officers are often forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary in a particular
situation.”).
“With these considerations in mind, we slosh our way through the factbound morass of
reasonableness.” Davenport v. Causey, 521 F.3d 544, 552 (6th Cir. 2008) (quoting Scott, 550 U.S.
at 383) (internal quotation marks omitted). We must first examine a critical factual issue—whether
Kijowski was resisting arrest—as we cannot undertake the reasonableness analysis without assessing
the circumstances confronting Officer Aurilio. See Scott, 550 U.S. at 378 (“The first step in assessing
the constitutionality of [an officer’s] actions is to determine the relevant facts.”). In piecing together
-8-
No. 09-3764
Joseph Kijowski v. City of Niles et al.
the evening’s events, we are of course required to apply the deferential summary judgment standard
outlined above.
That said, it can reasonably be inferred from Kijowski’s account that he did not resist arrest.
According to Kijowski, a number of officers, including Officer Aurilio, accosted him while he was
seated in a truck. As Kijowski tells it, he then summoned Officer Crank, who explained that
Kijowski was not causing any trouble.9 Kijowski asserts that Officer Crank departed shortly
thereafter. “As soon as Crank left,” Kijowski claims, “[h]e felt [him]self being dragged out of the
truck and thrown to the ground face first[.]” If the officers truly laid hands on him immediately after
Officer Crank walked away, then there was no intervening window of time during which to resist.
Similarly, drawing reasonable inferences in his favor, Kijowski’s affidavit provides evidence
that, after he was tossed to the earth, he was shocked at once. Following his removal from the truck,
he claims, “[t]he next thing [he] felt was a sudden jolt of electricity to [his] mid back[.]” Like
Kijowski’s previous statement, this language appears to foreclose the possibility of intervening
physical struggle. As a consequence, we may reasonably infer that no resistance was offered prior
to Officer Aurilio’s initial use of his Taser. There simply was no time.
Nor was there an opportunity for Kijowski to struggle between the first and second Taser
shocks. “As soon as my muscles turned weak,” he says, “I felt the jolt again[.]” If the second shock
9
While it is true that “evidence submitted in opposition to a motion for summary judgment
must be admissible,” U.S. Structures, Inc. v. J.P. Structure, Inc., 130 F.3d 1185, 1189 (6th Cir.
1997), this rule does not bar our consideration of Officer Crank’s out-of-court statement, as the
statement would not be offered to prove the truth of the matter asserted. Rather, the statement would
be relevant to assessing the perceptions of the officers who heard it.
-9-
No. 09-3764
Joseph Kijowski v. City of Niles et al.
actually followed on the heels of the first, the only tenable conclusion is that it would have been
impossible for Kijowski to muster any fight. Thus, given our obligation to draw all reasonable
inferences in his favor, we must assume that at no time during his encounter with Officer Aurilio did
Kijowski resist arrest.
Proceeding from this assumption and taking into account the totality of the circumstances,
we cannot say that Officer Aurilio’s conduct was objectively reasonable as a matter of law.10 In
Casey v. City of Federal Heights, the Tenth Circuit remarked:
[W]e have held that it was not excessive for officers to use an “electrical stun gun” on a man
after grabbing him and wrestling him to the ground. But we noted that what justified this
conduct was his active resistance to arrest—[the man] was kicking and biting the officers and
had shoved one of them to start the fight.
509 F.3d 1278, 1285 (10th Cir. 2007) (citing Hinton v. City of Elwood, 997 F.2d 774, 776–77 (10th
Cir. 1993)). Without active resistance, the equation is different. “[A] stun gun inflicts a painful and
frightening blow, which temporarily paralyzes the large muscles of the body, rendering the victim
helpless.” Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993). Absent some compelling
justification—such as the potential escape of a dangerous criminal or the threat of immediate
harm—the use of such a weapon on a non-resistant person is unreasonable. See Wysong, 260 F.
App’x at 855 (“There is no government interest in striking someone who is neither resisting nor
trying to flee.”); cf. Casey, 509 F.3d at 1285 (declining to “rule out the possibility that there might
10
We are mindful that “[s]ome of our cases analyze excessive force claims in segments,”
Dickerson v. McClellan, 101 F.3d 1151, 1161 (6th Cir. 1996), an approach that potentially requires
us to evaluate the Taser shocks independently. We nonetheless refer to the shocks collectively, as
our analysis is applicable to both.
- 10 -
No. 09-3764
Joseph Kijowski v. City of Niles et al.
be circumstances in which the use of a Taser against a nonviolent offender is appropriate”).
Consequently, because Kijowski offered no resistance, Officer Aurilio’s use of his Taser cannot be
considered reasonable without some other indication that Kijowski posed a threat.
But there was no such indication. True, the scene at which Officer Aurilio arrived was
chaotic, but general bedlam does not necessarily justify the use of force against any particular
individual. When police approached Kijowski, he was inside a truck, talking to a 911 operator.
Nothing in the record suggests that he was attempting to drive the truck or that he had any kind of
weapon on his person. Furthermore, assuming the veracity of Kijowski’s account, Officer Crank
assured the other officers that Kijowski was not causing any trouble. Under these circumstances,
a reasonable officer on the scene would not have perceived Kijowski as presenting a risk of harm.
Accordingly, we conclude that, if Kijowski’s version of events is correct, Officer Aurilio
deployed his Taser unreasonably, thereby violating Kijowski’s Fourth Amendment right to be free
from the use of excessive force.
B
Even if Officer Aurilio’s actions were objectively unreasonable, he is still entitled to qualified
immunity unless it is shown that the right he violated was clearly established. “For a right to be
clearly established, ‘[t]he contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.’” Feathers v. Aey, 319 F.3d 843, 848 (6th
Cir. 2003) (quoting Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992)). “The
relevant, dispositive inquiry in determining whether a right is clearly established is whether it would
be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier
- 11 -
No. 09-3764
Joseph Kijowski v. City of Niles et al.
v. Katz, 533 U.S. 194, 202 (2001). “Although it need not be the case that ‘the very action in question
has previously been held unlawful, . . . in the light of pre-existing law the unlawfulness must be
apparent.’” Russo, 953 F.2d at 1042 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
“[A]n action’s unlawfulness can be apparent from direct holdings, from specific examples described
as prohibited, or from the general reasoning that a court employs.” Feathers, 319 F.3d at 848.
In this case, we find little difficulty in concluding that the right Officer Aurilio allegedly
violated was clearly established. As we observed in Wysong, “the right to be free from physical force
when one is not resisting the police is a clearly established right.” 260 F. App’x at 856. “Even
without precise knowledge that the use of the [T]aser would be a violation of a constitutional right,”
Officer Aurilio “should have known based on analogous cases that [his] actions were unreasonable.”
Landis v. Baker, 297 F. App’x 453, 463 (6th Cir. 2008). Relevantly, “our court has repeatedly found
that a totally gratuitous blow with a policeman’s nightstick may cross the constitutional line[.]”
McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988). We have also held that “[a]n officer has
used excessive force when he pepper sprays a suspect who has not been told she is under arrest and
is not resisting arrest.” Grawey v. Drury, 567 F.3d 302, 311 (6th Cir. 2009) (citing Atkins v. Twp.
of Flint, 94 F. App’x 342, 349 (6th Cir. 2004)). Against the backdrop of existing law, Officer
Aurilio could not reasonably have believed that use of a Taser on a non-resistant subject was lawful.
IV.
For the foregoing reasons, we REVERSE the district court’s grant of summary judgment on
the issue of qualified immunity and REMAND for further proceedings.
- 12 -
| {
"pile_set_name": "FreeLaw"
} |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.