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63 Cal.App.2d 606 (1944)
H. A. DERRER, Appellant,
v.
KEELER GOLD MINES, INC. (a Corporation), Respondent.
Civ. No. 14229.
California Court of Appeals. Second Dist., Div. One.
Mar. 30, 1944.
Harold B. Pool for Appellant.
Charles J. Katz for Respondent. *607
WHITE, J.
This is an appeal on the judgment roll alone from a judgment in favor of defendant in an action for money due on a contract.
The record before us discloses that plaintiff and defendant corporation entered into a written contract on March 5, 1941, for the lease of a certain cyanide ore milling plant and equipment owned by the corporation. The original contract was amended April 22, 1941, but the terms of such amendment are not here pertinent. A second amendment was duly executed on March 15, 1941, and it is the construction placed by the trial court upon the terms of this amendment alone that is here in question.
Keeler Gold Mines, Inc., a corporation, entered into a written contract whereby said corporation leased to plaintiff Derrer the cyanide ore milling plant and equipment situated on mining claims in the Cerro Gordo Mining District in Inyo County. Under the original lease plaintiff Derrer agreed to pay as rental the sum of 75 per ton of 2,000 pounds for all ore or other material put through the leased mill, with a monthly minimum rental of $300. The original lease also granted to Derrer an option to purchase the mill equipment, and contained a provision prohibiting assignment of the lease to Derrer without the written consent of Keeler. By the amendment of March 15, 1941, the rental of 75 per ton was reduced to 50 per ton and the following agreement was also entered into: "In the event that you are obligated to and do sell your lease agreement, we will pay you 60% of any excess of any ton rental paid us under the straight lease basis of your assignee that is over and above 50 per ton. Likewise we will pay you 60% of any excess of any per ton rental paid us under the purchase option basis by your assignee that is over and above $1.00 per ton; it being the intention that you shall thereby ultimately receive 60% of any excess received by us on purchase price which is in excess of $20,000. The above payments to be made you only when, as and if such payments are made us by your assignee."
Plaintiff, in his complaint filed June 30, 1942, alleged his assignment of the lease to one Charles E. Cord; set up the tonnage of ore milled by said Cord, and demanded a percentage of the amount received by Keeler from Cord over and above the 75 per ton rental paid by Cord. By its answer, *608 defendant, in addition to a general denial of the allegations contained in plaintiff's complaint, set up two affirmative defenses. By its first affirmative defense, defendant alleged that immediately prior to the execution by the parties of the heretofore mentioned amendment of March 15, 1941, plaintiff represented to defendant that subsequent to the execution of the original lease, it became necessary for plaintiff to obtain ore from the Darwin Consolidated Tungsten, Inc., and in so obtaining such ore he became obligated to and did give to Darwin an agreement whereby said Darwin could require plaintiff to transfer to it the lease together with the option to purchase. Further, that plaintiff represented to defendant that if Darwin requested such transfer, plaintiff would be required to comply therewith, and would thereby lose all opportunity for profit and recoupment of moneys expended by him in reconditioning the mill; that plaintiff requested defendant to cooperate by providing such opportunity for recoupment through an allowance to plaintiff of a percentage of any excess per ton rental in case plaintiff was obliged to assign his lease to Darwin. That in pursuance of and by reason of such representations, the just mentioned affirmative defense alleged, that by the phrase "obliged to and do sell your lease agreement" was meant the obligation of plaintiff to sell to Darwin only, and did not contemplate any other sale or assignment of the lease.
By its second affirmative defense, the defendant alleged that shortly after the execution of the aforesaid amendment to the agreement under date of March 15, 1941, a dispute arose between the parties concerning the alleged obligations of defendant to plaintiff under the terms of said agreement. That plaintiff asserted his right to certain compensation from defendant by reason of said original agreement and the amendments thereto. That defendant, while denying any liability to plaintiff, but solely for the purpose of terminating such dispute, agreed to pay plaintiff monthly 10 per cent of any per ton rental received by defendant after the latter had received for itself not less than 50 per ton. It was further alleged that plaintiff agreed to accept such payments from defendant in full settlement and compromise of all his claims against defendant under the agreements. That certain payments were made to plaintiff, pursuant to such compromise agreement which payments were made up to and including *609 the month of July, 1941; that plaintiff accepted and received such payments, but, thereafter, in September, 1941, notified defendant that he would no longer accept any such monthly payments of 10 per cent. That by reason of the conduct aforesaid, plaintiff is now estopped from asserting as against defendant any such claim or claims as were described in plaintiff's complaint.
The trial court, sitting without a jury, rendered judgment in favor of defendant corporation. In exhaustive findings of fact, the court explicitly and in detail found in favor of defendant on both of the aforesaid separate and affirmative defenses, and further found that the circumstances surrounding the execution of the above-quoted amendment were as alleged in defendant's cross-complaint.
Appellant's only contention on this appeal is that the contract (the above-quoted amendment) "was clear, concise, certain and not ambiguous in any respect and was not subject to any interpretation other than as shown by the contract itself"; and that the court in interpreting it according to the oral evidence received, added something to the contract, and thereby committed reversible error.
In his brief appellant concedes "that if the amendment to the original lease ... means what the court found it to be, then the judgment of the court is proper," but, he argues, that the amendment to the contract of March 15, 1941, being clear, concise, certain and not ambiguous, in any respect, the court fell into error in receiving testimony of and concerning the circumstances surrounding the making of the contract of March 15, 1941, and the intention of the parties at that time. Appellant urges that the phrase in the agreement reading "in the event you are obliged to and do sell your lease agreement, we will pay you 60 %," etc., is susceptible of a clear and unambiguous interpretation that the parties did not intend by the quoted words to restrict the payments provided by the amendment only to a sale of the lease to Darwin Consolidated Tungsten, Inc., but, on the contrary, that such language clearly and explicitly shows that the plaintiff was to receive the payments provided for in the March 15, 1941, agreement, in the event of any sale made by him of the lease to anyone at all.
Appellant does not contend that the findings are insufficient to support the judgment, but bases his attack on the *610 action of the court in admitting oral evidence to explain what the parties intended by the provision in the agreement reading "In the event you are obliged to and do sell." [1] No rule is more firmly grounded in our law than the one which provides that upon an appeal taken upon the judgment roll alone, an appellate tribunal is not permitted to give consideration to alleged errors in the admission of testimony or alleged insufficiency of the evidence to support the findings, but confines consideration on such an appeal to the single question of the sufficiency of the findings to support the judgment. And, unless as a matter of law it can be said that the findings do not support the judgment, the latter must be affirmed. (Eddy v. City of Los Angeles, 28 Cal.App.2d 89 [82 P.2d 25].) [2] No reporter's transcript having been filed herein and the appeal being prosecuted on the judgment roll alone, it must be assumed in support of the judgment that all objections to the evidence in support of the findings were waived. (Crowther v. Metalite Mfg. Co., 133 Cal.App. 452, 455 [24 P.2d 551]; Poledori v. Newman, 116 Cal. 375, 378 [48 P. 325].) As to the nature of the evidence introduced at the trial, we have no information. If, as contended by appellant, it was addressed to the interpretation to be placed upon the above quoted language in the agreement, it should have been brought up on appeal through the medium of a reporter's transcript, or upon an agreed statement. (Rules 4 and 6 of Rules on Appeal to the Supreme Court and District Courts of Appeal.) [3] In the construction of contracts the prime duty of the court is to determine, if possible, the intention of the parties (Civ. Code, 1636); and instances are numerous where in connection with that duty parol evidence is admissible (Code Civ. Proc., 1860). Appellant strongly relies upon section 1856 of the same code, but by the very terms of that section it must be read together and in conjunction with section 1860 of the Code of Civil Procedure which provides that "the circumstances under which it [the instrument] was made, including the situation of the subject of the instrument, and of the parties to it, may also be shown, so that the judge be placed in the position of those whose language he is to interpret." [4] For aught that appears in the record before us, appellant himself may have offered oral testimony at the trial to explain the contract, or parol evidence may have been introduced without *611 objection. In fact, upon an appeal taken on the judgment roll alone, we must assume that the issues upon which findings were made were properly before the court, and that evidence was introduced without objection which would support the findings as made. (First Trust & Savings Bank v. Warden, 18 Cal.App.2d 131, 134 [63 P.2d 329].) A different situation might be presented, if the entire record were before this court. Where, as here, the record contains findings of fact upon the issues raised by the pleadings, and which support the conclusions of law reached by the trial court, the inquiry is at an end. (Merron v. Title Guar. & Trust Co., 45 Cal.App.2d 60, 63 [113 P.2d 481]; California Employment Com. v. Arrow Mill Co., 45 Cal.App.2d 668, 671 [114 P.2d 727].)
Finally, it may be said that appellant confines his attack solely to the findings in favor of defendant on the latter's first affirmative defense. None of the other findings are challenged. And the finding based on defendant's second affirmative defense of estoppel, which in itself constituted a complete defense to plaintiff's action, is sufficient to support the judgment herein.
For the foregoing reasons, the judgment is affirmed.
York, P. J., and Doran, J., concurred.
|
[Cite as State v. Vittorio, 2011-Ohio-1657.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 09 MA 166
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
MELISSA VITTORIO, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Youngstown
Municipal Court,
Case No. 09 CRB 1829.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Joseph Macejko
City Prosecutor
Attorney Bret Hartup
Assistant City Prosecutor
26 S. Phelps Street, 4th Floor
Youngstown, OH 44503
For Defendant-Appellant: Attorney Mark Verkhlin
839 Southwestern Run
Youngstown, OH 44514
JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Dated: March 22, 2011
DeGenaro, J.
-2-
{¶1} Appellant, Melissa Vittorio, appeals the September 24, 2009 decision of the
Youngstown Municipal Court, accepting her plea of no contest, finding her guilty of
violating a protection order and possession of marijuana, and imposing a sentence of 30
days in jail, in addition to other sanctions.
{¶2} On appeal, Vittorio argues that there was no explanation of the
circumstances of Vittorio's offenses, and that the trial court's immediate finding of guilt
therefore violated R.C. 2937.07. Vittorio further argues that the trial court failed to
consider any of the factors of R.C. 2929.22 in its sentencing decision. Regarding the guilt
determination, Vittorio's "stipulation to a finding of guilt" constituted a waiver of the R.C.
2937.07 requirements. Regarding the sentencing determination, the trial court's
consideration of the pre-sentence investigation report, and the presumption that the trial
court considered the factors in R.C. 2929.22, adequately supported the trial court's
decision. Accordingly, the trial court's decision is affirmed.
Facts and Procedural History
{¶3} On July 31, 2009, Melissa Vittorio was charged with violating a protection
order and possession of marijuana, both first-degree misdemeanors. Vittorio entered a
plea of not guilty, and was released on bond.
{¶4} At an August 21, 2009 change of plea hearing, Vittorio changed her plea of
not guilty to a plea of no contest. Based on the plea negotiations for the violation of
protection order charge, the State recommended a sentence of one year community
control, restitution, and no contact with the victim. Based on the plea negotiations for the
marijuana possession charge, the State moved to amend the charge from a first degree
misdemeanor to a minor misdemeanor. The State gave no sentencing recommendation
for the possession charge. Defense counsel agreed that the State's recitation of the
charges and plea was correct, that Vittorio would plead no contest with a stipulation to a
finding of guilt, and requested that the trial court immediately proceed to sentencing.
{¶5} The trial court granted the State's motion to amend the marijuana
possession charge, then entered into a colloquy with Vittorio regarding her no contest
plea, after which the trial court immediately made a finding of guilt:
-3-
{¶6} "THE COURT: Melissa Vittorio, I see here you intend to enter a plea of no
contest to the amended charge and change your plea of not guilty to no contest to the
violation of protection order charge. I need to make you aware that a no contest plea
stipulates that the Court may make a finding of guilty or not guilty based on the facts
presented or a stipulation and the probabilities are that you are going to be found guilty.
So your pleas to these two matters is what?
{¶7} "MS. VITTORIO: No contest.
{¶8} "THE COURT: Very well. Further, I need to make you aware that by
entering a plea of no contest to these charges that you waive certain legal rights. You
waive your right to have a trial, a jury trial, to confront your accuser, ask questions and
cross examine any and all witnesses the State would bring forward to testify against you
at trial, your right to subpoena witnesses to come and testify on your behalf, remain silent,
raise any and all defenses you may have, testify at your own trial among other
constitutional and statutory rights, including your right to appeal. Do you understand that
you would be waiving those rights?
{¶9} "MS. VITTORIO: Yes, sir.
{¶10} "THE COURT: Very well. There is a finding of guilt as to each. Counsel, I
am going to order a presentence investigation and set this matter for sentencing. And the
bond will be continued."
{¶11} The sentencing hearing was held on September 24, 2009, at which the trial
court stated it had considered Vittorio's pre-sentence investigation report, and then heard
argument from defense counsel, and offered Vittorio the opportunity to address the court.
The trial court then explained Vittorio's sentence: "You have several things going on here
and I intend to address them. The first one is when the Court says not to do something
and you are ordered not to do something the Court means it and you had a protection
order. I am imposing 30 days in jail for that." The trial court further ordered no contact
with the victim, 60 days of electronic monitoring, fines and costs. This Court granted
Vittorio's motion to stay her jail term, pending this appeal.
R.C. 2937.07 Explanation of Circumstances
-4-
{¶12} In her first of two assignments of error, Vittorio asserts:
{¶13} "The Trial Court committed reversible error when it found Appellant guilty of
the offenses of which she was charged after a plea of no contest without an explanation
of the circumstances surrounding the finding of guilt pursuant to R.C. 2937.07."
{¶14} The version of R.C. 2937.07 in effect at the time of Vittorio's plea states, in
pertinent part:
{¶15} "Upon receiving a plea of guilty, the court or magistrate shall call for an
explanation of the circumstances of the offense from the affiant or complainant * * *. After
hearing the explanation of circumstances, together with any statement of the accused,
the court or magistrate shall proceed to pronounce the sentence or shall continue the
matter for the purpose of imposing the sentence.
{¶16} "A plea to a misdemeanor offense of "no contest" or words of similar import
shall constitute a stipulation that the judge or magistrate may make a finding of guilty or
not guilty from the explanation of the circumstances of the offense. If a finding of guilty is
made, the judge or magistrate shall impose the sentence or continue the case for
sentencing accordingly. A plea of "no contest" or words of similar import shall not be
construed as an admission of any fact at issue in the criminal charge in any subsequent
civil or criminal action or proceeding."
{¶17} The Ohio Supreme Court has held that R.C. 2937.07 confers a substantive
right, and, therefore, a no contest plea may not be the basis for a finding of guilty without
an explanation of circumstances. Cuyahoga Falls v. Bowers (1984), 9 Ohio St.3d 148,
151, 9 OBR 438, 459 N.E.2d 532. The right to an explanation of circumstances is not
abrogated by Crim.R. 11. Id. at 150. The requirements of R.C. 2937.07 are mandatory,
and it cannot be presumed from a silent record that a trial court complied with the statute.
State v. Malek, 7th Dist. No. 02 CA 97, 2002-Ohio-6431, at ¶20. "Where the record
indicates that none of the essential elements of the offense were set forth, the defendant
was improperly convicted." State v. Wright, 7th Dist. No. 06 CO 21, 2007-Ohio-4978, at
¶43. Although R.C. 2937.07 is mandatory, a defendant could invite noncompliance with
the statute or waive its requirements. State v. Howell, 7th Dist. No. 04 MA 31, 2005-Ohio-
-5-
2927, at ¶20, citing N. Ridgeville v. Roth, 9th Dist. No. 03CA008396, 2004-Ohio-4447, at
¶12.
{¶18} In Howell, the defendant argued, as Vittorio does here, that the trial court
erred in making a finding of guilt without an explanation of circumstances after accepting
the defendant's no contest plea. The following transpired at the hearing in Howell: " the
prosecutor stated that, as part of the plea agreement, Howell "waive[d] presentation of
evidence and stipulate[d] to a finding of guilt." Howell's attorney agreed that the
prosecutor's recitation of the plea agreement was correct. Thus, the prosecutor did not
provide an explanation of circumstances because Howell waived his right to an
explanation of circumstances." Howell at ¶20.
{¶19} The following transpired at Vittorio's plea withdrawal hearing:
{¶20} THE STATE: "In regards to the Case 09 CRB 1835 it is my understanding
Miss Vittorio will withdraw her former plea of not guilty and enter a plea of no contest to
violating a protection order. Based upon the stipulation to a finding of guilt the state will
recommend one year community control * * *. Further, in Case 09 CRB 1829 it is my
understanding Miss Vittorio with counsel will withdraw her former plea of not guilty and
enter a plea of no contest to the amended charge. The State moves to amend the first
degree misdemeanor to that of a minor misdemeanor * * *. That plea is based upon a
stipulation to a finding of guilt * * *."
{¶21} DEFENSE COUNSEL: "The State of Ohio's recitation of the facts of this
case are, in fact, accurate. At this time Miss Vittorio will be withdrawing her former plea of
not guilty and entering pleas of no contest *** We would waive any defects in the
preparation and service of the amended complaint stipulate to a finding of guilt."
{¶22} As in Howell, Vittorio, with counsel, entered a stipulation of guilt, thereby
waiving the requirement. Accordingly, Vittorio's first assignment of error is meritless.
R.C. 2929.22 Consideration of Sentencing Factors
{¶23} In her second assignment of error, Vittorio asserts:
{¶24} "The Trial Court committed reversible error when it sentenced Defendant-
Appellant, Melissa Vittorio to serve a sentence of thirty (30) days of incarceration and
-6-
sixty (60) days of electronically monitored house arrest for a violating [sic] the terms of his
[sic] community control without considering the purposes of misdemeanor sentencing
pursuant to R.C. 2929.22."
{¶25} A trial court must consider the criteria of R.C. 2929.22 and the principles of
R.C. 2929.21 before imposing a misdemeanor sentence. State v. Crable, 7th Dist. No. 04
BE 17, 2004-Ohio-6812, at ¶24. R.C. 2929.22(A) instructs the trial court to use its
discretion to determine the most effective way to achieve the purposes and principles of
sentencing set forth in R.C. 2929.21, without placing an unnecessary burden on local
government resources. R.C. 2929.22(B) sets forth specific factors for the trial court to
consider before imposing a sentence, including the nature and circumstances of the
offense, the offender's history of criminal conduct, the victim's circumstances, and the
likelihood that the offender will commit future crimes.
{¶26} However, the trial court is not required to state on the record its
consideration of sentencing factors when determining a misdemeanor sentence. Id.
When a misdemeanor sentence is within the statutory range, "a reviewing court will
presume that the trial judge followed the standards in R.C. 2929.22, absent a showing to
the contrary." State v. Reynolds, 7th Dist. No. 08-JE-9, 2009-Ohio-935, at ¶21, citing
Crable at ¶24. A silent record creates a rebuttable presumption that the sentencing court
considered the statutory sentencing criteria. State v. Best, 7th Dist. No. 08 MA 260,
2009-Ohio-6806, at ¶14. An appellate court reviews a misdemeanor sentence for abuse
of discretion. Reynolds at ¶9. An abuse of discretion is more than an error of law or
judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable.
State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144.
{¶27} Vittorio was convicted of Violating Protection Order, a first degree
misdemeanor violation of R.C. 2919.27, and Possession of Marijuana, a minor
misdemeanor violation of R.C. 2925.11(A)(C)(3)(a). A misdemeanor of the first degree
carries a maximum sentence of one hundred and eighty days. R.C. 2929.24(A)(1). The
trial court imposed a thirty day sentence for Vittorio's first degree misdemeanor sentence,
thus well within the statutory range.
-7-
{¶28} Vittorio does not provide any examples to rebut the presumption that the
trial court considered the requisite criteria of R.C. 2929.22, and merely relies on the
"silent record" argument to support her claim. However, the record is not completely
silent, as the trial court stated during Vittorio's sentencing hearing that it had considered
Vittorio's pre-sentence investigation report.
{¶29} The report included a number of aggravating factors that the trial court
would have considered, which further indicates that the trial court acted within its
discretion. See City of Youngstown v. Cohen, 7th Dist. No. 07-MA-16, 2008-Ohio-1191,
at ¶84. There is nothing apparent in the record indicating that the trial court failed to
consider the criteria of R.C. 2929.22, and therefore the trial court's sentencing decision
was not an abuse of discretion. Given the foregoing, Vittorio's second assignment of
error is meritless.
{¶30} Vittorio's "stipulation to a finding of guilt" constituted a waiver of the R.C.
2937.07 requirements. Thus, the trial court did not commit reversible error when it failed
to recite into the record the explanation of circumstances regarding the elements of the
misdemeanor offenses to which Vittorio pleaded no contest. The trial court did not abuse
its discretion in sentencing Vittorio. Accordingly, the judgment of the trial court is
affirmed.
Waite, P.J., concurs.
Vukovich, J., concurs.
|
Opinion issued April 8, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00795-CR
———————————
JAMES WILLIE WYATT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1390178
MEMORANDUM OPINION
Appellant, James Willie Wyatt, pleaded guilty to the felony offense of
evading arrest or detention with previous conviction.1 The trial court found Wyatt
guilty and, in accordance with the terms of his plea bargain agreement with the
1
See TEX. PENAL CODE ANN. § 38.04(a), (b)(1)(A) (West Supp. 2013).
State, sentenced him to four years imprisonment. Acting pro se, Wyatt filed a
notice of appeal. We dismiss the appeal.
In a plea bargain case, a defendant may only appeal those matters that were
raised by written motion filed and ruled on before trial or after getting the trial
court’s permission to appeal. See TEX. R. APP. P. 25.2(a)(2). An appeal must be
dismissed if a certification showing that the defendant has the right of appeal has
not been made part of the record. See TEX. R. APP. P. 25.2(d).
Here, the trial court’s certification is included in the record on appeal. See id.
The trial court’s certification states that this is a plea bargain case and that the
defendant has no right of appeal. See TEX. R. APP. P. 25.2(a)(2). Appellant did not
appeal any pre-trial matters, and the trial court did not give permission for
appellant to appeal. The record supports the trial court’s certification. See Dears v.
State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005). Because appellant has no
right of appeal, we must dismiss this appeal. See Chavez v. State, 183 S.W.3d 675,
680 (Tex. Crim. App. 2006) (“A court of appeals, while having jurisdiction to
ascertain whether an appellant who plea-bargained is permitted to appeal by Rule
25.2(a)(2), must dismiss a prohibited appeal without further action, regardless of
the basis for the appeal.”).
Accordingly, we dismiss the appeal for want of jurisdiction. We dismiss any
pending motions as moot.
2
PER CURIAM
Panel consists of Justices Keyes, Bland, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
3
|
33 F.3d 59
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Billy Bowling STEVENSON, Petitioner-Appellant,v.Robert G. BORG, et al., Respondent-Appellee.
No. 93-56104.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 7, 1994.Decided Aug. 15, 1994.
Before: D.W. NELSON, BEEZER, and KOZINSKI, Circuit Judges.
1
MEMORANDUM*
2
Petitioner-Appellant, Billy Bowling Stevenson, appeals the district court's dismissal of his habeas petition. Stevenson claims that the trial court committed reversible error when it erroneously instructed the jury that it could find Stevenson guilty of first degree murder based on a felony-murder theory.
3
The State concedes that because petitioner was not charged with felony-murder and because he could not have been convicted under the felony-murder statute, the felony-murder instruction was erroneous.1 The state trial judge admitted error, but ruled that it was harmless. The district court agreed that the error was harmless.
4
According to Stevenson, because the jury erroneously was instructed that it could convict him of first degree murder based on felony-murder, which does not require malice aforethought, and because his only defense at trial was that he lacked malice aforethought, the jury could have believed Stevenson's defense and yet erroneously convicted him of first-degree murder on the felony-murder theory. He further notes that the jury convicted him of first degree burglary, making it quite possible that the jury in fact relied on the erroneous felony-murder instruction.
5
This case is controlled by Suniga v. Bunnell, 998 F.2d 664 (9th Cir.1993), in which this court held that a state court's error in instructing the jury on felony-murder "was so serious that the 'instruction by itself so infected the entire trial that the resulting conviction violate[d] due process.' " Id. at 670 (quoting Estelle v. McGuire, 112 S.Ct. 475, 482 (1991)). As in this case, the state trial court in Suniga erroneously instructed the jury on felony-murder although the prosecution had not relied on a felony-murder theory of culpability and had not argued this theory to the jury. Also as in this case, the jury in Suniga could not have convicted the defendant of felony-murder. According to the Suniga court, the trial court's error was a structural error that required reversal. We have found no meaningful basis on which to distinguish the present case from Suniga. Therefore, we reverse the district court's denial of habeas corpus.
6
On remand, the district court shall issue the writ. We further conclude that the state shall have an opportunity to retry Stevenson. See Sanders v. Ratelle, 21 F.3d 1446, 1461 (9th Cir.1994) (internal citations omitted). Only if it fails to do so within a reasonable time shall Stevenson be released. The clerk is directed to include in the mandate to the district court direction to the district court to notify the State of California forthwith of the issuance of the writ.
7
REVERSED and REMANDED.
*
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
Stevenson could not have been convicted of felony-murder because under California law, where the burglary was committed in order to commit the murder, the felony-murder rule does not apply. People v. Garrison, 47 Cal.3d 746, 778 (1989)
|
326 Mass. 485 (1950)
95 N.E.2d 545
BARBARA ANN NELSON
vs.
ALBERT A. RICHWAGEN.
Supreme Judicial Court of Massachusetts, Suffolk.
October 5, 1950.
November 28, 1950.
Present: QUA, C.J., LUMMUS, RONAN, SPALDING, & WILLIAMS, JJ.
H.G. Feldman, for the plaintiff.
R.F. Huntsman, for the defendant.
*486 LUMMUS, J.
The plaintiff, the minor daughter of Joseph J. Nelson and Mary M. Nelson, brings this action of tort by her father and next friend against the defendant for enticing her mother to desert her father and herself, thereby depriving the plaintiff of support, maintenance and maternal care and affection. In the Superior Court a demurrer to the declaration was sustained, and the case was reported on the terms that if the ruling was right judgment is to be entered for the defendant.
In White v. Thomson, 324 Mass. 140, the question whether a minor child could maintain an action for the alienation of affections and enticement away of a parent, was left open, the decision being that the child could not obtain relief by injunction. The instant case presents the question thus left open in that case.
At common law it is held that one spouse may maintain an action against a third person for procuring and enticing the other spouse to desert the plaintiff, and thus causing the deprivation of the plaintiff's right of consortium. Bigaouette v. Paulet, 134 Mass. 123. Evans v. O'Connor, 174 Mass. 287. Neville v. Gile, 174 Mass. 305. Houghton v. Rice, 174 Mass. 366. Nolin v. Pearson, 191 Mass. 283. Feneff v. New York Central & Hudson River Railroad, 203 Mass. 278, 282. Gahagan v. Church, 239 Mass. 558. Longe v. Saunders, 246 Mass. 159. Bradstreet v. Wallace, 254 Mass. 509. McGrath v. Sullivan, 303 Mass. 327. White v. Thomson, 324 Mass. 140, 142. But the practical objections to this class of actions are well known, and we think such actions ought not to be extended into new fields.
Until recent years, there was no authority for the maintenance of such an action by a minor child for the disruption of a home. But within recent years there have been decisions that a minor child may maintain an action for enticing a parent away from the family home. Daily v. Parker, 152 Fed. (2d) 174, 162 A.L.R. 819. Russick v. Hicks, 85 Fed. Sup. 281. Johnson v. Luhman, 330 Ill. App. 598, 340 Ill. App. 625. Miller v. Monsen, 228 Minn. 400. In our opinion, however, the relation of parent and child is not *487 analogous to the relation of husband and wife, in respect to the existence of a cause of action against a third person. One spouse has a right to the personal presence and care of the other. It is not enough that he or she furnish care for the other through the agency of other persons. Desertion alone, without more, is a matrimonial wrong. But a minor child has no legal right to the personal presence or care of a parent. If the parent provides support and care while absent from the child, the law is satisfied. So far as the parent is bound to support the child the parent may be compelled to do so by other proceedings. G.L. (Ter. Ed.) c. 209, § 37. White v. Thomson, 324 Mass. 140, 143.
In a note in 83 Univ. of Pa. L. Rev. 276, 277, referring to the reasoning of the cases already cited permitting such an action, it is said, "Numerous practical obstructions, however, inhibit application of this reasoning, the more obvious difficulties being: (1) Possibility of a multiplicity of suits, since the husband has his action, and extension of the principal basis thereof would usually include other minor or dependent children; (2) Possibility of extortionary litigation, for this action, always susceptible to fraud, would become even more so by virtue of its numerical increase and the relative tenuousness of the child's relationship; (3) Inability to define the point at which the child's right would cease, inasmuch as the status itself hypothesizes mutability (i.e., a spouse is, barring extraordinary circumstances, always a spouse, but the very nature of childhood implies an eventual change to adulthood); (4) Inability of a jury adequately to cope with the question of damages, first, because injuries like that now under discussion are hard to measure in money and courts are averse to permitting the more or less conjectural awards based on mental suffering, and second, because damages thus assessed are apt to overlap, the number and ages of children ordinarily being noted in a parent's action." Apparently approving the foregoing, is what is said in the opinion in Taylor v. Keefe, 134 Conn. 156, 161. The public policy involved bears some similarity to that which forbids actions of tort between a *488 parent and a minor child. Luster v. Luster, 299 Mass. 480. Oliveria v. Oliveria, 305 Mass. 297.
On the whole, we are inclined to join the weight of authority in holding that the child in the present case has no right of action. Taylor v. Keefe, 134 Conn. 156. McMillan v. Taylor, 160 Fed. (2d) 221. Edler v. MacAlpine-Downie, 180 Fed. (2d) 385. Rudley v. Tobias, 84 Cal. App. (2d) 454. Morrow v. Yannantuono, 152 Misc. (N.Y.) 134. Katz v. Katz, 197 Misc. (N.Y.) 412. Garza v. Garza, 209 S.W. (2d) 1012 (Tex. Civ. App.). Henson v. Thomas, 231 N.C. 173, 12 A.L.R. (2d) 1171, and note.
Order sustaining demurrer affirmed.
Judgment for the defendant.
|
981 F.2d 1248
The Pittsburgh Press Companyv.Commonwealth of Pennsylvania, Preate (Ernest D., Jr.),Colville (Robert E.); Newspaper, Newsprint,Magazine & Film Delivery Drivers Helpers& Handlers, Local No. 211
NO. 92-3486
United States Court of Appeals,Third Circuit.
Nov 03, 1992
Appeal From: W.D.Pa.,
Ziegler, J.,
797 F.Supp. 436
1
AFFIRMED.
|
NO. 12-07-00196-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN THE INTEREST OF § APPEAL FROM THE 307TH
A.T.S. AND M.D.S., § JUDICIAL DISTRICT COURT OF
MINOR CHILDREN § GREGG COUNTY, TEXAS
MEMORANDUM OPINION
Patrick S. and Kristina D. appeal the trial court’s order terminating their parental rights to
their sons, A.T.S. and M.D.S. In five issues, they contend the evidence is insufficient to support the
order, the trial court used an improper procedure, impermissibly shifted the burden of proof, and
failed to make a necessary finding of extraordinary circumstances to extend the temporary managing
conservatorship, and Texas Family Code Section 263.405(i) is unconstitutional. We affirm.
BACKGROUND
The Department of Family and Protective Services filed a petition for protection of a child,
for conservatorship, and for termination of the parent-child relationship on February 1, 2006. At the
time, A.T.S. was one year and nine months old and M.D.S. was eight months old. The petition was
supported by an affidavit explaining that the children had been removed from the parents the day
before due to their home environment and concerns for their physical care. The Department was
appointed temporary sole managing conservator of the boys, and they were placed in foster homes.
The parties agreed to a family service plan, and the trial court notified Patrick and Kristina that the
failure to comply could result in the restriction or termination of parental rights.
At a status hearing held March 14, 2006, it was shown that Patrick and Kristina were
homeless, tested positive for cocaine, and needed parenting classes and psychological evaluations.
A hearing was held June 13, 2006 for judicial review. Both parents had secured jobs but still had
no home of their own, continued to test positive for drugs, and had otherwise not complied with their
service plan. Another judicial review hearing was held November 15, 2006. Patrick was not in
attendance. It was reported that Kristina had completed parenting classes and a ninety day stay at
Kirkpatrick Rehabilitation Center, previously tested negative for drugs, and gotten a job. However,
she still needed to participate in a psychological evaluation, find a home of her own, and attend
counseling. The court found that neither parent had demonstrated adequate and appropriate
compliance with the service plan.
On January 18, 2007, Kristina and Patrick filed a motion for extension of time of 180 days
from the current dismissal date, which was February 5, 2007. They asserted that they had completed
many of the requirements of their family service plan. They requested additional time for the
Department to ascertain that their new living arrangement was a safe and suitable place for the
children and then to begin a monitored return of the children. Evidence was presented on that
motion at the hearing on January 22, 2007.
At the hearing, Kristina testified that she had complied with the Family Service Plan. She
received drug assessment, counseling, and rehabilitation. She got a job as a cashier and had
remained drug free. She admitted that she had not completed and returned some documents Child
Protective Services (CPS) asked for. She moved in with a man named Courtney when she got out
of Kirkpatrick. But she left him because he was abusive. Other than that, she had stayed away from
people engaged in criminal activity. She was living in a home in Liberty City with Patrick, his
brother Damon, and Damon’s girlfriend, Delynda. They planned to share the rent and household
chores.
Patrick was released from a drug rehabilitation facility less than a week before the hearing.
Kristina testified that an oilfield job was available for him to take. Kristina asked the court for an
extension of six months so that she and Patrick could continue to work toward completing their plan
and have a monitored return of the children.
On cross examination, Kristina stated that she completed her psychological testing last May
2
and had not participated in psychological evaluations since then. She admitted that she did not go
to counseling that CPS arranged. Instead, she arranged to go to Kirkpatrick. Since leaving
Kirkpatrick, she had not taken a drug test on the same day she was requested to take it and had never
submitted to a hair follicle test. She stated that she did not work forty hours a week. She worked
about thirty hours a week and was not seeking full time employment. Patrick had not gone to work
even though he had been out of rehabilitation for over a week. Kristina had not participated in face
to face home visits with her caseworker. She said she had been visiting her children regularly and
would be able to get insurance on them through her employer. There was a phone at the residence,
but she had no car and relied on Delynda for transportation. If given an extension, she would save
money for daycare, establish her own residence, and get a car.
No further evidence was offered on the motion to extend. The trial court carried the motion,
explaining that it would be considered as the rest of the evidence was heard that day, leaving the
option open as a possible result of that hearing. The Department then presented its evidence on the
motion for termination.
Erica Ayers, a Child Protective Services investigator, accompanied by a police officer, went
to Kristina’s apartment on January 31, 2006 in response to a report the Department had received.
There was no electricity, the house was cluttered, and the kitchen surfaces were covered in leftover
food and trash. The apartment was unsanitary. There was a baby crib, but it was not in a usable
condition. The children wore only diapers and were dirty; the older child appeared lethargic.
Kristina looked as though she had not bathed in several days and appeared to be under the influence
of some substance. Ayers removed the children from the home that day. A.T.S. was seen by a
doctor and found to be developmentally delayed, malnourished, and under the influence of cocaine.
Both parents also tested positive for drugs. Based on the existence of some bruises on Kristina’s leg
and Patrick’s volatile temper, Ayers suspected domestic violence.
Kristina took the stand again and explained that she and Patrick had lived in an apartment
in Gladewater at the time the children were taken. In February, they lived with a friend in
Gladewater and then lived with Patrick’s cousin in Kilgore. After leaving the cousin’s home, they
rented a room at a motel. In July, she moved to Kirkpatrick Rehabilitation Center where she stayed
until the first week in October. She had worked at a department store in Gladewater. Other than odd
3
jobs, Patrick did not work. After she got out of Kirkpatrick, she moved in with another man, whom
she reported for abusing her. She moved out of that home on December 20.
Kristina admitted that she and Patrick had an abusive relationship. Kristina did not know if
Patrick had gone to any counseling. As far as she knew, Patrick had not held a job since February
2006. She heard Patrick threaten a CPS worker when they were not allowed to see their children.
Kristina had a hair follicle test in February 2006 that was positive for cocaine. She also
tested positive for cocaine on March 22. After that, she took drug tests several days after being
asked to rather than within twenty-four hours as requested by CPS. Since her release from
Kirkpatrick in October, she had not attended any counseling sessions. She attended one Alcoholics
Anonymous (AA) meeting. She had not paid any of the court ordered child support. She said she
had been looking for a full time job but had not actually applied anywhere. Kristina explained that
she was working when A.T.S. ingested cocaine so she did not have any explanation for it. She
testified that Patrick told her that Leona Merrill, someone they did drugs with, came over the night
before CPS came to the house. Patrick told her Merrill brought some Little Debbie’s brownies that
had crack cocaine in them and A.T.S. ate some of the brownies. When she came home from work,
she noticed he had a fever and she thought he was sick, but she did not take him to a doctor. Neither
of her children had routine checkups. Kristina said that Patrick provided her with cocaine.
On cross examination, Kristina admitted that she had not saved any money, and she had no
plan in place for living arrangements if she and Patrick separated. At the time the children were
taken away, she was working as an exotic dancer. When she worked, Patrick took care of the
children. Patrick worked at “odd jobs” and sometimes had a “real job” for short periods of time.
The night A.T.S. had a high fever, Kristina was worried about him, but she had no vehicle or phone
and did not take him to the hospital. She said that if the court gave them an extension of six months,
they would establish their own residence and get a vehicle. Kristina testified that, last March or
April, they went through psychological testing, and she stated that she had completed parenting
classes.
Patrick admitted that he tested positive for cocaine in February 2006 and at other times
between February and December. He said he used cocaine on December 8 and checked into Oak
Haven Treatment Center for rehabilitation on December 10. He said he had joined the Navy in 1990
4
to avoid a conviction for selling cocaine. Since then, the longest time he had been “clean” was from
1995 to 1997. The week before CPS took the children, he had spent $400.00 to $500.00 on cocaine
and said he had probably spent that amount on cocaine each week since then. He had paid no child
support since the case began. He hauled scrap iron, sold copper, and had a full time job for three
weeks in August.
In compliance with his service plan, he submitted to the psychological evaluation and a drug
assessment, and completed the treatment at Oak Haven. He offered no excuse for not completing
the plan’s requirements “other than [he] was spun out on drugs.” He said there were times when he
tried to have a drug test, but CPS had not provided the paperwork so he was not able to have the test
done. He had been to two meetings since leaving Oak Haven. Patrick summed up his position by
explaining:
I know I haven’t been a good dad. I’ve probably been the worst dad on the planet. I have
a drug problem, and I’m trying to work through my drug problem. And I’m going to be a good father,
and I want my kids back. I think I deserve my kids back. I’ve got a lot of making up to do. W hatever
the Court sees fit that I need to do, I’m willing to do that to get my kids back.
On cross examination, Patrick explained that he went to Oak Haven because he realized that
nothing in his life was working. He has two teenage sons from a previous marriage. He was
involved in supporting and raising them, changing diapers and coaching little league. However, they
have not wanted to see him because of his drug addiction. The older one had expressed interest in
seeing him since he went to Oak Haven. Patrick admitted that he had not paid the $250.00 in
monthly child support for them since 2005.
Patrick explained that, on the night before the Department took the children, two of his
friends came over to smoke crack cocaine with him while Kristina was at work. One of them
brought some Little Debbie snacks. A.T.S. ate part of a brownie but would not finish it. A.T.S. had
trouble sleeping that night and was shaking. Patrick did not have a phone, so he did not call anyone
for help. Patrick regretted what had happened and insinuated that the friend deliberately gave
cocaine to A.T.S. in one of the brownies without Patrick’s knowledge. He said he would comply
with court orders, remain calm when the children do something wrong, help them with school work,
and read to them. He said the home he shares with his brother is a good, clean, safe environment for
5
children.
Patrick had a job lined up in the oilfield that would pay $15.00 an hour and would require
him to work seventy or eighty hours a week. He stated that he had the skills to get and hold a job
and was looking forward to raising his children. He said he would be working by Friday and would
be able to pay his bills and provide for his family. Within three months he would have his own
residence. He explained that he and Kristina had been engaged for two and a half years. He did not
know why they had not gotten married, but he planned to get married in the next couple of months.
He knows that children should not be around drugs and said he was not going to do drugs anymore.
He admitted he had never taken his children to a doctor or a clinic but said that, in an
emergency, he knew how to get help. He admitted that he and Kristina had an abusive relationship
and he had left bruises on her. He explained that he did not pay the electric bill at the apartment
because of his drug addiction, but he was turning his life around. He believed that it was best for
the children if they lived with their parents.
Martha Christian testified that she is the CASA volunteer guardian for the children. When
she first met A.T.S., he was almost two years old and could not speak. He exhibited a poor gait and
had eight cavities. He has had physical therapy and speech therapy. Initially, Kristina and A.T.S.
did not seem to have much of a relationship. Kristina did not see him from February until July
because she did not pass her drug tests. By the date of the hearing, they were interacting, although
there was no bond between them. They played together, Kristina was affectionate toward him, and
he seemed happy to see her. He called her mama. M.D.S. reacted to Kristina the way he reacted to
others. Kristina did not see him until she got out of Kirkpatrick in October. Christian testified that
she could not see that A.T.S. and M.D.S. were bonded in any way. At visits, they played side by side
but not interactively. When the visit was over, they happily went with the person who took them
back to their respective foster parents. Since getting out of Kirkpatrick, Kristina had missed four
visits. Christian stated that M.D.S.’s foster mother wanted to adopt him.
Christian was present once when Patrick visited the children. A.T.S. pulled away and did
not seem comfortable. M.D.S. did not seem to have any recollection of Patrick.
Christian explained that in their November meeting, Kristina was told she could ask for help
with housing and furnishings, but by the December meeting nothing had been done. When she found
6
out Kristina’s new address, she did not visit. Kristina never invited her and she “did not feel secure”
in going there. She was afraid of Patrick and whoever lived there with them. Christian did not
believe Kristina completed a psychological evaluation or an outpatient treatment program for
substance abuse. She testified that Kristina needed a lot of support, which she had not had, and she
had not had any homemaking services. Christian was concerned about the instability in Kristina and
Patrick’s relationship because the children needed a stable home. She said they needed a home of
their own, not with other people. Christian testified that she did not believe Kristina and Patrick
could meet the needs of the children and it would be in the children’s best interest to have the
parents’ rights terminated.
Kristie Dewberry, a caseworker for CPS, enacted the family service plan for Kristina and
Patrick on February 9, 2006 and worked with them to achieve those goals. According to Dewberry,
Kristina did not complete and return all of the necessary forms. She did complete parenting classes
at Kirkpatrick but not the parenting classes at Parenting Resource Center as specified by the plan.
Kristina did participate in a drug assessment and enrolled herself in Kirkpatrick Center for drug
treatment. However, at times she did not submit to random drug testing within twenty-four hours
of the request as required by the plan. One time, Kristina went to the wrong address even though
Dewberry had given her the correct address. Contrary to Kristina’s testimony, Dewberry said she
had the proper paperwork on file at the drug testing facility in a timely manner.
In October, Dewberry told Kristina that she had not completed the psychological evaluation
and Kristina said she thought she had. The psychologist’s records, which were introduced into
evidence, indicate that Kristina cancelled all appointments and never showed up for testing.
Dewberry denied the possibility that Kristina actually went for a psychological evaluation and the
paperwork got lost. Dewberry explained that Kristina had not enrolled in counseling since leaving
Kirkpatrick and counseling would have been available to her if she had completed her psychological
evaluation. Dewberry stated that, to her knowledge, Patrick and Kristina had not worked together
in counseling on domestic violence issues.
Kristina was to get a job, which she had done, and utilize agencies such as Medicaid, housing
authority, and WIC, which she had not done. She was to participate in intense child development,
nutrition, and age appropriate classes, but she had done none of that. The Department was to provide
7
her with homemaking services when she established a home. Dewberry admitted that, at the
November and December meetings, she told Kristina that the Department could help her find
suitable housing and furnishings.
Dewberry reported that Kristina had not established and maintained appropriate housing or
shown the ability to budget for rent and utilities on a monthly basis. Kristina previously lived with
her abusive boyfriend and his mother and stepfather. Dewberry asserted that this showed Kristina
could not make good choices. As of the date of the hearing, Kristina was staying with Patrick’s
brother. Dewberry testified that living with other people in transient situations did not constitute
compliance with the plan. Dewberry had not visited Kristina’s latest residence because Kristina had
only recently given her the address. Dewberry said it was critical that she assess Kristina’s living
arrangements by visiting the residence, but Kristina had done nothing to facilitate a visit by
Dewberry. She explained that she had not received enough information about the people Kristina
was living with to know if they were safe or appropriate to live with the children. Kristina had not
given any indication that she was ready to establish her own residence.
Dewberry testified that Patrick accompanied Kristina when she came to visit the children on
December 22. She did not know he was coming, and he was not allowed to visit. He had done very
little on his plan at that time, although the prior summer he completed a psychological examination.
Dewberry stated there was nothing to show that Patrick was off drugs, and it did not appear that
Kristina would be able to avoid drugs while she was living with Patrick. Dewberry did not believe
the children could safely be returned to either parent. The Department wanted termination of the
parents’ rights. Dewberry did not believe Patrick and Kristina could fulfill the requirements of their
family service plan if given an extra six months. She said it was in the children’s best interest to not
give the parents more time. Dewberry testified that CPS had put into place all services it needed to
and it was the parents’ actions that are lacking.
Shuronda Thurmond, a CPS supervisor, was the caseworker on this case from February 2006
until August 2006. Patrick and Kristina were to start parenting classes at Parenting Resource Center
in April 2006, but they never showed up. Kristina did a portion of the psychological evaluation and
was supposed to set up an appointment to return and finish but she never did. Every time Thurmond
tested them for drugs, they both tested positive for cocaine. One time after testing positive and
8
having his visitation rights suspended, Patrick went to the CPS office “ranting and raging.” He told
her over the phone that somebody better get his “mother f.....g kids” to the CPS office or somebody
was going to get hurt because he was going to visit his kids that day. In the seven months Thurmond
was involved with the case, neither Kristina nor Patrick tested clean for drugs or established a stable
home. Thurmond, who knew the family Kristina moved in with after she left Kirkpatrick, stated that
family was not a positive influence.
At that point in the proceeding, the Department rested its case, and the court denied Kristina
and Patrick’s motion for directed verdict. Kristina and Patrick then presented their witnesses.
Laurie Burkhart, a drug and alcohol counselor at Kirkpatrick Family Center, testified about
Kristina’s stay there from July 6, 2006 until October 11, 2006. A.T.S. stayed with Kristina while
she was there. Burkhart said that Kristina had an extensive treatment plan, received counseling, and
learned a lot of parenting skills. After about twenty-five or thirty days, Kristina told her she made
a life change in the areas of her lifestyle, drug use, occupation, and spirituality. Burkhart testified
that if Kristina would continue to stay clean and do the right things, and if she was not being
controlled by anyone in a relationship capacity, she would have a chance at success in the future.
If these other things were in place, she had the ability to provide for the physical and emotional
security for her children. Burkhart stated that Kristina should be in individual and group counseling.
Burkhart commented that it was “very positive” that Patrick went to Oak Haven. She stated that she
would find it suspicious that Kristina refused a hair follicle test and would be concerned if she did
not respond quickly to requests for tests. She testified that it takes three to five days for cocaine to
be eliminated from the body.
Delynda Baltieria explained that her boyfriend, Damon, is Patrick’s brother. She and Damon
rented a home in Liberty City. Patrick and Kristina were living there with them, sharing expenses
and household responsibilities. They had family meetings to work on conflicts. She and Damon
both had full time jobs. She did not have a criminal record. Damon had been in trouble with the law
for possession of marijuana. She had some experience with little children and having A.T.S. and
M.D.S. in the house would not be a problem for them or the landlord. In the time she had known
Patrick, he had not been drug free. She did not know Patrick and Kristina well at the time the
children were taken away. She had never been to their apartment and had never seen them with their
9
children. However, Baltieria vowed to help Patrick get his children back and said that, no matter
how long it took him to get a job, he had a place to stay.
Counsel for Patrick and Kristina then reoffered Kristina’s testimony on the motion to extend
and the testimony Patrick gave when he was called by the State. Patrick and Kristina then rested.
Both sides closed.
The court found that the Department proved by clear and convincing evidence that Kristina
and Patrick
knowingly placed or knowingly allowed the children to remain in conditions or surroundings
which endanger the physical or emotional well-being of the children;
engaged in conduct or knowingly placed the children with persons who engaged in conduct
which endangers the physical or emotional well-being of the children;
failed to comply with the provisions of a court order that specifically established the actions
necessary for the [parent] to obtain the return of the children who have been in the permanent or
temporary managing conservatorship of the Department of Protective and Regulatory Services for not
less than nine months as a result of the children’s removal from the parent under Chapter 262 for the
abuse or neglect of the children.
Those findings were reflected in the court’s order signed January 30, 2007. Also in that
order, the court took the issue of best interest of the children under advisement and set a hearing for
April 27, 2007 for further consideration of that issue. The court named the following specific
matters to be reviewed at that hearing: the results of drug tests, employment of the parties,
counseling, attendance at AA or Narcotics Anonymous (NA) meetings, establishment of a residence
and the ability of the parties to budget for monthly expenses, and payment of child support. The
court ordered that the Department of Protective and Regulatory Services would continue as
temporary managing conservator of the children. Further, pursuant to Section 263.401(b) of the
family code, the court found that it had continuing jurisdiction of this suit, the appointment of the
Department as temporary managing conservator continued to be in the best interest of the children,
extraordinary circumstances existed, and an extension of the dismissal date should be granted.
Accordingly, the court ruled that the suit would be dismissed on August 4, 2007 unless a final order
was rendered before that date.
At the April 27, 2007 hearing, the State called Patrick to testify. He testified that he and
Kristina presently resided in a rented home with his brother and his brother’s fiancé. His brother’s
10
two children once came to visit, and they slept in the third bedroom. That room did not have beds,
but they slept on foam mattresses. He started training to work for TCIM Services on April 23. After
his ninety day probationary period, he would be able to get insurance for his children through his
employer. For the three months before that, he worked for a temporary agency. He claimed to have
worked “practically every day” but had not paid any child support. He and Kristina had attended
marriage counseling twice. He had been to Oak Haven twice and to AA or NA meetings nine times.
He testified that he did not attend meetings from about mid-February to mid-March because he was
working nights. However, he was not able to find his pay stubs for those weeks. About a week
before the hearing, they purchased a 1992 Pontiac, which broke down two days before the hearing
and which he was unable to drive because his license had been suspended. Patrick explained that
he opposed the dental surgery A.T.S. had because he did not want him “put to sleep” for a surgery
that was not necessary. Although he went to the location where the surgery took place, he had to
leave to go to work before A.T.S. was out of surgery.
On cross examination, Patrick reiterated that he went to work right after the last hearing and
had worked “consistently” since then. However, his pay stubs indicated that he worked as little as
twenty hours per week. He also explained that when he got an ID, he would be going to work for
another company where he would work eighty or ninety hours a week. He also stated that Kristina
had a job. Patrick testified that, over the last three months, he and Kristina averaged $1,600.00 each
month in income. Their monthly expenses totaled $1,485.00. He did not know how much food and
clothing for the children would cost. They had saved $700.00 to put down on the car. They presently
had $315.00 saved and were continuing to save money to use as a deposit on a house of their own,
which he hoped to be able to get by the end of May. Patrick testified that someone at the Veterans
Association told him that because he is a veteran, he and his dependents would have lifetime health
insurance. He explained that the meeting he went to at Oak Haven was like a Narcotics Anonymous
meeting. He found it beneficial and intended to continue to attend those meetings as well as the NA
and AA meetings. Patrick presented three lab reports indicating that on those three dates in March
and April when he was tested, he was drug free. He vowed to remain drug free for the rest of his life.
He believed he had taken the necessary steps to show that he and Kristina were ready to begin the
reunification process with their children and that reunification was in the children’s best interest.
11
He was adamant that if the children came home with him, he would find a way to get a bed for them
to sleep on.
Kristina testified that she quit her job as a cashier at Brookshire’s in early March because she
was not getting enough hours. She wanted to stay at home and get ready to be a housewife. She did
not work for six weeks, but began working at her present job two weeks before the hearing. She had
not paid any of the court ordered child support. Kristina thought Patrick was working every day
from 6:00 to 6:00 except for one night job. She had not taken illegal drugs since July 2006. She still
had to rely on other people for transportation. On the day A.T.S. had surgery, she stayed at the
hospital until 12:15 p.m. but then left because she did not want to sit there worrying. A.T.S. was not
yet in recovery when she left, and she did not return to the hospital. She and Patrick attended
marriage counseling twice. She never had a psychological evaluation and never sought to have CPS
arrange counseling for her. She went with Patrick to NA meetings, but they missed from
February 12 until March 12 and from March 29 until April 20. She explained that, at one visitation,
Patrick got upset and loud because M.D.S. was late. Kristina denied that Patrick got upset or raised
his voice at home.
Kristina said she had not missed any visits with her children and Patrick had missed visits
only when he was unable to get off work. She explained that Patrick sincerely wanted to visit his
children and the foster parents were not able to reschedule. She testified that she thought it was right
for the children to come home when there were no beds for them because Patrick said they could get
a bed for them. She said Baltieria would babysit for her while she works until she is able to find
daycare for them, but they had not discussed whether Kristina was to pay her for babysitting. She
explained that Baltieria worked at night, getting off at 2:00 a.m. She clarified that the budget she
and Patrick drafted reflected their present circumstances and therefore did not include expenses for
the children.
Martha Christian testified that her opinion had not changed since the last hearing, and she
still believed that termination of the parents’ rights was in the best interest of the children. She was
present for all the visits Patrick and Kristina had with their children. Sometimes Patrick was
lethargic and then very energetic. There was a lot of wrestling, rough play, and crawling around on
the floor. The children laughed and played with the parents but then got very stimulated and hit the
12
parents, climbed on the furniture, and threw things. Then the parents would issue a lot of reprimands
that the children did not respond to. In every one hour visit, the children had been placed in time out.
Rather than being nurturing visits, the visits were “wild” according to Christian. She described an
instance where the caseworker asked the parents not to let the children get in one corner she felt was
unsafe and Patrick responded by saying, “This is my visit. I’ll do it my way.” The next time they
had a visit, Patrick encouraged A.T.S. to hide in that same corner during a game of hide and seek.
Since the last hearing, Patrick and Kristina had not sought to interact more appropriately with
the children. At one visit, Patrick got very loud saying he had done everything CPS asked him to
while CPS would not cooperate with him at all. The foster parents left because they were afraid.
Christian explained that A.T.S. really liked the wrestling, but Patrick’s actions evidently frightened
him at that visit and he shied away from Patrick. She explained that she previously had a working
relationship with Patrick and Kristina, but since the last hearing they did not speak to her unless they
had to. Christian stated that she had not been to their home. She explained that A.T.S. had
improved since being in foster care, especially in the area of aggression. He was much calmer and
she felt the rough play was “the kind of behavior that [he had] overcome.” Christian described
M.D.S. as very calm by nature and very amenable. She said that, at their visit the day before the
hearing, M.D.S. put a pillow between himself and Kristina, acted very shy, and asked for his brother.
The Department rested. Patrick took the stand and described his visits with his children,
saying they play and roughhouse. But he said Christian’s description of the excessiveness and
displeasure was not accurate. He said the play never got out of hand, although they wrestled and
A.T.S. might punch his mother. Patrick would tell A.T.S. not to play as rough with his mother as
he did with him. He testified that was the extent of the kind of reprimand he gave his son. He said
A.T.S. loved playing hide and seek, and he denied there was anything dangerous about the corner
of the room that he was warned about. He explained that he had discussed child care with Baltieria,
and she would watch the boys while he and Kristina work. However, he felt that a mother’s place
is at home with the children and did not expect her to have to work. He plans to “get it so she won’t
have to.” He explained that the children’s things were in storage, and he believed the crib was at his
uncle’s house.
Counsel asked the court to take judicial notice of Baltieria’s and Burkhart’s testimony at the
13
previous hearing. All parties closed. The trial court found that it was in the best interest of the
children to terminate the parent child relationship.
The trial court’s final order of termination of parental rights, signed by the trial court on
May 9, 2007, recited that the court heard evidence on January 22, 2007 and April 27, 2007 and
incorporated the court’s findings of fact pronounced on January 22. The court also found by clear
and convincing evidence that termination of the parent-child relationship between Kristina and the
children who are the subject of this suit, and between Patrick and the children who are the subject
of this suit, was in the children’s best interest.
TERMINATION OF PARENTAL RIGHTS
In their first issue, Kristina and Patrick contend the evidence is legally and factually
insufficient to support the termination order. Specifically, they assert the evidence is insufficient to
show that termination is in the best interest of the children. Additionally, within that issue, they
complain that the trial court erred by refusing to make their requested findings of fact and
conclusions of law. They also contest certain findings of fact, including the following findings that
are also set out in the court’s order: that they knowingly placed or knowingly allowed the children
to remain in conditions and surroundings that endangered the physical and emotional well being of
the children, that they engaged in conduct or knowingly placed the children with persons who
engaged in conduct that endangered the physical and emotional well being of the children, and that
they failed to comply with the provisions of a court order that established the actions necessary for
them to obtain the return of the children. Additionally, they contest the conclusion of law that the
Department should be appointed managing conservator of the children.
Standard of Review
In reviewing the legal sufficiency of the evidence to support termination findings, an
appellate court should look at all the evidence in the light most favorable to the finding to determine
whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was
true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). In order that proper deference is shown to the
fact finder’s role, an appellate court must presume that the fact finder settled disputed facts in favor
of its finding if a reasonable fact finder could do so and disregard all evidence that a reasonable fact
14
finder could have disbelieved or found incredible. Id. However, a reviewing court is not required
to ignore all evidence not supporting the finding because that might bias a clear and convincing
analysis. Id.
The appropriate standard for reviewing a factual sufficiency challenge to the termination
findings is whether the evidence is such that a fact finder could reasonably form a firm belief or
conviction about the truth of the petitioner’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
In determining whether the fact finder has met this standard, an appellate court considers all the
evidence in the record, both that in support of and contrary to the trial court’s findings. Id. at 27-29.
Further, an appellate court should consider whether disputed evidence is such that a reasonable fact
finder could not have reconciled that disputed evidence in favor of its finding. In re J.F.C., 96
S.W.3d at 266. If, in light of the entire record, the disputed evidence that a reasonable fact finder
could not have credited in favor of the finding is so significant that a fact finder could not reasonably
have formed a firm belief or conviction, then the evidence is factually insufficient. Id.
This standard retains the deference an appellate court must have for the fact finder’s role.
In re C.H., 89 S.W.3d at 26. Additionally, the trier of fact is the exclusive judge of the credibility
of the witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d
575, 580 (Tex. App.–Houston [1st Dist.] 1997, pet. denied). Thus, our review must not be so
rigorous that only fact findings established beyond a reasonable doubt could withstand review. In
re C.H., 89 S.W.3d at 26.
Applicable Law
Involuntary termination of parental rights embodies fundamental constitutional rights.
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). A termination decree is “complete, final,
irrevocable [and] divests for all time the parent and child of all legal rights, privileges, duties, and
powers with respect to each other except for the child’s right to inherit.” Wiley v. Spratlan, 543
S.W.2d 349, 352 (Tex. 1976). Because a termination action “permanently sunders” the bonds
between a parent and child, the proceedings must be strictly scrutinized. Id. However, parental
rights are not absolute, and it is vital that the emotional and physical interests of the child not be
sacrificed at the expense of preserving that right. In re C.H., 89 S.W.3d at 26.
Section 161.001 of the Texas Family Code permits a court to order termination of parental
15
rights if two elements are established. TEX . FAM . CODE ANN . § 161.001 (Vernon Supp. 2007). First,
the parent must have engaged in any one of the acts or omissions itemized in the first subsection of
the statute. TEX . FAM . CODE ANN . § 161.001(1); Green v. Tex. Dep’t of Protective & Regulatory
Servs., 25 S.W.3d 213, 219 (Tex. App.–El Paso 2000, no pet.). Second, termination must be in the
best interest of the child. TEX . FAM . CODE ANN . § 161.001(2); Green, 25 S.W.3d at 219-20. In
determining the best interest of the child, a number of factors have been considered, including (1)
the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3)
the emotional and physical danger to the child now and in the future; (4) the parental abilities of the
individuals seeking custody; (5) the programs available to assist these individuals; (6) the plans for
the child by these individuals; (7) the stability of the home; (8) the acts or omissions of the parent
that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for
the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This
list is not exhaustive, but simply indicates considerations that have been or could be pertinent. Id.
Additionally, both elements of Section 161.001 must be established by clear and convincing
evidence, and proof of one element does not alleviate the petitioner’s burden of proving the other.
TEX . FAM . CODE ANN . § 161.001; Wiley, 543 S.W.2d at 351. Clear and convincing evidence means
“the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established.” TEX . FAM . CODE ANN .
§ 101.007 (Vernon 2002). There is a strong presumption that the best interest of the child is served
by preserving the parent-child relationship. Wiley, 543 S.W.2d at 352. Thus, the burden of proof
is upon the person seeking to deprive the parents of their parental rights. Herrera v. Herrera, 409
S.W.2d 395, 396 (Tex. 1966).
Analysis
In both its January 30 and May 9 orders, the trial court found that Kristina and Patrick
engaged in three of the acts or omissions itemized in Section 161.001(1). The court found that they
knowingly placed or allowed the children to remain in conditions and surroundings that endangered
the physical and emotional well being of the children, engaged in conduct or knowingly placed the
children with persons who engaged in conduct that endangered the physical and emotional well
being of the children, and failed to comply with the provisions of a court order that established the
16
actions necessary to obtain the return of the children while the children had been in the temporary
managing conservatorship of the Department for not less than nine months. See TEX . FAM . CODE
ANN . § 161.001(1) (D), (E), (O). Kristina and Patrick complain of these findings as well as the trial
court’s appointment of the Department as managing conservator of their children. However, we are
unable to review these complaints.
Subchapter E of Chapter 263 of the Texas Family Code governs final orders in
conservatorship and termination proceedings in cases involving children under the Department’s
care. In re A.J.K., 116 S.W.3d 165, 169-70 (Tex. App.–Houston [14th Dist.] 2003, no pet.). The
Texas Family Code requires an appellant seeking review of a subchapter E final order to file with
the trial court, no later than fifteen days after the final order is signed, a statement of points on which
the appellant intends to appeal. Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 9, 2001 Tex. Gen.
Laws 2395, 2397-98 (current version at TEX . FAM . CODE ANN . § 263.405(b) (Vernon Supp. 2007)).
Section 263.405 was enacted in 2001 to reduce postjudgment delays and screen out frivolous
appeals. See In re R.J.S., 219 S.W.3d 623, 625 (Tex. App.–Dallas 2007, pet. denied). An appellate
court may not consider any issue that was not specifically presented to the trial court in a timely filed
statement of points. TEX . FAM . CODE ANN . § 263.405(i) (Vernon Supp. 2007).
Kristina and Patrick did not include in their statement of points or their motion for new trial
complaints about the trial court’s determination that they engaged in Section 161.001(1) acts or
omissions or the trial court’s appointment of the Department as permanent managing conservator
of the children. Accordingly, we cannot consider these contentions. See id.; In re R.J.S., 219
S.W.3d at 625-26.
Kristina and Patrick complain that the trial court erred in refusing their request for additional
findings of fact and conclusions of law. They do not elaborate on how it was error. Where an
appellant complains on appeal that the trial court refused to make additional findings, but fails to
apprise the appellate court of the significance of such findings and how they relate to some ultimate
issue on appeal, the issue is waived. Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 256
n.9 (Tex. App.–Houston [14th Dist.] 1999, pet. denied). However, because we are instructed to
strictly scrutinize termination proceedings, we will consider the merits. See Wiley, 543 S.W.2d at
352.
17
Patrick and Kristina requested the trial court to make the additional finding of fact that, at
the conclusion of the January 22 hearing, “the Court did not find sufficient evidence by clear and
convincing evidence that termination” of their parental rights was in the best interest of the children.
They also requested the trial court to state the additional conclusion of law that, at the conclusion
of the January 22 hearing, “the Court did not order and decree that termination” of their parental
rights was in the best interest of the children. In response, the trial court filed its additional findings
of fact and conclusions of law, which we set out here in their entirety: “At the conclusion of the
evidence on January 22, 2007, the Court, at the request of the Attorney Ad Litem for the children,
adjourned the trial, and deferred its finding as to the best interest of the children, to a later date,
April 27, 2007.” Further, the trial court had found, in its findings of fact filed June 11, 2007, that
on January 22, 2007, “a trial for termination of parental rights was heard” and the court found that
the issue of best interest would be deferred until April 27, 2007. The trial court has no duty to make
additional findings that are unnecessary to its judgment. Vickery, 5 S.W.3d at 254. It would be an
unnecessary duplication for the trial court to also include in its findings a statement that it did not
find sufficient evidence that termination was in the best interest of the children or include in its
conclusions a statement that it did not decree that termination was in the best interest of the children.
We now consider whether the evidence is legally sufficient to support the trial court’s finding
that termination is in the children’s best interest. The record shows that when the children were in
their parents’ care, they were found in an unsanitary apartment that did not have electricity or even
a usable baby crib. The children themselves were dirty. A.T.S. was developmentally delayed,
malnourished, had eight cavities, and was under the influence of cocaine.
More than a year before the termination, the court ordered each of the parents to pay $200.00
each month in child support. The record shows that neither parent paid any child support during the
pendency of this case. Nearly a year after the children were taken away, after what was described
as a transient lifestyle during which they did not always live together, Patrick and Kristina moved
into a home they consider stable and set up a budget to meet their current needs. However, their
work history is spotty and both spoke of changing jobs again. Moreover, they were not aware of how
much would be needed for the children’s expenses, and their budget did not include expenses for the
children. The trial court could have concluded that Patrick and Kristina cannot meet the physical
18
needs of the children, did not adequately plan for the children, and cannot provide a stable home.
Although the family service plan’s requirements were meant to provide the parents with the
education and skills they needed in order to be good parents, Kristina and Patrick both failed to
comply with the plan in many respects. Kristina and Patrick did not participate in face to face home
visits with the caseworker, did not attend parenting classes specified in the plan, did not utilize
agencies such as WIC and Medicaid to obtain community assistance for the well being of the
children, and did not participate in classes for intense child development, nutrition, and age
appropriate stimulation. Fifteen months after the children were removed from their home, Patrick
and Kristina still lacked parenting skills. Their supervised visits with the children involved rough
play and reprimands rather than nurturing. They did not have beds, clothing, or other items ready
for the children’s use. Other than relying on Baltieria, who already had a job working until 2:00
a.m., they had no firm plans for childcare. Therefore, the trial court could have concluded that
Kristina and Patrick did not have the necessary abilities to be parents.
Moreover, there was no bond between Kristina and the children. A.T.S. was afraid of Patrick
and M.D.S. did not remember Patrick. On the other hand, the children were doing well in foster
care. M.D.S.’s foster mother wanted to adopt him. A.T.S. had improved in many ways while in
foster care. For instance, he had become calmer and less aggressive since he began living away from
his parents. Thus, the trial court could conclude that Kristina and Patrick were unable to meet the
emotional needs of the children.
The evidence relating to the pertinent Holley factors, together with the parents’ history of
drug use and relatively short amount of time being drug free, is some evidence on which the trial
court could have based a firm belief or conviction that termination would be in the children’s best
interest. Thus, the evidence is legally sufficient to support the trial court’s determination that
termination is in the best interest of the children. See In re J.F.C., 96 S.W.3d at 266.
We turn now to Patrick and Kristina’s factual sufficiency challenge. Patrick and Kristina
presented evidence that they had a clean, safe home for their children, jobs, and a monthly budget
based on current income and financial responsibilities. However, the Department pointed out that
their living arrangements might not be stable because, unable to afford a place of their own, they
would be sharing a rented home with two other adults, on whom they must depend and over whom
19
they had no control. One of their roommates had previously been involved with drugs. Further,
Patrick testified that he intended to move his family to a different rent house when he was financially
able. The Department characterized their living arrangements as “transient situations” that did not
comply with the plan’s requirement that they establish appropriate housing. Additionally, while each
of them had a job, neither had a full time, permanent job with medical benefits. Neither Patrick nor
Kristina had kept a job for very long, and their hours and rate of pay varied. Further, the reason they
were in a living arrangement in which they shared a home was because they could not afford a home
of their own. Neither Patrick nor Kristina was able to identify costs associated with raising children,
and therefore those costs were not included in their monthly budget. While they had clearly made
progress, a reasonable fact finder could have seen this as evidence of instability, reconciling this
evidence in favor of its finding.
Similarly, the fact that both parents completed drug rehabilitation programs and had been
drug free when tested is commendable. However, Patrick continued to use drugs for more than ten
months after the Department took the children. According to his testimony at the final hearing, he
had been drug free for less than five months. Although they attended NA or AA meetings, they
missed about seven of the weekly meetings between the January hearing and the April hearing.
Again, the trial court could have reconciled this evidence in favor of its finding.
Both parents admitted that they had an abusive relationship but, between the January and
April hearings, they attended marriage counseling twice. While Patrick disputed Christian’s
characterization of his visits with his children, he admitted that they wrestled and A.T.S. might hit
his mother. In light of the testimony of previous violence against Kristina and angry outbursts
against employees of the Department, the trial court could have chosen not to believe Patrick’s
version of events or Kristina when she testified that Patrick did not get upset or raise his voice at
home. The trial court could have reconciled this evidence with its determination that a home
provided by Patrick and Kristina would be emotionally dangerous to the children.
The Department presented considerable evidence that Patrick and Kristina lacked parental
abilities, a stable home, and the ability to meet the physical and emotional needs of the children. The
conflicting evidence that might indicate otherwise is not so significant that a reasonable fact finder
could not have formed a firm belief or conviction that terminating Kristina and Patrick’s parental
20
rights would be in the children’s best interest. Thus, the evidence is factually sufficient to support
the trial court’s finding. See In re C.H., 89 S.W.3d at 25. Accordingly, we overrule Patrick and
Kristina’s first issue.
HEARING OF APRIL 27
In their second issue, Patrick and Kristina assert that the trial court erred because it held two
termination trials. They argue that, while Section 263.401(b)(3) of the family code permits an
extension of time to set a final hearing, the hearing of April 27 was actually a second trial that is not
contemplated by the statute. They contend that the Department was improperly given a second
opportunity to carry its burden of proof on the best interest question, which it had failed to do at the
first hearing. In their third issue, Patrick and Kristina contend the trial court erred in terminating
their parental rights because the burden of proof with respect to the January 30 order was vague in
its application and placed an unreasonable burden of proof on them. They argue that the termination
trial was on January 22, at which the Department did not meet its burden of proof, and then the
burden of proof shifted to them to return to court on April 27 and show how they had complied with
the January 30 order on the issue of best interest.
The Texas Family Code anticipates that suits in which the Department seeks termination of
the parent child relationship shall be complete within one year after a temporary order appointing
the Department as temporary managing conservator. See TEX . FAM . CODE ANN . § 263.401(a)
(Vernon Supp. 2007). Section 263.401(b) authorizes the trial court to retain the case on its docket
for an additional period not to exceed 180 days after that if the court finds that extraordinary
circumstances necessitate the child’s remaining in the temporary managing conservatorship of the
Department and that continuing the appointment of the Department as temporary managing
conservator is in the best interest of the children. Act of May 29, 2005, 79th Leg., R.S., Ch. 268,
§ 1.40, 2005 Tex. Gen. Laws 621, 636 (current version at TEX . FAM . CODE ANN . § 263.401(b)
(Vernon Supp. 2007)).
On January 18, 2007, Patrick and Kristina filed a motion for extension of time pursuant to
Section 263.401(b). They presented evidence on their motion at the January 22 hearing. The trial
court carried the motion while hearing the Department’s evidence. At the end of that hearing, the
21
trial court made findings regarding the acts and omissions itemized in Section 161.001(1) and
granted the requested extension. Thus, Patrick and Kristina were given additional time to become
fit parents. The Department did not request additional time and it was not given additional time to
prove that termination is in the children’s best interest. Patrick and Kristina misconstrue the trial
court’s actions.
Under the statutory scheme, once the Department is appointed temporary managing
conservator, the parents are required to complete specified acts and refrain from certain specified acts
before they are deemed fit to be parents. Kristina and Patrick requested an extension, and the trial
court gave them an extension pursuant to Section 263.401(b). See id. At the April 27 hearing, the
burden was still on the Department to prove that termination was in the children’s best interest. See
In re D.M.C., 168 S.W.3d 319, 322 (Tex. App.–Texarkana 2005, no pet.) (Court distinguished
between the state’s evidentiary burden and mother’s actions, as proven by the state, holding that
mother failed to demonstrate that she met her burden as a parent, to provide the required protection
and nurture the child.). One acceptable method of proving its case is to place the parents on the
witness stand and ask them questions related to their abilities to parent and their resources, and to
reveal their shortcomings and lack of resources. This is what the Department did. We overrule
Kristina and Patrick’s second and third issues.
JANUARY 30 ORDER
In their fourth issue, Kristina and Patrick contend that the trial court erred in terminating their
parental rights because the order of January 30, 2007 did not comply with the requirements of
Section 263.401(b). They argue that the January 30 order is defective and not sufficient to extend
the case because it does not expressly identify the “extraordinary circumstances” that required the
children to remain in the temporary managing conservatorship of the Department. We disagree.
Section 263.401(b) authorizes the trial court to render an extension order in which it
schedules the new dismissal date, makes further temporary orders for the safety and welfare of the
child, and sets a final hearing before the dismissal date. Act of May 29, 2005, 79th Leg., R.S., Ch.
268, § 1.40, 2005 Tex. Gen. Laws 621, 636 (amended 2007). The statute does not require the court
to explain in the order what the extraordinary circumstances are that necessitate the extension. The
22
order need not even be in writing. See In re J.L.C., 194 S.W.3d 667, 672 (Tex. App.–Fort Worth
2006, no pet.). Further, a party who requests the trial court to reset the trial date beyond the original
one year deadline has agreed to an extension under Section 263.401(b). Id. at 673. Moreover, a
party who requests relief cannot complain on appeal if that relief is granted. Id. We overrule
Kristina and Patrick’s fourth issue.
CONSTITUTIONALITY OF SECTION 263.405(i)
In their fifth issue, Kristina and Patrick assert that Texas Family Code Section 263.405(i),
in conjunction with subsection (b), is unconstitutional in its application. They contend that the
statutory restriction against appellate review of any issue not specifically presented to the trial court
in a timely statement of points violates their Fourteenth Amendment due process rights and their due
course of law rights under the Texas Constitution. As an example, they complain that the fifteen day
deadline for filing the statement of points requires them to address findings of fact and conclusions
of law that have not yet been filed. They further assert that restricting “sufficiency of evidence”
points to those that are “sufficiently specific” unfairly impedes them, arguing that if they cannot
complain of the sufficiency of the evidence, their parental rights can be terminated without judicial
review.
We must avoid constitutional decisions until the issues are presented with clarity, precision,
and certainty. See Rescue Army v. Mun. Court, 331 U.S. 549, 576, 67 S. Ct. 1409, 1423, 91 L. Ed.
1666 (1947). Thus, we cannot decide abstract, hypothetical, or contingent questions. The subject
matter jurisdiction of courts rests, in part, on the ripeness of the issues. Patterson v. Planned
Parenthood of Houston and Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998). Ripeness is one of
several categories of justiciability. See Perry v. Del Rio, 66 S.W.3d 239, 249 (Tex. 2001).
Justiciability requires a concrete injury, a requirement based on the judicial prohibition against
issuing advisory opinions. See Patterson, 971 S.W.2d at 442-43.
As explained above, the family code forbids an appellate court from considering any issue
that was not specifically presented to the trial court in a timely filed statement of points. See TEX .
FAM . CODE ANN . § 263.405(i). Kristina and Patrick timely filed their statement of points for appeal
attacking, among other things, the sufficiency of the evidence to support the trial court’s finding that
23
termination is in the children’s best interest. Because they identified the specific trial court finding
they intended to attack on appeal, their statement of points is sufficiently specific as required by
Section 263.405(i). See In re S.K.A., 236 S.W.3d 875, 899-900 (Tex. App.–Texarkana 2007, pet.
denied). Accordingly, their argument that the statute’s requirement that sufficiency issues be
sufficiently specific renders the statute unconstitutional is a hypothetical one in this case. We cannot
declare a statute invalid based on a hypothetical possibility that the law may be unreasonable. See
United States v. Coastal Ref. & Mktg., Inc., 911 F.2d 1036, 1044 (5th Cir. 1990). Likewise, their
general complaint that the statute’s restrictions against appellate review of issues not included in the
statement of points violates due process fails because it is not definite and concrete. See In re J.J.,
No. 02-06-333-CV, 2008 Tex. App. LEXIS 1714, at *1 (Tex. App.–Fort Worth Mar. 6, 2008, pet.
denied).
We turn now to their argument that Section 263.405(i) is unconstitutional because it requires
them to address findings of fact and conclusions of law in the statement of points at a time when no
findings or conclusions had been filed. In construing statutes, we ascertain and give effect to the
legislature’s intent as expressed by the language of the statute. City of Rockwall v. Hughes, 246
S.W.3d 621, 625 (Tex. 2008). We construe the statute’s words according to their plain and common
meaning, unless a contrary intention is apparent from the context. Id. at 625-26. However, we must
not construe statutes in a way that would lead to an absurd result. Utts v. Short, 81 S.W.3d 822, 832
(Tex. 2002).
The family code dictates that the statement of points for appeal is due fifteen days after the
final order of termination is signed. However, pursuant to the rules of civil procedure, the parents
had until five days after their statement of points for appeal was due to file a request for findings of
fact and conclusions of law. See TEX . R. CIV . P. 296. Once that request was filed, the court had
twenty days to file its findings of fact and conclusions of law. See TEX . R. APP . P. 297. The parents’
request for additional findings of fact and conclusions of law was due ten days after the court filed
its original findings and conclusions. See TEX . R. CIV . P. 298. Therefore, a request for additional
findings and conclusions could easily be timely under the rules of civil procedure although filed after
the date the parents’ statement of points was due. More than likely, application of these rules will
result in findings and conclusions filed after the due date for the statement of points. To apply the
24
restrictive language in Section 263.405(i) in this instance would mean that the legislature did not
intend for parents to appeal any alleged trial court error occurring after the date they filed their
statement of points for appeal. This construction of the statute leads to an absurd result. See In re
D.W., 249 S.W.3d 625, 643 (Tex. App.–Fort Worth 2008, pet. denied) (In the context of discussing
how Section 263.405(i) is void as a violation of the separation of powers provision of the Texas
Constitution, the court stated that Section 263.405(b) creates a duplicative procedural hurdle over
and above the long established procedural rules for preservation of error.). Because interpreting
Section 263.405(i) to mean that Kristina and Patrick cannot complain of alleged errors involving
findings of fact and conclusions of law filed or omitted after Section 263.405(b)’s deadline leads to
an absurd result, we conclude that Section 263.405(i) does not apply to alleged errors occurring after
the fifteen day deadline. Therefore, Section 263.405(i) is not unconstitutional on this basis. We
overrule Kristina and Patrick’s fifth issue.
CONCLUSION
The evidence is legally and factually sufficient to support the trial court’s order of
termination of Kristina’s and Patrick’s parental rights. The trial court did not hold two termination
trials or improperly shift the burden of proof. The January 30, 2007 order is not defective, and
Patrick and Kristina did not show that Texas Family Code Section 263.405(i) is unconstitutional.
We affirm the trial court’s order of termination of parental rights.
SAM GRIFFITH
Justice
Opinion delivered July 31, 2008.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
25
|
569 F.2d 384
UNITED STATES of America, Plaintiff-Appellee,v.William O'Neal RHODES and Jack Dempsey Waites, Defendants-Appellants.
No. 77-5120.
United States Court of Appeals,Fifth Circuit.
March 13, 1978.
William E. Skinner, Montgomery, Ala., (Court-appointed), for Rhodes.
Randolph P. Reaves, Montgomery, Ala., (Court-appointed), for Waites.
Barry E. Teague, U. S. Atty., D. Broward Segrest, Charles R. Niven, Asst. U. S. Attys., Montgomery, Ala., for plaintiff-appellee.
Appeals from the United States District Court for the Middle District of Alabama.
Before GODBOLD, HILL, and FAY, Circuit Judges.
JAMES C. HILL, Circuit Judge:
1
Appellants Jack Dempsey Waites and William O'Neal Rhodes appeal from the jury verdict and judgment finding each of them guilty of violating 18 U.S.C. § 2113(d). We affirm.
2
On March 8, 1976, the Chilton County Bank in Thorsby, Alabama, a bank insured by the Federal Deposit Insurance Corporation, was robbed of a sum in excess of $15,000.
3
On that day, three armed men, each wearing green jump suits and clear plastic masks with "silly grin-like expressions painted on them," entered the bank. One man carried a handgun described as a nickel or chrome plated, large caliber automatic, with etchings on it, a gold trigger and a pearl handle. This weapon was later found in the car of Defendant Rhodes' wife. The robber carrying the distinctive handgun was later identified as Robert Case.
4
The second robber, armed with a carbine, stood just inside the door of the bank while the money was being collected. In removing the currency from the cash drawer, the surveillance cameras were activated.
5
The third robber went around the other end of the teller's line where he approached Sarah Benson who told the robber where the money was located. Mrs. Benson later identified defendants Rhodes and Waites as two of the persons who robbed the bank.
6
Shortly, thereafter, the three men fled the scene in a red 1969 Mustang which had been stolen that afternoon.
7
Jerry Smith observed the robbers' exit from the bank, followed the Mustang, took down the tag number and gave it to the police. When the car was found, it was processed for fingerprints. One of the fingerprint lifts was identified as the left thumb print of Robert Case.
8
Robert Case was arrested in Atlanta, Georgia on March 11, 1976. He was found in possession of $1,339 in United States currency. The serial numbers of eight five dollar bills matched the list of bait money taken from the bank. On April 7, 1976, defendant Waites was arrested in Morrow, Georgia in the presence of Deborah Moore. On May 14, 1976, defendant Rhodes was arrested in Smyrna, Georgia in a 1975 Chrysler Cordoba, which an invoice showed was purchased with a fifteen hundred dollar cash deposit on March 9, 1976. In the trunk of the car was found the distinctive handgun referred to previously.
9
On October 6, 1976, defendants Rhodes, Waites and Robert Case were indicted in a two count indictment charging violations of 18 U.S.C. §§ 2113(a) and 2113(d). On October 29, 1976, a hearing was held on the defendants' motions for severance. The motions were denied.
10
Trial was set for November 8, 1976, but was continued due to the escape of Case and Waites from custody on November 6, 1976. Waites had been apprehended but Case remained a fugitive. Trial began on February 7, 1977. Defendants Rhodes and Waites were found guilty of Count Two of the indictment on February 9, 1977. Each was sentenced to 20 years custody.
11
At trial, five eyewitnesses to the robbery testified. These were: Gerald Atkinson, President of the Chilton County Bank; Michael Henry, a bank employee; Sarah Benson, the Vice-President and cashier of the bank; Jerry Smith, and Paul Worthy, observers outside the bank. Of these witnesses, Case was consistently identified as one of the robbers. The witnesses testified that they were, with the exception of Sarah Benson, unable positively to identify defendants Rhodes and Waites as perpetrators. Sarah Benson testified that based on their build, hair, facial structure, side profile, and complexion, Rhodes and Waites were two of the robbers.
12
Nancy Rodden, an employee of Atlanta Costume Company, testified that on March 2, 1976, she sold three clear plastic masks (like those used to disguise the robbers) to two men who handed her a hundred dollar bill to pay for the $5.95 purchase. She identified one of these men as defendant Waites. FBI agent, Robert T. Parker, testified as to the recovery of the gun from the car of Rhodes' wife and to the invoice found in the car, indicating that a fifteen hundred dollar cash deposit was paid on the car the day following the robbery. Agent Parker also testified that he arrested W. T. Ridings, now deceased, and from Ridings seized two pairs of green jump suits and the clear masks.
13
Deborah Moore, whom the Court found not to be the common law wife of defendant Waites and therefore competent to testify against him, testified that Waites had introduced her to both Case and Rhodes. She testified that she overheard Waites calling Rhodes on March 7, 1976, concerning a trip and that on March 8, Waites departed and returned that evening with stacks of money which they started spending the next day. She further testified that Waites had brought a suitcase to their trailer which contained dark jump suits, masks, and guns, including a gun with a pearl handle and gold trigger. Mrs. Moore testified that, upon his arrest, Waites instructed her to take the suitcase and its contents to W. T. Ridings.
14
Testimony was also received from an expert witness, who, by comparison of the bank surveillance film with film taken at the bank of height charts in various locations, was able to testify as to the approximate height of the robbers. Evidence was also received, showing that Case and Waites had escaped from custody pending trial.
15
After denial of their motions for acquittal, the defendants presented evidence. Defendant Rhodes relied upon the defense of an alibi. His wife, mother-in-law, and two friends of his wife testified that Rhodes was in Atlanta at the relevant times on March 8, 1976.
16
Rhodes also called Leon Johnson to the stand. He testified that he had met Rhodes in the Atlanta Penitentiary and that actually he, his brother and Case had robbed the bank. He was able to give details of the robbery. He also claimed ownership of the gun with the pearl handle and gold trigger. He testified that he had borrowed Mrs. Rhodes' car and had left the gun in it. Johnson explained that the reason for his coming forward to testify was "to get it over with" because he was serving thirty years for another bank robbery.
17
On cross-examination, Johnson admitted that he had been convicted the previous week of robbing a bank in South Carolina. At that trial, Rhodes had testified on behalf of Johnson. Furthermore, the testimony disclosed that Johnson and Rhodes had been transported together from South Carolina to Montgomery, Alabama and a Deputy Marshal testified that they had whispered together during the entire trip.
18
Defendant Waite's defense consisted in the main of attacking the identification of him by Mrs. Benson.
19
The case went to the jury who found both defendants guilty as charged in Count Two of the indictment.
I. Defendant Waites' Appeal
20
In his first enumeration of error, appellant Waites contends that the prosecution failed to disclose Brady material, thereby depriving him of a fair trial.
21
Appellant contends that he was denied a fair trial because the prosecution did not inform him, before trial, that certain eyewitnesses to the robbery were unable to identify him.
22
These witnesses testified at trial, were cross-examined by appellant, and admitted their inability to make a positive identification of the appellant. The jury was well aware of the lack of positive identification by these witnesses. Defense counsel in closing argument heavily stressed the lack of identification evidence.
23
In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), the Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith of the prosecution."
24
Recently, in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court again addressed the Brady rule and established principles which guide us in the resolution of the issue at bar.
25
In Agurs, the Court addressed the situation where defense counsel makes a request for "all Brady material," "anything exculpatory" or fails to make a request. Stressing the importance of putting the prosecution on notice of arguably exculpatory evidence, the Court stated that such a request "really gives the prosecutor no better notice than if no request is made. If there is a duty to respond to a general request of that kind, it must derive from the obviously exculpatory character of certain evidence in the hands of the prosecutor. But if the evidence is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce, that duty should equally arise even if no request is made. Whether we focus on the desirability of a precise definition of the prosecutor's duty or on the potential harm to the defendant, we conclude that there is no significant difference between cases in which there has been merely a general request for exculpatory matter and cases, like the one we must now decide, in which there has been no request at all."
26
The Court further held that unless nondisclosure deprives the defendant of a fair trial, there is no constitutional violation requiring that the verdict be set aside, and absent a constitutional violation, there is no breach of the prosecutor's constitutional duty to disclose.
27
In the instant case, defense counsel's request for "all exculpatory material," as held in Agurs, amounted to no request at all. Therefore, unless the evidence was "obviously exculpatory" or "clearly supportive of a claim of innocence," the prosecution had no duty to disclose it. We hold that the evidence was not of such a nature. It will be recalled that the perpetrators of the robbery were dressed in loose-fitting coveralls and wore masks which distorted the features of the face.
28
The eyewitnesses did not state that the defendant was not one of the robbers. Rather, they testified that they could not state whether the defendant was or was not one of the perpetrators. The inference to be drawn from this testimony was of a neutral nature. Thus, in the circumstances of this case, the evidence was not "obviously exculpatory" or "clearly supportive of innocence." There was no duty to disclose to the defendant the inability of certain eyewitnesses to positively identify him. Defendants' enumeration is meritless.
29
In his second enumeration of error, Waites contends that the trial court erred in denying his claim of the marital privilege and, thereby refusing to bar the testimony of his alleged wife, Deborah Moore.
30
During the trial, the Government announced its intention to call Deborah Moore to the witness stand. Defendant objected and asserted that under the law of Georgia, which recognizes the existence of common-law marriages, he and Ms. Moore were legally married.
31
The Court thereupon held a hearing out of the presence of the jury to determine whether the privilege applied.
32
Deborah Moore was called to the stand. She testified in pertinent part as follows:
33
Q. Did you marry Jack Waites?
34
A. No, I didn't.
35
Q. Were you his wife?
36
A. No, I wasn't. I just lived with him.
37
Q. Are you his wife today?
38
A. No, I am not.
39
Q. Are you living at this time what is your are you living at this time with another person?
40
A. Yes, I am.
41
Q. Now, when you first met Jack Waites how old were you?
42
A. Sixteen.
43
Q. All right. What name was he utilizing? What name was he using?
44
A. Ray Moore.
45
Q. What was your what is your name?
46
A. My name?
47
Q. Yes.
48
A. Deborah Moore.
49
Q. This is your given name from birth?
50
A. Yes, it is.
51
Q. All right. Did you ever claim to anyone other than private conversations with him to be his wife?
52
A. No, I didn't.
53
Q. Did you hold yourself out at the banks and stores and to the ministers and general public that you were Jack Waites' wife?A. No, I didn't.
54
Q. Did he ever hold you out to be his wife to the general public and to persons other than yourself?
55
A. No, sir.
56
On cross-examination, Ms. Moore admitted, that between her and the defendant, she had referred on occasion to the defendant as her "old man" and husband. However, she still insisted that she had just lived with Waites and did not consider herself to be married to him.
57
For the limited purpose of testifying as to their relationship, defendant Waites took the stand. He testified that he considered himself to be presently married to Ms. Moore. He introduced two books bearing notations by Ms. Moore that referred to him on one occasion as "my darling husband, Jack."
58
Georgia by statute recognizes the existence of common law marriages. The statute requires that three conditions be met before the relationship is created. These are (1) capacity of the parties to contract; (2) an actual contract to be presently married; and (3) consummation according to law. Ga.Code Ann. § 53-101.
59
The trial judge, having heard all the evidence, accepted the testimony of Ms. Moore and found that no state of common-law marriage had ever existed between them. While the undisputed evidence showed that the parties had the capacity to marry and had lived together and engaged in sexual relations, the trial judge found no actual contract to be married had been formed. He therefore ruled that the witness was competent to testify and denied the assertion by Waites of the marital privilege.
60
Whether the privilege exists is a question of fact. Unless the finding is clearly erroneous it must stand. We find that the decision of the trial court was supported by the evidence and was not clearly erroneous. United States v. Boatright, 446 F.2d 913 (5th Cir. 1972).
61
Appellant's enumeration of error is meritless.
62
In his final enumeration of error, Waites contends the trial court erred when it refused, upon request, to specially charge the jury upon the issue of identification.
63
The defendant requested the Court to charge as follows:
64
The Court charges the jury that the evidence in this case raises the question of whether the defendant was in fact the criminal actor and necessitates your resolving any conflict or uncertainity (sic) in testimony on that issue.
65
The burden of proof is on the prosecution with reference to every element of the crime charged, and this burden includes the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime charged.
66
In United States v. Banks, 485 F.2d 545 (5th Cir. 1973) this Court stated that the requested charge is a proper one to give. Today, we must decide whether the failure upon request to so charge the jury requires reversal of Waite's conviction. We hold, under the circumstances of this case, that it does not require reversal, although it would have been the better practice to have given the requested instruction.
67
It is well established that when reviewing a refusal on the part of the trial court to charge a requested instruction, we must consider the jury charge as a whole in light of the evidence presented and the arguments of counsel. United States v. Fontenot, 483 F.2d 315 (5th Cir. 1973).
68
In this case, the crucial issue was whether or not the defendants were indeed the perpetrators of the crime. It will be recalled that Sarah Benson, the bank teller, was the only witness who could positively place the defendants at the scene of the crime. All the other eyewitnesses were unable to testify positively that Rhodes and Waites were two of the disguised bank robbers.
69
The closing arguments of counsel for all parties focused upon the issue of identification. Government counsel stressed the testimony of Mrs. Benson. Defense counsel attacked her testimony, stressing the likelihood of a mistaken identification by her and the inability of the other eyewitnesses to identify the defendants.
70
The Court instructed the jury that it was its duty to determine the credibility of witnesses, and that the Government had the burden of proving each element of the crime against each defendant beyond a reasonable doubt.
71
We agree with the Ninth Circuit in United States v. Sambrano, 505 F.2d 284 (9th Cir. 1974) that implicit within the instructions given was the question of whether or not the defendants were in fact the perpetrators of the crime.
72
We think it inconceivable that the attention of the jury was not focused on the issue of the perpetrators' identification. We hold that the trial court did not abuse its discretion in refusing to give defendant's requested instruction. United States v. Sambrano, supra.
II. Defendant Rhodes' Appeal
73
In his first enumeration of error, appellant Rhodes contends that the trial court erred in failing to grant his motion for severance from the trial of Waites. Rhodes contends that, by being tried with Waites, he was prejudiced in two respects.
74
First, Rhodes contends that he was prejudiced when during the trial, Deborah Moore, the girlfriend of Waites, testified that during the period of March 5-7, 1976, she overheard Waites call Rhodes about a trip and that Waites departed early on the morning of March 8 and returned late that evening with a large amount of money.
75
Secondly, Rhodes contends he was prejudiced when evidence was introduced to show that Waites had escaped from custody while pending trial.
76
In our analysis we start with the well established principle that relief from prejudicial joinder is addressed to the sound discretion of the trial judge. United States v. Larson, 526 F.2d 256 (5th Cir. 1976). As we observed in United States v. Perez, 489 F.2d 51 (5th Cir. 1973), "Motions for severance under Rule 14 have rarely been granted and the trial court's decision has not been disturbed absent a clear showing of abuse (citations omitted). . . . To obtain a severance under Rule 14, the movants have the burden of convincing the Court that without such drastic relief they will be unable to obtain a fair trial (citation omitted). A mere showing of some prejudice has usually been insufficient, for qualitatively it must be the most compelling prejudice against which the trial court will be unable to afford protection. (citations omitted)" 489 F.2d at 65.
77
In this case, we can only conclude that the trial judge wisely used rather than abused his discretion.
78
Ms. Moore did testify to having overheard Waites discussing a trip with Rhodes and that Waites returned with a large amount of cash on the evening of March 8, 1976. However, the trial judge carefully instructed the jury not to consider this testimony as having any evidentiary value against defendant Rhodes. This was sufficient to protect Rhodes from any prejudice.
79
Likewise, while the Government was allowed to enter evidence of Waites' escape in order to show his intent, the trial judge again carefully instructed the jury to consider the escape as evidence against Waites alone. We find that these curative instructions adequately protected Rhodes' rights.
80
Thus, we hold that the trial judge did not abuse his discretion in failing to sever the trial of Waites and Rhodes. At most, appellant Rhodes has shown that he had a greater chance of being acquitted if he had been tried separately. Of course, this is not the standard in determining whether to grant or deny severance. The enumeration of error is meritless.
81
In his second enumeration of error, Rhodes contends that the government's witness, Sarah Benson, a teller at the bank, was erroneously allowed to make an in court identification of him. The appellant asserts that the trial identification was based on two previous photographic arrays which the witness was shown and that these photographic arrays were impermissibly suggestive.
82
In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court held that "convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 390 U.S. at 384, 88 S.Ct. at 971.
83
While appellant's brief points out the dangers which may result from suggestive photographic arrays, nowhere has appellant presented any evidence whatsoever to show that the procedures used by the FBI agents in this case were suggestive or created a likelihood of irreparable identification. Indeed, appellant, at the trial, had no objection when the court admitted the witness's identification of the defendant. Nevertheless, we have reviewed the transcript and have found no evidence of undue suggestion or the like. We conclude that no error appears from the identification of the defendant, much less plain error.
84
In his third enumeration, appellant contends that the prosecutor exceeded the limits of proper cross-examination by eliciting from the appellant's wife that they had first met while appellant was an inmate at the Atlanta Penitentiary. Defense counsel made no objection to the admission of the testimony. To reverse the conviction, plain error must be present.
85
We readily conclude the testimony to be harmless. A review of the transcript reveals that prior to the testimony of Mrs. Rhodes, the appellant had called Leon Johnson to the stand. Johnson testified on direct examination that he had first met the appellant in the Atlanta Penitentiary. In view of this testimony, elicited by the appellant, we perceive of no harm from the testimony that appellant's wife had also met him in prison. Appellant's enumeration is meritless.
86
In his fourth enumeration, Rhodes contends that the court erred in refusing to give his requested charge on alibi.
87
The defendant requested the following charge:
88
The Defense has introduced evidence which may tend to show that the Defendant, William O'Neal Rhodes, could not have committed the offenses charged in the indictment because he was at another place at the time the offenses were committed. This is known as an alibi. An alibi is one of the most perfect and conclusive means of establishing innocence, since the Defendant who was not present at the time of an alleged offense could not have committed it. The burden is on the Government to establish beyond a reasonable doubt that one Defendant was present at the scene of the offense at the time it was committed. Consequently, unless you are satisfied beyond a reasonable doubt that the Defendant was present, you must acquit him.
The Court instructed the jury as follows:
89
One of the defendants in this case in particular, as I understand the defense, is relying upon the defense of alibi. The evidence has tended to establish his contention that he was not present at the time when, and at the place where the alleged crime was committed, if it were committed. Now, if after a consideration of all of the evidence in the case you have and that includes the alibi, the testimony that he was somewhere else if after considering all of that evidence, including the alibi, you have a reasonable doubt as to whether or not a defendant was present at the time and place the alleged offense was committed you should acquit him. And you will always bear in mind that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence, and no assumption or inference should be gathered by you because a defendant did not present any particular evidence, if he did not and I don't pass on that.
90
Rhodes complains that the trial court's charge failed to contain a statement placing the burden on the Government to prove the presence of Rhodes at the scene of the crime. We disagree.
91
A careful reading of the charge given reveals that the charge does place the burden of proof on the Government by stating that the defendant does not have the burden of producing evidence and that if a reasonable doubt exists, the defendant should be acquitted.
92
Furthermore, we do not determine the correctness of jury charges by analysis of only an isolated fragment of a charge. Rather, we examine the charge as a whole. In this light, a reading of the entire charge reveals that immediately preceding the giving of the portion of the charge complained of, the court charged the jury on the government's burden to prove beyond a reasonable doubt every element of the crimes charged. Clearly, the jury was adequately apprised of the law on the defense of alibi. We find appellant's contention to be meritless.
93
Finally, Rhodes contends that even if the evidence is viewed in the light most favorable to the government, it is insufficient to support the conviction. Appellant's argument is premised on the contention that Mrs. Benson's identification must be suppressed because of undue suggestion giving rise to a substantial likelihood of irreparable misidentification. We have previously rejected this contention, finding no evidence to support suppression of the identification. Having so held, the evidence was clearly sufficient to support the conviction.
94
AFFIRMED.
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39 F.3d 1358
UNITED STATES of America, Plaintiff-Appellee,v.Bernard J. MORGANO, Dominick Palermo, Nicholas Guzzino,Peter Petros, Sam Nuzzo, Jr. and Samuel Glorioso,Defendants-Appellants.
Nos. 92-1828, 92-1829, 92-2069, 92-2144 and 92-2224.
United States Court of Appeals,Seventh Circuit.
Argued April 8, 1994.Decided Oct. 13, 1994.Rehearing Denied Dec. 20, 1994.
1
Andrew B. Baker, Jr., (argued), Philip P. Simon, and Michael A. Thill, Asst. U.S. Attys., Office of the U.S. Atty., Dyer, IN, for plaintiff-appellee.
2
Richard F. James, James, James & Manning, Dyer, IN, Kevin E. Milner; Ronald D. Menaker, Arnstein & Lehr, Chicago, IL, F. Allen Tew, Jr. (argued), Indianapolis, IN, Scott L. King (argued), King & Meyer, Gary, IN, Michael J. Troumouliaris, Merrillville, IN, and Daniel R. Goeglein (argued), Lyons & Truitt, Valparaiso, IN, for defendants-appellants.
3
Before CUMMINGS and RIPPLE, Circuit Judges, and TINDER, District Judge.1
4
TINDER, District Judge.
5
Six defendants were convicted by a jury of operating a racketeering enterprise, 18 U.S.C. Sec. 1962(c) (RICO), conspiring to operate a racketeering enterprise, 18 U.S.C. Sec. 1962(d), interstate travel in aid of racketeering, 18 U.S.C. Sec. 1952, illegal gambling, 18 U.S.C. Sec. 1955, and extortion, 18 U.S.C. Sec. 1951, in the United States District Court for the Northern District of Indiana. Each was subsequently sentenced to a lengthy prison term. All Defendants appeal their convictions and several challenge their sentences. Because their appeals were consolidated, numerous issues must be addressed in this opinion. Issues raised by all Defendants jointly include whether consecutive sentences for the RICO conviction and separate substantive offenses constitute double jeopardy, the applicability of the United States Sentencing Guidelines to the RICO conspiracy conviction and whether the nexus between their criminal activity and interstate commerce (as required by 18 U.S.C. Sec. 1951) was proven. Other issues, raised by individual Defendants, include Guzzino's contention that the district court improperly fined him; Petros' challenge of the district court's ruling on his claim of mental incompetency, the lack of evidence of his participatory link to the conspiracy, and the competency of his legal counsel; Glorioso's contention that the district court improperly denied him a sentence reduction for acceptance of responsibility; and Nuzzo's challenges to the computation of the offense level for his sentence.
I. Background
6
The facts of this case, though somewhat tedious and spanning a period of four years, deserve attention before proceeding to the legal issues raised by Appellants. Defendant Bernard Morgano owned and operated a restaurant in Gary, Indiana, which was used as a "count house" for an illegal lottery operated by Al Watkins and Anthony Leone.2 In addition to charging Watkins and Leone a fee for the use of his restaurant, Morgano collected from them, on behalf of the Chicago "syndicate," a "street tax" of fifteen percent of the lottery's gross receipts for protection and the right to operate the gambling enterprise. As will shortly be seen, the evidence adduced at trial indicated Morgano (or "Snooky" as he was called) became a central figure in establishing the syndicate's presence in northwestern Indiana. Defendant Peter Petros also worked for the syndicate collecting street tax from gambling operations in northwest Indiana, including the operators of tavern-based gambling machines. Some of Petros' unsavory activities included forcibly collecting $1000 a month from a restaurant owner who ran an illegal gambling business by threatening to harm the owner and his family; collecting $2500 per month from an operator of video poker machines after implying his business might be destroyed if he refused; attempting to collect protection money from two other video poker machine operators; and attempting to extort protection money from the operator of a betting house in Gary, Indiana. Overseeing Petros and Morgano's activities was a gentleman named Frank Zizzo, the coordinator of gambling operations in this region of Indiana for the Chicago syndicate.
7
Morgano, unable to carry on all the illicit activities by himself, eventually hired Anthony Leone to help collect the street tax and paid him $1000 a month for his services. Confiding in Leone, Morgano explained the money they collected was eventually turned over to the syndicate in Chicago. Some of their "taxpayers" included Steve Sfouris, who paid $1500 each week out of the receipts of an illegal dice game (known as "barbooth") operated in his restaurant; Tony Penzato, another gambling operator in the area who paid $500 a month; and Sam Nuzzo, Jr., also a Defendant in this action who paid $500 per month to protect his illegal sports and horse betting operation. To coordinate their efforts, Morgano, sometimes with Leone, travelled from northern Indiana to Illinois frequently (some twelve times in a three month period) to meet with Defendants Dominick Palermo, Nicholas Guzzino and Zizzo at a restaurant known as "The Taste of Italy" in Calumet City, Illinois. Though these meetings were conducted surreptitiously by the Defendants, they did not escape the Government's electronic surveillance and several conversations occurring at The Taste of Italy were recorded and ultimately used as evidence to convict the Defendants. After Zizzo died sometime in March, 1986, he was replaced by Morgano to coordinate gambling for the syndicate in the region. Palermo, with whom Morgano met on a number of occasions at The Taste of Italy, was Morgano's boss and the person to whom Morgano delivered the street tax he collected. To protect this operation from law enforcement interference, Morgano bribed a local sheriff and two other police officers for an extended period of time. Guzzino assisted Morgano's efforts to collect street tax, in effect serving as Morgano's second-in-command. Once in April, 1986, when Morgano was hospitalized due to a heart attack, Guzzino directed Morgano's cohort Leone to handle collections while Morgano was out of commission, going so far as to inform those who paid money to Morgano that Leone would be collecting in Morgano's place for a short time. Any money collected by Leone was delivered to Morgano's home.
8
Sam Glorioso was another lieutenant in this operation who, among other things, collected money from the owner of a Greek coffee house (John Mantis) in Hammond, Indiana, who used his business to operate an illegal poker game. Unable to get along with Glorioso, at some point John asked Morgano for someone else to collect his protection money. Morgano sent Leone with Glorioso to inform John that Leone would take over collections from that time forward. Following this meeting John paid Leone at least once, if not on several occasions. Meanwhile, Morgano, who started his own poker game with Defendant Sam Nuzzo, Jr., arranged to have a "dirty" Gary police officer (who, in actuality, was an undercover Federal Bureau of Investigation (FBI) agent posing as a cop on the take) protect their game and raid competing gambling establishments. Morgano planned to have Glorioso visit the establishments following each raid to arrange protection payments--offering to prevent police interference in exchange for money. One owner who was raided but steadfastly refused to pay, Franklin Burton, found the windows in the front door of his business shot out by Morgano and Leone in an attempt to coerce him into paying the street tax. Immediately following this incident Burton received telephone calls threatening his family with injury unless he paid the protection money. Instead of succumbing to the pressure, Burton approached the FBI and agreed to record his conversations with the Defendants. During one of these dialogues, Glorioso related to Burton that the syndicate had, on a past occasion, broken somebody's legs for failing to pay a $300 debt--implying, of course, that the same fate would befall him if he refused to pay. After confirming with Nuzzo Glorioso's connection to the syndicate, Burton eventually agreed to pay Glorioso about $500 per month.
9
Several "bookies" in St. Joseph County were also the victims of the syndicate's extortion. Morgano had Leone and Petros collect protection money from several operators of illegal football betting games in that area. These bookies, Edward Strawmier, Donald Pytel, and Jeffrey Dunk, were extorted by the syndicate from the fall of 1986 until sometime in November, 1987, making payments amounting to some $1100 during each month of both the 1986 and 1987 football season. Leone and Petros were delegated other duties by Morgano, such as extorting money from Louis Gerodemos, the operator of gambling parties at his restaurant in Lake of the Four Seasons, Indiana. Morgano, accompanied usually by Leone, met with Gerodemos on a number of occasions in an attempt to convince him to pay street tax. These meetings were largely unsuccessful until Morgano was accompanied by his boss, Guzzino, whom Gerodemos feared because he knew Guzzino was allied with the syndicate and failure to pay might result in harm to him or his family. During one of these meetings, Guzzino explained to Gerodemos that Morgano was the coordinator of all gambling activity in Indiana. After this, Gerodemos eventually arranged to pay $1000 per month for protection.
10
Not only did Nuzzo assist in the extortion activities, he and his family also operated a betting operation. Bets were placed with Nuzzo's sisters, Sandra Mynes and Jennifer Kaufman, and bettors would settle their accounts with Ned Pujo (who owned the Beer Barrel Tavern), Nuzzo, Sam Nuzzo, Sr. (Nuzzo's father), or Arthur Nuzzo (Nuzzo's brother). The Nuzzo family also distributed football "parlay" cards for betting. The operation suffered a slight set-back in November, 1987, when the FBI raided this and other gambling establishments, seizing money, records, betting stubs and packets of parlay cards. Despite this raid, the Nuzzo betting operation continued after some encouragement from Morgano--he was under pressure from Chicago to generate more revenue and therefore needed more gambling activities in the region. One patron of the Nuzzo betting operation was Robert Graczyk who, after some unsuccessful betting, found himself $20,000 in debt to Nuzzo. To nudge Graczyk into paying his debt, two individuals named "Bob" and "Bingo" visited him on behalf of Nuzzo, physically attacking him and threatening his family with violence if he failed to pay. Eventually, Graczyk settled his debt.
11
On January 11, 1991, following a lengthy investigation, a federal grand jury returned a thirty count superseding indictment against the Defendants. The indictment charged each defendant, in Count 1, with conducting the affairs of an illegal gambling enterprise through a pattern of racketeering activity in violation of the Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. Sec. 1962(c); to substantiate this charge the government alleged the Defendants engaged in fifty-seven predicate acts of criminal conduct. The second count of the indictment charged each defendant with engaging in a racketeering conspiracy contrary to 18 U.S.C. Sec. 1962(d). Count 3 charged Morgano, Palermo and Guzzino with conducting an illegal gambling business (a "barbooth" game) from January, 1983 to June, 1987, in violation of 18 U.S.C. Sec. 1955. A similar illegal gambling charge was raised in Count 4 against Morgano, Palermo, Guzzino and Nuzzo for their operation of an illegal sport gambling business. Morgano was charged with three counts of extortion (Counts 5-7) and nine counts of interstate travel in aid of racketeering (Counts 21-24 and 26-30), the former in violation of 18 U.S.C. Sec. 1951 and the latter contrary to 18 U.S.C. Sec. 1952. Palermo (Counts 22, 24 and 26-27) and Guzzino (Counts 21-30) were also charged with interstate travel in aid of racketeering. Guzzino (Count 7), Petros (Counts 9-12), and Nuzzo (Counts 8 and 20) were also charged with extortion in violation of 18 U.S.C. Sec. 1951. Each defendant pled not guilty to all counts. Following a lengthy trial, a jury found all the defendants guilty on all counts, except Guzzino who escaped a guilty verdict on Count 25 of the indictment charging him with interstate travel in aid of racketeering. Sentencing soon followed, with each Defendant receiving multiple terms of imprisonment and, in Guzzino's case, a hefty fine.
II. Double Jeopardy
12
Defendants collectively argue that consecutive sentences for the RICO offense charged in Count 1 and the separately charged extortion, interstate travel, and gambling violations in Counts 3 to 30 violate the Double Jeopardy Clause of the Fifth Amendment because the latter offense also served as predicate acts supporting the RICO conviction, serving to enhance the RICO sentence and as the foundation of separate consecutive sentences for the separate charges. Essentially Defendants believe they were subjected to multiple punishment for the same offense, an occurrence, which if true, would undoubtedly violate the Double Jeopardy Clause. United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076-77, 23 L.Ed.2d 656 (1969); United States ex rel. Young v. Lane, 768 F.2d 834, 837 (7th Cir.), cert. denied, 474 U.S. 951, 106 S.Ct. 317, 88 L.Ed.2d 300 (1985). Defendants were each convicted of one count of racketeering, in violation of 18 U.S.C. Sec. 1962(c). Underlying this count were fifty-seven predicate racketeering acts, some of which the jury found (by separate interrogatory) each Defendant committed and others of which the district court found to have occurred by a preponderance of the evidence for sentencing purposes. Because the court found that at least one of these predicate (No. 57) acts occurred after November 1, 1987, it employed the United States Sentencing Guidelines to calculate Defendants' RICO sentences. Although the Guidelines dictated a base offense level of nineteen for racketeering, U.S.S.G. Sec. 2E1.1(a), the predicate racketeering acts were considered "pseudo-counts" of the indictment and, pursuant to Sec. 3D1.1 of the Guidelines, the district court grouped together these acts into separate offense groups and increased each Defendants' sentence by five levels pursuant to Guidelines Sec. 3D1.4. See U.S.S.G. Sec. 2E1.1 cmt., n. 1. All this is quite appropriate, admit the Defendants, if not for the fact they were also convicted of several substantive criminal acts and sentenced on those acts under pre-Guidelines law because they occurred prior to November 1, 1987. Those acts happen to correspond identically with at least some of the predicate acts relied upon to enhance the RICO sentences.3 Thus, Defendants' acts of extortion, interstate travel, and gambling served two purposes. First, they enhanced the RICO sentence; second, they produced separate, consecutive sentences for illegal gambling, extortion, and interstate travel in aid of racketeering. To generalize somewhat, Defendants characterize the crimes of illegal extortion, gambling, and interstate travel as the specific "offenses" for which they were punished twice: Once when sentenced for committing those crimes, and again when these same criminal acts were employed to determine the consecutive, not concurrent (as will become evident, the distinction is important), RICO sentences.
13
Although the Sentencing Guidelines express a preference for concurrent sentences unless consecutive sentences are necessary to achieve the applicable Guideline range, U.S.S.G. Sec. 5G1.2(c)-(d), undoubtedly a sentencing court enjoys broad discretion in deciding whether Guidelines and pre-Guidelines sentences will run concurrently or consecutively. United States v. Ewings, 936 F.2d 903, 910 (7th Cir.1991); United States v. Watford, 894 F.2d 665, 669 (4th Cir.1990). But acknowledging a court has discretion to freely choose among competing alternatives simply means it may freely choose among the set of allowable alternatives. This, of course, begs the question regarding the scope of the set of permissible alternatives, a set whose content is constrained often-times by statute, the Sentencing Guidelines themselves or, as Defendants argue in this case, by a constitutional provision such as the Double Jeopardy Clause. Thus the predicate inquiry is whether the Defendants' sentences exposed them to double jeopardy--a question, contrary to the Government's belief, not answered by this court's decision in Ewings. Ewings simply affirmed the district court's exercise of discretion under the Sentencing Guidelines but did not discuss the implications of the Double Jeopardy Clause on consecutive Guidelines and non-Guidelines sentences based on identical conduct. See Ewings, 936 F.2d at 910.
14
Although multiple punishment is proscribed by the Double Jeopardy Clause, the proscription is a limited one in the context of a challenge to sentencing procedures, providing no more protection than to prevent a sentencing court from punishing a defendant more than Congress intended. Garrett v. United States, 471 U.S. 773, 793, 105 S.Ct. 2407, 2418-19, 85 L.Ed.2d 764 (1985); United States v. McKinney, 919 F.2d 405, 417 (7th Cir.1990). The sole question is whether Congress, in making the predicate RICO acts relevant to sentence determination via the Sentencing Guidelines, intended to allow defendants to receive consecutive sentences for both the predicate acts and the RICO offense. If the same conduct violates more than one criminal statute, that question is answered by employing a tool of statutory interpretation commonly referred to as the "Blockburger " rule, after the seminal case of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to discern if Congress meant for RICO and the predicate acts to be different, not the same, offense and therefore allow conviction and cumulative punishment for each. Garrett, 471 U.S. at 778, 105 S.Ct. at 2411. Relying on the Blockburger form of analysis, this court has, on at least two previous occasions, held that a RICO violation is not the "same offense" as the predicate acts used to substantiate that violation for purposes of the multiple prosecution prong of the Double Jeopardy Clause. United States v. Cyprian, 23 F.3d 1189, 1198 (7th Cir.1994); United States v. O'Connor, 953 F.2d 338, 344 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 1979, 118 L.Ed.2d 578 (1992). The Government can, without running afoul of double jeopardy, prosecute and secure convictions for both racketeering and the predicate illegal acts alleged to be the "racketeering activity" required under Sec. 1962(c) to secure the RICO conviction.
15
Defendants do not, however, contend they were impermissibly prosecuted for both RICO and the predicate acts as substantive offenses; instead, grounding their argument in the multiple punishment prong of double jeopardy, they assert they suffered double jeopardy upon receiving consecutive sentences for the RICO conviction and the substantive crimes convictions because each sentence was based on the same conduct. Perhaps the simple answer to this problem is, given that RICO and the predicate acts are not the same offense, Defendants clearly were never punished twice for the same crime: Defendants were punished once for racketeering and once (but separately) for extortion, gambling, and interstate travel. It just so happens the Sentencing Guidelines consider the predicate racketeering acts (i.e. extortion, gambling, and interstate travel) relevant to computing the appropriate sentence for racketeering. See U.S.S.G. Sec. 2E1.1(a). Though the commission of these acts increased the racketeering sentence, the Defendants were punished for racketeering--the predicate acts were merely conduct relevant to the RICO sentence. Accepting Defendants' argument would essentially invalidate the whole host of sentencing processes which rely, in some fashion, on previously or concurrently prosecuted and punished conduct, including the use of prior criminal conduct to enhance sentences through the criminal history category concept of the Sentencing Guidelines, see U.S.S.G. Sec. 4A1.1, as well as the currently popular recidivist statutes. See United States v. Duarte, 28 F.3d 47, 48 (7th Cir.1994). As the Duarte court noted in rejecting a double jeopardy challenge to the use of a prior criminal conviction to enhance the sentence for a current conviction, the "basic mistake was to confuse prosecution or conviction, on the one hand, with using evidence of one crime in determining the punishment of another. [Defendant] could not be prosecuted more than once for the same offense, but he could be prosecuted for the offense and punished more severely for another offense because he has committed [the earlier] one." Id.
16
Use of underlying conduct to determine where, along the relevant sentencing range established by Congress, a defendant's sentence should fall is not a novel development of the Sentencing Guidelines, but rather an approach to sentencing which was ultimately quasi-codified in the Guidelines. See United States v. Pinto, 875 F.2d 143, 145 (7th Cir.1989). A sentencing court's use of a wide variety of information and history about a convicted defendant, provided it is sufficiently reliable, has been upheld against constitutional attack again and again. E.g., United States v. Masters, 978 F.2d 281, 286 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2333, 124 L.Ed.2d 245 (1993). Provided Defendants could be convicted for both RICO and predicate act offenses (which they could) and provided the sentencing court could consider the predicate acts in assessing the RICO sentence insofar as they were conduct relevant to the RICO act (which it could) no double jeopardy problem portends. Under this rationale, it seems nonsensical for Defendants to characterize their consecutive sentences as multiple punishment for the "same offense" and in violation of the Double Jeopardy Clause. The district court could, without violating double jeopardy, impose consecutive punishment on both the RICO offense and the predicate crimes--and so holds every other court of appeals to consider the question of consecutive sentences for RICO and predicate act convictions. E.g., United States v. Beale, 921 F.2d 1412, 1436-37 (11th Cir.), cert. denied sub nom. Loriga v. United States, --- U.S. ----, 112 S.Ct. 100, 116 L.Ed.2d 71 (1991); United States v. Grayson, 795 F.2d 278, 283 (3d Cir.1986), cert. denied, 481 U.S. 1018, 107 S.Ct. 1899, 95 L.Ed.2d 505 (1987); United States v. Hampton, 786 F.2d 977, 979-80 (10th Cir.1986); United States v. Truglio, 731 F.2d 1123, 1129-30 (4th Cir.), cert. denied, 469 U.S. 862, 105 S.Ct. 197, 83 L.Ed.2d 130 (1984); United States v. Sutton, 700 F.2d 1078, 1080-81 (6th Cir.1983); United States v. Greenleaf, 692 F.2d 182, 189 (1st Cir.1982), cert. denied, 460 U.S. 1069, 103 S.Ct. 1522, 75 L.Ed.2d 946 (1983); United States v. Hawkins, 658 F.2d 279, 286-88 (5th Cir.1981); United States v. Boylan, 620 F.2d 359, 361 (2d Cir.), cert. denied, 449 U.S. 833, 101 S.Ct. 103, 66 L.Ed.2d 38 (1980); United States v. Rone, 598 F.2d 564, 571-72 (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).
17
Of course, this court has openly alluded to, and other circuits have outright accepted, the possibility of a double jeopardy problem if, in sentencing a defendant for the same crime occurring both pre-Guidelines and post-Guidelines, the court imposes consecutive sentences formulated (at least in part) by considering the total amount of loss in the instance of a property crime, or total quantity of substance involved, in the case of a drug offense, flowing from the entire course of criminal conduct. See United States v. Randall, 947 F.2d 1314, 1320 (7th Cir.1991). See also United States v. Roederer, 11 F.3d 973, 976-77 (10th Cir.1993); United States v. Scarano, 975 F.2d 580, 584 (9th Cir.1992); United States v. Niven, 952 F.2d 289, 293-94 (9th Cir.1991). Contrary to these cases is United States v. Gaudet, 966 F.2d 959 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1294, 122 L.Ed.2d 685 (1993), which rejected the idea that double jeopardy in any way limits the sentencing court's discretion to impose consecutive pre- and post-Guidelines sentences based on the same conduct, though for its conclusion it mistakenly relied on a case, United States v. Parks, 924 F.2d 68 (5th Cir.1991), which failed to even consider the implications of double jeopardy on this sentencing situation. No matter really, for while cases like Roederer, Niven, and Scarano share some superficial similarities to the problem of RICO/predicate act consecutive sentences, their persuasive value is limited either by a fundamental dissimilarity to our case or suspect reasoning which seemingly ignores well-established doctrine. True, these cases all involved, or at least considered, double jeopardy limits on consecutive sentences for offenses subject to both pre- and post-Guidelines sentences. And, in calculating the Guidelines sentence the courts did rely on conduct (in the form of losses or quantity of drugs involved) which also formed the bases for the pre-Guidelines offense sentence. However, these cases ignored, in the most basic sense, the narrow import of the Double Jeopardy Clause in sentencing--to protect the defendant from receiving a sentence in excess of the statutory maximum penalty. Provided this edict is met, and provided the Sentencing Guidelines and sentencing statutes are adhered to in calculating the sentence, it makes little difference how the court arrived at its conclusion about the appropriate sentence. None of these cases inquired whether the pre-Guidelines crimes were the "same offense" as the post-Guidelines crime (which, by the way, they probably were not) nor considered if the court exceeded the statutory maximum penalty in any sentence (which it probably did not). Eschewing any doctrinal foundation in our double jeopardy jurisprudence makes these decisions less than attractive candidates for emulation. To the extent this court's decision in Randall is contrary to our holding today, it was merely dicta inasmuch as the sentencing court in that case explicitly divvied up the losses between pre- and post-Guidelines courts. Randall, 947 F.2d at 1320. Thus, we decline to propagate the reasoning and analysis contained in those decisions.
18
Although Defendants could have received up to twenty years of imprisonment for violating Sec. 1962(c), 18 U.S.C. Sec. 1963(a), none received this maximum penalty nor, of course, any penalty exceeding the maximum. The same is true for the separately charged and convicted predicate offenses of extortion, gambling and interstate travel--the Defendants' sentences for their crimes are well within the statutory range. Consonant with the circumscribed protection afforded by the Double Jeopardy Clause in sentencing matters, "calculation under the Federal Sentencing Guidelines of the proper sentence within the statutory range established by Congress ... does not constitute multiple punishment." United States v. Alvarez, 914 F.2d 915, 920 (7th Cir.1990), cert. denied, 500 U.S. 934, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991). See United States v. Saunders, 973 F.2d 1354, 1365 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1026, 122 L.Ed.2d 171 (1993) (applying Alvarez ). Coupling this with the deference bestowed on a sentencing court to consider practically any conduct, provided it fits within the Sentencing Guidelines formula and is sufficiently reliable, in arriving at an appropriate sentence for a particular crime, no double jeopardy problem arises when a sentencing court considers other charged and sentenced conduct in deriving the length of a consecutive sentence imposed for violation of a separate criminal statute. Thus, the district court did not submit the Defendants to double jeopardy by simply relying on the predicate acts in calculating the RICO sentence, despite the fact that the predicate acts served to impose separate, concurrent sentences.
III. Applicability of Guidelines
19
Next, Defendants jointly argue that the district court erred in finding, as a sentencing fact, the RICO offense continued beyond November 1, 1987. The impact of this decision concerns the applicability of the Sentencing Guidelines to that count of the indictment. Because they failed to raise this argument during sentencing, it is waived on appeal, United States v. Rivero, 993 F.2d 620, 623 (7th Cir.1993); United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991), and we review instead only for plain error, FED.R.CRIM.P. 52(b); Rivero, 993 F.2d at 623--a category of error rather elusively described as having the combined characteristics of being egregiously incorrect and highly prejudicial to the defendant's rights. Peretz v. United States, 501 U.S. 923, 952, 111 S.Ct. 2661, 2678, 115 L.Ed.2d 808 (1991). See also Blythe, 944 F.2d at 359; United States v. Walker, 9 F.3d 1245, 1249 (7th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 1863, 128 L.Ed.2d 485 (1994). Here, neither attribute accurately describes the district court's decision to apply the Sentencing Guidelines to the conspiracy conviction.
20
Any offense committed on or after the effective date of the Sentencing Guidelines (November 1, 1987) is subject to sentencing under the strictures of the Guidelines, United States v. Rossy, 953 F.2d 321, 325 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 1240, 117 L.Ed.2d 473 (1992), including conspiracies which straddle this date, United States v. Masters, 924 F.2d 1362, 1369 (7th Cir.), cert. denied, 500 U.S. 919, 111 S.Ct. 2019, 114 L.Ed.2d 105 (1991); United States v. Fazio, 914 F.2d 950, 958-59 (7th Cir.1990). While the Government alleged in Count 2 of the indictment, by incorporating the predicate acts contained in Count 1, Defendants engaged in two different predicate acts supporting the RICO conspiracy past this date (acts Nos. 30 and 57) the jury did not, in the special interrogatories, find any Defendant committed either act. At sentencing the district court (applying the less onerous "preponderance of the evidence" burden of proof, id.; United States v. Macias, 930 F.2d 567, 570 (7th Cir.1991)) exceeded the jury's determination and decided the Defendants did indeed commit these acts, concluding the RICO conspiracy extended past the effective date of the Guidelines. Because of the variance in the standard of proof guiding each fact-finder's decision, a sentencing court may find the existence of certain facts despite a jury's implicit or explicit rejection of that fact. United States v. Masters, 978 F.2d 281, 285-86 (7th Cir.1992). If the Government proved the Defendants' conspiracy continued beyond the effective date of the Guidelines by a preponderance of the evidence, the Guidelines apply, Rossy, 953 F.2d at 325; United States v. Osborne, 931 F.2d 1139, 1144 (7th Cir.1991), regardless of the jury's decision.
21
Given that the sentencing court was not foreclosed from arriving at a factual conclusion different from that of the jury, the only remaining question is whether the finding that the conspiracy extended past November 1, 1987, was plain error. Strawmier, the operator of an illegal gambling business who was being forced to pay street tax, testified, consistent with the Government's allegation in predicate act No. 30, that he made his last payment to Leone (collecting on behalf of Morgano) sometime in November, 1987. Although Leone contradicted Strawmier, testifying he ceased collection efforts after being confronted by FBI agents in October, 1987, the district court was free to choose between this competing evidence--giving credence to Strawmier but rejecting Leone's statement. That choice cannot be clearly erroneous and certainly is not plain error. Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985); United States v. Brown, 900 F.2d 1098, 1102 (7th Cir.1990). Similarly, ample evidence was offered from which the district court could conclude members of the conspiracy collected the Graczyk debt, which arose from an illegal gambling business operated through 1988, well past the beginning of November, 1987. Graczyk himself testified as to these facts, creating a sufficient evidentiary basis for the district court's finding. United States v. Cedano-Rojas, 999 F.2d 1175, 1180 (7th Cir.1993); United States v. Caicedo, 937 F.2d 1227, 1236 (7th Cir.1991).4 Thus the district court's factual finding that the conspiracy continued beyond the effective date of the Guidelines was not plain error.5
22
Glorioso, though disavowing any reliance on the Defendants' joint argument, raises a related issue. Instead of claiming the conspiracy ended before November 1, 1987, Glorioso maintains that he withdrew from the conspiracy prior to that date and thus is not subject to Guideline sentencing. Of course, if he withdrew from the conspiracy prior to the effective date of the Guidelines he is not subject to Guidelines sentencing for his participation. United States v. Price, 988 F.2d 712, 723 (7th Cir.1993). But proving one has withdrawn from a conspiracy is no easy matter, requiring the defendant to prove he both ceased participation in the conspiracy, United States v. DePriest, 6 F.3d 1201, 1206 (7th Cir.1993), and affirmatively disavowed the conspiracy's purpose, United States v. Bafia, 949 F.2d 1465, 1477 (7th Cir.1991), cert. denied sub nom. Kerridan v. United States, --- U.S. ----, 112 S.Ct. 1989, 118 L.Ed.2d 586 (1992). Glorioso contends he was involuntarily terminated from the conspiracy by Leone and Morgano sometime in June, 1987; because of this, he argues, there was neither a need nor an opportunity for him to effect a withdrawal. And besides, he argues, informing the authorities of the conspiracy's existence would have been much too dangerous to him given his cohorts' propensity for violence. Unfortunately, merely ceasing participation in a conspiracy--whether on one's own initiative or involuntarily--is never enough to withdraw from the conspiracy unless accompanied by some affirmative act, such as a confession to authorities or a clear communication to co-conspirators of abandonment of the conspiracy's goals. United States v. Pitz, 2 F.3d 723, 729 (7th Cir.1993), cert. denied sub nom. DuPont v. United States, --- U.S. ----, 114 S.Ct. 2141, 128 L.Ed.2d 869 (1994); Bafia, 949 F.2d at 1477. Even if Glorioso stopped participating in the venture in June, 1987, he was required to take affirmative action to disavow the conspiracy's purpose to effectuate a withdrawal, even if he was dismissed from the alliance by his co-conspirators. DePriest, 6 F.3d at 1206-07; Bafia, 949 F.2d at 1477; United States v. Schweihs, 971 F.2d 1302, 1323 (7th Cir.1992). Having readily admitted he took no such affirmative action, Glorioso has failed to carry his burden of demonstrating he withdrew from the conspiracy and, instead, clearly remained a member of the illegal plot until the end. He was thus subject to sentencing under the Sentencing Guidelines for his role in the conspiracy.
IV. Hobbs Act & Interstate Commerce
23
Defendants next challenge the sufficiency of the evidence to support their conviction for violating the Hobbs Act, 18 U.S.C. Sec. 1951(a). In full, Sec. 1951(a) provides:
24
Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires to do so, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.
25
18 U.S.C. Sec. 1951(a) (emphasis added). Defendants contend the evidence was insufficient to establish the required connection of their criminal conduct to interstate commerce. Because the Hobbs Act has been interpreted to reach the outer limit of the Commerce Clause, Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960), evidence indicating Defendants' conduct had a realistic probability, or "potential," of affecting interstate commerce, even if no actual effect occurred, is sufficient to support their conviction. United States v. Heidecke, 900 F.2d 1155, 1164 (7th Cir.1990); United States v. Rindone, 631 F.2d 491 (7th Cir.1980). Being essentially an attack on the sufficiency of the evidence to prove the elements of the crime, so long as sufficient evidence was presented from which any rational fact-finder could find this element of the crime satisfied, the conviction must be upheld. United States v. Campbell, 985 F.2d 341, 344 (7th Cir.1993).
26
The parties stipulated that Gerodemos' Indiana restaurant ("Mr. G's") was supplied natural gas from outside Indiana. Evidence adduced at trial, viewed in the light most favorable to the Government, United States v. Jean, 25 F.3d 588, 595 (7th Cir.1994), indicated Gerodemos and another gentleman named Arnie Bard oversaw illegal gambling at Mr. G's. Taped phone conversations between Morgano and Nuzzo were introduced, indicating Defendants attempt to extort street tax from both Bard and Gerodemos. If Gerodemos paid any portion of the tax, as the evidence suggests and rationally implies, the interstate commerce requirement of the Hobbs Act is surely satisfied under the so-called depletion of assets theory. This theory provides that "commerce is affected when an enterprise, which neither is actively engaged in interstate commerce or customarily purchases items in interstate commerce, has its assets depleted through extortion, thereby curtailing the victim's potential as a purchaser of such goods." United States v. Elders, 569 F.2d 1020, 1025 (7th Cir.1978). See also United States v. Hocking, 860 F.2d 769, 777 (7th Cir.1988) ("The fact that a business-firm victim of extortion or attempted extortion purchases supplies that are manufactured or otherwise originate from out of state ... is sufficient proof of a nexus to interstate commerce to trigger a jury finding of a Hobbs Act violation under the depletion of assets theory."), partially rev'd on other grounds, United States v. Levy, 955 F.2d 1098, 1103-04 n. 5 (7th Cir.1992). Because any money Gerodemos paid for street tax reduced the money available to purchase out-of-state natural gas, interstate commerce would be sufficiently affected to satisfy the Hobbs Act. United States v. Boulahanis, 677 F.2d 586, 590 (7th Cir.1982), cert. denied, 459 U.S. 1016, 103 S.Ct. 375, 74 L.Ed.2d 509 (1982) (interstate commerce requirement satisfied because social club paying extortion had less funds from which to purchase usual $68 per month of out-of-state coffee); United States v. Shields, 999 F.2d 1090, 1098 (7th Cir.1993) (lawyers' paying of bribes satisfied interstate commerce requirement because depleted money otherwise available to purchase law supplies from outside state); United States v. Murphy, 768 F.2d 1518, 1530-31 (7th Cir.1985), cert. denied, 475 U.S. 1012, 106 S.Ct. 1188, 89 L.Ed.2d 304 (1986) (same).
27
Defendants disagree that the evidence proved Gerodemos paid any street tax, however, and instead argue that the evidence indicated Gerodemos' partner (Arnie Bard) made all the payments. If so, say Defendants, their conduct had no effect on Gerodemos and thus neither his restaurant nor interstate commerce. We can accept Defendants' view of the evidence, which is not totally without support in the record, and still conclude that the interstate commerce requirement of the Hobbs Act was satisfied. For even if Bard rather than Gerodemos paid the street tax, the evidence clearly indicated that Guzzino, Nuzzo and Morgano attempted to collect money from Gerodemos and, on numerous occasions, threatened him if payment was not made. Attempts to obstruct, delay, or affect commerce coupled with threats, even if unsuccessful and never resulting in the illegal extraction of money, sufficiently affect commerce to satisfy the Hobbs Act. United States v. Cole, 984 F.2d 221, 223 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2983, 125 L.Ed.2d 679 (1993). See also Rindone, 631 F.2d at 494 (stating Hobbs Act "jurisdiction is satisfied by an implied, even unrealizable, threat to affect the future business operations of the victim if the extortionate demand is not met."). The mere fact Gerodemos was threatened, even if never resulting in actual payment of money to the Defendants, sufficiently affects commerce to satisfy the Hobbs Act. Because ample evidence in the record exists from which the jury could reasonably have found a threat to extort money, if not even a completed extortion, which if acted upon would deplete Gerodemos' assets, the evidence was sufficient to sustain the Hobbs Act interstate commerce element and the convictions are valid.
V. Guzzino's Fine
28
Guzzino challenges the $185,000 fine imposed upon him by the district court, arguing that the court's failure to make specific factual findings regarding the fine, and imposition of the fine in contradiction of his ability to pay, is clearly erroneous. While normally the sentencing court's factual findings are reviewed for clear error, 18 U.S.C. Sec. 3742(e), and its legal interpretation and application of the Guidelines to those facts under a "due deference" formula--meaning somewhat less stringently than de novo, id.--Guzzino utterly failed to object to the manner in which the fine was imposed or the actual imposition of the fine during sentencing and therefore has waived the issue for appeal. United States v. Strauser, 21 F.3d 194, 197 (7th Cir.1994); United States v. Lashmett, 965 F.2d 179, 185 (7th Cir.1992); United States v. Mizyed, 927 F.2d 979, 982 (7th Cir.), cert. denied, 500 U.S. 937, 111 S.Ct. 2065, 114 L.Ed.2d 470 (1991). Thus, our review of the lower court's decision is limited to deciding if the imposition of the fine was plain error, a concept described above. United States v. Rivero, 993 F.2d 620, 623 (7th Cir.1993). Because part of the fine was imposed on the Guidelines counts ($125,000) and part on the pre-Guidelines offenses ($60,000), the district court was required to inquire into two different statutory standards. For pre-Guidelines offenses, a sentencing court must consider the nine factors listed in 18 U.S.C. Sec. 3622(a) (repealed Nov. 1, 1986), United States v. Radix Labs., Inc., 963 F.2d 1034, 1043 (7th Cir.1992); post-Guidelines sentences are imposed after reviewing the items contained in 18 U.S.C. Sec. 3572(a) and U.S.S.G. Sec. 5E1.2(d).
29
Regardless which set of standards apply, before imposing a fine the sentencing court must at least consider the applicable statutory factors, United States v. Vargas, 16 F.3d 155, 159 (7th Cir.1994); United States v. Masters, 924 F.2d 1362, 1369 (7th Cir.1991), or at least the factors relevant to the particular case. United States v. Bradach, 949 F.2d 1461, 1464 (7th Cir.1991). In most instances this obligation may be satisfied if the court explicitly adopts the findings contained in the Pre-Sentence Report ("PSR"), provided those findings and the PSR sufficiently analyze each statutory factor. Id.; United States v. Levine, 5 F.3d 1100, 1109 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1224, 127 L.Ed.2d 569 (1994); United States v. Blackman, 950 F.2d 420, 426 (7th Cir.1991). Because the statutes and Guidelines only mandate the sentencing court to "consider" the relevant factors, the district court is under no obligation to enter specific findings as to each factor. The record must merely indicate the court considered the statutory factors, in general, in arriving at the fine. Radix Labs., Inc., 963 F.2d at 1043-44. In Guzzino's case, the district court did indeed explicitly adopt the findings contained in the PSR at sentencing. The PSR, in turn, discussed at length Guzzino's ability to pay the fine in terms of his financial resources, financial obligations, and the needs of his dependents for financial support. Moreover, during sentencing, the district court, noting the PSR analysis, explicitly found Guzzino able to pay the fine. This consideration and analysis is more than sufficient to support the imposition of Guzzino's fines, both under pre-Guidelines and Guidelines law, and is not error, let alone the plain error necessary to reverse the district court's decision in this instance.
VI. Petros' Claims
30
Peter Petros, individually, raises three challenges to his conviction, two of which concern the district court's denial of his motion under 18 U.S.C. Sec. 4241(a) for a mental competency hearing; the last concerns the sufficiency of the evidence to prove Petros' participatory link to the RICO conspiracy.
A. Psychiatric Examination
31
First, Petros asserts the district court erred in denying his pre-trial motion for a psychiatric examination. That motion was made on March 20, 1991, pursuant to 18 U.S.C. Sec. 4241(a), which provides that "[a]t any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant." 18 U.S.C. Sec. 4241(a). This is essentially a two-phase process, requiring the court to grant the motion for a hearing before it is obligated to actually hold the competency hearing. Shortly after Petros' motion, the district court held a hearing to inquire "if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense" exists. Id. Following the hearing, the court issued a written entry denying Petros' motion for a formal competency hearing, finding no "reasonable cause" to believe he was incompetent. Petros argues that decision was erroneous because the court failed to sufficiently consider his evidence of a history of mental incompetency.
32
Section 4241(a) prescribes the procedural formula to be used by a district court to decide if a defendant deserves a hearing to determine if he is competent to stand trial, the mental competency of a criminal defendant being a fundamental predicate to a fair trial under the Due Process Clause of Fifth Amendment. Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815 (1966); United States v. Collins, 949 F.2d 921, 924 (7th Cir.1991). The starting point in all this is the notion that a criminal defendant is presumed to be competent to stand trial and bears the burden of proving otherwise. Chichakly v. United States, 926 F.2d 624, 633 (7th Cir.1991). Though the decision not to order a Sec. 4241(a) hearing is an exercise of the district court's discretion, reviewed only for an abuse of that discretion, United States v. Goines, 988 F.2d 750, 782 (7th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 241, 126 L.Ed.2d 195 (1993), "the failure to grant such a hearing in the face of sufficient evidence to establish reasonable cause to believe that a defendant is mentally incompetent is a violation of due process" in and of itself, United States v. Garrett, 903 F.2d 1105, 1116 (7th Cir.), cert. denied, 498 U.S. 905, 111 S.Ct. 272, 112 L.Ed.2d 227 (1990). The district court's factual findings regarding competency are disturbed only if clearly erroneous. United States v. Bennett, 908 F.2d 189, 195 (7th Cir.), cert. denied, 498 U.S. 991, 111 S.Ct. 534, 112 L.Ed.2d 544 (1990). The exact quantum of evidence necessary to establish "reasonable cause" is difficult to describe with any certitude, though the reasonableness aspect of the inquiry clearly places the focus on the facts viewed objectively (what a reasonable person would think of the facts) rather than analyzing the subjective propriety of the district court's decision. Collins, 949 F.2d at 924; Chichakly, 926 F.2d at 633.
33
The sole evidence offered by Petros to sustain his claim of incompetency was his own testimony, in both the form of an affidavit and responses to the court's questioning during the hearing on the Sec. 4241(a) motion, and averments of his attorney in response to the court's questioning. While this evidence did indeed indicate a history of mental difficulties, including Petros' discharge from the military for mental illness in 1952, a period of institutionalization in 1975, and determinations by the Social Security Administration that he was disabled due to mental illness in both 1978 and again as recently as 1990, the district court properly focused its inquiry to Petros' mental state at the time of the hearing, yet still considered the evidentiary import of his history of mental illness. Garrett, 903 F.2d at 1117 ("[P]rior psychiatric commitments are not necessarily dispositive of whether 'the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent....' "). Upon questioning by the court, Petros' counsel acknowledged his belief that Petros understood the nature of the criminal charges against him and that Petros had been helpful and more cooperative than the average criminal defendant in assisting in preparation for trial.6 An averment such as this by a supposedly incompetent defendant's attorney at most wholly negates the requisite finding under Sec. 4241(a) that the defendant be "unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense," id., and at least casts grave doubt on the defendant's incompetency. Who but the defendant's attorney knows best if the accused is able to assist in his own defense?
34
Perhaps unsatisfied with the statements of Petros' attorney and the affidavit offered by Petros, the district court decided to question Petros (after securing his attorney's permission) at the hearing. Under oath, Petros admitted he understood the nature of the charges and proceedings pending against him yet baldly and self-servingly asserted he did not know the difference between right and wrong.7 This latter revelation is, however, quite irrelevant to the inquiry mandated by Sec. 4241(a), which focuses on whether the defendant "is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." 18 U.S.C. Sec. 4241(a). Even adding Petros' testimony to the hesitance expressed by his attorney regarding whether Petros truly understood the proceedings, it was not an abuse of the district court's discretion to conclude reasonable cause to question Petros' competency did not exist. Cumulatively, the evidence, including the testimony and statements offered by Petros and his attorney, as well as the observations made by the district court of Petros' demeanor when testifying, supports the court's decision that no reasonable cause existed to believe Petros did not understand the charges against him or was unable to assist in his defense.
B. Ineffective Assistance of Counsel
35
The reason he lost his request for a hearing under Sec. 4241(a), argues Petros, is the incompetency of his attorney. Based on that belief, Petros asserts (for the first time on appeal) that his trial counsel so incompetently handled the Sec. 4241(a) motion as to deny him his Sixth Amendment right to counsel. Because the district court has the opportunity to observe an attorney's conduct and serves as the best forum in which to develop a factual record relevant to an ineffective assistance claim, these claims are ordinarily best brought first in the district court, either as a motion for a new trial or in a collateral proceeding following conviction. United States v. Levine, 5 F.3d 1100, 1108 (7th Cir.1993); United States v. Mojica, 984 F.2d 1426, 1452 (7th Cir.), cert. denied sub nom. Castaneda v. United States, --- U.S. ----, 113 S.Ct. 2433, 124 L.Ed.2d 653 (1993). If a sufficient evidentiary record of the perceived incompetent conduct already exists, and the defendant is willing to rest his claim on that record rather than take the opportunity to present evidence to the trial court, the court of appeals need not defer to the lower court and refuse to entertain the ineffective assistance claim because the appellate court then stands in as good a position as the trial court to resolve the issue. See Mojica, 984 F.2d at 1452; United States v. Asubonteng, 895 F.2d 424, 428 (7th Cir.), cert. denied sub nom. Rivers v. United States, 494 U.S. 1089, 110 S.Ct. 1830, 108 L.Ed.2d 959 (1990). So while it may seem the defendant confronts the dilemma of either raising the ineffectiveness claim on direct appeal, and thereby relying solely on the trial record, or bringing the claim in the trial court with the concomitant possibly beneficial ability to present additional evidence supporting the ineffectiveness of the trial counsel, United States v. Taglia, 922 F.2d 413, 417-18 (7th Cir.), cert. denied sub nom. McDonnell v. United States, 500 U.S. 927, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991), many of this court's decisions have refused to even review, let alone reject, a defendant's claim of ineffective assistance of counsel if first raised on direct appeal and the court of appeals perceives the trial record as being inadequate to decide the issue. E.g., United States v. Marshall, 985 F.2d 901, 906 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993); Mojica, 984 F.2d at 1452; United States v. D'Iguillont, 979 F.2d 612, 614-15 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1873, 123 L.Ed.2d 492 (1993). This is so despite the defendant's presumably voluntary decision to immediately charge forward with the claim on direct appeal. Given that Petros bears the burden of proving his trial counsel was ineffective, the absence of an adequate record from which to gauge the competence of the attorney could simply result in a denial of the argument for failure of the Defendant to carry his burden of proof. This, however, is not the procedure in this circuit and rightly ought not be--courts need not resolve every issue before them if either the timing or materials presented may result in an improvident decision. In this vein, Petros' ineffective assistance claim simply cannot be decided on the record as it currently stands. To eventually succeed on this argument, Petros must demonstrate both that his trial counsel's performance was seriously deficient and that this deficient performance prejudiced his defense and ultimately deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To satisfy the deficiency prong, Petros notes his attorney's failure to present witnesses, records or other evidence of Petros' past mental history and institutionalization at the Sec. 4241 hearing as proof of Petros' present diminished mental capacity to stand trial. Because the affidavit and testimony of Petros' counsel offered during the hearing in the district court clearly shows the attorney was aware of Petros' psychological past, but did not present evidence of this past, this case is slightly different than Balfour v. Haws, 892 F.2d 556 (7th Cir.1989) or United States v. Hubbard, 929 F.2d 307 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 206, 116 L.Ed.2d 165 (1991), cases in which a defense attorney wholly failed to pursue evident clues of possible defenses or mental defect. Instead the inquiry is whether the conduct of Petros' attorney was objectively reasonable, knowing what he knew about Petros' past, in deciding not to present additional evidence of Petros' mental health history. United States v. Booker, 981 F.2d 289, 292 (7th Cir.1992) ("[T]he defendant must prove that his counsel's performance was below an objective standard of reasonableness."); United States v. Williams, 934 F.2d 847, 851 (7th Cir.1991) (same). But we only know what the attorney did not do (i.e. present that evidence), not why he did not do so--and the why is more important than the what in this circumstance. See United States v. Johnson-Wilder, 29 F.3d 1100, 1104 (7th Cir.1994) (choosing to raise ineffective assistance initially on appeal "is nearly always the wrong one for an appellant because typically the trial record will be silent about the reasons for actions taken by trial counsel."); Mojica, 984 F.2d at 1452 ("Because [defendant's] allegations, which primarily concern litigation strategy, depend upon evidence outside the record, we decline to rule on this issue."); D'Iguillont, 979 F.2d at 614-15 (refusing to resolve ineffective assistance claim on direct appeal when issue turned on reason for attorney's conduct and no evidence on that point existed in the record).
36
Even if we were to agree that Petros' attorney should have presented additional evidence (which we do not at this point), no one really knows what this evidence would have shown or proved. Petros merely asserts, in a conclusory fashion, that the evidence would have provided grounds for the district court to find reasonable cause to believe he was indeed incompetent to stand trial. Something more, in the form of a detailed explanation of the contents and value of the additional evidence, must be offered before a court can conclude the attorney's failure to offer the evidence was ineffective assistance. United States v. Hubbard, 929 F.2d 307, 310-11 (7th Cir.1991) (noting "[t]he mere assertion of unspecified evidence obviously proves nothing."); United States v. Gramley, 915 F.2d 1128, 1133 (7th Cir.1990) (stating "[T]his court has made clear that a petitioner alleging that counsel's ineffectiveness was centered on a supposed failure to investigate has the burden of providing ... 'a comprehensive showing as to what the investigation would have produced.' "). Perhaps the attorney made a tactical decision to forego presentation of the extra evidence; or maybe it simply involved too much effort--effort he did not want to expend to track down all the records, psychiatrists and medical experts. Because trial counsel's tactical decisions received great deference in assessing ineffective assistance claims, United States v. Jackson, 983 F.2d 757, 760-61 (7th Cir.1993), which of these possibilities, if any, are true is critical to resolving the issue, yet are unknown absent some factual development in the trial court on this point. Thus, we decline to review this claim on the record before us on direct appeal. This declination does not preclude Petros from seeking collateral relief, but he should note that a more complete record will be necessary to examine this issue.
C. Sufficiency of Evidence
37
Lastly, Petros challenges the sufficiency of the evidence to establish his participatory link to the overall RICO conspiracy for which the Defendants were convicted under 18 U.S.C. Sec. 1962(d). Sufficiency of the evidence arguments are, to say the least, difficult to mount with any success. So long as the evidence offered at trial, viewed in a light most favorable to the Government, was sufficient to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt, the conviction is upheld. United States v. Santos, 20 F.3d 280, 282 (7th Cir.1994). "To prove that a defendant was a member of a conspiracy, the Government must demonstrate a participatory link between the conspiracy and the defendant." United States v. Campbell, 985 F.2d 341, 344 (7th Cir.1993). Proof of the participatory link requires substantial evidence that the defendant both knew of the conspiracy and that he intended to join and associate himself with the conspiracy's criminal design and purpose. Id. at 344-45; United States v. Durrive, 902 F.2d 1221, 1229 (7th Cir.1990). This requires proof the defendant did more than merely know the conspiracy existed, approved of the conspiracy, associated himself with the conspiracy or was present during some conspiratorial activities. Durrive, 902 F.2d at 1225. Keeping all this in mind, it becomes quite clear that ample evidence was presented to support Petros' RICO conspiracy conviction. Petros not only collected some $2500 a month from one poker machine vender (Reginald Kinkade) during 1984 to 1986, but attempted to collect street tax from other video machine vendors as well as operators of other gambling games. More importantly, at trial Kinkade testified that Petros identified himself as being affiliated with the "Chicago Mob," an association Kinkade confirmed when Frank Zizzo, the local syndicate boss and a central figure in the conspiracy, identified Petros as "his man." Petros also spoke with Kinkade about having the "old man" (Zizzo's nickname) approve the amount of Kinkade's payments. A surreptitiously taped conversation between Petros and another operator of video poker games, Tim Janowsky, contained many references by Petros to his boss, the "old man." Evidence also indicated Petros, in 1986, informed Kinkade that Zizzo had died and that "Snooky" (Morgano) was now in charge of collections. Beyond the testimony of victims of the extortion, other members of the conspiracy confirmed Petros' participation. Leone, for example, testified that he met Petros through Morgano, and that Petros was, at the time of their introduction, collecting street tax for Zizzo. From this evidence of distinct relationships between Petros and other known members of the conspiracy, it was clearly possible for the trier of fact to conclude Petros not only knew of the conspiracy, but joined, associated, and participated in the conspiracy's goals and operations. Given that, the evidence is sufficient to establish Petros' participatory link to the conspiracy and thus enough to validate his conviction.
38
VII. Glorioso and Acceptance of Responsibility
39
At sentencing, Glorioso requested, but the district court denied, a two-level reduction in his base offense level for acceptance of responsibility for his criminal conduct as allowed under U.S.S.G. Sec. 3E1.1. This decision is one of fact, particularly suited for the district court to make, and will not be disturbed unless clearly erroneous. United States v. Osmani, 20 F.3d 266, 269 (7th Cir.1994); United States v. Fuller, 15 F.3d 646, 650 (7th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 2689, 129 L.Ed.2d 820 (1994). See also U.S.S.G. Sec. 3E1.1 cmt., n. 5 ("The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on appeal."). Acceptance of responsibility simply means "the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." U.S.S.G. Sec. 3E1.1(a). An oft-recited application note to Sec. 3E1.1 reminds defendants of the central purpose of the acceptance of responsibility reduction: "This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse." U.S.S.G. Sec. 3E1.1 cmt., n. 2. The sum total of Glorioso's acceptance of responsibility consists of his confession, following conviction and in preparation of sentencing, of his criminal conduct. Not until trial was complete and an unfavorable verdict returned did Glorioso admit his crimes and express any, albeit a paltry, sense of remorse for his acts. Awarding the two-level reduction for this would be contrary to the basic system of incentives and disincentives established by the acceptance of responsibility reduction, namely to reward those who plead guilty--saving the judiciary and Government from the time, expense and effort of a trial--or who take "some other equivalently concrete act, such as pretrial payment of full restitution." United States v. Gomez, 24 F.3d 924, 926 (7th Cir.1994); United States v. Beserra, 967 F.2d 254, 255 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 419, 121 L.Ed.2d 341 (1992) ("A plea of guilty is (normally) a necessary, but is not a sufficient, condition" for the reduction). Post-conviction confessions imbue relatively no benefit on the criminal justice system and therefore are undeserving of the quid pro quo of decreased imprisonment. Beserra, 967 F.2d at 256.
40
There are, and constitutionally must be, certain limited instances in which a defendant can put the Government through the machinery of a trial but still realistically claim the benefit of the acceptance of responsibility reduction, such as admitting the factual elements of guilt but challenging the constitutionality of a statute. See, e.g., U.S.S.G. Sec. 3E1.1 cmt., n. 2; United States v. Corral-Ibarra, 25 F.3d 430, 440 (7th Cir.1994) (going to trial to assert defense of entrapment may still allow acceptance of responsibility reduction). Glorioso's only explanation for pursuing a trial, and foregoing a guilty plea, was his desire to avoid being forced to testify against his co-defendants, presumably out of fear of their reprisal. No matter, he made a conscious decision to forego the benefits of the acceptance of responsibility reduction and opt instead for the security of not being a squealer--possibly the more rational decision but unfortunately not one the sentencing guidelines recognize as worthy of excusing the need to accept responsibility before the trial to win a reduced sentence. He adds that during trial he also refrained from challenging his factual guilt by refusing to offer evidence contradicting the Government's case. Forebearing from denying responsibility is not, however, the same as accepting responsibility, the latter of which requires some affirmative act evidencing a clear "fessing up" of one's guilt for the crimes charged. U.S.S.G. Sec. 3E1.1(a); Beserra, 967 F.2d at 255; United States v. Escobar-Mejia, 915 F.2d 1152, 1153 (7th Cir.1990). All in all we can quite confidently say the district court did not err in refusing to grant Glorioso the two-point reduction for accepting responsibility.
VIII. Nuzzo's Sentence
41
The last issue to be considered is Sam Nuzzo's claim that the district court erred in computing his offense level. Specifically, he raises three perceived errors.
42
First, Nuzzo contends the court erred in determining the base offense level for his RICO conviction. Because the proper application of the Guidelines is a question of law, the trial court's computation is reviewed de novo. United States v. Gaines, 7 F.3d 101, 103 (7th Cir.1993); United States v. Hayes, 5 F.3d 292, 294 (7th Cir.1993). Nuzzo, convicted on the racketeering count, was found by the jury to have committed predicate acts Nos. 27 and 55, both of which charged the collection of an illegal debt by extortionate means. Guidelines Sec. 2E1.1, applicable to racketeering acts, provides for a base offense level of nineteen or the level appropriate to the substantive crime involved in the conspiracy, whichever is greater. U.S.S.G. Sec. 2E1.1(a). Nuzzo contends that because his predicate acts were closer to running an illegal gambling business (18 U.S.C. Sec. 1955), than extortion (18 U.S.C. Sec. 1951), his base offense level under Sec. 2E1.1(a) should be that applicable to illegal gambling per Sec. 2E3.1--which would be twelve. Unfortunately the Defendant (and the Government as evidenced by its brief) simply misconceives the command of Sec. 2E1.1(a), which, as the comments to that section explain, establishes a mandatory minimum offense level of 19--a floor under which the base offense level may not be set no matter what the offense level may be for the predicate acts associated with the RICO violation. U.S.S.G. Sec. 2E1.1 cmt., n. 3 ("If the offense level for the underlying racketeering activity is less than the alternative minimum level specified (i.e., 19), the alternative minimum base offense level is to be used."). See United States v. Ford, 21 F.3d 759, 765 (7th Cir.1994) (noting Sec. 2E3.1's level nineteen floor). Even assuming the Defendant is correct in his belief that the predicate acts are more analogous to gambling than extortion (which is a big assumption), his base offense level under Sec. 2E1.1(a) would still be nineteen. All he could possibly hope to accomplish by selecting a different offense to which to tie his predicate act is to increase the base offense level--not to lower it below nineteen. The district court was thus correct in starting with a base offense level of nineteen.
43
Second, Defendant contests the district court's finding that Nuzzo played a managerial role in the offense and the associated increase, per Guidelines Sec. 3B1.1(a), of his base offense level by three levels. The Guidelines direct the court to increase the offense level by three levels if "the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive...." U.S.S.G. Sec. 3B1.1(b). Nuzzo specifically challenges the district court's determination that the predicate act for which he received the enhancement, the collection of an illegal debt by extortionate means, involved five or more persons as required by Sec. 3B1.1(b). The district court's determination of Nuzzo's role in the offense, and the number of people involved in the offense, is a factual finding reversed only if clearly erroneous. Schweihs, 971 F.2d at 1317; United States v. McKenzie, 922 F.2d 1323, 1329 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 163, 116 L.Ed.2d 127 (1991). Evidence offered at trial indicated Nuzzo dispatched two gentlemen, named "Bob" and "Bingo," to collect a gambling debt from an extortionee named Graczyk. Evidence further indicated Nuzzo worked with the conspiracy's leaders, Zizzo and Morgano, to organize gambling oversight activities in northern Indiana. An upward adjustment under Sec. 3B1.1 applies to those defendants whose "relative responsibility" for the crime is greater than their cohorts, United States v. Vargas, 16 F.3d 155, 160 (7th Cir.1994); United States v. Skinner, 986 F.2d 1091, 1097 (7th Cir.1993), and is generally warranted if the defendant exercised authority or control over other members of the crime. Vargas, 16 F.3d at 160; United States v. Brown, 944 F.2d 1377, 1381 (7th Cir.1991). Here the evidence amply indicated both Nuzzo's authority over other members of the enterprise and his greater relative responsibility for the criminal acts. As for the exact number of individuals involved, "participant" is "a person who is criminally responsible for the commission of the offense, but need not have been convicted." U.S.S.G. Sec. 3B1.1 cmt., n. 1. Evidence clearly indicated many individuals (and at least five), both indicted and unindicted, were involved in the overall racketeering conspiracy. Defendant's focus on whether five or more individuals participated in the particular collections of debt recited in the predicate acts is misplaced. Section 3B1.1(b) applies if the "criminal activity involved" five or more people, a phrase broad enough to include the entire racketeering conspiracy rather than the particular predicate act alone. See Schweihs, 971 F.2d at 1318 (focusing on entire offense, not just individual acts of extortionate conduct, in determining number of participants). Based on this evidence, the district court's decision was not clearly erroneous and the three level increase was appropriate. So agrees the commentary to the Sentencing Guidelines, which provides that "[i]n assessing whether an organization is 'otherwise extensive,' all persons involved during the course of the entire offense are to be considered." U.S.S.G. Sec. 3B1.1 cmt., n. 2. Thus, Nuzzo's attempt to narrowly focus the Sec. 3B1.1 inquiry on the number of persons involved in the specific act of extorting Graczyk is simply misplaced, and the district court's decision to enhance his sentence was not clearly erroneous.
44
Lastly, Nuzzo argues the district court should have grouped together his pre-Guidelines conviction for operating a gambling business, Count 4 of the indictment, with predicate act No. 57 to arrive at his RICO sentence. Section 3D1.2 of the Guidelines provides that "[a]ll counts involving substantially the same harm shall be grouped together into a single group," U.S.S.G. Sec. 3D1.2, because "[s]ome offenses that may be charged in multiple-count indictments are so closely intertwined with other offenses that conviction for them ordinarily would not warrant increasing the guidelines range." U.S.S.G. ch. 3, pt. D, intro. cmt. Counts involve "substantially the same harm" if part of a common scheme or plan, U.S.S.G. Sec. 3D1.2(b), or if the "offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior," id. Sec. 3D1.2(d). A defendant, of course, hopes to group together as many counts as possible to avoid the possible incremental increase in a sentence associated with loss, harm, or other bad effects stemming from related, but ungrouped counts of conviction. See United States v. White, 888 F.2d 490, 496-97 (7th Cir.1989). Perhaps extortion (predicate act No. 57) and gambling (Count 4) are, under this Guideline provision, closely related and otherwise involve substantially the same harm to require grouping. Not every offense, however, is subject to this grouping procedure and some, in fact, are specifically excluded. See U.S.S.G. Sec. 3D1.2(d) (listing offenses included and excluded from grouping); United States v. Bruder, 945 F.2d 167, 170 (7th Cir.1991). One such offense explicitly excluded from the grouping procedure of Sec. 3D1.2 is that covered by Sec. 2B3.2 of the Guidelines--extortion in violation of 18 U.S.C. Sec. 1951. Because predicate act No. 57 did indeed involve extortionate conduct, and was subject to sentencing under Sec. 2B3.2, it therefore cannot be grouped with other offenses. Thus, the district court properly refrained from grouping together predicate act No. 57 with any other count and the Defendant, in arguing to the contrary, again simply misreads the effect of the Sentencing Guidelines.
IX. Conclusion
45
Although the Defendants, individually and collectively, raise many issues surrounding their convictions and sentences, none have merit nor require their convictions or sentences to be disturbed. In all respects the convictions and sentences are AFFIRMED.
1
The Honorable John Daniel Tinder, of the United States District Court for the Southern District of Indiana, sitting by designation
2
Leone and others (including Sam Nuzzo, Sr., Arthur Nuzzo, Sandra T. Mynes, Jennifer Kaufman, Anthony J. Ottomanelli and Ned Pujo) were also indicted by the grand jury but entered into plea agreements with the Government. Yolande Pujo was also indicted but charges against her were subsequently dismissed at the Government's request. One other indicted defendant, Steve Sfouris, remains at large
3
Each Defendant was found to have participated in various and varied predicate racketeering acts and received different terms of incarceration for both the predicate offenses and the RICO crime. It is unnecessary, however, to list the specific acts relevant to each Defendant or the specific sentences each Defendant received; suffice it to note that each Defendant was indeed found to have engaged in predicate acts which correspond directly to offenses alleged in substantive counts of the indictment and each Defendant received consecutive sentences based on the RICO offense and the substantive counts. These commonalities provide the basis for Defendants' argument and the differences specific to each Defendant do not change the analysis or outcome
4
Because we find the district court's factual finding regarding the occurrence of predicate act No. 57 was not erroneous, we can easily dismiss Defendants' joint argument that the same finding was an "abuse of discretion" (an incorrect statement of the standard of review of sentencing court factual findings) because it resulted in a one point enhancement in Glorioso and Nuzzo's base offense level by elevating the amount extorted over the $10,000 threshold. See U.S.S.G. Sec. 2B3.2(b)(2). Because sufficient evidence, as detailed in the text, supported the finding, neither the facts nor the conclusion were clearly erroneous and enhancement was appropriate
5
Defendants expend quite a bit of energy attempting to demonstrate the relevance of Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), to their position that the district court erred in deciding an overt act in furtherance of the RICO conspiracy continued past November 1, 1987. This energy is simply misplaced. The Grunewald Court, after noting the need for some overt act in furtherance of a conspiracy to occur within the relevant statute of limitations period for a prosecution to be valid, discussed the various means of satisfying the "overt act" requirement, such as evidence indicating the defendants concealed the conspiracy during the limitations period. Id. at 397, 77 S.Ct. at 970. See Masters, 924 F.2d at 1368 (explaining the narrow holding of Grunewald ). The extortions of Strawmier and Graczyk are clearly direct acts in furtherance of the conspiracy which occurred during the relevant time period (post November 1, 1987), making the marginal analysis contained in Grunewald irrelevant
6
This is evidenced by the following dialogue with Petros' attorney which occurred during the hearing:
THE COURT: Does [Petros] understand the nature and consequences of these proceedings against him? I presume you've explained it to him.
MR. MCGRATH: I have explained it to him, Your Honor--
THE COURT: Does he understand it?
MR. MCGRATH: As best as I can determine, yes.
THE COURT: Describe to me the difficulties, if any, you have experienced in attempting to advise your client or in attempting to secure his assistance. Have you had any?
MR. MCGRATH: No.
THE COURT: In formulating whatever defenses you might have or formulating or preparing yourself for trial, I take it you asked him questions?
MR. MCGRATH: I have.
THE COURT: And have those responses to those questions been helpful to you in your preparation for trial?
MR. MCGRATH: They have been helpful.
THE COURT: He's assisted you then in his defense?
MR. MCGRATH: To the degree that I've required him to assist me, Your Honor. He has, in fact, agreed with my evaluation of the evidence. He's agreed with my evaluation of the charges against him. He's agreed with my suggestions and determinations as to a course of defense, but again, Your Honor, I don't know that agreement is the product of a healthy mind or unhealthy mind.
Tr. of Hrg. on Mot. for Incompetency Hrg. at 5-7.
7
This occurred during the following exchange between the district court and Petros:
THE COURT: Did you discuss with your lawyer and did he explain to you the nature of the charges that have been filed against you by the Government?
PETROS: Yes, sir.
THE COURT: Did you understand them when he explained them to you?
PETROS: I think I do.
THE COURT: Any doubt in your mind about that?
PETROS: I don't know the difference between right and wrong, Your Honor. I've been examined by seven psychiatrists who say I've been mentally ill since I was seven years old.
Tr. of Hrg. on Mot. for Incompetency Hrg. at 24.
|
833 F.2d 424
19 Soc.Sec.Rep.Ser. 586, Unempl.Ins.Rep. CCH 17,675Joaquin ARZUAGA, Plaintiff-Appellant,v.Otis R. BOWEN, Secretary of Health and Human Services,Defendant-Appellee.
No. 77, Docket 86-6167.
United States Court of Appeals,Second Circuit.
Submitted Sept. 17, 1987.Decided Nov. 13, 1987.
Rudolph W. Giuliani, U.S. Atty., Southern District of New York (Donna H. Lieberman, Sp. Asst. U.S. Atty., Steven E. Obus, Asst. U.S. Atty., Southern District of New York, of counsel), for defendant-appellee.
Paul Eskenazi, New York City, for plaintiff-appellant.
Before CARDAMONE, WINTER and MINER, Circuit Judges
PER CURIAM:
1
Despite our concerted effort in opinion after opinion to educate the administrative law judges (ALJs) in the United States Department of Health and Human Services regarding this Circuit's treating physician rule, there remain some ALJs who apparently are unaware of the rule's existence. Being ignorant of it they, obviously, do not apply it, leaving us no recourse except to remand the case to the Secretary for application of the rule. Such is the situation in the instant case.
2
Plaintiff Joaquin Arzuaga appeals from a judgment of the United States District Court for the Southern District of New York (Sand, J.) that dismissed his complaint in which he sought disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. Secs. 401-433 (1982). In a March 1985 hearing, an ALJ found Mr. Arzuaga unable to perform his past work as a sprayer/sander. But because the ALJ found that appellant retains residual capacity for a wide range of "light" work, he decided that appellant was not entitled to disability benefits under the Social Security Act. The Department of Health and Human Services' Appeals Council affirmed the ALJ's ruling. The district court held that there was substantial evidence to support the Secretary's findings and affirmed the denial of benefits in an opinion dated June 24, 1986 and in a supplemental opinion dated February 6, 1987.
3
The record before us reveals that Mr. Arzuaga worked as a sander/sprayer for 25 years until March 1984, when he stopped working because of medical problems with his bladder that left him feeling too weak to get up and get to work on time. At the time of his disability benefits hearing, Dr. Espejo had been treating claimant for a year, with visits once every three weeks. Before that he had also consulted with Drs. Saez and Zayas on several occasions. Testifying at the hearing, the 54-year old claimant complained of pain in the chest and lower back for which he was being treated.
4
Dr. Zayas' letter of March 1984 indicated a dysfunction of claimant's gallbladder, but surgery had been postponed because the patient was overweight. Dr. Espejo's diagnosis was that Arzuaga was suffering from angina pectoris, hypertensive heart disease and dizziness due to 25 years' exposure to chemicals used in his spraying/sanding work. Dr. Espejo, the treating physician, was of the opinion that claimant could not work. Dr. Balinberg, a consultative examining physician, saw claimant on November 14, 1984. That doctor diagnosed Arzuaga as having hypertension, atypical chest pain and was of the opinion that appellant's ECG could represent coronary artery disease. Dr. Balinberg gave no opinion regarding claimant's residual functional capacity for work.
5
In his evaluation of the medical evidence, the ALJ dealt with the treating physician's findings as follows: "Dr. Espejo's totally restrictive assessment of the claimant's physical capacities is not found to be supported by his own objective clinical findings, inconsistent with the claimant's own estimation of same at the hearing and not given great weight." Although we have reversed similar determinations in more than a score of cases, see Hidalgo v. Bowen, 822 F.2d 294, 297 (2d Cir.1987), some administrative law judges apparently remain unaware of this Circuit's treating physician rule. That rule states that the claimant's treating physician's diagnoses and findings regarding the degree of claimant's impairment are binding on the ALJ unless there is substantial evidence to the contrary. Schisler v. Heckler, 787 F.2d 76, 81 (2d Cir.1986). In the case at bar, the ALJ's statement which, in effect, "second-guesses" Dr. Espejo's evaluation indicates that he was unaware of--or unwilling to apply--the rule that makes the opinion of the medical expert actually treating the claimant binding upon the fact-finder. See Hidalgo, 822 F.2d at 296-97.
6
Consequently, the matter must be remanded to the district court with directions that it remand this case to the Secretary in order for the ALJ to apply the treating physician rule. In remanding this case, we express no opinion on the merits of appellant's claim for benefits.
7
Reversed and remanded.
|
996 F.2d 903
UNITED STATES of America, Plaintiff-Appellee,v.James DADDATO, Defendant-Appellant.
No. 92-3750.
United States Court of Appeals,Seventh Circuit.
Argued April 9, 1993.Decided June 17, 1993.
Matthew L. Jacobs, Asst. U.S. Atty., Lynne M. Solien (argued), Milwaukee, WI, for plaintiff-appellee.
Laurence M. Moon, Whitefish Bay, WI (argued), for defendant-appellant.
Before BAUER, Chief Judge, and POSNER and ROVNER, Circuit Judges.
POSNER, Circuit Judge.
1
This appeal presents a question on which there are no reported cases: whether a judge may impose a condition in the nature of restitution on a sentence of supervised release, even if the Victim and Witness Protection Act of 1982, 18 U.S.C. §§ 3663-64, would not authorize the type of restitution ordered for the defendant's crime.
2
Pursuant to his plea of guilty, James Daddato was convicted of the federal crime of selling hallucinogenic mushrooms and sentenced to 16 months in prison to be followed by three years of supervised release. His appeal challenges one of the conditions of supervised release: that he repay the $3,650 that he received from law enforcement officers in payment for mushrooms that they bought from him in order to obtain conclusive evidence of his guilt. The statute governing supervised release empowers the sentencing judge to impose as a condition of such release any condition authorized as a discretionary condition of probation plus "any other condition it considers to be appropriate." 18 U.S.C. § 3583(d). Obviously the language is broad enough to encompass the requirement that the defendant make good the government's "buy money"; nor could the imposition of such a requirement be thought an abuse of discretion--it merely asks the defendant (if he is financially able, once his release from prison enables him to obtain a paying job) to make good the expense to which he put the government by violating the laws that prohibit trafficking in a selected subset of mind-altering drugs.
3
The defendant appeals to the interpretive principle of "eiusdem [or ejusdem] generis" ("of the same kind"): words or terms in a list are presumed to be comparable. Norfolk & Western Ry. v. American Train Dispatchers Ass'n, 499 U.S. 117, 111 S.Ct. 1156, 1163, 113 L.Ed.2d 95 (1991). This is one of the much-criticized "canons of construction" that has, however, a kernel of common sense. A list of like items creates for the reader a context which leads him to expect any ambiguous or catch-all term in the list to have a generic resemblance to the other terms. But that cannot help the defendant here. The probation statute to which the provision on supervised release that we quoted refers lists 21 specific conditions, 18 U.S.C. § 3563(b), one of which is paying restitution and another of which is doing community service. 18 U.S.C. §§ 3563(b)(3), (13). Both resemble the condition in this case. An order to do community service compels the donation of a defendant's valuable labor services for the benefit of the community but not necessarily for the benefit of the victims of his crime--and there may be none. An order to repay the government's "buy money" is similar in requiring the defendant to convey something of value to the community rather than to his victims (if any there be) specifically. State v. Connelly, 143 Wis.2d 500, 421 N.W.2d 859 (App.1988). We need not determine whether such an order is also classic "restitution," which usually refers either to the disgorgement of the defendant's profits from a wrongful act (here the disgorgement ordered is of gross revenue, the sale price, rather than profits) or to the return of something which the defendant has wrongfully taken (not a completely apt description of drug buy money). United States v. Fountain, 768 F.2d 790, 800-801 (7th Cir.), modified on other grounds, 777 F.2d 345 (7th Cir.1985) (per curiam); Gilpin v. American Federation of State, County & Municipal Employees, 875 F.2d 1310, 1314 (7th Cir.1989). On the one hand, it seems unrealistic to describe the defendant as having wrongfully taken money eagerly tendered to him so that he could incriminate himself. On the other hand, it was money that he obtained through criminal activity and therefore had no right to keep. No matter. The list in section 3563(b) is not limited to restitution, or even to conditions that resemble restitution (which this, at the very least, does); it is enough that the order to repay the buy money is of the same general kind as the items in the list, and it is.
4
The defendant points out that the provisions of the Victim and Witness Protection Act of 1982 which authorize the award of restitution in federal criminal cases require that the award be made to the victim of the defendant's crime, 18 U.S.C. § 3663(a)(1), which the government does not and could not claim to be, or at least that it be measured by the victim's loss, § 3664(a), and the government does not contend that any victim of Daddato's classically victimless crime suffered any loss as a result of it. He argues that the Victim and Witness Protection Act was intended to occupy the field of federal criminal restitution. We see no basis for this argument, at least in a case such as this where it is not suggested that by requiring the defendant to repay the "buy money" the judge's order will make it more difficult for the defendant to make restitution to any victims of his crime. Congress did not say in the Victim and Witness Protection Act that it was repealing other provisions of the criminal code that might authorize orders in the nature of restitution, and we cannot think of any reason why it might want to do that, except, as we have just suggested, possibly in the special case in which the government and the victim are arguing over the same pot of gold. As its title suggests, the Act was intended for the protection of witnesses and victims, not for securing the government's undoubted interest in "buy money" used as bait to catch offenders. "Buy money" is best viewed as a cost of investigation. United States v. Salcedo-Lopez, 907 F.2d 97, 98 (9th Cir.1990); State v. Newman, 132 N.J. 159, 623 A.2d 1355 (N.J.1993); People v. Evans, 122 Ill.App.3d 733, 78 Ill.Dec. 50, 55, 461 N.E.2d 634, 639 (1984); United States v. Finley, 783 F.Supp. 1123, 1128-29 (N.D.Ill.1991). These cases (and others that we might cite) hold that this characterization carries an order to repay buy money outside the orbit of "restitution" as the term is used in the Act. But the analogy to community service remains compelling; the defendant is being required to contribute to a community service, namely criminal investigation. And it is at least arguable that the order does require a form of restitution, albeit not of the kind envisaged by the Victim and Witness Protection Act.
5
That Act was narrowly interpreted in Hughey v. United States, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990); and although Congress promptly overruled that decision (in 18 U.S.C. § 3663(a)(3)), who is to say whether it did so because Hughey was "wrong" or because Congress decided to change the policy of the statute? Hughey held that restitution of gains from related but not charged conduct was not authorized by the Victim and Witness Protection Act. This case is similar. The defendant pleaded guilty to and was convicted of only one count of a three-count indictment each count of which charged a separate transaction, and the buy money he has been ordered to repay is for the two transactions in the counts that were dismissed and for two additional transactions that never were the subject of charges. But of course he was not sentenced under the Victim and Witness Protection Act (well, he was initially, but the judge realized his mistake and corrected it, imposing the order to repay under the catch-all provision of the supervised-release statute). And how the defendant can benefit from a narrow (as well as superseded) interpretation of that Act baffles us. The more narrowly it is interpreted, the less likely it is to occupy the entire field of restitution-resembling criminal remedies--and here the resemblance may not even be that close, as we have seen, because the "restitution" is not to a victim of the defendant's wrongdoing. Of course, the less like restitution the order is, the less like the restitution subsection of the probation statute it is, and so the greater purchase the defendant has for his alternative ground, that of eiusdem generis. But as we said earlier we think that paying a cost of the government's investigation, an authentic cost of criminal activity though not one borne directly by the victims of that activity, is sufficiently like community service--another device for making the defendant repay his debt to society in full and one listed in the probation statute--to bring it easily within that statute's catch-all provision. For that matter it probably is sufficiently like restitution too, whether or not it should be considered a form of restitution. Section 3583(d), interpreted in light of the principle of eiusdem generis, deals in analogies.
6
AFFIRMED.
|
NO. 07-03-0399-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 3, 2004
______________________________
ALICE RENE RUPPANNER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B13715-0004; HONORABLE ED SELF, JUDGE
_______________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
MEMORANDUM OPINION
Appellant Alice Rene Ruppanner brings this appeal from the revocation of her
community supervision. We affirm the revocation. Appellant was charged in an April 18,
2000 indictment with 31 counts of theft occurring between August and September 1999.
She was convicted on September 8, 2000, by the 242nd District Court on her plea of guilty
to each count pursuant to a plea agreement. Punishment was assessed in conformity with
the plea agreement at two years confinement in a state jail facility, restitution of $5,392.46,
and court costs. Also in compliance with the plea agreement, imposition of the sentence
was suspended for a period of five years, conditioned on appellant's compliance with the
terms of her community supervision. The trial court rendered a judgment nunc pro tunc on
August 21, 2001. (1) In September 2001, the trial court rendered an agreed order adding one
year to the term of appellant's community supervision.
The State filed a motion to revoke appellant's community supervision on July 24,
2003, alleging four violations of her community supervision including commission of
subsequent offenses, failure to report as required, failure to pay restitution and fees, and
failure to complete community service.
At an August 19, 2003 hearing appellant plead true to the State's allegations and
entered a stipulation of evidence in support. Appellant advised the court her plea was
voluntary and she understood the nature of the proceeding and the consequences of her
plea. Her counsel also informed the court he felt she was competent to proceed with the
hearing.
Appellant was the only witness at the revocation hearing. She authenticated the
stipulation of evidence and testified she had been living in Wyoming where she was
charged with two counts of theft and one of forgery. She pled guilty to those offenses,
receiving 90 days confinement for the theft offenses and three years probation for the
forgery conviction. Appellant reported these convictions to her probation officer as
required.
At the conclusion of the hearing the court found appellant had violated the conditions
of her community supervision and revoked it. It ordered her to serve the original sentence
imposed on her conviction. She filed a timely notice of appeal and the trial court appointed
counsel on appeal.
Appellant's counsel has filed a brief stating that he has carefully reviewed the record
in this case and concludes there is no reversible error and that the appeal is frivolous. See
Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct.1396, 18 L.Ed.2d 493 (1967). The brief
discusses the factual and procedural history of the case and evidence presented. In
conformity with counsel's obligation to support the appeal to the best of his ability, Johnson
v. State, 885 S.W.2d 641, 645 (Tex.App.--Waco 1994, pet. ref'd), the brief discusses one
potential complaint on appeal and explains why it does not show reversible error. Counsel
also has filed a motion to withdraw and by letter informed appellant of her rights to review
the trial record and to file a pro se brief. Id. By letter dated November 13, 2003, this Court
also notified appellant of her opportunity to submit a response to the Anders brief and
motion to withdraw filed by her counsel, granting her until December 10, 2003, to do so.
This court's letter also reminded appellant to contact her counsel if she needed to review
any part of the appellate record to prepare a response. Appellant has not filed a brief or
other response. Nor has the State filed a brief in this appeal.
In conformity with the standards set out by the United States Supreme Court, we will
not rule on the motion to withdraw until we have independently examined the record.
Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.--San Antonio 1997, no pet.). If this court
determines the appeal has merit, we will remand it to the trial court for appointment of new
counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991).
The sole potential issue discussed in counsel's brief is the legal and factual
sufficiency of the evidence supporting the trial court's determination that appellant violated
the terms and conditions of her community supervision. Appellate review of a revocation
order is limited to determining whether the trial court abused its discretion. Cardona v.
State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984); Jackson v. State, 645 S.W.2d 303, 305
(Tex.Crim.App. 1983). The trial court abuses its discretion in revoking community
supervision if the State fails to meet its burden of proof. Cardona, 665 S.W.2d at 494.
In a revocation proceeding, the State must prove by a preponderance of the
evidence that appellant violated a condition of community supervision as alleged in the
motion to revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex.Crim.App. 1993). The trial
judge in such a proceeding is the sole trier of fact. Taylor v. State, 604 S.W.2d 175, 179
(Tex.Crim.App. 1980). A defendant's plea of true to an alleged violation, standing alone,
is sufficient to support the revocation. Moses v. State, 590 S.W.2d 469, 470 (Tex.
Crim.App. 1979).
Appellant's pleas of true to each alleged violation of the conditions of her community
supervision and evidence presented at the hearing are sufficient to support the court's
judgment. (2) The record also supports the court's finding that appellant was competent at
the time of the hearing to make the plea and it was made voluntarily.
Our review convinces us that appellate counsel conducted a complete review of the
record. We have also made an independent examination of the entire record to determine
whether there are any arguable grounds which might support the appeal. (3) See Stafford,
813 S.W.2d at 511. We agree it presents no meritorious grounds for review. The trial court
did not abuse its discretion in revoking appellant's community supervision. We grant
counsel's motion to withdraw and affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
1. The judgment nunc pro tunc recited the court had taken into account unadjudicated
offenses in other counties. By virtue of Section 12.45(c) of the Penal Code, this barred
appellant's prosecution for those offenses. Tex.Pen.Code Ann. (Vernon 2003).
2. Counsel's brief concludes the evidence is not factually insufficient under the
standard adopted in Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996). However the
analysis in Clewis is inapplicable to probation revocation proceedings. See Cochran v.
State, 78 S.W.3d 20, 27 (Tex.App.-Tyler 2002, no pet).
3. Our review is limited, though, to any issues related to revocation of appellant's
community supervision. Tex. Code Crim. Proc. art. 42.12 § 23(b); see Manuel v. State, 994
S.W.2d 658, 661-62 (Tex.Crim.App. 1999).
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-6824
CLIFTON MILES SUTTON,
Petitioner - Appellant,
versus
RONALD J. ANGELONE, Director of Department of
Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis III, District
Judge. (CA-01-867-AM)
Submitted: September 19, 2002 Decided: September 27, 2002
Before WILKINS, LUTTIG, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Clifton Miles Sutton, Appellant Pro Se. Thomas Drummond Bagwell,
Assistant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Clifton Miles Sutton seeks to appeal the district court’s
order denying relief on his petition filed under 28 U.S.C. § 2254
(2000). We have reviewed the record and the district court’s
opinion and conclude on the reasoning of the district court that
Sutton has not made a substantial showing of the denial of a
constitutional right. See Sutton v. Angelone, No. CA-01-867-AM
(E.D. Va. Apr. 30, 2002). Accordingly, we deny a certificate of
appealability and dismiss the appeal. See 28 U.S.C. § 2253(c)
(2000). 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.
DISMISSED
2
|
NUMBER 13-14-00404-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
LUIS BALDEMAR RIOS Appellant,
HERNANDEZ a/k/a ARTURO
RIOS,
v.
W-S INDUSTRIAL SERVICES INC., Appellee.
On appeal from the 156th District Court
of San Patricio County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza and Longoria
Memorandum Opinion by Justice Garza
By two issues, appellant Luis Baldemar Rios Hernandez a/k/a Arturo Rios (“Rios”)
challenges a summary judgment granted in favor of appellee, W-S Industrial Services,
Inc. (“WSI”). Specifically, Rios contends the trial court erred in: (1) granting summary
judgment because there was a genuine issue of material fact as to whether Rios was
WSI’s employee or borrowed servant; and (2) overruling Rios’s objections to WSI’s
summary judgment evidence. We affirm.
I. BACKGROUND
On November 14, 2011, Rios was injured when he fell while hydro-blasting a
washer tank at the Sherwin Alumina Company plant in Gregory, Texas. Rios was
employed by A.R. Management (“ARM”), a temporary employment agency that supplied
workers to client companies, including WSI. WSI and ARM had an operating agreement
which generally outlined the parties’ duties and obligations regarding the workers. ARM
assigned Rios to work for WSI at the plant on the day he was injured. ARM and WSI both
carried workers’ compensation insurance.
Rios sued WSI and various other parties related to the accident. WSI filed a
traditional motion for summary judgment on the ground that Rios’s negligence and gross
negligence claims against it were barred by the exclusive remedy provision of the Texas
Workers’ Compensation Act (“TWCA”). See TEX. LABOR CODE ANN. § 408.001 (West,
Westlaw through Ch. 46, 2015 R.S.) (providing that recovery of workers’ compensation
benefits is the exclusive remedy of an injured employee covered by workers’
compensation insurance against his employer). WSI attached the following evidence to
its motion: (1) the affidavit of Brian Swasey, WSI’s project manager; (2) the operating
agreement between ARM and WSI; and (3) WSI’s workers’ compensation policy. WSI
subsequently supplemented its motion twice, submitting as additional evidence: (1) the
affidavit of Frank Lynn, WSI’s Director of Risk Management and the author of the
operating agreement; (2) the affidavit of Bradley Schick, WSI’s insurance agent
2
responsible for procuring WSI’s workers’ compensation policy; and (3) excerpts of
deposition testimony of Lynn and Rios.
Rios objected to the trial court’s consideration of the operating agreement and
WSI’s workers’ compensation policy as summary judgment evidence on the ground that
neither document was properly authenticated. Rios argued that Swasey’s affidavit was
insufficient to authenticate the documents because Swasey admitted in his deposition
testimony that he had not seen either document prior to signing the affidavit and therefore
lacked knowledge as to whether the documents were true and correct copies. Rios also
complained that Swasey’s affidavit failed to comply with the requirements of Texas Rule
of Evidence 901, see TEX. R. EVID. 901, because it did not state that he was WSI’s
custodian of records or that the documents were kept in the regular course of business.
Rios later added additional objections to Swasey’s affidavit on the grounds that he was
an interested witness, the affidavit contained hearsay, and the affidavit contained legal
and factual conclusions.
Rios objected to Schick’s affidavit, purporting to authenticate WSI’s workers’
compensation policy, on the ground that it did not comply with Rule 901 because it did
not state that Schick was the custodian of records for WSI, that the workers’
compensation policy was kept in the regular course of business, or that it was the regular
course of business for an employee with knowledge to make the record. Rios also argued
that Schick lacked the authority to authenticate the workers’ compensation policy because
he was merely WSI’s insurance agent, not the custodian of records for the insurer.
By written orders, the trial court overruled Rios’s objections to WSI’s summary
judgment evidence. The trial court granted WSI’s motion for summary judgment,
3
dismissed Rios’s claims against WSI, and severed those claims from claims pending
against other defendants. This appeal followed.
II. STANDARD OF REVIEW AND APPLICABLE LAW
We review summary judgments de novo. Joe v. Two Thirty Nine Joint Venture,
145 S.W.3d 150, 156 (Tex. 2004); Nalle Plastics Family Ltd. P’ship v. Porter, Rogers,
Dahlman & Gordon, P.C., 406 S.W.3d 186, 199 (Tex. App.—Corpus Christi 2013, pet.
denied). In reviewing a summary judgment, we must consider whether reasonable and
fair-minded jurors could differ in their conclusions in light of all of the evidence presented.
See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per
curiam). We must consider all the evidence in the light most favorable to the nonmovant,
indulging every reasonable inference in favor of the nonmovant and resolving any doubts
against the motion. See id. at 756. We affirm the summary judgment if any of the theories
presented to the trial court and preserved for appellate review are meritorious. Joe, 145
S.W.3d at 157.
A defendant moving for summary judgment on an affirmative defense must prove
conclusively the elements of that defense. Pustejovsky v. Rapid-American Corp., 35
S.W.3d 643, 646 (Tex. 2000). “A defendant's motion for summary judgment based on an
affirmative defense must not be granted if the defendant fails to conclusively establish
each element of its affirmative defense.” Rico v. Judson Lofts, Ltd., 404 S.W.3d 762, 765
(Tex. App.—San Antonio 2013, pet. denied).
The TWCA states that “[r]ecovery of workers' compensation benefits is the
exclusive remedy of an employee covered by workers' compensation insurance
coverage.” TEX. LAB. CODE ANN. § 408.001(a). This provision is an affirmative defense
4
that, if proven, protects employers from certain common-law claims of their employees.
Judson Lofts, Ltd., 404 S.W.3d at 765. “An employee may have more than one employer
within the meaning of the TWCA, and each employer who subscribes to workers'
compensation insurance may raise the exclusive-remedy provision as a bar to claims
about the injury.” Port Elevator-Brownsville v. Casados, 358 S.W.3d 238, 242 (Tex.
2012). “[T]he exclusive-remedy provision bars claims by a temporary worker against a
client company if the client company establishes: (1) that it was the plaintiff’s employer
within the meaning of the TWCA, and (2) it subscribed to workers’ compensation
insurance.” Id. Thus, in the present case, WSI had the burden to prove the exclusive
remedy affirmative defense by establishing that: (1) it was Rios’s employer within the
meaning of the TWCA and (2) it subscribed to workers’ compensation insurance. See id.
A trial court's decision as to whether evidence is properly authenticated is reviewed
under the same abuse of discretion standard as the admissibility of evidence. See
Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App.1998); Reavis v. State, 84 S.W.3d
716, 719 (Tex. App.—Fort Worth 2002, no pet.); Mega Child Care, Inc. v. Tex. Dep’t of
Protective & Regulatory Servs., 29 S.W.3d 303, 308 (Tex. App.—Houston [14th Dist.]
2000, no pet.). “A trial court abuses this discretion when it acts without regard for guiding
rules or principles.” U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). The
ultimate test for authentication is always whether the proponent of the evidence has made
a showing sufficient to permit a reasonable juror to find that the evidence is what its
proponent claims. Reavis, 84 S.W.3d at 719; see TEX. R. EVID. 901(a). Thus, the trial
court does not abuse its discretion in admitting evidence where it believes that a
5
reasonable juror could find the evidence has been authenticated or identified. Fluellen v.
State, 104 S.W.3d 152, 161 (Tex. App.—Texarkana 2003, no pet.).
Rule 166a(f) requires that affidavits supporting or opposing summary judgment
must “be made on personal knowledge, shall set forth facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to testify to the matters
stated therein.” TEX. R. CIV. P. 166a(f); see Ryland Grp., Inc. v. Hood, 924 S.W.2d 120,
122 (Tex. 1996). An affidavit must disclose the basis on which the affiant has personal
knowledge of the facts asserted. Radio Station KSCS v. Jennings, 750 S.W.2d 760, 762
(Tex. 1988). An affiant's position or job responsibilities can qualify the affiant to have
personal knowledge of facts and establish how the affiant learned of the facts. Valenzuela
v. State & Cnty. Mut. Fire Ins. Co., 317 S.W.3d 550, 553 (Tex. App.—Houston [14th Dist.]
2010, no pet.) (stating that affidavits demonstrating personal knowledge often state
affiant's knowledge through affiant's position and specifically described job duties).
III. DISCUSSION
A. Rios’s Objections to WSI’s Workers’ Compensation Insurance Policy
By his second issue, Rios contends the trial court erred in overruling his objections
to WSI’s workers’ compensation insurance policy because the policy was not properly
authenticated and was therefore improper summary judgment evidence. Rios argues that
WSI attempted to authenticate its workers’ compensation insurance policy through
Swasey’s affidavit; however, according to Rios, the affidavit failed to comply with the
requirements of Texas Rule of Evidence 901 and Swasey admitted in his deposition
testimony that he had no knowledge as to whether the policy was a true and correct copy
of the original.
6
Rios also argues that WSI attempted to authenticate its workers’ compensation
policy through Schick’s affidavit. Rios contends Schick’s affidavit is deficient because:
(1) it does not comply with the requirements of Rule 901; and (2) Schick lacked the
authority to authenticate the policy because he was merely WSI’s insurance agent and
not the custodian of records for the insurer.
WSI concedes that neither Swasey’s nor Schick’s affidavit is a business records
affidavit, but argues that a business records affidavit was not required to authenticate the
workers’ compensation policy.
Subsection (a) of Rule 901 states that the authentication requirement for
admissibility of evidence is satisfied by proof sufficient to support a finding that the matter
in question is what its proponent claims it is. TEX. R. EVID. 901(a). Subsection (b)
provides a nonexclusive list of methods to authenticate evidence. One example given is
the testimony of a witness with knowledge that a matter is what it is claimed to be. Id. R.
901(b)(1). The rule requires only a showing satisfying the trial court that the matter in
question is what its proponent claims. Llamas v. State, 270 S.W.3d 274, 281 (Tex. App.—
Amarillo 2008, no pet.).
Swasey’s affidavit states, in relevant part:
I am employed by [WSI]. My position with [WSI] is Project Manager,
and I have held that position since March 2010. As such, it is my
responsibility to be familiar with [WSI’s] insurance coverages, including
worker's compensation coverage.
....
On or about November 14, 2011, [WSI] was the named insured
under a policy of worker's compensation insurance coverage issued by
Granite State Insurance Company. A true and correct copy of the worker's
compensation insurance policy is attached hereto as Exhibit B. The policy
7
extended to all of [WSI’s] operations in the state of Texas, including [WSI’s]
work at the Facility.
Attached to Swasey’s affidavit is a “Workers Compensation and Employers
Liability Policy” issued by Granite State Insurance Company. The named insured is WSI.
The policy period extends from August 1, 2011 to August 1, 2012, and therefore was in
effect at the time of Rios’s accident. Part One of the policy, which covers workers’
compensation insurance, is applicable to Texas, among other states. We hold this
evidence was sufficient to establish that WSI had workers’ compensation insurance at the
time of Rios’s injury. See Martinez v. H.B. Zachry Co., 976 S.W.2d 746, 748 (Tex. App—
Houston [1st Dist.] 1998, pet. denied) (holding that affidavit of Zachry's claims manager
swearing that the document attached to the affidavit was a true and correct copy of the
information page of workers' compensation policy covering the injured employee at the
time of the accident was sufficient to carry Zachry's burden to establish that it was a
subscriber).
The burden shifted to Rios to present evidence creating a fact issue on whether
WSI was a subscriber. See id. Rios attempted to create a fact issue by submitting an
excerpt from Swasey’s deposition testimony, as follows:
Q [Rios’s counsel]: All right, Mr. Swasey, sorry for the little break. Prior to
signing the affidavit that is attached to WSI's motion for
summary judgment, prior to that time had you actually
seen the workers' comp policy and the agreement
between A.R. Management and WSI?
A [Swasey]: No, not—no.
Q: Mr. Swasey, it'd be fair to say, given the fact that you
had not seen either the workers' comp policy attached
to your affidavit or the agreement between A.R.
Management and WSI, it would be fair to say that you
8
wouldn't have any knowledge as to whether those were
true and correct copies of the documents, correct?
A: Real quickly, I just don't recall seeing it. So when I say
I didn't see it, I don't recall. Maybe I did, maybe I didn't.
But to answer your question right now, if I don't recall
it, then I can't tell you whether it was accurate or
anything to that effect.
Q.: Okay. So it'd be fair to say that the documents that are
attached to your affidavit, you can't tell us that those
are true and correct copies of the originals, correct?
A: I can't without looking at them now. I couldn't, no, sir.
Q: Okay. Well, in all fairness, you would need to see the
original to compare them to, correct?
A: Correct, sir.
Q: All right. And we've already established that you don't
keep copies of the—or you don't keep the originals in
your office, correct?
A: Correct.
Q: All right. And up until the time you signed the affidavit,
you had—you don't recall having ever seen these
documents before?
A: I do not.
....
Q: The—in the last paragraph, you talk about the policy
extends to WSI’s operations. Do you see that? Talking
about the workers’ comp policy.
A: I do see it.
Q: As far as the policy, what it covers and to the extent it
covers, be fair to say that you don’t have any personal
knowledge of that?
A: That would be fair.
9
We are unpersuaded that Swasey’s deposition testimony created a fact issue as
to whether WSI was a subscriber. “The requirement of authentication or identification as
a condition precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims.” TEX. R. EVID. 901(a);
Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015); Mega Child Care, Inc., 29
S.W.3d at 308. “This has been aptly described as a ‘liberal standard of admissibility.’”
Butler, 459 S.W.3d at 600 (quoting Cathy Cochran, TEXAS RULES OF EVIDENCE HANDBOOK
922 (7th ed. 2007–08)). Rule 901 “does not erect a particularly high hurdle,” and “the
proponent of evidence does not need to rule out all possibilities inconsistent with
authenticity, or to prove beyond any doubt that the evidence is what it purports to be.”
Campbell v. State, 382 S.W.3d 545, 549 (Tex. App.—Austin 2012, no pet.); see also
Jackson v. State, No. 05-14-00274-CR, 2015 WL 3797806, at *2 (Tex. App.—Dallas June
17, 2015, no pet. h.) (mem. op.) We conclude that the trial court did not abuse its
discretion in overruling Rios’s objections to the workers’ compensation policy or in finding
that the workers’ compensation policy attached to Swasey’s affidavit was, in fact, WSI’s
workers’ compensation policy for the applicable period. The trial court did not abuse its
discretion in admitting the policy. We overrule Rios’s second issue.1
B. Rios’s Status as WSI’s Employee or Borrowed Servant
By his first issue, Rios argues that there was a genuine issue of material fact as to
whether Rios was WSI’s employee or borrowed servant. Specifically, Rios argues that:
(1) there is a fact issue as to whether WSI actually controlled the details of Rios’s work,
thereby establishing that Rios was WSI’s borrowed servant; and (2) there is a fact issue
We do not address WSI’s argument that its workers’ compensation policy was also authenticated
1
by Schick’s affidavit because the policy attached to Schick’s affidavit named ARM as the insured, not WSI.
10
as to Rios’s status as WSI’s employee or borrowed servant because the agreement
between ARM and WSI stated that personnel provided by ARM were “the exclusive
employees and work[ed] under the direction of” ARM.
We begin with Rios’s second argument: that the written agreement created a fact
issue as to whether Rios was WSI’s borrowed servant because it stated that the personnel
provided by ARM are ARM’s exclusive employees and work under ARM’s direction. The
contract states, in relevant part, that “personnel provided by [ARM] are the exclusive
employees and work under the direction of [ARM] . . . .” We are unpersuaded by Rios’s
argument.
In Exxon Corporation v. Perez, the Texas Supreme Court found that a contract
between two employers providing that one shall have the right of control over certain
employees is a factor to be considered in determining an employee’s status, but it is not
controlling. 842 S.W.2d 629, 630 (Tex. 1992). This Court has held that “a contractual
designation of control will not establish borrowed servant status as a matter of law where
evidence shows that the parties acted to the contrary.” Coco v. Port of Corpus Christi
Authority, 132 S.W.3d 689, 692–93 (Tex. App.—Corpus Christi 2004, no pet.). “[A]
general employee of one employer becomes the borrowed employee of another
‘employer’ if the other special employer has the right to direct and control the employee
with respect to the details of the particular work at issue.” Lockett v. HB Zachary Co., 285
S.W.3d 63, 76 (Tex. App.—Houston [1st Dist.] 2009, no pet.).
In support of his argument that the contract created a fact issue on the “right of
control,” Rios cites Hoffman v. Trinity Industries, Inc. 979 S.W.2d 88 (Tex. App.—
Beaumont 1998, pet. dism’d by agr.). In Hoffman, the plaintiff worked for a temporary
11
employment agency that assigned him to work for one of its clients. Id. at 89. The
summary judgment evidence established that the client company controlled the details of
the plaintiff’s work. Id. at 91. However, the contract between the agency and the client
provided that the agency would have “complete and sole control over its employees, the
details of the services and methods by which the services are accomplished.” Id. The
Hoffman Court concluded that the contract was a “factor to be considered” and that the
express language of the contract created a fact issue as to whether the plaintiff was the
client company’s borrowed servant. Id.
We find Hoffman distinguishable. In Hoffman, the contract stated that the
temporary agency had the right to control “the details of the services and methods by
which the services are accomplished.” Id. In contrast, the agreement between ARM and
WSI merely states that employees work under ARM’s “direction”; the contract is silent as
to which company had the right to control the details of work performed for WSI. At his
deposition, Lynn, who drafted the agreement for WSI, was questioned regarding the
language in the agreement that personnel provided by ARM work under ARM’s direction.
Lynn stated that “[ARM] directs [ARM personnel] where to report for work. That’s the end
of their involvement in their direction.”2 We conclude that the “work under the direction”
language of the agreement is distinguishable from the right to control “the details of the
services and methods” language in Hoffman and that the contract language therefore
does not raise a fact issue regarding whether WSI had the right to control Rios’s work.
2 Although Rios objected to Lynn’s deposition testimony on the ground that Lynn was not present
on the day of the accident and lacked personal knowledge regarding any instructions to Rios, we conclude
that, as the author of the agreement, he had personal knowledge of the intent of the language in the
agreement.
12
Rios also argues that there is a fact issue as to whether WSI actually controlled
the details of his work.
[A] general employee of one employer becomes the borrowed
employee of another “employer” if the other special employer has the right
to direct and control the employee with respect to the details of the particular
work at issue. The test examines whether the borrowing employer has the
right to control the progress, details, and methods of operations of the work.
The borrowing employer must control not merely the end sought to be
accomplished, but also the means and details of its accomplishment.
Lockett, 285 S.W.3d at 76 (internal citations omitted). In determining whether a right of
control exists, courts consider the nature of the work to be performed, the length of the
employment, the type of machinery furnished, the acts representing an exercise of actual
control, and the right to substitute another operator on a machine. Phillips v. Am.
Elastomer Products, L.L.C., 316 S.W.3d 181, 187 (Tex. App.—Houston [14th Dist.] 2010,
pet. denied).
The type of control normally exercised by an employer includes determining
when and where to begin and stop work, the regularity of hours, the amount
of time spent on particular aspects of work, the tools and appliances used
to perform the work, and the physical method or manner of accomplishing
the end result.
Id.
Rios argues that WSI cannot rely on Swasey’s affidavit or Lynn’s deposition
testimony because neither had personal knowledge of any instructions given to Rios on
the day he was injured.3 We need not discuss Rios’s challenges to Swasey’s and Lynn’s
statements, however, because Rios’s own testimony, which follows, established that WSI
had the right to control—and did, in fact, control—the details of his work.
Q. [Sherwin’s counsel]: The supervisor that you were telling me about
earlier who worked on your crew at the time of your
accident, who was that again?
3 In Swasey’s affidavit and in Lynn’s deposition testimony, both stated that WSI had the right to
direct and control Rios with respect to the details of his work.
13
A. [Rios] The one that was with me, the crew leader?
Q. Yes.
A. Jimmy Garcia.
Q. And was Mr. Garcia the person in charge for WSI in
that tank when you were working?
A. Uh-huh.
Q. Yes?
A. Yes.
....
Q. But Mr. Garcia was the person that gave you
instructions or directions about how to do your
hydroblasting in the tank; is that right?
A. Yes, because before we came in, he would tell us
what could happen.
Q. All right. And WSI had been hired to come in there
and basically clean the inside of the tanks; is that
right?
Q. What I mean—and I didn't ask a very good
question. The only people that were inside the tank
at the time of your accident were the WSI crew; is
that right?
A. Yes, Jimmy was a WSI employee.
Q. There was nobody from Sherwin Alumina who was
instructing you about how to perform your
hydroblasting job; is that right?
A. It was just us two there.
Q. You and Mr. Garcia; is that right?
A. Yes, and the watchman, but he was by the door, but
not inside.
14
Q. But what I'm asking, sir, is: Nobody from Sherwin
Alumina was inside the tank telling you how to do
your hydroblasting job; is that right?
A. No.
Q. But that's correct, they weren't doing that?
A. That is correct, they were not there.
Q. The hose that you were using, was that a WSI
hose?
A. Yes.
Q. The tools and equipment that you would use, would
that be WSI equipment?
A. Yes.
Q. The hard hats and any safety equipment that you
used, was that WSI's equipment?
A. Yes, WSI.
....
Q. [WSI’s counsel]: On the day of the accident, you
were working with the WS Industrial crew, correct?
A. Yes.
Q. And you were taking directions from the crew
leader, Jimmy Garcia?
A. Yes.
Q. Mr. Garcia told you when you were going to work,
right?
A. Yes.
Q. Mr. Garcia told you what work you were going to
do?
15
A. Yes.
Q. Mr. Garcia told you how he wanted you to do the
work?
A. Yes.
Q. And Mr. Garcia could send you home if he didn't like
your work?
A. Yes.
Q. You were working that day under the direction of
Mr. Garcia?
A. Yes.
We conclude that Rios’s testimony established conclusively that WSI had the right
to control, and did control, the details of Rios’s work. See Phillips, 316 S.W.3d at 187.
Rios presented no evidence raising a fact issue as to WSI’s right to control. Accordingly,
the evidence established that Rios was WSI’s borrowed employee, and the trial court
correctly ruled that WSI was an employer for purposes of asserting the exclusive remedy
provision of the TWCA. See Lockett, 285 S.W.3d at 76–77. We overrule Rios’s first
issue.
We hold that WSI met its burden to establish that: (1) it was Rios’s employer within
the meaning of TWCA; and (2) it subscribed to workers’ compensation insurance. See
Port Elevator, 358 S.W.3d at 242. WSI thus established that Rios’s claims were barred
by the exclusive remedy provision, and the trial court did not err in granting summary
judgment on those grounds. See id.
IV. CONCLUSION
We affirm the trial court’s judgment.
16
DORI CONTRERAS GARZA,
Justice
Delivered and filed the
31st day of August, 2015.
17
|
Case: 18-40724 Document: 00515049003 Page: 1 Date Filed: 07/25/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-40724
FILED
July 25, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE ARMANDO BAZAN,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:15-CR-936-1
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
Jose Armando Bazan pleaded guilty to a single count of possession with
intent to distribute cocaine. After application of the safety valve adjustment,
he was sentenced below the mandatory minimum sentence to 119 months of
imprisonment. For the first time on appeal, Bazan argues that he should have
received a mitigating role reduction under U.S.S.G. § 3B1.2 and that his
sentence is substantively unreasonable.
* 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.
Case: 18-40724 Document: 00515049003 Page: 2 Date Filed: 07/25/2019
No. 18-40724
Because Bazan did not raise the mitigating role adjustment issue or
object on this basis in the district court, our review is limited to plain error.
See United States v. Martinez-Larraga, 517 F.3d 258, 272 (5th Cir. 2008). The
determination whether a defendant was a minimal or minor participant is a
factual issue. United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016).
“Questions of fact capable of resolution by the district court upon proper
objection at sentencing can never constitute plain error.” United States v.
Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Thus, Bazan fails to show that the court
plainly erred in failing to award a reduction under § 3B1.2.
Bazan’s substantive reasonableness argument is likewise reviewed for
plain error because he did not object in the district court on this basis. See
United States v. Heard, 709 F.3d 413, 425 (5th Cir. 2013). Bazan’s argument
that the district court should have sentenced him even lower below the
guidelines range based on his cooperation with the Government and testimony
in a drug conspiracy case merely reflects his disagreement with the propriety
of his sentence and the district court’s weighing of the 18 U.S.C. § 3553(a)
factors. His argument is insufficient to overcome the presumption of
reasonableness afforded his below-guidelines sentence. See United States v.
Broussard, 882 F.3d 104, 108, 113 (5th Cir. 2018); see also United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
Indeed, even without the added hurdle of the plain-error standard,
Bazan’s substantive reasonableness argument would still lose. Although
Bazan debriefed truthfully with the government, he did not provide substantial
assistance in this case; he provided it in the later cocaine-conspiracy case. The
district court did not abuse its discretion in rebuffing Bazan’s attempt at a
double-dip.
Accordingly, the judgment of the district court is AFFIRMED.
2
|
757 N.W.2d 483 (2008)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Thomas Conrad LOGAN, Defendant-Appellant.
Docket No. 136827. COA No. 284921.
Supreme Court of Michigan.
November 25, 2008.
Order
On order of the Court, the application for leave to appeal the June 10, 2008 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).
|
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 7, 2011
No. 10-13707 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 3:09-cr-00239-HLA-MCR-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
DARRYLE EVANS, a.k.a. Quick,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 7, 2011)
Before HULL, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Susan G. Yazgi, appointed counsel for Darryle Evans, has moved to
withdraw from further representation of the appellant and has filed a brief
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967). Our independent review of the entire record reveals that counsel’s
assessment of the relative merit of the appeal is correct. Because independent
examination of the entire record reveals no issues of arguable merit, counsel’s
motion to withdraw is GRANTED, and Evans’s conviction and sentence are
AFFIRMED.
2
|
267 F.3d 220 (3rd Cir. 2001)
UNITED STATES OF AMERICA,v.JANE DURA BARRIE, A/K/A JANE WOTAY DURA, A/K/A JANE WOTAY BARRIE JANE DURA BARRIE, APPELLANT
No. 00-3839
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Argued April 3, 2001Filed September 19, 2001
1
On Appeal from the United States District Court for the District of New Jersey District Judge: Honorable Harold A. Ackerman, (D.C. Criminal No. 99-CR-00541-2)Kenneth W. Kayser, Esquire (Argued) P. O. Box 2087 Livingston, New Jersey 07039, Attorney for Appellant
2
Jessica Stein, Esquire (Argued) George S. Leone, Esquire Office of United States Attorney 970 Broad Street, Room 700 Newark, New Jersey 07102, Attorneys for Appellee
3
Before: Scirica, Rosenn and GIBSON,* Circuit Judges.
OPINION OF THE COURT
John R. Gibson, Circuit Judge
4
The issue before us is whether the district court erred in enhancing Jane Dura Barrie's sentencing offense level by four levels for organizing or leading a criminal activity that involved five or more participants.1 We hold that it did.
5
Jane Barrie pleaded guilty to knowingly conspiring to transfer identification documents and false identification documents knowing that such documents were produced without lawful authority, 18 U.S.C. S 371 and S 1028(a)(2) (1994). This charge arose from her involvement in a scheme to sell Social Security cards to a number of West African immigrants.
6
To obtain a valid Social Security card, the applicant must submit an SS-5 form and provide supporting documentation, such as a birth certificate or permanent resident alien card, to verify that the applicant is entitled to a card. A claims representative reviews the form and supporting documentation to verify the applicant's identity and entitlement to a Social Security card. The SS-5 form is forwarded to a data entry employee who inputs the information into the Social Security Administration's mainframe computer. A Social Security number and card are then generated and sent to the applicant's address as listed on the SS-5 form.
7
Jane Barrie's daughter Yemma Barrie was employed by the SSA as a clerk typist; one of her duties was entering data from SS-5 forms into the computer. A periodic review revealed that she had processed seventy-three Social Security cards without corresponding SS-5 forms. Investigators discovered that a number of these cards corresponded with applications processed by claims representative Angela Lucas and that Lucas failed to verify the supporting documentation for these and other applications.
8
Together, Yemma Barrie and Lucas unlawfully issued over 100 Social Security cards. According to an investigation report made part of the record by the district court, Yemma Barrie produced seventy-nine cards and Lucas produced sixty-four. At sentencing, the court found that the activities of Jane Barrie, Yemma Barrie, and Lucas resulted in the issuance of at least 108 Social Security cards. All of the illegally generated cards, both replacement cards for existing Social Security numbers and new cards, were coded as authorized for employment.
9
Lucas was a friend of Jane Barrie's. They first met in 1991 when Jane Barrie had contact with her in connection with Social Security benefits Jane Barrie received after the death of her husband. Jane Barrie gave Lucas $200 for helping to issue the illegal Social Security cards.
10
Yemma Barrie gave written statements to investigators in which she admitted that she illegally generated Social Security cards without applications. She stated that she received no money and that she acted at the request of a "friend."
11
Investigators interviewed some of the recipients and would-be recipients of the Social Security cards at issue. Most of those interviewed indicated that Jane Barrie had approached them and offered them "clean" Social Security cards (i.e., cards that could be used to obtain employment) in exchange for money. Jane Barrie charged the recipients approximately $200 to $600 per card. The individuals either filled out SS-5 forms or gave Jane Barrie their personal information. Jane Barrie then forwarded this information to Lucas and Yemma Barrie and asked them to generate the cards. Some paid Jane Barrie and received cards, others paid and received nothing, and others did not pay but still received Social Security cards. Some recipients indicated that Yemma Barrie had gotten them Social Security cards as a favor.
12
At sentencing, the district court referred to the presentence investigation report, which recommended a four-level increase in Jane Barrie's offense level for her role as an organizer or leader of a criminal activity that involved five or more participants. The court then read through all of U.S.S.G. S 3B1.1, along with most of the commentary. The court found that Jane Barrie solicited individuals to buy Social Security cards, that she forwarded SS-5 forms to Lucas and Yemma Barrie, and that although she needed Lucas and her daughter, Jane Barrie "ran the show" "in a very significant way." The court also found that the recipients of the cards were participants in the criminal activity because they had advance knowledge of the crime, had to execute SS-5 forms or provide personal information to Jane Barrie, and expected to receive clean Social Security cards, which the court characterized as the "proceeds" of the crime. The court made no finding on whether the criminal activity was "otherwise extensive."2
13
The base offense level for Jane Barrie's crime was 11. The district court's finding that there were more than 99 cards involved in the conspiracy increased the level by 9, and its finding that Jane Barrie was an organizer/leader increased the offense level by 4. The district court then reduced the offense level by 3 for acceptance of responsibility, resulting in a total offense level of 21. Since Jane Barrie's criminal history category was II, this meant a sentencing range of 41 to 51 months. The court sentenced her to 51 months in prison.
14
We review for clear error the district court's factual determinations that Jane Barrie was an organizer or leader and that her criminal activity involved five or more participants. See United States v. Helbling, 209 F.3d 226, 242-43 (3d Cir. 2000), cert. denied, 121 S. Ct. 833 (2001). We will reverse "only if we are left with a definite and firm conviction that a mistake has been made." United States v. Dent, 149 F.3d 180, 189 (3d Cir. 1998). We may not reverse if the district court's findings are "plausible in light of the record viewed in its entirety." Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985). At the outset, we note that the record in this case consists primarily of a five-and- a-half page report prepared by the SSA's Office of the Inspector General.
15
Factors to be considered in determining whether a defendant was an organizer or leader of a criminal activity include
16
the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
17
U.S.S.G. S 3B1.1, comment. (n.4). Jane Barrie solicited individuals to purchase Social Security cards, received most of the profits, and exercised control over Lucas and her daughter, who generated the illegal cards. We see no clear error in the district court's finding that she was an organizer or leader.
18
We turn to the court's finding that the criminal activity involved five or more participants. "A `participant' is a person who is criminally responsible for the commission of the offense, but need not have been convicted." U.S.S.G. S 3B1.1, comment. (n.1). There is no doubt that Jane Barrie, Yemma Barrie, and Lucas were participants in the criminal activity. We conclude, however, that the district court's finding that the recipients of the unlawfully produced Social Security cards were participants is clearly erroneous.
19
Our analysis is guided by our decision in United States v. Belletiere, 971 F.2d 961 (3d Cir. 1992). In Belletiere, the defendant was found guilty of conspiring with others to distribute and possess cocaine with intent to distribute it. Id. at 962-63. The district court adopted the recommendations in the presentence investigation report, which said Belletiere was the leader of an extensive drug trafficking operation that involved five or more participants: Craig, Mishinski, Yurkovic, Forte, and the DeAngelo brothers. Id. at 964, 968-69. Belletiere regularly sold cocaine to Craig, who used it and sold it to others, including Mishinski, without direction from Belletiere. Id. at 971. Mishinski received several Federal Express packages from Belletiere at Craig's request. Id. Craig also sold cocaine to Yurkovic; Yurkovic decided to cut out the middleman and purchased cocaine directly from Belletiere several times. Id. Forte purchased drugs from Belletiere in Miami in a deal that involved the DeAngelo brothers. Id. at 972. We held that the district court clearly erred in increasing Belletiere's offense level by four levels for two reasons. First, none of the buyers were led or organized by, or answerable to, Belletiere. Id. at 971-72. Second, the evidence did not show any connection between the transactions, but instead
20
demonstrate[d] that Belletiere made individual sales of drugs to Craig (which at times involved Mishinski) and Yurkovic, and one sale to Forte (which involved the DeAngelo brothers). Accordingly, it was improper for the district court to treat these two groups of individuals as "participants" in the same criminal activity or offense under section 3B1.1.
21
Id. at 972. In the case at bar, there was a series of one-time transactions between Jane Barrie and some of the card recipients, and as in Belletiere, the recipients were not participants with each other in the same criminal activity.
22
The focus of the aggravating role guideline is on relative culpability within a criminal organization, with the adjustment to sentence increasing with the size of the organization and with the level of responsibility. U.S.S.G. S 3B1.1, comment. (backg'd). If Jane Barrie, with the help of her daughter and Lucas, had obtained a Social Security card for one individual rather than numerous individuals, the size of the criminal organization would have been the same. Jane Barrie was the most culpable participant in the conspiracy, and Lucas and Yemma Barrie participated at her direction. The card recipients were the least culpable of all.
23
Jane Barrie argues that the Social Security card recipients in this case are like the drug purchasers in Belletiere and so are not participants. Customers of drug dealers ordinarily cannot be counted as participants in a drug distribution conspiracy. See United States v. Egge, 223 F.3d 1128, 1133-34 (9th Cir. 2000). Here, many of those who paid to obtain a Social Security card may have been in essentially the same situation as drug purchasers who provide money and know they are obtaining something unlawfully. Some, however, were more deeply involved because they provided information to Jane Barrie or filled out SS-5 forms. These recipients fall somewhere between drug customers and full-blown participants. The problem with the district court's finding that all recipients were participants is that the record demonstrates that there were individuals in a number of different circumstances. Some paid, some did not; some were approached by Jane or Yemma Barrie, others approached them; some filled out an SS-5 form, some did not. We cannot sustain the district court's broad brush approach to identifying participants because it simply rests on too shaky an evidentiary foundation.
24
The government argues that the recipients were participants because they were aware of their involvement in the scheme. The record does not demonstrate exactly what the card recipients knew about the criminal activity. Some received cards as a favor from Yemma Barrie and had no involvement with Jane Barrie. Most recipients who were interviewed by investigators stated that Jane Barrie approached them and offered to obtain Social Security cards for them. One recipient stated that after she learned that Social Security cards are free, she refused to pay Jane Barrie any more money. The district court's general finding that the recipients had advance knowledge of the criminal activity and participated in it from the outset, is not substantiated by the record before us.
25
The government also argues that the recipients were participants because they expected to receive proceeds of the crime. The Social Security cards are no more proceeds of Jane Barrie's criminal activity than purchased drugs are proceeds of a distribution conspiracy. We are left with a definite and firm conviction that the district court erred in finding generally that the recipients were participants in the criminal activity for purposes of section 3B1.1(a) of the Guidelines.
26
The government argues that even if the criminal activity did not involve five or more participants, it was otherwise extensive. The presentence report did not identify Jane Barrie as the organizer or leader of an otherwise extensive criminal activity, the government did not argue that the activity was otherwise extensive at sentencing, and the district court did not make a finding on this issue. We need not consider it. See Belletiere, 971 F.2d at 971 n.9.
27
While the district court erred in finding that the criminal activity involved five or more participants and consequently erred in increasing Jane Barrie's offense level by four, there was no error in its finding that she was an organizer or leader. She was therefore properly subject to a two-level increase under section 3B1.1(c). We vacate the sentence of the district court and remand with instructions to resentence Jane Barrie using the offense level of 19 rather than 21.
NOTES:
*
The Honorable John R. Gibson, United States Court of Appeals for the Eighth Circuit, sitting by designation.
1
Under the aggravating role guideline, a sentencing court must increase a defendant's offense level by four levels "[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." U.S.S.G. S 3B1.1(a) (2000).
2
The presentence report made no mention of whether the criminal activity was otherwise extensive. At the sentencing hearing, the government did not argue that the criminal activity was otherwise extensive.
|
401 F.Supp.2d 867 (2005)
Marlita THOMAS, as Mother, Next Friend, and Special Administrator of Norman L. SMITH, Jr., deceased, Plaintiffs,
v.
COOK COUNTY SHERIFF, Cook County Bureau Health Services Cook County, John Stroger, Jr. Michael F. Sheahan, Dr. John Raba, Ruth M. Rothstein, Callie Baird, Daniel Brown, Sgt. Monczynski, Ofr. Sanchez, James Myvette, Peggy Westbrook, A. Bradley, Ofr. Davis, Sgt. Dew, Ofr. Facundo, Sgt. Hernandez, Ofr. Houston, Ofr. Johnson, Lt. Krzyzowski, C. Lacy, T. Nelson, R. Patton, Sgt. Stroner, Ofr. Thiemecke, Ofr. Toomey, and K. West, Defendants.
No. 04 C 3563.
United States District Court, N.D. Illinois, Eastern Division.
November 16, 2005.
*868 *869 Daniel S. Alexander, Christopher Rudolf Smith, Phillip Lindsley Coffey, The Law Offices of Smith & Coffey, Chicago, IL, for Norman L Smith, Jr as Mother, Next Friend, and Special Administrator, Plaintiff.
John Michael Allegretti, Cook County State's Attorney, John A. Ouska, Cook County State's Attorney, Chicago, IL, for Cook County Sheriff, Officer Johler, Officer Acey, Officer Merriweather, Cermak Health Services Employees.
Ashley Caroline Esbrook, Cook County State's Attorney, Chicago, IL, for Cermak Health Services of Cook County, James Myvette.
John Michael Allegretti, Cook County State's Attorney, John A. Ouska, Cook County State's Attorney, Chicago, IL, Ashley Caroline Esbrook, Cook County State's Attorney, Chicago, IL, for Cook County, Dr John Raba, Ruth M Rothstein, Peggy Westbrook.
John Michael Allegretti, Cook County State's Attorney, Chicago, IL, Donald J. Pechous, Cook County State's Attorney, Chicago, IL, Jamie M Sheehan, State's Attorney of Cook County, Chicago, IL, John A. Ouska, Cook County State's Attorney, Chicago, IL, for Michael F Sheahan, Callie Baird, Daniel Brown, Sgt Monczynski Star 831, Officer Sanchez Star 8131.
MEMORANDUM OPINION AND ORDER
CASTILLO, District Judge.
This case arises out of the tragic death of Norman L. Smith, Jr., ("Smith") while he was in the custody of the Cook County Department of Corrections. Plaintiff Marlita E. Thomas ("Thomas"), as Smith's mother and the independent administrator of his estate, brings suit under 42 U.S.C. § 1983; the Illinois Wrongful Death Act, 740 ILCS 180/1 (2005); the Illinois Survival Act, 755 ILCS 5/27-6 (2005); and Illinois common law. Thomas claims that Smith suffered physical pain, mental anguish, and death as a result of the defendants' deliberate indifference to Smith's medical needs.
Eleven of the named defendants have joined in three separate motions to dismiss Thomas' Third Amended Complaint ("Complaint"). Defendants Callie Baird, Daniel Brown, James Monczynski, Darrell Merriweather, Alex Sanchez, and Michael Sheahan, the Sheriff of Cook County (the "Baird Defendants") brought one motion (R. 43-1); Cook County, Dr. John Raba, and Ruth M. Rothstein (the "Raba Defendants") brought a second motion (R. 44-1); and James Myvette and Peggy Westbrook (the "Myvette Defendants") brought the third motion (R. 46-1).[1] These defendants *870 moved to dismiss Thomas' Complaint for lack of standing, pursuant to Federal Rule of Civil Procedure 12(b)(1),[2] and for failure to state a claim upon which relief can be granted, under Rule 12(b)(6). For the reasons set forth below, the Court grants in part and denies in part these motions.
FACTS[3]
On Friday, April 23, 2004, Smith was arrested by two Chicago police officers for possession of a controlled substance and transported to Cook County Jail. (R. 38, Compl.śś 8-9.) At the time of his arrest, Smith was suffering from flu-like symptoms. (Id. ś 9.) Although he complained of these symptoms to medical personnel during his initial screening at the jail by Cermak Health Services, he was placed with the general prison population in Division 5, Tier 1-M. (Id. śś 3, 9.)
By April 26, 2004, Smith's physical condition had deteriorated, and he began requesting medical attention from various Cook County sheriff officers. (Id. ś 10.) These officers denied all of Smith's requests for help, stating that he was merely "dopesick." (Id.) By the next morning, April 27, 2004, his condition had deteriorated severely. (Id. ś 11.) Smith was vomiting green liquid repeatedly and could not eat. (Id.). Between April 27 and April 29, 2004, Smith and his fellow detainees repeatedly requested that Smith receive medical attention from various sheriff officers and medical technicians. (Id. śś 11, 25.) Specifically, Smith told various sheriff officers that he wanted to be seen by a doctor or taken to Cermak Health Center (Id. ś 10), and that he "felt like he was going to die soon." (Id. ś 11.) On April 29, 2004, one of Smith's tier-mates made a written request for Smith's medical attention, explaining that Smith was having chest pains, fever, and vomiting, and that he had been ill for two weeks. (Id. ś 26.) These requests were rejected. (Id. śś 26-27.)
At 4 a.m. on April 30, 2004, one of Smith's tier-mates awoke to find him lying on the floor of his cell, having convulsions. (Id. ś 27.) This tier-mate immediately told Officer Sanchez of Smith's condition, who then informed Sergeant Monczynski. (Id.) A half-hour later, Sergeant Monczynski checked on Smith's condition and then called Cermak paramedic Myvette, who arrived at the scene an additional half-hour later without assistants or medical equipment. (Id. śś 28-29.) After checking Smith's pulse, Myvette walked to the tier office to retrieve Smith's identification. (Id. ś 30.) Myvette spent a half-hour trying to *871 locate Smith's I.D. (Id.) After finding Smith's I.D., Myvette called for more paramedics from Cermak. (Id.) The additional paramedics arrived on the scene, wheeled a gurney to a staircase about one hundred feet away from Smith, and stopped. (Id. ś 31.) By this time, Smith was barely breathing, and one of his eyes was shut while the other was rolled back into his head. (Id.) The paramedics claimed that they lacked the manpower to lift Smith up the stairs and that there was nothing they could do, so Smith's tier-mates picked him up and carried him up the stairs to the gurney. (Id. ś 31.) Smith died of meningitis later that morning. (Id. ś 32.) He is survived by his three minor children and estranged wife. (Pl.'s Russ v. Watts Mem. at 2.)
In the Complaint, Thomas separates the named defendants into three groups based on the capacity in which they are being sued: institutional,[4] official,[5] and individual.[6] (Compl.śś 4-6.) In Count II, she alleges that the customs, policies and practices of the institutional defendants violated Smith's constitutional rights. (Id. ś 38.) Thomas claims that those customs, policies, and practices were promulgated, enforced, and disseminated by the official defendants. (Id.) Thomas alleges that these customs, policies, and practices prevented Smith and "many other" pre-trial detainees from receiving adequate medical care, resulting in "at least one other prior recent case of a pre-trial detainee being allowed to slowly die from meningitis while being denied any access to medical care." (Id.) Thomas further alleges that the individual defendants deliberately, wilfully, and wantonly ignored Smith's obvious and serious medical needs at the substantial risk of his serious injury and death, which constituted deliberate indifference to his serious medical needs. (Id. ś 36.)
LEGAL STANDARDS
In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), the Court must accept the complaint's well-pleaded factual allegations as true and draw reasonable inferences from those allegations in the plaintiff's favor. Transit Express, Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir.2001); Mosley v. Klincar, 947 F.2d 1338, 1339 (7th Cir.1991). The Court will grant a motion to dismiss only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Phelan v. City of Chicago, 347 F.3d 679, 681 (7th Cir.2003), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
ANALYSIS
I. Standing
The defendants challenge Thomas' standing under both Section 1983 and the Illinois Wrongful Death Act. The defendants argue that only Smith's minor children have standing to bring these claims. However, the Illinois Wrongful Death Act grants a decedent's personal representative standing to sue on behalf of the decedent's surviving spouse and next of kin to recover for pecuniary losses they sustained *872 due to the decedent's death. 740 ILCS 180/2 (2005). See Glenn v. Johnson, 198 Ill.2d 575, 582, 261 Ill.Dec. 756, 764 N.E.2d 47, 52 (2002); Elliott v. Willis, 92 Ill.2d 530, 540, 65 Ill.Dec. 852, 442 N.E.2d 163, 168 (1982). In the instant case, Thomas has been appointed by the Circuit Court of Cook County as the independent administrator of Smith's estate.[7] (R. 61, Raba Defs.' Russ v. Watts Mem., Ex. B.) Although the Illinois Wrongful Death Act does not specify who qualifies as a "personal representative" for purposes of the Act, Illinois law shows that an individual who has been appointed as the decedent's estate administrator so qualifies. See Glenn, 198 Ill.2d at 582, 261 Ill.Dec. 756, 764 N.E.2d at 52. Thus, Thomas has standing under this Act.
By contrast, Section 1983 does not expressly indicate who has standing to bring survival civil rights actions. In such cases where federal law does not address a particular concern, Section 1988 provides that the analogous state law be applied. Robertson v. Wegmann, 436 U.S. 584, 588-94, 98 S.Ct. 1991, 56 L.Ed.2d 554, (1978). Because Illinois law gives standing to a decedent's personal representative to sue for wrongful death on behalf of the decedent's surviving spouse and next of kin, Thomas may also bring a wrongful death claim under Section 1983 for the benefit of her deceased son's surviving spouse and children. See Spence v. Staras, et al., 507 F.2d 554, 557 (7th Cir.1974) (§ 1983 action survives for benefit of decedent's estate if the applicable state law creates a such a survival action). See also Benton v. Bocian, No. 86 C 5367, 1987 WL 11345, *4-5 (N.D.Ill. May 14, 1987) (plaintiff had § 1983 standing by virtue of standing under either Illinois Wrongful Death or Survival Acts).
The Seventh Circuit did not make a contrary ruling in Russ v. Watts, 414 F.3d 783 (7th Cir.2005). In that case, the Seventh Circuit held that parents have no constitutional right to recover for their own loss of society and companionship under Section 1983, when the state's action did not purposefully interfere in the family relationship. Id. at 790-91. The Appellate Court did not foreclose a parents' right to maintain a wrongful death claim under Section 1983 for the benefit of the decedent's surviving spouse and next of kin. Therefore, in the instant case, since Thomas has standing under the Wrongful Death Act, she has standing to maintain the Section 1983 action.[8]
II. Section 1983
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that he or she was (1) deprived of a federal right, privilege, or immunity (2) by any person acting under color of state law. Gomez v. Toledo, 446 U.S. 635, 638, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). Thomas alleges that Smith was deprived of his constitutional right to medical care as a pre-trial detainee in Cook County Jail. Because the Eighth Amendment does not apply to pre-trial detainees, this right derives from the Fourteenth Amendment's Due Process Clause. Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 259 n. 1 (7th Cir. *873 1996) (citations omitted). However, since "the due process rights of a pre-trial detainee are at least as great as the Eighth Amendment protection available to a convicted prisoner," there is "little practical difference between the two standards." Brown v. Budz, 398 F.3d 904, 910 (7th Cir.2005) (citations omitted). Therefore, Section 1983 claims brought under the Fourteenth Amendment are analyzed under Eighth Amendment tests. Henderson v. Sheahan, 196 F.3d 839, 844 n. 2 (7th Cir.1999).
A. Individual Capacity Claims
In Count I of the Complaint, Thomas alleges that the individual defendants violated Smith's Eighth and Fourteenth Amendment constitutional rights by their deliberate indifference to his serious medical needs. (Compl.ś 36). In order to sufficiently allege an individual capacity claim under the Eight Amendment, a plaintiff must satisfy both an objective and a subjective requirement. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). First, the "deprivation alleged must be, objectively, sufficiently serious." Id. (internal citations omitted). This means the custodial officials must expose a detainee to "conditions posing a substantial risk of serious harm." Id. The subjective requirement is that "[a] prison official must have a sufficiently culpable state of mind," which the Seventh Circuit has defined as "deliberate indifference." Id. (internal citations omitted.)
To survive a motion to dismiss, a plaintiff need only plead a sufficiently serious deprivation and the legal conclusion that the defendant acted with the requisite mental state. Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir.1996) (deliberate indifference sufficiently pled where plaintiff's complaint alleged that "the actions [of the defendants] were deliberate and intentional and were done with malice toward plaintiff" and that "said actions were done with reckless disregard for the rights of plaintiff. . . ."); Zarnes v. Rhodes, 64 F.3d 285, 290 (7th Cir.1995) (plaintiff's allegations were sufficient to withstand a 12(b)(6) motion where she alleged that defendant was "deliberately indifferent" and showed "deliberate or reckless disregard" for her rights.) Thomas has sufficiently met Farmer's two-pronged test by alleging that each individual defendant was aware of Smith's serious medical needs and displayed deliberate indifference to them by failing to take adequate steps to protect him. (Compl.śś 18, 23, 24, 33, 36).
B. Official Capacity (Monell) Claims
A municipality is liable under Section 1983 when a municipal policy or custom deprives someone of their constitutional rights. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Such liability may be demonstrated in three ways: "(1) by an express policy that, when enforced, causes a constitutional deprivation; (2) by a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well-settled as to constitute a custom or usage with the force of law;[9] or (3) by a showing that the constitutional injury was caused by a person *874 with final policymaking authority." Baxter by Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 735 (7th Cir.1994) (internal citations and quotations omitted).
In Count II, Thomas alleges that Smith's constitutional violations were caused by:
the customs, policies, and practices of the institutional defendants, as promulgated, enforced, and disseminated by the official defendants, whereby the institutions and official defendants charged with ensuring adequate health care to pre-trial detainees at Cook County Jail failed utterly to provide access to the most basic health care commensurate with a civilized society, in this case and many other cases, including at least one other prior recent case of a pretrial detainee being allowed to slowly die from meningitis while being denied any access to medical care.
(Compl.ś 38.) She also alleges a list of failures that she claims are representative of this policy. (Id. ś 39.) As such, Thomas has sufficiently alleged that the official and institutional defendants had either an express policy or widespread practice that deprived Smith of his constitutional rights. However, Thomas' claim that the official capacity and institutional defendants are "jointly and severally" liable under Monell is redundant. Claims brought against defendants in their official capacity are essentially brought against the government entity for which those officers work, and any damages received must be paid by the government entity. Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Hadi v. Horn, 830 F.2d 779, 783 (7th Cir.1987). Thus, Count II is dismissed only to the extent that it alleges that the official capacity defendants are liable separately from the institutional defendants.[10]
C. Conspiracy
The moving defendants next argue that the Court should dismiss Thomas' claims to the extent that they are based on the theory that the defendants conspired to cover up the "criminal neglect" that led to Smith's death. Thomas does not bring an actual conspiracy claim in her Third Amended Complaint, but she claims that a conspiracy claim may exist under her Section 1983 and state law claims. In order for a § 1983 claim of conspiracy to survive, "a plaintiff must allege that: (1) a state official and private individual(s) reached an understanding to deprive the plaintiff of his constitutional rights; and (2) those individual(s) were willful participant[s] in joint activity with the State or its agents." Williams v. Seniff, 342 F.3d 774, 785 (7th Cir.2003) (internal citations omitted). The "complaint must contain more than mere conclusory allegations of such a conspiracy; a factual basis for such allegations must be provided." Bowman v. City of Franklin, 980 F.2d 1104, 1107 (7th Cir.1992) (internal citations omitted). Under both federal and state law, an allegation of conspiracy, by definition, must allege an agreement or understanding among the defendants. Thomas, however, fails to allege any agreement or understanding among the defendants to cover up their actions. Thus her claims of conspiracy are, at best, conclusory in nature, and Thomas does not state a claim for conspiracy.
III. State Claims
Thomas also alleges that the defendants' actions violate the Illinois Wrongful Death Act and create liability under the Illinois *875 Survival Act. The defendants move to dismiss these claims under the Illinois Tort Immunity Act, arguing that this statute shields them from liability. They also argue that the Wrongful Death Act claims should be dismissed due to Thomas' failure to submit an affidavit pursuant to Section 2-622 of the Illinois Healing Art Malpractice Act.
A. Illinois Tort Immunity Act
The Illinois Tort Immunity Act was enacted to "protect local public entities and public employees from liability arising from the operation of government." 745 ILCS 10/1-101.1(a). The defendants assert that they enjoy tort immunity under five separate sections of the Act. The Court will address each section separately.
1. Immunity for Public Employees that Make Policy Decisions.
Section 2-201 of the Illinois Tort Immunity Act provides that a public employee "serving in a position involving a determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused." 745 ILCS § 10/2-201. Public officials receive immunity under § 2-201 "only when the official's position requires the determination of policy or the exercise of discretion, and the act or omission that caused the injury was `both a determination of policy and an exercise of discretion.'" Singleton v. City of Chi., No. 99 C 0059, 2000 WL 224619, at * 1 (N.D.Ill. Feb.25, 2000); quoting Harinek v. 161 N. Clark St., Ltd. P'ship, 181 Ill.2d 335, 230 Ill.Dec. 11, 692 N.E.2d 1177, 1181 (1998).
In this case, Thomas only alleges an abuse of discretion in determination of policy in Count II, the § 1983 Monell claim. However, the Illinois Tort Immunity Act does not shield the defendants from Thomas' Section 1983 claims, because under the Supremacy Clause of the United States Constitution, federal laws are supreme to state laws. See, e.g., Gibbons v. Ogden, 9 Wheat. 1, 22 U.S. 1, 3, 6 L.Ed. 23 (1824). Therefore, a state law may not shield a defendant from a federal claim, and Section 2-201 of the Illinois Tort Immunity Act does not shield the defendants from liability here. See Anderson v. Village of Forest Park, 238 Ill.App.3d 83,92, 179 Ill.Dec. 373, 606 N.E.2d 205, 211 (Ill.App. 1 Dist.1992)
2. Immunity for Public Employees from Liability for Injuries Caused by Other Persons.
The Baird defendants argue that Sheriff Sheahan, one of the institutional defendants, is protected from liability by Section 2-204 of the Illinois Tort Immunity Act. Section 2-204 provides that "a public employee, as such and acting within the scope of his employment, is not liable for an injury caused by the act or omission of another person." 745 ILCS § 10/2-204 (2005). The Tort Immunity Act, however, defines "public employee" as an employee of a "local public entity." 745 ILCS § 10/1-207 (2005). While other sections of the statute provide immunity to local public entities and public employees, the legislature chose not to include public entities under Section 2-204's umbrella of protection. Because Section 2-204 of the Immunity Act only applies to public employees, and not public institutions, the institutional defendants are not included within the plain language of the Tort Immunity Act, and thus Sheriff Sheahan is not protected from liability under this section of the Immunity Act.[11]
*876 3. Immunity for Public Employees for Failure to Provide Sufficient Equipment, Personnel, Supervision, or Facilities
Neither are the defendants protected by Section 4-103 of the Illinois Tort Immunity Act, which provides that no entity that runs a jail, detention or correctional facility is liable for "failure to provide sufficient equipment, personnel, supervision or facilities therein." 745 ILCS § 10/4-103 (2005). Thomas' wrongful death claim states that the individual and institutional defendants acted wilfully and wantonly by:
(a) [d]eliberately ignoring the serious medical needs of the decedent; (b) [f]ailing to bring the decedent's condition to the attention of medical personnel so that he could be properly diagnosed and treated; (c) [r]efusing to allow the decedent to make written requests for medical treatment; (d) [r]efusing decedent's verbal and written requests for medical attention; (e) [f]ailing to provide timely access to medical treatment for a serious condition of which they were aware; [and] (f) [o]therwise acting wilfully and wantonly toward decedent, in total and criminal disregard to his medical needs.
(Compl.ś 39.) These allegations of wrongful death are not premised on any negligent failure to supervise or provide sufficient personnel, equipment, or facilities. Instead, these claims allege that the defendants had actual knowledge of Smith's medical needs and wilfully denied him medical treatment. Therefore, Section 4-103 does not shield the defendants from liability. See, e.g., Pico v. County of Cook, No. 04 C 3559, 2004 U.S. Dist. LEXIS 25353, at **8-11 (N.D.Ill.Dec. 15, 2004) (granting protection under 4-103 "to the extent that [the plaintiff's] tort claim is based upon an alleged failure to provide sufficient personnel or supervision," but not to the extent that the claims were based on wilful conduct); Egebergh v. Sheahan, 955 F.Supp. 965, 968 (N.D.Ill.1997) (finding that Section 4-103 "provides no aid to [d]efendants" where they were on notice of the plaintiff's need for immediate medical attention.)
4. Immunity for Public Employees for Failure to Furnish Medical Care for Prisoner
Section 4-105 of the Illinois Tort Immunity Act provides that:
[n]either a local public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody; but this Section shall not apply where the employee, acting within the scope of his employment, knows from his observation of conditions that the prisoner is in need of immediate medical care and, through willful and wanton conduct, fails to take reasonable action to summon medical care.
745 ILCS § 10/4-105 (2005). Despite Section 4-105's explicit exception for willful and wanton conduct, the defendants urge this Court to hold that the defendants' actions did not amount to willful and wanton conduct. Such a determination would be inappropriate at the motion to dismiss stage, where the Court must accept Thomas' well-pleaded allegations regarding the willful nature of the defendants' conduct. The case relied upon by the defendants, Urban v. Village of Lincolnshire, 272 Ill.App.3d 1087, 1094, 209 Ill.Dec. 505, 651 N.E.2d 683, 688 (1995), does not apply here as the Illinois Appellate Court determined, at the close of all the evidence, that the plaintiff failed to state a claim of willful and wanton conduct. Therefore, the Court rejects the defendants' argument that Section *877 4-105 of the Illinois Tort Immunity Act protects them from liability.
5. Immunity for Public Employees for Failure to Diagnose
Finally, Section 6-106(a) of the Illinois Tort Immunity Act provides that no public entity or employee is liable for "injury resulting from diagnosing or failing to diagnose that a person is afflicted with mental or physical illness or addiction or from failing to prescribe for mental or physical illness or addiction." 745 ILCS § 10/6-106 (2005). Section 6-106(d), however, provides that "[n]othing in this section exonerates a public employee from liability for injury proximately caused by his negligent or wrongful act or omission in administering any treatment prescribed for mental or physical illness or addiction or exonerates a local public entity whose employee, while acting in the scope of his employment, so causes such an injury." Id. The exception stated in § 6-106(d) precludes immunity in this instance, as Thomas repeatedly alleges that the defendants caused Smith's injuries through wrongful acts or omissions in treating the medical condition that led to his death.
B. Illinois Healing Art Malpractice Act
The defendants also urge the Court to dismiss Thomas' wrongful death claims due to her failure to file an affidavit under the Illinois Healing Art Malpractice Act. This Act requires that in any action where the plaintiff seeks damages for injuries or death "by reason of medical, hospital, or other healing art malpractice, the plaintiff's attorney . . . shall file an affidavit, attached to the original and all copies of the complaint," declaring that there is a reasonable and meritorious cause for filing such action or that the affiant could not obtain adequate records in order to make that determination. 735 ILCS § 5/2-622, amended 2005 Ill. Legis. Serv., P.A. 94-677 (Aug. 25, 2005). The phrase "healing art" includes "an entire branch of learning dealing with the restoration of physical or mental health." Lyon v. Hasbro Indus., Inc., 156 Ill.App.3d 649, 654, 109 Ill.Dec. 41, 509 N.E.2d 702, 705 (1987). The term "[m]alpractice implies the lack of skill in practicing the art of profession" and is "broad enough to cover negligence in the interrelated health-care services." Id.
An affidavit may be required under the Healing Art Malpractice Act even where a complaint does not allege medical malpractice on its face, if the determination at issue "is inherently one of medical judgment." Id. at 655, 509 N.E.2d at 705. Illinois courts have determined that issues are inherently of medical judgment in three types of negligence suits against providers of medical services, where determining the standard of care requires application of distinctively medical knowledge or principles: "(1) malpractice suits requiring expert testimony; (2) malpractice cases not requiring expert testimony; and (3) negligence suits, essentially common-law in character, that happen to be directed against health care providers." Woodard v. Krans, 234 Ill.App.3d 690, 705, 175 Ill.Dec. 546, 600 N.E.2d 477, 487 (1992).[12] The plaintiff is excused from Section 2-622's affidavit requirement in the third category of cases. Id.
Thomas' wrongful death claim is directed toward two "healing art" professionals: James Myvette and Peggy Westbrook. Without distinguishing between healing art and non-healing art defendants, Thomas *878 generally alleges that the individual defendants "wilfully and wantonly" committed acts or omissions which caused Smith's suffering and death, not that the defendants breached their duty by negligently committing acts of medical malpractice. (Compl.śś 38-39.) In fact, Thomas alleges that during the time Myvette and Westbrook observed Smith, he was so obviously ill that "anyone observing Norman could see that he was obviously in serious need of urgent medical attention." (Id. ś 11.) (emphasis added). Thus, not only does the Complaint not allege medical malpractice on its face, but the determination at issue is not inherently one of medical judgement. Therefore, Thomas was not required to submit a § 2-622 affidavit.
CONCLUSION
For the reasons set forth above, the Court dismisses as redundant Thomas' claim that the official defendants are jointly and severally liable with the institutional defendants for Count II, the Monell claim. Additionally, Thomas will not be allowed to proceed on any conspiracy theory given her failure to adequately allege a conspiracy in the Third Amended Complaint. Thus, defendants' motions to dismiss are granted in part and denied in part.
Thomas is ordered to file a fourth amended complaint excluding (1) the Cook County Bureau of Health Services, which, as discussed supra, is a not a suable entity; and (2) any defendant who was not properly served with the Third Amended Complaint. The parties are requested to renew their settlement discussions well in advance of the upcoming December 14, 2005, status hearing.
NOTES
[1] Thomas also names the following individuals and entity in her Complaint, but they are not proper parties in this case: Cook County Bureau of Health Services; John Stroger, Jr.; Officers Davis, Toomey, Johnson, Thiemecke, Houston, and Facundo; Sergeants Hernandez, Dew, and Stroner; Lieutenant Krzyzowski; C. Lacy; R. Patton; A. Bradley; T. Nelson; and K. West. The Cook County Bureau of Health Services, however, cannot be sued. See Payne v. Cook County Hospital, 719 F.Supp. 730, 733-34 (N.D.Ill.1989) (holding that entities that have no legal existence outside of the County of Cook cannot be sued). In addition, the remaining individuals are not proper parties to this case because they were not served with the instant Complaint.
[2] Although the defendants challenge Thomas' standing under Rule 12(b)(6), their challenge would have been more appropriately brought as a 12(b)(1) motion, based on lack of subject matter jurisdiction. Villareal v. Snow, No. 95 C 2484, 1996 WL 28282, *1 (N.D.Ill. Jan.19, 1996) (motion to dismiss based on plaintiff's alleged lack of standing would have been more appropriately brought as a 12(b)(1) motion, rather than a 12(b)(6) motion); see also Gervasio v. United States, 627 F.Supp. 428 (N.D.Ill.1986) (motion to dismiss predicated on alleged failure to meet jurisdictional prerequisites was treated as a motion under Rule 12(b)(1) rather than under Rule 12(b)(6)). Accordingly, the Court will consider defendants' challenge of Thomas' standing under Rule 12(b)(1).
[3] The facts recited here are taken from the plaintiff's well-pleaded allegations, which the Court must take as true for purposes of these motions to dismiss. Dawson v. Newman, 419 F.3d 656, 658 (7th Cir.2005).
[4] The named institutional defendants are the Sheriff of Cook County and the County of Cook. (R. 38, Third Am. Compl. ś 4).
[5] The named official defendants are: Michael F. Sheahan, Cook County Sheriff; Dr. John Raba, Chief of Cermak Health Services; Ruth M. Rothstein, Chief of the Cook County Bureau of Health Services; Callie Baird, Executive Director of the Cook County Department of Corrections; and Daniel Brown, Superintendent of the Cook County Jail, Division Five. (Id. ś 5).
[6] The named individual defendants are Sargent James Monczynski, Officer Alex Sanchez, James Myvette, and Peggy Westbrook. (Id. ś 6).
[7] Contrary to defendants' protestations, Thomas has adequately pleaded that she was the independent administrator of her son's estate, despite the omission of "Jr." after her son's name, Norman L. Smith on the Cook County order. Thomas attached her petition for letters of administration to the Complaint, which letters identify the deceased as her son, who died on April 30, 2004.
[8] Thomas also has standing to bring a § 1983 claim by virtue of her standing under the Illinois Survival Act. Wilmere v. Stibolt, 152 Ill.App.3d 642, 105 Ill.Dec. 631, 504 N.E.2d 916, 918 (1987) (holding that the administrator of a decedent's estate has standing to maintain an action on behalf of the decedent under the Illinois Survival Act.)
[9] In order to sufficiently allege that the policy or custom has the force of law, a plaintiff must allege that municipal policymakers were "deliberately indifferent as to [its] known or obvious consequences." Bd. of County Comm'rs v. Brown, 520 U.S. 397, 406-07, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (quotations omitted). The Supreme Court has defined deliberate indifference in this context to mean that "a reasonable policymaker [would] conclude that the plainly obvious consequences" of the City's actions would result in the deprivation of a federally protected right. Id. at 411, 117 S.Ct. 1382; see also Frake v. City of Chicago, 210 F.3d 779, 782 (7th Cir.2000) (finding that deliberate indifference requires a showing that policymakers "were aware of a substantial risk" of a constitutional violation and "failed to take appropriate steps to protect [plaintiffs] from a known danger.")
[10] The parties do not dispute that punitive damages are not available based on claims against parties in their official capacities.
[11] The Court notes that to the extent Thomas plans to proceed against the official capacity defendants on a respondeat superior theory for the state survival act claim, the official capacity defendants, but not the institutional defendants, would be immune under Section 2-204 of the Illinois Tort Immunity Act.
[12] This includes cases of "gross negligence" or "common treatment" as long as these cases involve "medical, hospital or other healing art malpractice." Woodard, 234 Ill.App.3d 690, 705, 175 Ill.Dec. 546, 600 N.E.2d 477, 487 (1992) (interpreting DeLuna v. St. Elizabeth's Hosp., 147 Ill.2d 57, 167 Ill.Dec. 1009, 588 N.E.2d 1139 (1992)).
|
781 N.W.2d 603 (2010)
STATE of Minnesota, Respondent,
v.
Lonnie Donald BRANDES, Appellant.
No. A09-1262.
Court of Appeals of Minnesota.
May 11, 2010.
*604 Lori Swanson, Attorney General, St. Paul, MN, and Michael K. Riley, Sr., Nicollet County Attorney, Michelle M. Zehnder Fischer, Assistant County Attorney, St. Peter, MN, for respondent.
David W. Merchant, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant Public Defender, St. Paul, MN, for appellant.
Considered and decided by HALBROOKS, Presiding Judge; LANSING, Judge; and SCHELLHAS, Judge.
OPINION
HALBROOKS, Judge.
Appellant challenges a jury verdict convicting him of interference with an emergency call. Appellant argues that the evidence was insufficient to support his conviction, specifically contending that the state failed to prove that an emergency existed at the time the call was attempted. Because we conclude that the element of an "emergency" does not require the state to prove the existence of threats of violence, violence, or an underlying criminal offense, and because we conclude that the evidence was sufficient to demonstrate that an emergency existed at the time of the attempted emergency call, we affirm appellant's conviction.
FACTS
On the morning of November 25, 2008, appellant Lonnie D. Brandes entered the *605 home of his mother, J.B.,[1] and told J.B. that he wanted to use her credit card to stay overnight at a casino. When J.B. told appellant that he could not use the credit card, he got upset. Appellant began arguing with J.B. about past events, stating that appellant's parents "were to blame for a lot of things that happened on the farm when he was working for [them]." J.B. told appellant multiple times to leave, but he refused to do so. In the midst of the argument, appellant's brother, Leslie, arrived at J.B.'s home. Leslie stated that he saw appellant's car parked outside the home and thought that appellant was "probably getting into an argu[ment] with [J.B.] about something." As Leslie approached the door, he could hear appellant and J.B. arguing in a tone that was "elevated more than normal." When Leslie entered the home, he observed that J.B. was becoming emotional.
J.B. told appellant that if he did not leave, she was going to call 911. Appellant still refused to leave. J.B. subsequently called 911; when the dispatcher answered the call, appellant walked out of the room. J.B. told the dispatcher that appellant had left and that she was now okay and hung up the phone. Appellant reentered the house approximately 30 seconds after J.B. ended the 911 call and again proceeded to argue with her. At trial, J.B. testified that she knew that she would not be able to get appellant to leave her home, and she did not know what else to do. She further testified that she "didn't know what [appellant] was capable of." When asked whether she was fearful, J.B. responded, "I guess you would say I was." J.B. continued to ask appellant to leave and threatened to call 911 again. Appellant refused to leave and began arguing with Leslie. J.B. walked toward the phone, picked up the phone and turned it on. But before J.B. was able to make the call, appellant reached from behind her and grabbed the phone out of her hand. Leslie pulled appellant away from J.B., and appellant and Leslie began to wrestle, first in the kitchen and then in the garage. J.B. subsequently used her cellular phone to place another 911 call.
When Deputy Jay Link of the Nicollet County Sheriff's Office arrived at the home ten minutes later in response to J.B.'s 911 call, he could hear two men yelling.[2] Deputy Link testified that upon entering the home, he saw appellant and Leslie and observed J.B. crying in the kitchen. Deputy Link decided to get appellant out of the house. When appellant did not leave voluntarily, Deputy Link physically escorted him from the premises and arrested him for interference with an emergency 911 call. Following a Miranda advisory, appellant admitted taking the phone away from J.B.
Appellant was charged with and convicted of gross misdemeanor interference with an emergency telephone call pursuant to Minn.Stat. § 609.78, subd. 2 (2008). This appeal follows.
ISSUE
Was the evidence sufficient to support appellant's conviction of interference with an emergency call?
ANALYSIS
Appellant challenges the sufficiency of the evidence supporting his conviction, arguing that the evidence does not *606 demonstrate the existence of an emergency at the time that J.B. attempted to call 911. In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). We must assume that "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). A reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn.2004).
Appellant was convicted of interference with an emergency call pursuant to Minn.Stat. § 609.78, subd. 2, which provides:
A person who intentionally interrupts, disrupts, impedes, or interferes with an emergency call or who intentionally prevents or hinders another from placing an emergency call ... is guilty of a gross misdemeanor and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.
An emergency call is defined as: "(1) a 911 call; (2) any call for emergency medical or ambulance service; or (3) any call for assistance from a police or fire department or for other assistance needed in an emergency to avoid serious harm to person or property," and in all cases an emergency must exist. Minn.Stat. § 609.78, subd. 3; see also State v. Hersi, 763 N.W.2d 339, 343 (Minn.App.2009) ("[A] call is not an emergency call unless an emergency exists." (quotation omitted)).
The statute does not define "emergency" for purposes of this section, and we therefore look to its common, ordinary meaning. See Minn.Stat. § 645.08 (2008) ("[W]ords and phrases are construed ... according to their common and approved usage....") "Emergency" is defined as "[a] serious situation or occurrence that happens unexpectedly and demands immediate action," or "[a] condition of urgent need for action or assistance." The American Heritage College Dictionary 449 (3d ed. 2000).
Appellant contends that an emergency generally implies violence, a threat of violence, or the existence of a separate, underlying criminal offense, and therefore an argument is insufficient to constitute an emergency.[3] We disagree. Had the legislature intended to limit the crime of interference with an emergency call to those circumstances, it could have used more specific language in the definition of "emergency call." Depending on the circumstances, an argument may constitute a serious event that demands immediate action; and if the state is able to introduce evidence that proves beyond a reasonable doubt that the circumstances constituted an emergency as it is understood in its ordinary context, it has satisfied its burden on that element. It did so here.
We conclude that this record contains sufficient evidence from which a jury could have reasonably found that an emergency existed when J.B. attempted to call 911 and that appellant interfered with the call. Appellant argued vociferously with both J.B. and Leslie over an extended period of time and refused to leave despite being *607 told multiple times to do so. J.B. testified that she became fearful when appellant returned to the house after her first 911 call and that she did not know what appellant was capable of doing. Appellant again refused to leave J.B.'s home and continued to argue with her and to fight with his brother for another ten minutes until the officer arrived. It was reasonable for a jury to conclude that this situation was a serious and sudden occurrence requiring J.B. to take immediate action.
DECISION
Because the state does not need to prove an underlying criminal offense to show that an emergency exists and because evidence was sufficient to demonstrate that an emergency existed by the time that J.B. attempted to call 911 a second time, we affirm appellant's conviction.
Affirmed.
NOTES
[1] The record reflects that at this time, appellant lived on his parents' property but in a separate residence with his wife and three children.
[2] The jury also heard a recording of Deputy Link's arrival at the residence, and the loud arguing is reflected on that recording.
[3] While the state alleged that appellant's act of refusing to leave J.B.'s home after being asked repeatedly to do so may constitute a crime, we do not address this issue.
|
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2006
Charles R. Fulbruge III
Clerk
No. 05-50173
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VERNAL K. KILLINGS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:03-CR-124-26
--------------------
Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Vernal K. Killings appeals the sentence imposed following
his plea of guilty to conspiracy to distribute marijuana. He
argues that this court should vacate his sentence because the
record demonstrates ineffective assistance of counsel at
sentencing.
In general, claims of ineffective assistance will not be
considered on direct appeal when the claims were not raised in
the district court because there has been no opportunity to
develop record evidence on the merits of the claim. United
*
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. 05-50173
-2-
States v. Lampazianie, 251 F.3d 519, 527 (5th Cir. 2001). Thus,
when the record does not contain information regarding the
tactical motivations behind counsel’s actions or information
regarding how the alleged errors influenced the result of the
trial, this court has declined to address an ineffective
assistance issue on appeal. See United States v. Maria-Martinez,
143 F.3d 914, 916 (5th Cir. 1998). Because we find the record
insufficient for review of Killings’s claims, we affirm the
judgment of the district court without prejudice to Killings’s
right to raise his claims in a motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255. Id. at 918-19.
AFFIRMED.
|
30 Cal.App.2d 156 (1938)
AGRICULTURAL PRORATE COMMISSION et al., Petitioners,
v.
THE SUPERIOR COURT OF RIVERSIDE COUNTY et al., Respondents.
Civ. No. 2414.
California Court of Appeals. Fourth Appellate District.
December 22, 1938.
U.S. Webb, Attorney-General, and Walter L. Bowers, Deputy Attorney-General, for Petitioners.
No appearance for Respondents.
Marks, J.
This is a companion case to our Civil No. 2410, bearing the same title, the opinion in which case is this day filed (ante, p. 154 [85 PaCal.2d 898]). That opinion contains facts material to this proceeding. Those facts will not be repeated here.
[1] On November 28, 1938, the respondent court, on the ex parte application of the plaintiffs in the superior court action, *157 issued a second temporary restraining order and order to show cause returnable on December 5, 1938. Except as to dates it was identical with the order described in the other opinion.
On December 5, 1938, over the objection and without the consent of defendants in the superior court action, the respondent court continued the hearing of the order to show cause to December 19, 1938. The order continued the restraining order in force until that date. This was contrary to the express provisions of section 527 of the Code of Civil Procedure quoted in our other opinion.
The writ of prohibition will issue as prayed for.
Barnard, P. J., and Griffin, J., concurred.
|
419 F.Supp. 6 (1976)
Patricia S. HARBERT, Plaintiff,
v.
Walter M. RAPP, as Employment Service Director of the Oklahoma Employment Security Commission and individually, et al., Defendants.
No. CIV-75-0634-D.
United States District Court, W. D. Oklahoma.
June 18, 1976.
Henry W. Floyd, Oklahoma City, Okl., for plaintiff.
*7 Edward E. Soule, Milton R. Elliott, Oklahoma City, Okl., for all defendants.
Allen G. Nichols, Wewoka, Okl., William W. Dawson, Jr., Seminole, Okl., for defendants Churchwell and Snider.
ORDER
DAUGHERTY, Chief Judge.
This is the second time that this Civil Rights case has been before the Court on a Motion to Dismiss. Plaintiff's allegations and theories are set out in the Court's previous order 415 F.Supp. 83 dismissing the Complaint except as to Plaintiff's action against Defendant Snider under 42 U.S.C. § 2000e et seq.
Defendant Snider has now filed herein a Motion to Dismiss for failure to state a claim upon which relief can be granted. Rule 12(b)(6), Federal Rules of Civil Procedure. Plaintiff has responded thereto. The matter being at issue before the Court is determined as follows:
Movant's contentions are: (1) Plaintiff may not maintain this action because Snider is not an "employer" within the meaning of Title VII; and(2) Plaintiff is not entitled to maintain this action because the Equal Employment Opportunity Commission (EEOC) has not issued a "right to sue letter" with respect to him.
Plaintiff alleges that she is employed by the Oklahoma Employment Security Commission and that Snider is the Metropolitan Manager of the Commission.
Movant's first contention is not well taken. 42 U.S.C. § 2000e(b) provides that:
"The term `employer' means a person engaged in any industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar years, or any agent of such a person * * *" (emphasis supplied)
The term "person" includes governmental agencies. 42 U.S.C. § 2000e(a). Supervisory employees may in proper case be deemed to be agents of a governmental agency. See Schaefer v. Tannian, 394 F.Supp. 1128 (E.D.Mich.1974). The question of whether Snider is an agent of the Oklahoma Employment Security Commission is clearly an issue of fact. It does not appear beyond doubt that Plaintiff could prove no set of facts showing Snider to be the agent of the Oklahoma Employment Security Commission. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Accordingly, Movant's Motion to Dismiss for failure to state a claim upon which relief can be granted should be overruled with respect to his first contention.
Movant's second contention is that Plaintiff may not maintain this action because the EEOC has not issued a "right to sue letter" with respect to him. Movant's argument is that an aggrieved party may not maintain an action under 42 U.S.C. § 2000e until a "right to sue letter" has been issued; that the issuance of a "right to sue letter" is a jurisdictional prerequisite to the maintenance of such an action; that only the Justice Department may issue a "right to sue letter" with respect to a governmental employer; that only the EEOC may issue a "right to sue letter" with respect to a private employer; the only "right to sue letter" alleged to have been issued herein is alleged to have been issued by the Justice Department; that Movant is not a governmental agency; that only the EEOC may issue a "right to sue letter" with respect to him; therefore the Court lacks jurisdiction of Movant.
Movant's second contention is also not well taken. Movant is correct with respect to his statement of law with regard to the issuance of "right to sue letters." See 42 U.S.C. § 2000e-5(g). However, Movant's assertion that he should be afforded the status of a private employer in this regard is clearly without merit. Movant is a proper party Defendant herein only if an "agent" of the Oklahoma Employment Security Commission. It appears he was named in the EEOC charge. Thus, Movant should possess the same status as his principal, a governmental agency, for purposes of *8 the issuance of a "right to sue letter." Hence, the alleged Justice Department "right to sue letter" would be appropriate as to this Defendant. Accordingly, Movant's second contention is without merit and should be overruled.
Plaintiff in its response brief seeks leave of Court to add the Oklahoma Employment Security Commission as a party Defendant. This request, though probably with merit, will not be considered by the Court as it is not presented in proper form.
In view of the foregoing Defendant Snider's Motion to Dismiss should be overruled.
|
890 N.E.2d 107 (2008)
THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, Appellant-Defendant,
v.
CONSTRUCTION MANAGMENT ASSOCIATES, L.L.C., Hilltop Farms I.L.P., and Hilltop Farms II, L.P., Appellees-Plaintiffs, and
Moss Well Drilling, Inc.,[1] Appellee-Defendant.
No. 52A02-0711-CV-994.
Court of Appeals of Indiana.
July 18, 2008.
*109 Steve Carter, Attorney General of Indiana, Sierra L. Cutts, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
OPINION
VAIDIK, Judge.
Case Summary
The Indiana Department of Environmental Management ("IDEM") is charged with enforcing the federal Safe Drinking Water Act ("SDWA") within Indiana. Pursuant to federal regulations, Indiana has enacted laws and regulations consistent with the SDWA to ensure safe drinking water in public water systems. Here, IDEM informed the Hilltop Farms Housing Complex ("Complex") that it maintained a public water system and was therefore required to comply with water testing requirements. IDEM's interpretation that separate wells unconnected to one another but each serving separate buildings in an apartment complex together constitute a public water system is reasonable. We therefore reverse the trial court that held otherwise.
Background
Congress passed the SDWA in 1974 to regulate the nation's public drinking water supply. States can be delegated primary enforcement responsibility, or primacy, for the SDWA within their borders by adopting and implementing drinking water regulations "no less stringent than the national primary drinking water regulations" and sufficient procedures for enforcement. 42 U.S.C.A. § 300g-2(a). After fulfilling these requirements, Indiana applied for primacy for the SDWA within Indiana, and the Environmental Protection Agency granted it. See Public Water System Supervision Program: Primacy Delegation for the State of Indiana, 56 Fed.Reg. *110 24192-01 (May 29, 1991). Thereafter, IDEM became the agency within Indiana responsible for overseeing and enforcing the SDWA. Ind.Code § 13-13-5-1(1).
As part of Indiana's implementation of the SDWA, the Indiana Water Pollution Control Board promulgated 327 Indiana Administrative Code 8-2-1(60) ("327 I.A.C. 8-2-1(60)"), which provides the definition of a public water system. It states, in pertinent part:
"Public water system" means a public water supply for the provision to the public of water for human consumption through pipes or other constructed conveyances, if such system has at least fifteen (15) service connections or regularly serves at least twenty-five (25) individuals daily at least sixty (60) days out of the year. The term includes any:
(A) collection, treatment, storage, and distribution facilities under control of the operator of such system, and used primarily in connection with such system; and
(B) collection or pretreatment storage facilities not under such control that are used primarily in connection with such system.
The case before us pertains to whether the water systems created during the development of the Complex fall within this definition of a public water system.
Construction Management Associates, L.L.C. ("CMA") constructed the Complex in Miami County, Indiana, in two phases. On February 14, 2000, CMA entered into a contract with Moss Well Drilling, Inc. ("Moss Well") to drill six separate wells to provide water for each of the six apartment buildings of Hilltop Farms I, L.P. ("Hilltop Farms I"). On May 20, 2003, CMA entered into another contract with Moss Well to drill six separate wells to provide water for each of the six apartment buildings of Hilltop Farms II, L.P. ("Hilltop Farms II"). Each well services one apartment building. Each apartment building contains eight apartments, with a total of forty-eight apartments in each phase. Hilltop Farms I and II are located side by side, separated only by a roadway.
In a letter dated April 1, 2005, IDEM informed the Complex that it maintained a public water system, assigned the Complex a Public Water Supply Identification ("PWSID") number, and notified the Complex that it was thus required to comply with water testing requirements. Appellant's App. p. 61. Although IDEM initially sought to treat the Complex as maintaining one public water system, it now treats Hilltop Farms I and II as maintaining two public water systems in response to a request from Hilltop Farms I and II.[2] Tr. p. 4-5. On April 14, 2006, CMA and Hilltop Farms I and II filed a Complaint and Action for Declaratory Judgment against IDEM and Moss Well.[3] Regarding IDEM, the complaint and declaratory judgment action requested that the trial court find that the Complex did not maintain a public *111 water system and enjoin IDEM from requiring the Complex to conduct water testing.[4] In turn, IDEM filed a motion for partial summary judgment claiming that six wells unconnected to one another but designed to serve six buildings of a phase of the Complex constitute a public water system. On May 9, 2007, the trial court denied IDEM's motion, observing that IDEM had adopted "additional standards" without going through the proper rulemaking channels, Appellant's App. p. 327, and finding that "whether 25 or more persons were served by any of the wells for at least 60 days" was an issue of material fact, id. at 328. IDEM subsequently asked the trial court to reconsider its ruling, and on September 17, 2007, the trial court denied IDEM's motion concluding that the Complex has twelve wells serving twelve buildings and that none of the wells have at least fifteen service connections and none of the buildings have at least twenty-five people. In other words, the trial court considered each building and well separately as if the buildings were not part of a phase of an apartment complex. The trial court then reasoned that IDEM had given no fair warning of its "additional standards" requiring wells in a phase of an apartment complex to be considered as one public water system. As such, the trial court concluded that the "additional standards" were given the force and effect of law without going through the rulemaking process. IDEM filed a motion to certify the trial court's order for interlocutory appeal pursuant to Indiana Appellate Rule 14(B), which the trial court granted. This Court subsequently accepted jurisdiction over this appeal.
Discussion and Decision
We initially note that CMA and Hilltop Farms I and II have failed to submit an appellees' brief. When an appellee does not file a brief, we have no obligation to undertake the burden of developing an argument on its behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind.2006). If the appellant's brief presents a case of prima facie error, we will reverse the trial court's judgment. Id. (citing Gibson v. City of Indianapolis, 242 Ind. 447, 448, 179 N.E.2d 291, 292 (1962)). Prima facie error in this context is defined as, "at first sight, on first appearance, or on the face of it." Santana v. Santana, 708 N.E.2d 886, 887 (Ind.Ct.App.1999) (quoting Johnson County Rural Elec. Membership Corp. v. Burnell, 484 N.E.2d 989, 991 (Ind.Ct.App.1985)). If the appellant is unable to meet this burden, we will affirm. Trinity Homes, 848 N.E.2d at 1068.
IDEM raises two issues on appeal. First, IDEM contends that the trial court erred in denying its motion for partial summary judgment because the trial court failed to defer to IDEM's reasonable interpretation of a rule it is charged with enforcing. Second, IDEM contends that the trial court erred in denying its motion for partial summary judgment because the trial court erroneously concluded that IDEM had adopted "additional standards" to determine what constitutes a public water system.
When reviewing a grant or denial of summary judgment, the standard of review is the same as the standard governing summary judgment in the trial court: whether there is a genuine issue of material *112 fact and whether the moving party is entitled to judgment as a matter of law. N. Ind. Pub. Serv. Co. v. Bloom, 847 N.E.2d 175, 180 (Ind.2006) (citing Ind. Univ. Med. Ctr., Riley Hosp. for Children v. Logan, 728 N.E.2d 855, 858 (Ind.2000)). The purpose of summary judgment is to terminate litigation about which there can be no material factual dispute and which can be resolved as a matter of law. Bushong v. Williamson, 790 N.E.2d 467, 474 (Ind.2003). Summary judgment should be granted only if the evidence designated pursuant to Indiana Trial Rule 56(C) shows that there is no genuine issue of material fact and the moving party deserves judgment as a matter of law. Bloom, 847 N.E.2d at 180 (citing Gunkel v. Renovations, Inc., 822 N.E.2d 150, 152 (Ind.2005), reh'g denied). The party appealing a summary judgment ruling has the burden of persuading this Court that the grant or denial of summary judgment was erroneous. Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 908 (Ind.2001). All evidence must be construed in favor of the nonmoving party, and all doubts as to the existence of a material issue must be resolved against the moving party. Bloom, 847 N.E.2d at 180 (citing Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind.1996)). Questions of law, however, are reviewed de novo. DAP, Inc. v. Akaiwa, 872 N.E.2d 1098, 1100-01 (Ind.Ct.App.2007) (citing Tippecanoe County v. Ind. Mfrs. Ass'n, 784 N.E.2d 463, 465 (Ind.2003)).
I. Reasonable Interpretation
IDEM contends that the trial court erred in denying its motion for partial summary judgment because the trial court failed to defer to IDEM's reasonable interpretation of 327 I.A.C. 8-2-1(60), a rule IDEM is charged with enforcing. We agree.
We treat regulations in the Indiana Administrative Code in the same manner as statutes when asked to interpret a provision or term on appeal. See State Bd. of Tax Comm'rs v. Two Mkt. Square Assocs. Ltd. P'ship, 679 N.E.2d 882, 885 (Ind.1997); see also Planned Parenthood of Ind. v. Carter, 854 N.E.2d 853, 866 (Ind.Ct.App.2006). Statutory interpretation is a question of law reserved for the court and is reviewed de novo. In re Guardianship of E.N., 877 N.E.2d 795, 798 (Ind.2007) (citing Porter Dev., LLC v. First Nat'l Bank of Valparaiso, 866 N.E.2d 775, 778 (Ind.2007)). De novo review allows us to decide an issue without affording any deference to the trial court's decision. Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind.2000). When a statute has not previously been construed, our interpretation is controlled by the express language of the statute and the rules of statutory construction. Ross v. Ind. State Bd. of Nursing, 790 N.E.2d 110, 119 (Ind.Ct. App.2003). Our goal in statutory construction is to determine, give effect to, and implement the intent of the legislature. Robinson v. Gazvoda, 783 N.E.2d 1245, 1250 (Ind.Ct.App.2003), trans. denied. If a term in a statute is undefined, we must "examine the statute as a whole and attribute the common and ordinary meaning to the undefined word, unless doing so would deprive the statute of its purpose or effect." Consolidation Coal Co. v. Ind. Dep't of State Revenue, 583 N.E.2d 1199, 1201 (Ind.1991); see also Ind. Dep't of State Revenue v. Trump Ind., Inc., 814 N.E.2d 1017, 1021 (Ind.2004) (applying the ordinary meaning of "tangible personal property" for the purposes of the sales and use tax where the term was undefined in the statute).
When a statute is subject to different interpretations, the interpretation of the statute by the administrative agency *113 charged with the duty of enforcing the statute is entitled to great weight, unless that interpretation is inconsistent with the statute itself. LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind.2000). If a court is faced with two reasonable interpretations of a statute, one of which is supplied by an administrative agency charged with enforcing the statute, the court should defer to the agency. See Sullivan v. Day, 681 N.E.2d 713, 716 (Ind. 1997); see also Ind. Family & Soc. Servs. Admin. v. Radigan, 755 N.E.2d 617, 624 (Ind.Ct.App.2001) (Baker, J., concurring in result); see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Once a court determines that an administrative agency's interpretation is reasonable, it should "terminate[ ] its analysis" and not address the reasonableness of the other party's interpretation. Ind. Wholesale Wine & Liquor Co. v. State ex rel. Ind. Alcoholic Beverage Comm'n, 695 N.E.2d 99, 105 (Ind.1998); see also Radigan, 755 N.E.2d at 624. Terminating the analysis recognizes "the general policies of acknowledging the expertise of agencies empowered to interpret and enforce statutes and increasing public reliance on agency interpretations." Ind. Wholesale Wine, 695 N.E.2d at 105.
Because IDEM is the administrative agency charged with the duty of enforcing 327 I.A.C. 8-2-1(60), we defer to its interpretation of that statute as long as the interpretation is reasonable. IDEM's interpretation of 327 I.A.C. 8-2-1(60) is that six wells unconnected to one another but each serving separate buildings of a phase of the Complex together constitute a public water system. IDEM's interpretation of 327 I.A.C. 8-2-1(60) hinges on the meaning of "system," a term undefined in the statute. In its brief, IDEM defines "system" as the "[o]rderly combination or arrangement, as of particulars, parts, or elements into a whole; especially such combination according to some rational principle. Any methodic arrangement of parts. Method; manner; mode." Black's Law Dictionary 1300 (5th ed.1979). In applying this common and ordinary meaning of "system" to 327 I.A.C. 8-2-1(60), IDEM concludes that each phase of the Complex maintains a public water system "because the buildings, wells and equipment that it owns on a single parcel of land are an orderly arrangement of parts designed to provide drinking water for all the tenants in the apartment complex." Appellant's Br. p. 16. IDEM therefore reasons that each phase of the Complex has at least twenty-five individuals and thus each system of wells serving a phase of the Complex constitutes a public water system. Nevertheless, the trial court concluded that the Complex does not have a public water system, as defined by administrative rule, in that each well serves separate buildings and none of the wells have at least fifteen service connections and none of the buildings have at least twenty-five people.
We disagree with the trial court. IDEM's definition of "system," as it applies to 327 I.A.C. 8-2-1(60), is reasonable. Moreover, Webster's Third New International Dictionary defines "system" as "a group of devices or artificial objects forming a network or used for a common purpose." Webster's Third New International Dictionary 2322 (1993). Although this definition recognizes some systems as having a connection between individual objects, its second use of the disjunctive "or" clearly indicates that, when used for a common purpose, a connection between objects is not necessary. Under both Black's and Webster's definitions, the wells at Hilltop Farms I and II need not be connected to be considered "systems." IDEM's interpretation of 327 I.A.C. 8-2-1(60) is reasonable *114 because it applies the common and ordinary meaning of "system."
IDEM's interpretation of 327 I.A.C. 8-2-1(60) is also reasonable because it reflects Congress's intent in passing the SDWA. The House Report regarding judicial enforcement of the SDWA reflects Congress's objective of providing maximum protection of the public health:
[The enforcement provisions of the SDWA] also provide[ ] that the courts entertaining suits under this section may enter such judgment as the public health may require taking into account the time necessary to comply and the availability of alternative water supplies. Therefore, the Committee intends that courts which are considering remedies in enforcement actions under this section are not to apply traditional balancing principles used by equity courts. Rather, they are directed to give utmost weight to the Committee's paramount objective of providing maximum feasible protection of the public health at the times specified in the bill.
H.R.Rep. No. 93-1185 (1974), reprinted in 1974 U.S.C.C.A.N. 6454, 6476 (emphases added). The House Report also observes that the definition of a public water system "encompasses nearly all public accommodations, such as restaurants, motels, and trailer parks which serve the public." Id. at 6469. Congress thus intended the primary objective of the SDWA to be the maximization of the public health, even in locations with smaller public water systems. Noting Congress's intent, we conclude that the water systems maintained by Hilltop Farms I and II are clearly within the contemplation of the SDWA.
IDEM's interpretation of 327 I.A.C. 8-2-1(60) is reasonable because it applies the common and ordinary meaning of "system" and reflects Congress's intent to protect the public health. Therefore, we conclude that IDEM is entitled to partial summary judgment in this matter.
II. Additional Standards
IDEM also contends that the trial court erred in denying its motion for partial summary judgment because the trial court erroneously concluded that IDEM had adopted "additional standards" to determine what constitutes a public water system. Again, we agree with IDEM.
Decisions of administrative agencies must be based on ascertainable standards to protect against arbitrary and capricious decisions. State Bd. of Tax Comm'rs v. New Castle Lodge # 147, Loyal Order of Moose, Inc., 765 N.E.2d 1257, 1264 (Ind.2002). Such standards are also necessary to give fair warning as to what factors agencies consider in making decisions. Id.
The trial court concluded in its decision on IDEM's motion to reconsider that the only ascertainable standard in 327 I.A.C. 8-2-1(60) is whether there are at least fifteen service connections or at least twenty-five people served daily more than sixty days a year. It stated that IDEM "appears to have . . . expanded [the definition of a public water system] to include some measure of ownership, or operation or proximity, without the usual process of notification and adoption as part of the regulatory scheme." Appellant's App. p. 10. Accordingly, the trial court ruled that IDEM provided no fair warning of the "additional standards" of ownership, operation, and proximity and therefore could not adjudicate the statuses of Hilltop Farms I and II as public water systems using those standards.
Although IDEM argues that ownership, operation, and proximity are standards included within the language of 327 I.A.C. 8-2-1(60), we decline to go so far and find only that the language of 327 *115 I.A.C. 8-2-1(60) provides all the guidance necessary to allow CMA and Hilltop Farms I and II to determine that Hilltop Farms I and II constitute public water systems. Hilltop Farms I and II each have six wells providing water to six apartment buildings. No party has refuted that the six wells of Hilltop Farms I and the six wells of Hilltop Farms II each serve at least twenty-five individuals. These wells provide the public with water for human consumption through conveyances and regularly serve at least twenty-five individuals daily at least sixty days of the year. We disagree that there is any issue of fair warning in this case as no "additional standards" were imposed.[5]
We conclude that the trial court erred in denying IDEM's motion for partial summary judgment because the trial court failed to defer to IDEM's reasonable interpretation of 327 I.A.C. 8-2-1(60) and erroneously concluded that IDEM had adopted "additional standards" to determine what constitutes a public water system. The purpose of the SDWA is "to assure that water supply systems serving the public meet minimum national standards for protection of public health." 1974 U.S.C.C.A.N. at 6454. We will not allow a developer to thwart the purpose of the SDWA simply by drilling unconnected wells.
Reversed.
MAY, J., and MATHIAS, J., concur.
NOTES
[1] Appellee-Defendant Moss Well is not seeking relief on appeal and has not filed a brief. Pursuant to Indiana Appellate Rule 17(A), however, a party of record in the trial court is a party on appeal.
[2] The Affidavit of Mary E. Hoover, who is a Senior Environmental Manager of IDEM, contends that Hilltop Farms I and II requested two separate PWSID numbers, Appellant's App. p. 98, and in her deposition, Hoover stated, "[Hilltop Farms I and II] asked us to separate the two, because they have two separate companies, and for their billing, it is how they want it set up," id. at 223.
[3] Regarding Moss Well, the complaint and declaratory judgment action requested that the trial court find Moss Well both negligent for advising CMA and Hilltop Farms I and II that Hilltop Farms I and II would not be designated as public water systems and in breach of contract for failing to install water operating systems that provided quality water to Hilltop Farms I and II. The trial court subsequently granted partial summary judgment in favor of Moss Well.
[4] Although the Complaint and Action for Declaratory Judgment frames the issue as whether the Complex maintains a public water system, Appellant's App. p. 12-13, the Plaintiff's Memorandum of Law and Opposition to Defendant, IDEM's, Motion for Partial Summary Judgment clearly states that the issue is whether Hilltop Farms I and II each maintain public water systems, id. at 182.
[5] The trial court also noted in its order denying IDEM's motion to reconsider that an IDEM employee told Moss Well that "the plan of one well per building would not meet the definition of a public water system." Appellant's App. p. 9. Although Moss Well claims that oral communications with IDEM led it to the conclusion that the wells at Hilltop Farms I and II are not public water systems, these alleged communications are not enough to rely upon in order to negate IDEM's regulatory power.
|
20 Cal.App.4th 34 (1993)
24 Cal. Rptr.2d 341
ALBION RIVER WATERSHED PROTECTION ASSOCIATION et al., Plaintiffs and Appellants,
v.
DEPARTMENT OF FORESTRY AND FIRE PROTECTION, Defendant and Respondent; LOUISIANA-PACIFIC CORPORATION, Real Party in Interest and Respondent.
Docket No. A061063.
Court of Appeals of California, First District, Division Five.
November 15, 1993.
*35 COUNSEL
Rodney Richard Jones for Plaintiffs and Appellants.
Ann Brick, Edward M. Chen, Matthew A. Coles, Margaret C. Crosby and Alan L. Schlosser as Amici Curiae on behalf of Plaintiffs and Appellants.
Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Walter E. Wunderlich, Assistant Attorney General, and Sarah C. Backus, Deputy Attorney General, for Defendant and Respondent.
Rawles, Hinkle, Carter, Behnke & Oglesby, Jared G. Carter and Cindee F. Mayfield for Real Party in Interest and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
PETERSON, P.J.
Albion River Watershed Protection Association and Friends of Salmon Creek (Albion) appeal from a judgment dismissing their petition for writ of mandate. The petition had challenged the approval of a timber harvest plan (THP) by respondent California Department of Forestry and Fire Protection (Forestry). The trial court dismissed the petition, ruling *36 Albion had failed to request a hearing within 90 days of filing as required by Public Resources Code section 21167.4 (section 21167.4). Albion now contends that section 21167.4 is inapplicable to judicial review of THP's. We will reject this argument under the authority of our recent decision in Dakin v. Department of Forestry & Fire Protection (1993) 17 Cal. App.4th 681 [21 Cal. Rptr.2d 490]. However, as in that case, we will reverse the judgment of dismissal because the Dakin rule operates prospectively.
We will also reverse an order imposing sanctions against Albion. While sanctions may ultimately be appropriate, we deem it necessary to remand this case so the trial court can consider the issue further.
I. FACTUAL AND PROCEDURAL BACKGROUND[*]
.... .... .... .... .... .... .... .
II. DISCUSSION
A. Applicability of Section 21167.4[*]
.... .... .... .... .... .... .... .
B. Sanctions
The trial court imposed sanctions of $2,736.10 against Albion under Code of Civil Procedure section 128.5 which states, "Every trial court may order a party ... to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay." The court based the sanctions award on two grounds. First, the court ruled that Albion's failure to request a hearing on the writ petition within 90 days of filing, as required by section 21167.4, was "a bad faith tactic that was both frivolous and solely intended to cause unnecessary delay." Alternately, the court noted Albion had violated a local rule which states that a complaint must be served within 60 days from the date it is filed. The court ruled that by waiting three and one-half months to serve its complaint, Albion had engaged in tactics "which were `solely intended to cause [and which did cause] unnecessary delay.'" (Brackets in original.)
(1) Albion now claims an award of sanctions could not be based on either of these grounds. As to the first, we agree. The 90-day rule described *37 by section 21167.4 does not apply in this case because Albion's petition was filed before Dakin became final. Thus, Albion was not required to request a hearing within 90 days prior to the finality of Dakin's resolving the issue of the applicability of section 21167.4, and cannot be sanctioned for failure to comply with that statute under such circumstances.
The trial court's additional ground for imposition of sanctions is a different story. As the trial court noted, Albion failed to serve its complaint within 60 days and presented absolutely no excuse for the delay. This act undoubtedly delayed the resolution of the case. Normally, under circumstances such as this, we would simply defer to the trial court and affirm the award of sanctions. However, under the facts of this case, we cannot do so. Although the trial court based its sanction award on two grounds, it is not clear whether the court believed either of those grounds alone would have supported an award of sanctions. Under these circumstances, we believe the better practice is to remand the case so the trial court can consider whether Albion's failure to serve the complaint in accordance with the court's local rules, by itself, justified an award of sanctions. In so doing, we state no opinion on whether an award of sanctions on this ground is appropriate.
Nor do we state any opinion on whether an award of sanctions is appropriate because Albion filed its initial petition "In Pro Per" through one Andrea Luna, who declared herself under penalty of perjury to be "a member and the legal coordinator for petitioner," and then waited approximately six months before retaining an attorney. (2) It is settled that an unincorporated association must be represented by a person licensed in this state to practice law. (Clean Air Transport Systems v. San Mateo County Transit Dist. (1988) 198 Cal. App.3d 576, 578-579 [243 Cal. Rptr. 799]; Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 729-730 [147 Cal. Rptr. 631, 581 P.2d 636]; Bus. & Prof. Code, § 6125 et seq.) It is not clear whether the trial court specifically considered or rejected Albion's initiation of this litigation in propria persona as a further frivolous tactic supporting its sanctions award under Code of Civil Procedure section 128.5.[2]
If an unincorporated association clearly violates Business and Professions Code section 6125 et seq., by filing a complaint in propria persona through a member unlicensed to practice law, such action may well be found to be *38 frivolous under Code of Civil Procedure section 128.5, particularly in the case of an experienced litigant so acting. Such action may, as well, necessarily delay progress of the litigation thus initiated until such association's representation is assumed by one legally authorized to do so.
III. DISPOSITION
The judgment is reversed. The matter is remanded for further proceedings in determining whether grounds exist for imposition of sanctions against Albion independently of consideration of the 90-day rule of section 21167.4. Each party shall bear its own costs.
King, J., and Haning, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rule 976.1(a), this opinion is certified for publication with the exception of parts I and II.A.
[*] See footnote, ante, page 34.
[2] The trial court's order of November 25, 1992, on the motions of Forestry and Louisiana-Pacific Corporation to strike the complaint and for judgment on the pleadings, inter alia, mooted the issue of Albion's standing to sue by reason of its initiation of this action in propria persona only as to those motions, since Albion had retained present counsel when they were heard. That order, however, did not purport to deal with the question of whether Albion, an unincorporated association with a substantial history of participating as a party in THP litigation, thereby undertook a frivolous tactic or bad faith action proscribed by Code of Civil Procedure section 128.5.
|
113 Ariz. 375 (1976)
555 P.2d 333
LIBERTY MUTUAL INSURANCE COMPANY, a corporation, Appellant,
v.
THUNDERBIRD BANK, Appellee.
No. 12432-PR.
Supreme Court of Arizona, In Banc.
September 7, 1976.
*376 Gust, Rosenfeld, Divelbess & Henderson by Harold H. Swenson, Phoenix, for appellant.
Jennings, Strouss & Salmon by Thomas J. Trimble and I. Douglas Dunipace, Phoenix, for appellee.
CAMERON, Chief Justice.
This is a petition for review by plaintiff Liberty Mutual Insurance Company ("Liberty") of an opinion of the Court of Appeals, Division One, 25 Ariz. App. 201, 542 P.2d 39, affirming an order of the trial court denying Liberty's motion for summary judgment and granting the motion of the defendant Thunderbird Bank ("Thunderbird") for summary judgment.
The following questions are presented on appeal:
1. May Liberty, as the assignee of the Charles Bruning Company, maintain an action against Thunderbird, and is the "compensated surety defense" available to Thunderbird?
2. Assuming that it is otherwise entitled to relief, is Liberty bound by the election of remedies taken by its insured and thus precluded from recovery against Thunderbird?
The facts necessary for a determination of this matter are as follows. From 1 June 1964 through 24 March 1967, defendant James L. Coffelt was Branch Manager of the Phoenix office of the Charles Bruning Company ("Bruning"). Over an eleven month period between April 1966 and March 1967, Coffelt intercepted some 200 checks drawn by customers of and made payable to Bruning. Each of the intercepted checks, endorsed "Charles Bruning Company by J.L. Coffelt," was cashed by Coffelt at Gene's Modern Market in Glendale, Arizona. At the time of the transactions, the owner and operator of Gene's Modern Market was defendant Arnold Ong. The checks, bearing the further stamped endorsement "Deposit to the account of Gene's Modern Market," were deposited by Ong to the account of Gene's Modern Market at the Thunderbird Bank. *377 The checks were credited to that account and were submitted by Thunderbird for collection through normal banking channels. All of the checks were paid in due course.
Coffelt, who appropriated the proceeds of the checks to his own use, in fact had no authority to endorse checks on behalf of Bruning. Thunderbird, during the time it paid the checks, made no effort to determine through Bruning whether Coffelt had such authority.
At the time the checks were negotiated, there was in effect between Bruning and Liberty a surety contract under the terms of which Liberty insured Bruning against any pecuniary loss due to the fraud, dishonesty, forgery, theft or embezzlement of Bruning's employees. Upon discovering the loss in this case, Bruning recovered from Liberty the sum of $175,197.13, and assigned to Liberty all of its rights against the various defendants, including Thunderbird. The contract also provided that Liberty became subrogated to the rights of Bruning upon payment of its claim.
Liberty thereupon filed a complaint for the amount paid under the contract naming as defendants Coffelt, Ong and Thunderbird, and, except as to Coffelt, relied solely upon the assignment from Bruning as the basis of its right to recovery. Additional pleadings, in the form of cross-claims by Thunderbird against Ong and by Ong against Coffelt, and third party complaints by Thunderbird and Ong against Bruning were subsequently filed.
On 22 March 1973, Liberty filed a motion for summary judgment against Thunderbird only. Thunderbird filed a response as well as a motion for summary judgment in its favor. The trial court, after a hearing, granted Thunderbird's motion and entered judgment in favor of Thunderbird and against Liberty. Liberty moved for rehearing which motion was denied and Liberty then appealed.
LIBERTY'S RIGHTS AS ASSIGNEE
The transactions out of which Bruning's (and Liberty's) claims arose occurred prior to the adoption in Arizona of the Uniform Commercial Code. Consequently, A.R.S. § 44-423 (1956), § 23 of the Uniform Negotiable Instruments Act, is applicable and there is no question under the law as it then existed that Thunderbird was liable to Bruning. The liability of the collecting bank in such a situation was almost universally recognized prior to the adoption of the Uniform Commercial Code, cf. Merchants & Manufacturers Association v. First National Bank of Mesa, 40 Ariz. 531, 14 P.2d 717 (1932).
Liberty sued Thunderbird based solely on the assignment of Bruning's claim after Liberty had paid to Bruning the amount of the loss. Thunderbird argues that Liberty has no rights over and above those which it has under the doctrine of subrogation. This is important to Thunderbird because if the matter is to be considered under the equitable doctrine of subrogation, there are certain equitable defenses such as the "compensated surety defense" which would not be available to Thunderbird if the suit is one in law on the contract which has been assigned to Liberty by Bruning.
Under appropriate circumstances, the right of a party to be subrogated to the claim of another will arise independent of any contract. D.W. Jaquays & Co. v. First Security Bank, 101 Ariz. 301, 419 P.2d 85 (1966). We have said:
"* * * Subrogation is the substitution of another person in the place of a creditor, so that the person in whose favor it is exercised succeeds to the rights of the creditor in relation to the debt. It is a creature of equity, and was adopted from the Roman and not from the common law. Its purpose is the prevention of injustice and is the mode which equity adopts to compel the ultimate payment of a debt by one who in justice, equity, and good conscience ought to pay it. It rests upon the principle that substantial justice should be attained, regardless of form. * * * The general rule of equity which is probably most often invoked in cases of subrogation is *378 that he who seeks equity must do equity, and subrogation can only be granted when an equitable result will be reached. * * *" Mosher v. Conway, 45 Ariz. 463, 468, 46 P.2d 110, 112 (1935).
A number of courts have gone further than our court and have held that a party seeking to assert a claim as an assignee must demonstrate that it would have been entitled to recover in the absence of an assignment as a subrogee. In the case most heavily relied upon by Thunderbird, the California Supreme Court stated the rule as follows:
"* * * [A]t the outset, it should be noted that assignment of an assignable cause of action is but one of the recognized forms of subrogation, and that when entitled to substitution in the place of one entitled to institute and to maintain an action, neither a written nor an oral contract is necessary to effect a transfer of such right; consequently, with reference thereto repeatedly it has been ruled not only that a formal, written assignment of a claim of the nature of that here involved adds nothing to the enforceability by the assignee of the cause of action, but also that it is subject to the same defenses as though no assignment thereof of any sort had been made. * * *
* * * * * *
"* * * [O]ne who asserts a right of subrogation, whether by virtue of an assignment or otherwise, must first show a right in equity to be entitled to such subrogation, or substitution, and that where such right is clearly shown by the application of equitable principles, an assignment adds nothing to his right thereto. Otherwise stated, where by the application of equitable principles, a surety has been found not to be entitled to subrogation an assignment will not confer upon him the right to be so substituted in an action at law upon the assignment. His rights must be measured by the application of equitable principles in the first instance, his recovery being dependable upon a right in equity, and not by virtue of an asserted legal right under an assignment. * * *" Meyers v. Bank of America Nat. Trust & Savings Ass'n, 11 Cal.2d 92, 94-97, 77 P.2d 1084, 1085-1086 (1938).
To the same effect see Louisville Trust Co. v. Royal Indemnity Co., 230 Ky. 482, 20 S.W.2d 71 (1929); Bank of Fort Mill v. Lawyers Title Ins. Corp., 268 F.2d 313 (4th Cir.1959); Castleman Construction Company v. Pennington, 222 Tenn. 82, 432 S.W.2d 669 (1968).
In the instant case, if we followed Meyers, supra, Liberty's right under the assignment would be dependent upon its right as a subrogee and not as an assignee. We believe, however, that Liberty is entitled to recovery under the assignment regardless of its rights as a subrogee.
Bruning initially had a valid cause of action against Thunderbird. As a general rule, any claim that would survive the death of the plaintiff may be assigned. Employers Casualty Co. v. Moore, 60 Ariz. 544, 142 P.2d 414 (1943) (personal injury actions do not survive and thus are not assignable). And the existence of an equitable right of subrogation is logically irrelevant to the question of whether a party may transfer, by assignment, an otherwise assignable claim.
We thus agree with Judge Jacobson who said in dissent:
"The problem I have in applying the rule enunciated in Meyers, supra, is the assertion that the surety's rights to an assignment of its principal's claim must be founded in equity. As previously stated, this was historically true, but does that mean that merely because of principle of law had its origin in equity, the parties as between themselves, cannot contractually make those principles legally binding? Or put more directly, does the fact that the legal theory has origin in equity, require an application of equitable defenses, even though a compatible theory existed at law, without these defenses? *379 I see no logical reason for making such a requirement, especially when the law recognizes the assignability of the claim here involved. Deatsch v. Fairfield, supra, 27 Ariz. 387, 233 P. 887 (1925). Moreover, it appears somewhat incongruous that principles of equity and fairness which admittedly give rise to a right of subrogation to prohibit an injustice are now invoked to prohibit enforcement of that right. No one seriously argues that the payee's cause of action against the bank is not assignable, nor that a third party assignee could not maintain the action at law. What then happens to the maximum of equity that `equity follows the law and does not supersede it?'" 25 Ariz. App. at 212, 542 P.2d at 50-51.
In allowing the claim to be assigned, it necessarily follows that Liberty's rights are measured by the law of contract and not by the equitable doctrine of subrogation. We agree with the Georgia Court of Appeals in a case wherein an employee stole a number of checks drawn by his employer, forged the names of the various payees, and deposited the checks to his account. The plaintiff insurance company paid the value of the checks to the employer under a fidelity bond, receiving in return an assignment of the employer's claim against the drawee bank. On the issue of the insurance company's rights, the court there said:
"* * * The right of action was assignable. (citations omitted) There seems to be a well-recognized distinction between the right to sue on a claim of legal subrogation, which is of an equitable nature, and the right to sue on conventional subrogation, based on an agreement of the parties. (citations omitted)
"While there are many cases dealing with the doctrine of subrogation, and some confusion and conflict in the decisions of the various state and federal courts, in this State an action based on conventional subrogation of the type presented by this case, clearly established by an agreement reduced to writing or otherwise shown, in which no equitable relief in aid of the claim is prayed, is an action at law, and is not controlled by the principles appertaining to an action in equity, and the conventional subrogees in this action did not have the burden of showing the superior equity as against the defendant in order to recover. * * *" First Nat. Bank of Atlanta v. American Surety Co., 71 Ga. App. 112, 119, 30 S.E.2d 402, 407 (1944). See also Grubnau v. Centennial Nat. Bank, 279 Pa. 501, 124 A. 142 (1924).
Similarly, in a case involving a suit by the insuror of the payee of certain checks against a bank which cashed the checks over endorsements forged by an employee of the payee, the Iowa court held that the insurance company has a cause of action as an assignee:
"We hold, therefore, that the annuity company had something to assign. It did assign, and consequently, the plaintiff surety company had a cause of action against the defendant Bankers' Trust Company, * * *" National Surety Co. v. Bankers Trust Co., 210 Iowa 323, 330, 228 N.W. 635, 637 (1930). See also Aetna Casualty & Surety Co. v. Lindell Trust Co., 348 S.W.2d 558 (Mo. App. 1961).
Having decided that the claim could be assigned and that Liberty may sue in law on the contract, it follows that Thunderbird does not have available the equitable "compensated surety defense."
We recognize that the rule imposing liability for the face amount of a check paid over a forged endorsement upon an intermediate collecting bank is harsh, and we are reluctant to extend such liability. However, at the same time, we see no reason why Thunderbird should be relieved of its unquestioned liability merely because the principal plaintiff, Bruning, took the precaution of insuring itself against the risk of loss. Put another way, but for the contract between Bruning and Liberty, *380 Thunderbird would clearly have been liable for the amount of the checks to Bruning; it therefore suffers no prejudice when that liability is shifted from Bruning to Liberty under the terms of the contract between those two parties.
Liberty may therefore sue as an assignee of Bruning's claim against Thunderbird, and is not required to demonstrate superior equities before it can recover.
ELECTION OF REMEDIES
Thunderbird argues in the alternative that Liberty is precluded from relief under the doctrine of election of remedies. The theory here is that Bruning initially had a cause of action against either the collecting bank, Thunderbird, or against the dishonest employee, Coffelt, but not both. Thus, Thunderbird contends Bruning's decision to seek compensation under the fidelity bond constituted an election to claim against or "sue" the employee and Liberty is bound by that election. We disagree.
The payee, Bruning, has elected neither to pursue its dishonest employee or the collecting bank, but rather has invoked its rights under the contract between it and Liberty. We do not feel that collecting under a fidelity bond has any significance in terms of the liability of potential defendants to the plaintiff, except insofar as their liability is shifted to the insurance company as the result of an assignment of the underlying claim.
Therefore, even assuming that the doctrine of election of remedies would be applicable as to Bruning, we conclude that Bruning in fact made no such election, and Liberty is consequently free to pursue any party which would have been liable to Bruning. Aetna Casualty & Surety Co., supra.
Opinion of the Court of Appeals vacated. Judgment of the trial court reversed and remanded for further proceedings consistent with this opinion.
STRUCKMEYER, V.C.J., and HAYS, HOLOHAN and GORDON, JJ., concur.
|
NUMBER 13-10-00333-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MATTHEW RIOS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of De Witt County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Garza, and Benavides
Memorandum Opinion Per Curiam
Appellant, Matthew Rios, attempts to appeal his conviction for manslaughter. The
trial court has certified that this Ais a plea-bargain case, and the defendant has NO right of
appeal.@ See TEX. R. APP. P. 25.2(a)(2).
On June 18, 2010, this Court notified appellant=s counsel of the trial court=s
certification and ordered counsel to: (1) review the record; (2) determine whether
appellant has a right to appeal; and (3) forward to this Court, by letter, counsel=s findings
as to whether appellant has a right to appeal, or, alternatively, advise this Court as to the
existence of any amended certification.
Upon suggestion of death of appellant’s attorney, Lawrence D. Elliott, the Court
abated the appeal and remanded the cause to the trial court for further proceedings.
The trial court conducted a hearing on August 19, 2010 and made a finding that the
appellant made a knowing waiver of his right to appeal and has no right of appeal.
The Texas Rules of Appellate Procedure provide that an appeal must be
dismissed if the trial court=s certification does not show that the defendant has the right of
appeal. TEX. R. APP. P. 25.2(d); see TEX. R. APP. P. 37.1, 44.3, 44.4. Accordingly, this
appeal is DISMISSED.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
21st day of October, 2010.
2
|
545 F.2d 187
93 L.R.R.M. (BNA) 2609, 178 U.S.App.D.C. 109,79 Lab.Cas. P 11,698
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.R. J. SMITH CONSTRUCTION CO., INC., Respondent.
No. 71-1689.
United States Court of Appeals,District of Columbia Circuit.
Oct. 27, 1976.
Paul Elkind, and Roger T. Brice, Attys., N.L.R.B., Washington, D.C., for petitioner.
Daniel W. Rudy and Franklin A. Morse, II, South Bend, Ind., for respondent.
Before McGOWAN, Circuit Judge, WINTER,* Circuit Judge for the United States Court of Appeals for the Fourth Circuit, and MacKINNON, Circuit Judge.
Opinion for the Court by WINTER, Circuit Judge.
Separate opinion concurring in part, and dissenting in part by MacKINNON, Circuit Judge.
WINTER, Circuit Judge.
1
The National Labor Relations Board (Board) petitions us to adjudge R. J. Smith Construction Co. (Company) in civil contempt of this court for having failed and refused, and for continuing to fail and refuse, to comply with our supplemental judgment of January 2, 1975, which we entered following our decision in Local No. 150, International Union of Op. Eng. v. NLRB, 156 U.S.App.D.C. 294, 480 F.2d 1186 (1973). Upon consideration of the Board's petition, the Company's response, the Board's motion to strike the Company's affirmative defenses, and other pleadings filed at our request, we adjudge the Company in civil contempt and enter an appropriate order.
History of the Proceedings
2
In Local No. 150, we held that, as a proposition of law, the Board erroneously concluded that the Company was not guilty of an unfair labor practice under § 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5) and (1), when it refused to bargain collectively with the union with which it had executed a pre-hire contract, valid under § 8(f) of the Act, 29 U.S.C. § 158(f), before unilaterally altering the terms of the contract. The Board's theory was that an employer who had executed a pre-hire agreement under § 8(f) was not bound to observe it until the union had achieved majority status. We decided otherwise, and we remanded the case to the Board for entry of an appropriate order.
3
Pursuant to our remand, the Board issued a Supplemental Decision and Order finding that the Company had violated § 8(a)(5) and (1) by unilaterally altering the terms of its agreements and by refusing to bargain with the union as the representative of its employees. Inter alia, the Company was ordered to cease and desist from refusing to bargain collectively with Local No. 150 as the representative of the Company's employees and from making unilateral changes in wages, rates of pay, or other terms or conditions of employment without first reaching agreement with the union concerning such changes. The Company's motion for reconsideration and rehearing was denied, and then, when the Company refused to comply with the Board's order, the Company was informed that enforcement proceedings were being recommended. Without further notice to the Company, the Board filed a proposed supplemental judgment enforcing its supplemental order and embodying the latter's terms, and we entered it on January 2, 1975. Although our records fail to show that the supplemental judgment was served on the Company, the Company admits that it had notice and actual knowledge of our supplemental judgment since at least February 7, 1975.1 The Company did not move to have it reconsidered or set aside by petition for rehearing, with or without a suggestion for rehearing in banc,2 nor did it seek further review by a petition for certiorari.
Admitted Facts
4
The facts alleged in the Board's petition, admitted to be true in the Company's response, are that on October 8, 1968, the Company and the union signed two memoranda of agreement, each containing clauses that the employer recognized the union as the sole and exclusive bargaining representative for the employees. Each memorandum adopted the terms and conditions of employment of a master agreement contained in a single document executed on June 1, 1966 by the union and the General Building Contractor's Association of South Bend and Mishawaka, Indiana, and the union and Sewer, Tunnel and Subway Contractors of South Bend and Mishawaka, Indiana, respectively. The expiration date of the master agreement was May 31, 1970. By their terms, the memoranda were effective as of October 8, 1968, and were to remain in effect for one year, and thereafter from year to year, unless terminated by the parties. Each party had the right to amend or terminate each memorandum by notice in writing at least three calendar months prior to its expiration. By their terms, the memoranda specifically adopted any subsequent agreement entered into between the union and the employer association "unless notice of termination or amendment is given" in accordance with the provisions of the memoranda.
5
Although the Board alleges that subsequent master agreements have been executed between the union and the respective associations, the Company neither admits nor denies these allegations. The legal effect of this answer is to put the Board to strict proof of the facts it alleged. Such proof is not in this record, but the point is of little significance for present purposes because the Company admits that it has never honored the terms of the October 8, 1968 memoranda or of the master agreement of June 1, 1966 (which by its terms continued to May 31, 1970), or of any subsequent master agreement with the union. The Company concedes that since November 1, 1968, it has repeatedly changed the wage rates of its employees without notice to or affording the union an opportunity to bargain thereon. Clearly, the Company has admitted a factual basis on which to find it in civil contempt, unless there is merit in one or more of its defenses. The wage rates fixed from time to time in any master agreements which may have been entered into from time to time to be effective after May 31, 1970, are significant only with respect to the computation of back pay. We have no doubt that, upon the Company's request, the Board, or the union, or both, will supply data to the Company with regard to master agreements covering the period after May 31, 1970, so that the Company can compute back pay.
6
The Company admits the various proceedings which have been taken before the Board and in this court. It admits also that in its Supplemental Decision and Order which we enforced by supplemental judgment, the Board ordered the Company, inter alia, to cease and desist from refusing to bargain collectively and from making unilateral changes in wages, rates of pay, or other terms or conditions of employment without collective bargaining and agreement resulting therefrom, and affirmatively to recognize the union, honor its memorandum agreements, and to make whole each affected employee for any loss of pay he may have suffered as a result of illegal unilateral changes since October 23, 1968.
7
Finally, the Company admits that, at all times, it has wholly failed and refused to comply with our supplemental judgment.
Company Defenses
8
A. Alleged Duress.
9
The Company's first defense is that the collective bargaining agreements that it is accused of having unilaterally altered were entered into under coercion and duress, and that therefore the agreements are unenforceable against the Company so that the Company's failure to negotiate with the union before altering them cannot constitute a violation of § 8(a)(5) and (1). The Company does not allege the entire factual basis for its claim of coercion and duress, but it does quote a portion of the record made before the trial examiner in the instant case to the effect that the Company's president had been "having some problems" with the union's business representative and since the president had plans to be on vacation at a time when a construction job was about to start and he wished to avoid any possible interference by the union business representative, he signed the collective bargaining agreement "hoping that everything would be fine and we could get along then."
10
The defense was raised in the initial administrative proceedings. It was not decided by the trial examiner because he erroneously concluded, as did a majority of the Board, that an employer was not required to bargain collectively with the union with which he had contracted under § 8(b) unless and until the union achieved majority status. Although general counsel filed exceptions to the trial examiner's recommended decision and order in an effort to persuade the Board to reverse the trial examiner's legal conclusions, the Company filed no cross-exceptions to sustain the recommended decision on other grounds, including the claim of coercion and duress, should the Board agree with general counsel's legal arguments.
11
The Company had previously asserted this defense in a suit filed by the union, prior to its filing an unfair labor practice charge with the Board, which sought specific performance of the Company's collective bargaining agreements of 1968. The suit was instituted in the United States District Court for the Northern District of Indiana. The specific outcome of the case does not appear, but obviously the union did not obtain relief.
12
The coercion defense was asserted twice more: first, in a suit in the Northern District of Indiana instituted by the Company to restrain the unfair labor practice proceedings before the Board, in which the Company's prayer for injunctive relief was denied, and, second, in a suit instituted by the trustees of employees' benefit funds in the Northern District of Indiana to recover payments which the Company should have made under its collective bargaining contracts. Apparently the latter suit is still pending. Finally, the Company obliquely sought to raise the defense in a Motion for Reconsideration and Rehearing of the Board's Supplemental Decision and Order after remand of the case by us to it. That motion was denied.
13
B. Termination of Memorandum Agreements Executed October 8, 1968.
14
While the Company does not claim that it ever gave the formal notice of termination required by either October 8 agreement, it asserts that the legal force and effect of the pleadings filed before the Board and in the several proceedings before the United States District Court for the Northern District of Indiana were to terminate the memorandum agreements as of May 31, 1970. In connection with this assertion, the Company contends that it has been denied its rights under the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment to present its claim of termination adequately to the Board for adjudication.
15
C. Invalidity of "Make Whole" Order.
16
The Company asserts that the portion of the Board's supplemental order requiring it to pay employees adversely affected by its illegal unilateral changes in wages violates the Board's established policy regarding the tolling of back pay awards. Specifically, it asserts that the award of back pay should be tolled from the date of the trial examiner's decision on March 9, 1970, when the trial examiner concluded, erroneously we have found, that the Company had a right to make unilateral changes in wages, rates of pay, or other terms or conditions of employment, notwithstanding its October 8, 1968 memorandum agreements.
17
D. Other Defenses.
18
When we initially remanded this case to the Board, the Board indicated that it would comply with the remand but would reserve for future cases its position that an employer may not be found guilty of a refusal to bargain with respect to a union with which it has executed a valid § 8(f) pre-hire contract but which failed to achieve majority status. The Company asserts that such a reservation was in violation of the Administrative Procedure Act and the Fifth Amendment of the Constitution.
19
Another contention advanced is that the Company is financially unable to pay the amount of back pay which the Company estimates it will be ordered to pay and it would be forced to discharge the obligation by voluntary bankruptcy.
Legal Discussion and Decision
20
At the outset, we express our disapproval of the Board's seeking a supplemental judgment to enforce its supplemental decision without service of the petition therefor on the Company. Of course, from what was decided in the main case, the petition for enforcement of the supplemental decision and order was largely pro forma. Nonetheless, in such cases we think that actual notice should be given to a respondent and the respondent should be afforded an opportunity to voice any objection to the issuance of a supplemental judgment that it be advised to interpose.
21
We do not think, however, that under the facts of this case any of the Company's constitutional rights were denied; nor do we think that we lacked jurisdiction. The supplemental proceedings were largely pro forma. The Company had adequate notice of entry of the supplemental judgment in time to seek to have the proceedings reheard by the panel, or by the court sitting in banc, or to seek review by the Supreme Court. The Company took no steps to disturb the judgment. We think this case is an appropriate one in which to invoke the well-established principle that, except for jurisdictional defects, the validity of a decree cannot be attacked in a contempt proceeding to effect obedience to it. In short, the Company will not be heard to question irregularities in its entry since procedural due process of law has not been denied. Maness v. Meyers, 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975); Walker v. Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967); Howat v. Kansas, 258 U.S. 181, 42 S.Ct. 277, 66 L.Ed. 550 (1922).
22
We turn therefore to the Company's other defenses:
23
A. Duress.
24
The Company's factual claim of coercion and duress borders on the frivolous. But even if we assume that the Company is able to tender proof that something more than the Company's president's desire to take a vacation led him to execute the pre-hire agreements, we think that the Company has lost its right to claim this defense.
25
Coercion and duress were asserted in the Board's initial proceedings; but when the trial examiner decided the case in favor of the Company on a different ground, the Company filed no cross-exceptions to sustain the trial examiner's result on the ground of coercion and duress. Absent extraordinary circumstances which we do not find to be present, the Company's failure to press its claim on the Board in accordance with the Board's regulations, 29 C.F.R. §§ 102.46(b) and (e) and 102.48(a), results in the conclusion that the Company is foreclosed from pressing it on us under § 10(e) of the Act, 29 U.S.C. § 160(e). Barton Brands, Ltd. v. NLRB, 529 F.2d 793 (7 Cir. 1976); NLRB v. Cast-A-Stone Products Company, 479 F.2d 396 (4 Cir. 1973). See also United States v. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952). The mere fact that the Company prevailed before the trial examiner does not constitute "extraordinary circumstances" justifying us from relieving it of its burden.
26
B. Termination of Memorandum Agreements.
27
The two pre-hire agreements provided how each could be amended or terminated. Each required notice in writing at least three calendar months prior to its expiration. "The time and manner of exercising a power of termination (of a contract) may be specified in the contract; in such case an attempt to exercise it otherwise will be ineffective (emphasis added)." 6 Corbin on Contracts, § 1266, p. 65 (2d ed. 1962); 6 Williston on Contracts, § 887B, pp. 513-14 (3d ed. (Jaeger) 1962).
28
Since there is no claim that the Company gave notice of termination in the manner prescribed in the pre-hire agreements, they were not terminated in accordance with their provisions. The Company's pleadings before the Board and in collateral judicial proceedings may have been given the Union and the Board ample notice that the Company was loath to abide by its agreements, but they did not effect termination.
29
C. "Make Whole" Order.
30
The Company advances no authority to support its position that the award of back pay to affected employees should be tolled from the date of the trial examiner's decision on March 9, 1970. We are aware that prior to 1962 it was the policy of the Board to toll back pay under certain circumstances. See APW Products, Inc., 137 NLRB 25, 28-30 (1962). That policy was changed in 1962. See NLRB v. A.P.W. Products Company, 316 F.2d 899, 905-07 (2 Cir. 1963). See also NLRB v. Stanton Enterprises, Inc., 351 F.2d 261, 265 (4 Cir. 1965).
31
The policy was further refined in Ferrell-Hicks Chevrolet, 160 NLRB 1692 (1966), and approved by the Seventh Circuit in Golay and Company, Inc. v. NLRB, 447 F.2d 290, 292-94 (7 Cir. 1971). In essence, the present policy is not to toll back pay awards, absent "special factors" which render back pay inappropriate to effectuate the policies of the Act. We perceive no special factors here. The Company should be held to its memorandum agreements for the entire period that it failed to pay wages and fringe benefits at the level fixed by the master agreement and any extensions or modifications thereof, especially when the record clearly reflects that the Company signed the memorandum agreements not intending to observe them and any benefit of nonobservance has been enjoyed by the Company for an extended period.
32
D. Other Defenses.
33
We see nothing improper in the Board's reservation of its rights to contest the correctness of our holding in Local No. 150 should the same question arise in another circuit. The important thing is that, in the instant case, having decided not to seek further appellate review, the Board has complied with our holding.
34
We are aware of no authority which would exalt the Company's alleged precarious financial condition over the employees' right to an award of back pay. Manifestly, the remedial provisions of the Act should prevail over this claim, especially when the Company has enjoyed the fruits of its violation.
35
For all of these reasons, we see no merit in any of the Company's defenses and we think that the present record and the Company's admissions demonstrate that the Company has committed civil contempt by its failure and refusal to comply with our supplemental judgment, without the need for further evidentiary proceedings.
ORDER
36
In accordance with the foregoing opinion, we hereby adjudge the Company, its officers, agents and representatives in civil contempt of this court for failing and refusing to comply with our supplemental judgment of January 2, 1975.
We further order, adjudge and decree that:
37
A. The Company, its officers, agents and representatives may purge themselves by:
38
1. Recognizing and bargaining with the union as the exclusive bargaining representative of its employees in accordance with the terms of the Company's memorandum agreements with the union that were executed on October 8, 1968, and by making whole each affected unit employee for any loss of pay he may have suffered by reason of the Company's refusal to honor the master collective bargaining agreements, and any modifications and extensions thereof, incorporated by reference by the aforesaid memoranda, and otherwise complying in full with each and every provision of the court's supplemental judgment of January 2, 1975, and not in any way by action or inaction committing, encouraging, permitting or condoning violation of said judgment.
39
2. Requiring furnishing any person dealing with the union on their behalf to read the supplemental judgment and this order and to signify in writing that said person has read and understands them.
40
3. Upon request of the union, immediately furnishing it with a list by name, address, job description, wage rate and date of hire of all the Company's employees since October 23, 1968 and maintaining said list in current status so long as the union remains the bargaining representative for the employees in the designated unit.
41
4. Immediately posting copies of the Board's Notice (annexed as an appendix to the court's January 2, 1975 supplemental judgment) in all places and in such manner as required by that judgment and simultaneously posting in conspicuous places, including all places where notices to employees are customarily posted, for a period of sixty (60) consecutive days, copies of the contempt adjudication and of an appropriate notice in the form to be furnished by the Board signed by the Company's president, which states that the Company has been adjudicated in civil contempt of court for disobeying the supplemental judgment of this court and that it will take the action in purgation ordered by the court. Said notices and copies of the contempt adjudication shall be maintained in clearly legible condition throughout such posting period, and the Company shall insure that they are not altered, defaced or covered by any other material.
42
5. Mailing to each of its current employees and to all former employees who were employed by it since October 23, 1968, a copy of the aforesaid notices, and providing to the Director of the Board's Twenty-Fifth Region a list of the names and addresses of all employees and former employees to whom said documents were mailed together with proof of such mailings.
43
6. Filing a sworn statement with the clerk of this court and a copy thereof with the Director of the Twenty-fifth Region, in writing, within fifteen (15) days from the date hereof, showing what steps have been taken by the Company to comply with the Court's directions.
44
B. For the purpose of assuring compliance with the provisions of this order, there is hereby imposed upon the Company a compliance fine of $5,000 for each and every violation of the foregoing provisions, and a further compliance fine of $500 per day for each and every day that each violation continues, together with the reasonable costs and expenses of the United States in enforcing this order.
45
C. Notwithstanding the entry of this order, jurisdiction over the Company, its officers, agents and representatives is expressly retained for the entry of such additional order or orders as may be necessary to effect compliance, including but not limited to the assessment of specific fines and costs and the attachment of the Company's president and any other officers, agents or representatives responsible for noncompliance, and to amend this order or issue such additional orders as to this court seems appropriate.
46
/s/ Carl McGowan
47
/s/ United States Circuit Judge
48
/s/ Harrison L. Winter
49
/s/ United States Circuit Judge
50
/s/ George E. MacKinnon
51
/s/ United States Circuit Judge
52
MacKINNON, Circuit Judge (concurring in part and dissenting in part):
53
Reluctantly, I concur in this opinion, chiefly because the Company has been dilatory in actively asserting its rights. It definitely had some equitable claim to have the Board determine its duress defense. It properly asserted it at the outset but the Administrative Law Judge held for the Company on other grounds that were clearly recognized at the time as being valid. As expected, his position was sustained by the National Labor Relations Board only to be finally reversed by this court. The NLRB did not apply for certiorari, undoubtedly because they considered the case had some deficiencies for such review. Nevertheless, the NLRB does not agree with our reversal and reserves the right to raise the issue in other circuits. So when the foregoing opinion belabors the Company for signing "memorandum agreements not intending to observe them," it overstates the facts. The Company signed the agreements intending to observe them when the union achieved majority status. That was the interpretation placed on such agreements at that time and the Company was sustained in such position by both the ALJ and the Board. That interpretation might still be eventually upheld, in other cases, by the NLRB and the Supreme Court. In view of this partial justification for the Company's position and the extreme burden that full back pay might entail in such circumstances, I would remand the issue of back pay for consideration by the Board. To this extent, I respectfully dissent.
*
Sitting by designation pursuant to 28 U.S.C. § 291(a) (1970)
1
The Company received some notice earlier. In its response to the Board's petition, the Company admits that it received a letter from the Board's Regional Director, under date of January 23, 1975, referring to a supplemental judgment of a court of appeals in the present case. The letter, however, incorrectly identified the court and the case number
2
A petition for rehearing is required to be filed within fourteen days after entry of judgment "unless the time is shortened or enlarged by order." Rule 40, F.R.A.P. For "good cause shown," the time for filing a petition for rehearing may be extended without limitation. Rule 26(b), F.R.A.P. Rule 26(b) contains no provision requiring that the motion for an extension of time be made before the date fixed for the act to be done
|
Dismissed and Memorandum Opinion filed August 8, 2017.
In The
Fourteenth Court of Appeals
NO. 14-17-00467-CR
RISPAH CHOMBAH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 9
Harris County, Texas
Trial Court Cause No. 2151521
MEMORANDUM OPINION
Appellant entered a plea of guilty to trespass. In accordance with the terms of
a plea bargain agreement with the State, the trial court sentenced appellant to six
days’ confinement in county jail. We dismiss the appeal.
The trial court entered a certification of the defendant’s right to appeal in
which the court certified that this is a plea bargain case, and the defendant has no
right of appeal. See Tex. R. App. P. 25.2(a)(2). The trial court’s certification is
included in the record on appeal. See Tex. R. App. P. 25.2(d). The record supports
the certification. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005).
Accordingly, we dismiss the appeal.
PER CURIAM
Panel consists of Justices Christopher, Brown, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b)
2
|
Case: 11-10056 Document: 00511630751 Page: 1 Date Filed: 10/13/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 13, 2011
No. 11-10056
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAIME ARTURO ARGUETA-LOPEZ, also known as Jaime Arturo Argueta-
Rodas,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:10-CR-147-1
Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jaime Arturo Argueta-Lopez (Argueta) appeals from the 96-month
sentence imposed by the district court following his conviction for illegal reentry;
the sentence was the result of an upward variance from the applicable guidelines
range of 46-57 months of imprisonment.
In reviewing the sentence imposed for reasonableness, this court must first
determine whether the district court committed any procedural errors, including,
*
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.
Case: 11-10056 Document: 00511630751 Page: 2 Date Filed: 10/13/2011
No. 11-10056
inter alia, “failing to adequately explain the chosen sentence-including an
explanation for any deviation from the Guidelines range.” Gall v. United States,
552 U.S. 38, 51 (2007). If the district court’s decision is procedurally sound, this
court will “consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Id.
Even if Argueta sufficiently preserved his objection to the district court’s
explanation for imposing the sentence at issue, we find that the district court,
by citing Argueta’s extensive criminal history and recidivist tendencies,
adequately explained its bases for the variance. See Id. at 50. Although Argueta
argues that the sentence imposed was substantively unreasonable because the
district court over-emphasized his criminal history and failed to recognize his
cultural ties to the United States, the district court explained that it had fully
considered the § 3553(a) factors, including the need to promote respect for the
law and to deter Argueta from future criminal conduct, and this court “must give
due deference to the district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.” Id. at 51. That this court “might
reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” Id.
AFFIRMED.
2
|
QBfficeof toe Igttornep fBenera1
&We of Qexaa
DAN MORALES
*moRNLy
GENBRAL September 19,199l
Honorable Bill G. Carter Opinion No. DM- 44
chairman
Committee on Public Safety Re: Whether county commissioners
Texas House of Representatives have the authority to set boundaries for
P.O. Box 2910 wet/dry elections and other related
Austin, Texas 787682910 questions (RQ-89)
Dear Representative Carter:
You ask three questions regarding local option liquor elections. Such
elections are held pursuant to article XVI, section 20, of the Texas Constitution and
chapter 251 of the Alcoholic Beverage Code. We will consider each question in
turn:
1. Do county commissioners have the legal authority to set
boundaries for wet/dry elections?
Article XVI, section 20, of the Texas Constitution directs the legislature to
adopt statutes to provide for local option elections to legalize or prohibit the sale of
alcoholic beverages. This constitutional provision is codified in chapter 251 of the
Alcoholic Beverage Code. Local option liquor elections may only be called when
the commissioners court receives a valid petition. Alto. Bev. Code $9 251.01,
251.11. The commissioners court must call an election when it receives such a
petition. Id The county clerk must provide a petition to qualified voters under the
following circumstances:
If 10 or more qualified voters of any county, justice
precinct, or incorporated city or town file a written application,
the county clerk of the county shall issue to the applicants a
petition to be circulated among the qualified voters of rlaat
political subdivision
p. 221
Honorable Bill G. Carter - Page 2 (DM-44)
Alto. Bev. Code Q251.03 (emphasis added).
The political subdivision for which the election must be called is thus
determined by the petition. The political subdivisions for which elections may be
called are limited by both the constitution and by statute to counties, justice of the
peace precincts, and incorporated cities and towns. Tex. Const. art. XVI, Q20; Alto.
Bev. Code $0 251.01,251.02, see ulro Attorney General Opinions JM-1177 (1990);
JM-468 (1986) and authorities cited therein. These political subdivisions will
ordinarily have fixed boundaries that will determine the area in which the election is
held.
The only instance in which a commissioners court is authorized by statute to
exercise discretion in setting the boundaries for a local option liquor election is
described in section 251.80 of the Alcoholic Beverage Code. Subsection (a) of that
section states:
Whenever a local option status is once legally put into
effect as the result of the vote in a justice precinct, such status
shall remain in effect until the status is changed as the result of
a vote in the same territory that comprised the precinct when
such status was established. If the boundaries of the justice
precinct have changed since such status was established, the
commissioners court shall, forputposes of a local option election,
define the boundaries of the original precinct. A local option
election may be held within the territory defined by the
commissioners court as constituting such original precinct!
(Emphasis added.)
This provision requires an election attempting to change the local option
status of a justice precinct to be conducted, not in the precinct as it exists at the time
of the petition for the election, but in the territory that comprised the justice
precinct when the local option status was established.1
In Coker v. Texas Alcoholic Beverage Comm’n, 524 S.W.2d 570 (Tex. Civ.
lBy its terms section 251.80 of the Alcoholic Beverage Code applies only to justice precincts.
Changes of 1ocaI option status in incorporated cities and towns remains governed by section 251.72.
P- 222
Honorable Bill G. Carter - Page 3 (DM-44)
App.-Dallas 1975, writ refd n.r.e.), the court of appeals considered a situation in
which the exact boundaries of a former justice precinct could not be determined.
The court held, in part:
[Tlhe commissioners’ court has responsibility to call the
election, and we see no reason why it could not protect all
interested persons by drawing a line approximating the original
boundaries. Its determination of the boundaries would not be
exercised under its general power to fix precinct boundaries,
but would be an administrative determination incidental to its
power to order an election,.and would control unless clearly
erroneous or arbitrary.
524 S.W.2d at 579.
We believe the intent of the~legislature in enacting the emphasized language
was to pennit the commissioners court to resolve situations in which, due to lost or
ambiguous records or other reasons, it is not possible to establish definitively the
boundary of a former justice precinct. In effect, the language codifies the holding of
Coker with respect to situations where the boundary of a former justice precinct
cannot be determined. Accordingly, we believe that discretion exercised under
section 251.80 may not be arbitrary. A boundary set by the commissioners court
under section 251.80 must as nearly as possible conform to the boundary of the
former precinct for which the petition requires the election be held. Where the
boundaries of the former justice of the peace precinct are clearly defined by public
records, the county commissioners have no discretion to define the boundaries
differently for purposes of a local option election.
2. If an area is currently designated dry by municipal
ordinance, can a commissioners court require residents in this
area to participate in a wet/dry election?
As noted above, the political subdivision in which a local option liquor
election is to be held is determined by the petition that both authorizes and requires
the commissioners court to call the election. In Patton v. Texas Liquor Control Bd.,
293 S.W.2d 99 (Tex. Civ. App.-Austin 1956, writ ref d n.r.e.), the court considered a
situation in which a local option election had been held in only that part of a justice
p. 223
Honorable Bill G. Carter - Page 4 (DM-44)
precinct lying outside the corporate limits of a city. The court held that there was no
constitutional or statutory authority for holding a local option election in only part
of a justice precinct:
We believe that since the Constitution and statutes limit
local option elections to counties, justice’s precincts and
incorporated cities or towns, the purported election in only a
portion of Justice Precinct No. 3 is void, and that the District
Court erred in holding that it was effective to make the sale of
liquors within such portion of the precinct illegal.
. . . .
We must also bear in mind that if five voting boxes can be
thus converted into a local option district despite the
Constitution then there is no logical reason why a smaller area,
one lot for instance, could not be so created and, perhaps of
greater importance, if a non-constitutional area can be made
dty by such procedure then it could by the same token be made
wet by such procedure.
293 S.W.2d at 101-02. (emphasis in original).
Accordingly, only those political subdivisions enumerated in the constitution
and statutes may exercise local option through the electoral process prescribed by
chapter 251 of the Alcoholic Beverage Code, and such elections must be held in the
entire political subdivision for which the election is called. No provision of the
Alcoholic Beverage Code authorizes the disfranchisement of voters in any portion
of a city that is within the political subdivision for which the election is to be held.
Whether a municipality has prohibited the sale of an alcoholic beverage in an area
of that municipality is irrelevant as to the inclusion of that area in a local option
election. While the Alcoholic Beverage Code provides for some municipal
regulation of the sale of alcoholic beverages, Alto. Bev. Code $9 109.31, 109.32,
these provisions are distinct from the exercise of local option by election and do not
serve to change the local option status adopted by a political subdivision pursuant to
chapter 251, nor to inhibit the adoption of new local option status by the voters. Id.
$$ 251.51,251.72.
P. 224
Honorable Bill G. Carter - Page 5 (DM-44)
3. What agency or agencies are legally responsible for
enforcing changes in wet/dry elections?
We take your question to ask what agency is responsible for enforcing
changes in local option status made pursuant to chapter 251 of the Alcoholic
Beverage Code. The Alcoholic Beverage Commission is charged generally with
regulating every phase of the alcoholic beverage industry in Texas. Alto. Bev. Code
Q5.31. Of course, state and local police agencies may enforce state laws within their
respective jurisdictions. However, certain other officials are given specific duties in
certifying the result of a local option election.
Section 251.51 directs the commissioners court to canvass the returns of a
local option election and to declare the result. Upon a majority vote in favor of
legalization, the types of alcoholic beverages legalized may be sold once the
commissioners court enters an order declaring the result. Id. A vote prohibiting
sale of alcoholic beverages is effective 30 days after the commissioners court order
is entered. Id If the result prohibits the sale of any alcoholic beverages, it must be
posted. Id 9 251.54. Regardless of outcome, the result is certified to the Alcoholic
Beverage Commission and the secretary of state by the county clerk. Id. $ 251.53.
When an application is made for a license or permit to sell alcohol, the county clerk
must certify whether a particular location is “wet”or “dry.” Id. 5 11.37.2
SUMMARY
A commissioners court is authorized to set the boundaries
for a local option liquor election only in the circumstances
prescribed in section 251.80 of the Alcoholic Beverage Code.
A boundary set by the commissioners court under this
provision must as nearly as possible conform to the boundary
of the former justice of the peace precinct for which the
petition requires an election be held. Where the boundaries of
the former justice of the peace precinct are clearly defined by
public records, the county commissioners have no discretion to
*This procedure of &tic&m as to wet or dry status is summarized by the court in Sells v,
ROOM, 769 S.W.2d 641,643 (Tex. App.--Austin 1989, no wit).
P- 225
Honorable Bill G. Carter - Page 6 (DM-44)
define the boundaries differently for purposes of a local option
election.
Only those political subdivisions enumerated in the
constitution and statutes may exercise local option through the
electoral process prescribed by chapter 251 of the Alcoholic
Beverage Code, and such elections must be held in the entire
political subdivision for which the election is called. No
provision of the Alcoholic Beverage Code authorizes the
disfranchisement of voters in a portion of a city that is within
,the political subdivision for which the election is to be held.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by John Steiner
Assistant Attorney General
P- 226
|
208 P.3d 503 (2009)
228 Or. App. 315
Robin R. MONTGOMERY, Plaintiff-Appellant,
v.
HOWARD JOHNSON INN, GRESHAM, Defendant-Respondent.
07F003813; A135495.
Court of Appeals of Oregon.
Argued and Submitted June 11, 2008.
Decided May 13, 2009.
*504 Mark A. Peterson argued the cause for appellant. With him on the brief was Lewis and Clark Legal Clinic.
Heyke Nickerson argued the cause for respondent. With her on the brief was NW Employer Solutions.
Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.
ORTEGA, J.
The sole issue presented on appeal is whether the Residential Landlord Tenant Act (RLTA) applies in this case. Plaintiff, a former employee of defendant, resided at defendant's hotel during her employment. After defendant terminated her employment and refused to allow her access to her personal property until she paid certain costs, plaintiff brought this action under ORS 105.112 for the recovery of personal property.[1] The trial court found that, because plaintiff's right to occupancy was "conditional upon [her] employment in and about the premises" where she was employed, ORS 90.110(7) excluded the parties' arrangement from the RLTA. As a result, the trial court concluded that plaintiff was not entitled to relief under ORS 105.112 and, without prejudice, granted defendant's motion for an involuntary dismissal. ORCP 54 B(2). On appeal, plaintiff asserts that the trial court misconstrued and misapplied ORS 90.110(7). We affirm.
Defendant twice employed plaintiff between March 2006 and January 2007. During plaintiff's first term of employment, she worked and resided at defendant's hotel. When that first term of employment ended in November 2006, defendant told her that she would have to leave the hotel. Although initially resistant, plaintiff eventually did so.
Approximately one month later, defendant again hired plaintiff. Plaintiff told Raines, defendant's manager, that she had no place to live and could not accept the employment offer if she did not live in the hotel. Plaintiff and Raines agreed that plaintiff would be allowed to use two of the hotel's rooms, one for occupancy and the other for storage. Plaintiff would be charged for her use of the rooms, but would receive an employee discount. Three eight-hour workdays from each two-week pay period would be "payment" for plaintiff's use of the rooms. At plaintiff's rate of pay, those 24 hours were equivalent to $204. Plaintiff moved into the hotel either on the day she began working or shortly thereafter. She never registered as a guest at the hotel.
On January 24, 2007, Raines notified plaintiff in writing that her employment would be terminated on February 14. The notice advised plaintiff that she would have to vacate the premises no later than February 15. The notice also informed plaintiff that, if she did not continue to perform her duties to the best of her ability, she would be dismissed immediately and would be required to vacate the premises promptly. Plaintiff failed to return to work after receiving the termination notice and was removed from defendant's work schedule on January 29.
Defendant locked plaintiff out of the room where she was storing her belongings. On January 26, plaintiff enlisted the aid of police in gaining access to her storage room. She moved some of her personal effects into the room in which she lived and removed some of her other belongings from the hotel. Later *505 that day, Raines informed plaintiff by letter that her remaining belongings would be moved into storage and that she would not be allowed to retrieve them unless she paid the hotel for the storage costs as well as various room charges and cleaning fees before February 1.
At some point before February 15, defendant began charging plaintiff for use of the two rooms at an increased rate, rather than the discounted employee rate, effective as of January 24. On February 15, plaintiff received an invoice for her post-January 24 "storage use" of both rooms. Although the invoice listed charges of $1,232, including taxes, defendant applied plaintiff's final paycheck to the charges, reducing plaintiff's amount owed to $895.72. Defendant continued to charge plaintiff for "storage use" until March 1, when, with the exception of a mattress and box spring, it disposed of all of plaintiff's remaining personal property.
At trial, defendant argued that plaintiff could not bring an action under ORS 105.112 because the RLTA did not apply to the parties' arrangement. Specifically, defendant asserted that, because plaintiffs' occupancy had been conditioned on her employment, ORS 90.110(7) excluded the parties' arrangement from the RLTA. That statute provides:
"Unless created to avoid the application of this chapter [the RLTA], the following arrangements are not governed by this chapter:
"* * * * *
"(7) Occupancy by an employee of a landlord whose right to occupancy is conditional upon employment in and about the premises. However, the occupancy by an employee as described in this subsection may be terminated only pursuant to ORS 91.120."
Plaintiff responded that the parties' arrangement was not excluded by ORS 90.110(7) because, as used in that statute, the term "conditional" refers only to situations in which an employer benefits from the employee's presence on the premises. Plaintiff contended that, because she, not defendant, benefited from her residence at the hotel, ORS 90.110(7) did not apply. Alternatively, plaintiff argued that her payment of rent entitled her to the protections of the RLTA until the term of occupancy covered by that payment expired. The trial court rejected plaintiff's arguments and concluded that the parties' arrangement was excluded from the RLTA by ORS 90.110(7). On appeal, the parties renew the arguments they made to the trial court.
The proper application of ORS 90.110(7) presents a question of statutory construction that we resolve by examining the statute's text in context, any legislative history offered by the parties, and, if necessary, by applying pertinent maxims of statutory construction. State v. Gaines, 346 Or 160, 171-72, 206 P.3d 1042 (2009).
We first address plaintiff's contention that the exclusion contained in ORS 90.110(7) does not apply unless the employer benefits from the employee's occupancy. On its face, nothing in ORS 90.110(7) suggests that its applicability is dependent on a party's benefiting from the arrangement. The statute does not use that term; rather, it simply applies whenever the employee's "right to occupancy is conditional upon employment in and about the premises." The plain meaning of the term "conditional" likewise does not imply that there must be some benefit to the employer from the occupancy. See PGE v. Bureau of Labor and Industries, 317 Or. 606, 611, 859 P.2d 1143 (1993) (words not defined by statute are to be given their "plain, natural and ordinary meaning"). That adjective means, among other things, "1: containing, implying, subject to, or depending on a condition." Webster's Third New Int'l Dictionary 473 (unabridged ed. 2002). When the word "conditional," as used in ORS 90.110(7), is read with that meaning, it is clear that the statute's text simply refers to arrangements in which the employee's occupancy is "subject to" or "depend[s] on" the employee's employment in and around the employer's premises. Nothing indicates that the employer must somehow "benefit" from the employee's presence on the property.
Plaintiff contends that a comment by the drafters of the Uniform Residential Landlord and Tenant Act (URLTA) demonstrates that the term "conditional" requires that the employer *506 benefit from the employee's presence. See West v. French, 51 Or.App. 143, 149-50, 625 P.2d 144 (1981) (noting that Oregon's RLTA is a codification of the URLTA). The comment to the provision now codified as ORS 90.110 provides, in part:
"[The URLTA] regulates landlord-tenant relations in residential properties. It is not intended to apply where residence is incidental to another primary purpose such as residence in a prison, a hospital or nursing home, a dormitory owned and operated by a college or school, or residence by a landlord's employee such as a custodian, janitor, guard or caretaker rendering services in or about the demised premises."
Uniform Residential Landlord and Tenant Act § 1.202 cmt (1972). Plaintiff reasons that the examples provided in the comment where the described employees "render[] services in or about the demised premises"are all ones where the employer obtains some benefit from the employee's presence on the premises. Accordingly, plaintiff contends that the comment demonstrates that the exclusion was intended to apply only if the employer benefited from the employee's presence on the premises.
Notwithstanding its reference to "rendering services," we are not persuaded that the comment necessarily supports plaintiff's preferred construction of ORS 90.110(7). Rather, as the comment indicates, the URLTA is not intended to apply where "residence is incidental to another primary purpose," such as the resident's incarceration, hospitalization, or educational goals, or where the resident, as an employee, works in and around the residence. Although an employer may certainly benefit from the employee's presence on the property, the comment as a whole suggests that the exclusions are intended to apply whenever a resident's presence on the property is for some purpose other than mere residence. In sum, the legislative history proffered by plaintiff does not overcome the plain meaning of the text and context of ORS 90.110(7). See Gaines, 346 Or. at 172, 206 P.3d 1042 (noting that "a party seeking to overcome seemingly plain and unambiguous meaning with legislative history has a difficult task before it"). ORS 90.110(7) excludes from the RLTA arrangements in which an employee's right to occupancy is dependent on his or her employment in and about the employer's premises; its applicability is not dependent on a party obtaining a benefit from the arrangement.
We next consider plaintiff's contention that, even if her occupancy was conditional on employment, her payment of rent entitled her to the protections of the RLTA until the term of occupancy covered by that payment expired. Relying on cases from other jurisdictions, plaintiff argues that a landlord-tenant relationship was created when defendant collected rent from her. See, e.g., Tatro v. Lehouiller, 147 Vt. 151, 154, 513 A.2d 610, 612 (1986) (where an employer permitted a discharged employee to continue residing on the premises on the condition that he work half days, that condition constituted rent, and the employer could not evict the employee); see also Miracle v. Stewart, 278 Ky. 158, 128 S.W.2d 613, 616 (1939) (stating the principle that a landlord-tenant relationship is created when an employer collects rent for an employee's occupation of the premises); Ofschlager v. Surbeck, 50 N.Y.S. 862, 864-65, 22 Misc. 595, 598 (1898) (where an employer deducted rent from the employee's wages and the employment agreement obligated the employee to keep the residence "in good order," the employee was a tenant). Plaintiff urges us to adopt the reasoning of those courts.
As noted earlier, the only issue before us is the applicability of the RLTA. Resolution of that issue is a matter of statutory interpretation, and plaintiff does not explain why, consistently with such analysis, the payment of rent takes this case outside the exclusion described in ORS 90.110(7). Nothing in ORS 90.110(7) itself suggests that an employer may not collect rent from an employee who resides on the employer's premises, and plaintiff has not identified any other provision of the RLTA or any principle of Oregon law that would prevent an employer from doing so. Moreover, the out-of-state cases on which plaintiff relies shed no light on that inquiry; none of them interprets a statute or statutory scheme similar to the RLTA. Instead, *507 they merely recount the then-applicable common law in their respective jurisdictions.
Having construed the exclusion to the RLTA established in ORS 90.110(7), we consider, finally, whether the trial court erred in concluding that plaintiff failed to establish a prima facie case. See Gearhart v. Employment Div., 99 Or.App. 601, 604, 783 P.2d 536 (1989), rev. den., 310 Or. 70, 792 P.2d 104 (1990) (on review of a trial court's grant of a motion for involuntary dismissal without prejudice, this court examines the evidence to determine whether the plaintiff has established a prima facie case); see also Venture Properties, Inc. v. Parker, 223 Or.App. 321, 333-41, 195 P.3d 470 (2008) (discussing and clarifying this court's case law concerning ORCP 54 B(2)). We conclude that it did not err.
Undisputed evidence demonstrates that plaintiff's right to occupancy on defendant's premises was conditional on her employment. Plaintiff began living at the hotel after she was hired. Furthermore, not only did Raines testify that plaintiff's ability to use the rooms at the hotel was conditioned on her continued employment, but the employment termination notice presented to plaintiff stated that she would have to vacate the premises following her last day of employment. The parties' prior conduct also demonstrates that plaintiff's right to occupancy on the premises was conditional on her employment. Two months before this dispute, plaintiff's first term of employment with defendant ended. She was told that she would have to vacate the premises and, although initially resistant, she eventually did so. In light of that evidence, the trial court correctly granted defendant's motion for an involuntary dismissal.
Affirmed.
NOTES
[1] ORS 105.112 provides, in part:
"(1) A tenant or former tenant may bring an action to recover personal property taken or retained by a landlord in violation of ORS chapter 90 [the Residential Landlord Tenant Act]."
|
THIRD DIVISION
MILLER, P. J.,
MCFADDEN and MCMILLIAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
November 15, 2016
In the Court of Appeals of Georgia
A16A0722. DOUGLAS ASPHALT COMPANY v. MARTIN
MARIETTA AGGREGATES et al.
MCFADDEN, Judge.
Douglas Asphalt Company appeals the grant of summary judgment to Martin
Marietta Aggregates on Douglas Asphalt Company’s counterclaim for breach of
contract. It also appeals the trial court’s dismissal of its amended counterclaim. We
affirm the judgment to Martin Marietta Aggregates because Douglas Asphalt has
failed to point to evidence giving rise to a triable issue. We affirm the dismissal of the
amended counterclaim because Douglas Asphalt did not obtain leave of court before
filing it.
1. Facts.
Martin Marietta Aggregates filed a suit on account against Douglas Asphalt
Company and Douglas Asphalt Paving, Inc. It alleged that Douglas Asphalt Company
owed it $547,056 on an open account/line of credit under which Martin Marietta had
provided aggregate material to Douglas Asphalt Company on numerous occasions.
It further alleged that Douglas Asphalt Paving was the successor to Douglas Asphalt
Company and had assumed its debts.
The defendants answered the complaint and Douglas Asphalt Company filed
a counterclaim, alleging that “pursuant to one or more agreements” between Douglas
Asphalt Company and Martin Marietta, Martin Marietta was required to provide
aggregate material within a specific schedule, but, on numerous occasions, it had
failed to do so. Douglas Asphalt Company did not specify the occasions on which
Martin Marietta allegedly failed to meet a specific schedule, but in the course of
litigation, it clarified that it sought damages for delays in regard to seven particular
projects that it identified as the Brantley County project, the Monroe County project,
the Crisp/Turner project, the Bacon/Ware project, the Appling project, the
Appling/Wayne project, and the Barco-Duval project.
Martin Marietta moved for summary judgment on the counterclaim in June
2010. Among other arguments, Martin Marietta contended that it was entitled to
2
summary judgment because the parties had not entered an enforceable agreement for
the sale of goods and that Douglas Asphalt Company never produced the contracts
that underlie its counterclaim.
On November 28, 2012, more than three years after filing its answer and
counterclaim, Douglas Asphalt Company filed an amended counterclaim, seeking
relief on a theory of promissory estoppel. It alleged that it had relied to its detriment
on Martin Marietta’s promises to supply all rock on numerous Georgia Department
of Transportation contracts.
Martin Marietta moved to dismiss the amended counterclaim as Douglas
Asphalt Company had not obtained leave of court before filing it. Douglas Asphalt
Company then moved for leave to file its amended counterclaim.
In brief orders, the trial court granted Martin Marietta’s motion for summary
judgment on Douglas Asphalt Company’s counterclaim and its motion to dismiss the
amended counterclaim. After Martin Marietta dismissed its pending claims on the suit
on account, Douglas Asphalt Company filed this appeal.
2. Summary judgment.
On summary judgment, Martin Marietta, which would not bear the burden of
proof at trial on Douglas Asphalt Company’s counterclaim,
3
need not affirmatively disprove [Douglas Asphalt Company’s] case;
instead, the burden on [Martin Marietta on summary judgment] may be
discharged by pointing out by reference to the affidavits, depositions
and other documents in the record that there is an absence of evidence
to support [Douglas Asphalt Company’s] case. If [Martin Marietta]
discharges this burden, [Douglas Asphalt Company as] the nonmoving
party cannot rest on its pleadings, but rather must point to specific
evidence giving rise to a triable issue.
BAC Home Loans Servicing, L.P. v. Wedereit, 297 Ga. 313, 316 (773 SE2d 711)
(2015) (citation omitted).
Here, Douglas Asphalt Company alleged an unspecified number of breaches
of contractual terms relating to seven particular projects. It argues that two different
kinds of contracts between Martin Marietta and Douglas Asphalt Company governed
the seven projects. The first kind of contract was a job requirements contract, in
which Martin Marietta would submit a quotation to supply the materials for a specific
job. According to Douglas Asphalt Company, if Douglas Asphalt selected Martin
Marietta as a supplier, then Martin Marietta would prepare a sales order and
occasionally send an acknowledgment of order to Douglas Asphalt Company for its
files. Douglas Asphalt Company contends that the Crisp/Turner, Bacon/Ware,
4
Appling, Appling/Wayne, and Barco-Duval projects at issue in this case were
governed by this type of job-specific agreement.
The second kind of contract, according to Douglas Asphalt Company, was a
“plant requirements agreement.” Under this type of agreement, Martin Marietta would
provide Douglas Asphalt Company with a quotation for the price per ton of material
from its quarries for a certain period of time. According to Douglas Asphalt
Company, the Brantley County and Monroe County projects at issue in this case were
governed by this type of agreement.
Douglas Asphalt Company argues that both kinds of agreements are evidenced
by two types of documents: the quotation that Martin Marietta would provide to
Douglas Asphalt Company and either a sales order or acknowledgment of order that
Martin Marietta would supply once Douglas Asphalt Company had accepted the
quotation. It argued that under OCGA § 11-2-309, Martin Marietta had to deliver the
material within a reasonable time. It also argued that the parties’ course of conduct
established that a reasonable delivery time was one week.
To discharge its burden on summary judgment, Martin Marietta pointed out by
reference to the documents in the record that there was an absence of evidence of any
contracts relating to the seven projects at issue. Martin Marietta observed that in
5
response to its request for documents evidencing the parties’ agreements, Douglas
Asphalt Company produced in discovery more than 100 quotations and sales orders.
But, Martin Marietta noted, Douglas Asphalt Company failed to link the quotations
and sales orders to any of the seven projects for which it sought damages.
Undoubtedly the parties had a contractual relationship stemming from the open
account/line of credit agreement upon which Martin Marietta initially filed suit. But
Douglas Asphalt Company’s breach of contract claim depends upon evidence that
Martin Marietta violated the contractual terms governing the seven projects at issue.
“[A]s the party alleging that a contract exists, [Douglas Asphalt Company would
have] the burden of proving its existence and its terms.” Swanstrom v. Wells Fargo
Bank, 325 Ga. App. 743, 744 (2) (754 SE2d 786) (2014) (citation omitted). Douglas
Asphalt Company alleged that Martin Marietta was required to provide aggregate
material within a specific schedule, but, on numerous occasions, it had failed to do
so. Yet it has failed to point to evidence of the contractual terms imposing the specific
schedules, or, in other words, the dates by which Martin Marietta had to deliver the
aggregate material for these seven projects. “A contract cannot be enforced if its
terms are incomplete, vague, indefinite[,] or uncertain.” Burns v. Dees, 252 Ga. App.
598, 601-602 (1) (a) (557 SE2d 32) (2001) (citation omitted). And although
6
some details might be supplied under the doctrines of reasonable time
or reasonable requirements[,] . . . indefiniteness [is] not cured . . . where
the agreement relied upon was so vague, indefinite and uncertain as to
make it impossible for courts to determine what, if anything, was agreed
upon, therefore rendering it impossible to determine whether there had
been performance.
Jackson v. Williams, 209 Ga. App. 640, 642-643 (1) (434 SE2d 98) (1993) (citations
and punctuation omitted) (finding construction agreement unenforceable where there
was no agreement regarding the material to use in construction, the precise location
of the construction, the time period for construction). Without pointing to evidence
of the contractually required delivery dates for the materials for the seven projects,
Douglas Asphalt Company cannot show that Martin Marietta failed to deliver the
materials in a timely manner; it has not pointed “to specific evidence giving rise to
a triable issue.” BAC Home Loans Servicing, 297 Ga. at 316. Douglas Asphalt
Company has failed to overcome Martin Marietta’s motion for summary judgment,
and the trial court did not err in granting the motion.
3. Amended counterclaim.
Douglas Asphalt Company has not shown that the trial court erred by
dismissing its amended counterclaim. OCGA § 9-11-13 (f) provides, “When a pleader
7
fails to set up a counterclaim through oversight, inadvertence, or excusable neglect,
or when justice requires, he may by leave of court set up the counterclaim by
amendment.” Although Douglas Asphalt Company filed a motion seeking leave to
amend the counterclaim, it did not obtain such leave before filing the amended
counterclaim; the record contains no ruling on the motion. The trial court, therefore,
did not err in dismissing the amended counterclaim. Bellamy v. FDIC, 236 Ga. App.
747, 749-750 (b) (512 SE2d 671) (1999) (defendant’s new theories were additional
grounds for compulsory counterclaim and, thus, were new counterclaims which were
barred without first obtaining leave of court); Cornelius v. Auto Analyst, 222 Ga.
App. 759, 762 (3) (476 SE2d 9) (1996) (OCGA § 9-11-13 (f) applies to both
compulsory and permissive counterclaims; although defendant sought leave to file
additional counterclaims, he did not obtain leave before filing them, so trial court
properly dismissed them); Conerly v. First Natl. Bank, 209 Ga. App. 601, 603-604
(3) (434 SE2d 143) (1993) (“The second counterclaim filed here involved totally new
theories” based upon the same facts as the underlying complaint and first
counterclaim, so defendant had to obtain leave before filing it.).
8
Judgment affirmed. McMillian, J., concurs and Miller, P. J., concurs in the
judgment only.
9
|
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 18, 2004
Charles R. Fulbruge III
Clerk
No. 03-20594
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY ALEXANDER REYES-RAMIREZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-539-ALL
--------------------
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Tony Alexander Reyes-Ramirez appeals the sentence imposed
following his guilty plea conviction of being found in the United
States after deportation/removal in violation of 8 U.S.C. § 1326.
Reyes-Ramirez contends that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.
He therefore argues that his conviction must be reduced to one
under the lesser included offense found in 8 U.S.C. § 1362(a),
his judgment must be reformed to reflect a conviction only under
*
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. 03-20594
-2-
that provision, and his sentence must be vacated and the case
remanded for resentencing to no more than two years’ imprisonment
and one year of supervised release.
In Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), the Supreme Court held that the enhanced penalties in
8 U.S.C. § 1326(b) are sentencing provisions, not elements of
separate offenses. The Court further held that the sentencing
provisions do not violate the Due Process Clause. Id. at 239-47.
Reyes-Ramirez acknowledges that his arguments are foreclosed by
Almendarez-Torres, but asserts that the decision has been cast
into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
He seeks to preserve his arguments for further review.
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000). This court must follow Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” Dabeit, 231 F.3d at 984 (internal quotation marks and
citation omitted). The judgment of the district court is
AFFIRMED.
The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. In its motion, the Government asks
that an appellee’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.
|
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
AVAYA, INC., )
)
Plaintiff, )
)
v. ) C.A. No. N14C-03-052 EMD CCLD
)
CHARTER COMMUNICATIONS )
HOLDING COMPANY, LLC and )
CHARTER COMMUNICATIONS, INC., )
)
Defendants. )
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS CHARTER
COMMUNICATIONS HOLDING COMPANY, LLC AND CHARTER
COMMUNICATIONS, INC.’S RENEWED MOTION TO STAY ACTION
IN FAVOR OF PENDING NEW JERSEY ACTION
This 1st day of May, 2015, upon consideration of the Motion of Defendants Charter
Communications Holding Company, LLC and Charter Communications, Inc. (collectively,
“Charter”) to Dismiss or, in the Alternative, Stay This Action in Favor of Pending New Jersey
Action (the “Motion”); Plaintiff Avaya, Inc.’s (“Avaya”) Opposition to Defendants Charter
Communications Holding Company, LLC and Charter Communications, Inc.’s Renewed Motion
to Dismiss or Stay (the “Response”); Charter’s Reply Brief in Support of Its Renewed Motion to
Dismiss, or in the Alternative, Stay This Delaware Action in Favor of Pending New Jersey
Action (the “Reply”); the Court having held a hearing and heard arguments from the parties on
the Motion, the Response and the Reply on April 13, 2015; the letter dated April 15, 2015 from
David M. Fry to the Honorable Eric M. Davis; the letter dated April 20, 2015 from Andrew D.
Cordo to the Honorable Eric M. Davis, the Court finds as follows:
1. The first day on which the parties could file suit in court after the mediation was
March 6, 2014. Charter and Avaya both filed suit on March 6, 2014. Avaya filed this suit (the
“Delaware Action”) electronically at 12:01 a.m.. Avaya asked for declaratory relief and
attorneys fees and costs and claimed that Charter is barred from recovery. On the same day,
Charter filed suit (the “New Jersey Action”) against Avaya in the Superior Court of New Jersey,
Law Division: Somerset County (the “New Jersey Court”). Charter could not file suit until after
the New Jersey Court operating hours on March 6, 2014 because New Jersey does not have
electronic filing. Charter asked Avaya’s counsel to accept service on that day, but Avaya’s
counsel refused. Charter served Avaya with process on March 11, 2014. Avaya did not serve
Charter until March 28, 2014.
2. On May 7, 2014, Charter filed a motion in New Jersey to dismiss or stay the New
Jersey Action pending the Delaware Action. On June 24, 2014, the New Jersey Court dismissed
the case, holding that the Delaware Action was the first filed action and that Charter could obtain
adequate relief in this Court. Subsequently, on October 6, 2014, the New Jersey Court
reconsidered its earlier decision and held that, under New Jersey law, the New Jersey Action was
the first filed action and that this Court could not provide Charter adequate relief in the Delaware
Action.
3. The New Jersey Court relied on a three-factor test under New Jersey law. Under
this test, a defendant must show that (1) there is a first-filed action in another state, (2) both
actions have the same parties, claims, and legal issues, and (3) the plaintiff has the opportunity to
obtain adequate relief in the first-filed jurisdiction. If all of the factors are met, then the burden
is moved onto the plaintiff to prove that there are “special equities” that are compelling enough
to let the New Jersey action proceed. The New Jersey Court held that the first prong was not met
because the New Jersey Action was first-filed under CTC Demolition Co. v. GMH AETC
Management/Development LLC, which states that a demand for mediation may be regarded as a
2
first-filed action. 1 Further, the New Jersey Court held that the third prong of the test was not met
because Avaya could not demonstrate that Charter would have the opportunity to receive
adequate relief due to the expired statute of limitations in Delaware.
4. After the October 6, 2014 decision by the New Jersey Court, on November 3,
2014, Charter filed the Motion. Avaya opposed the Motion through the Response. On January
21, 2015, Avaya filed an action in the Delaware Court of Chancery to enjoin the New Jersey
Action.
5. The Court has considered a number of uncontested facts. In September 2006,
Ronald A. Katz Technology Licensing, L.P. filed a suit for patent infringement against Charter,
among others. Charter purportedly told Avaya about the law suit, but Avaya claimed that the
suit was the result of Charter mixing Avaya with non-Avaya products. Under the Master
Purchase/Service Agreement, Charter and Avaya were to negotiate in good faith in case of a
dispute. If that failed after forty-five days, Charter and Avaya were to go through non-binding
mediation with the American Arbitration Association. If the mediation was unsuccessful, then
the parties could begin an arbitration or litigation. Here, Charter alerted Avaya to the dispute in
April 2013 and they had an unsuccessful mediation in February 2014.
6. The Court has also considered that the statute of limitations in New Jersey is six
years compared to three years in Delaware. 2 Absent tolling, Charter’s cause of action against
Avaya may be time-barred in Delaware; however, Charter can pursue its cause of action in New
Jersey because, in New Jersey, the statute of limitations has not run yet. Charter is incorporated
in Delaware and its principal places of business appear to be in Missouri. Charter does not
presently do business in and has no employees in New Jersey. Avaya is incorporated in
1
CTC Demolition Co. v. GMH AETC Mgmt./Development LLC, 34 A.3d 1258 (N.J. Super. Ct. App. Div. 2012).
2
N.J. STAT. ANN. § 2A:14-1; 10 DEL. CODE ANN. §§ 8106, 8121.
3
Delaware. Avaya initially identified its principal place of business in New Jersey, but Avaya
amended its complaint in the Delaware Action on May 13, 2014 to identify California as its
principal place of business.
7. In Delaware, a trial court may use its discretion when deciding whether to stay or
dismiss a case in favor of another jurisdiction’s action. 3 When the Supreme Court reviews a case
for abuse of discretion, it decides whether the Superior Court’s “findings and conclusions . . . are
supported by the record and are the product of an orderly and logical deductive process.” 4
8. This Court must now decide whether to defer to the decision by the New Jersey
Court and stay the case or to conduct its own legal analysis on whether the Delaware Action or
the New Jersey Action was filed first. The Court may follow the doctrine of comity, which
applies when two courts have “concurrent jurisdiction over the same matter.” 5 The doctrine is
not a legal rule but “an expression of one state's entirely voluntary decision to defer to the policy
of another, especially in the face of a strong assertion of interest by the other jurisdiction.” 6 A
court may use its discretion to stay a matter if the same matter is pending in a different court
because a court “should not assume to disturb another court's disposition of a controversy unless
there are good reasons for doing so.” 7
9. The Delaware Supreme Court recently applied the doctrine of comity in two
related cases, First Health Settlement Class v. Chartis Specialty Insurance Company and Corvel
Corporation v. Homeland Insurance Company of New York. 8 First Health depended on whether
the Delaware Supreme Court should defer to an interpretation of a Louisiana statute by the
3
Williams Gas Supply Co. v. Apache Corp., 594 A.2d 34, 37 (Del. 1991).
4
Id.
5
16 AM. JUR. 2D Conflict of Laws § 11 (2015).
6
Id. (internal footnotes omitted).
7
Id.
8
Corvel Corp. v. Homeland Ins. Co. of N.Y., 2015 WL 1021459 (Del. Mar. 6, 2015); First Health Settlement Class
v. Chartis Specialty Ins. Co., 2015 WL 1021443 (Del. Mar. 6, 2015).
4
Louisiana Court of Appeals from collateral litigation. 9 In a 3-2 decision with a dissent, the
Delaware Supreme Court adopted the Louisiana court’s interpretation, instead of using Delaware
law. 10 Both the majority and the dissent addressed the doctrine of comity. The Court
acknowledged that “[c]omity permits one state to give effect to the laws of a sister state, not out
of obligation, but out of respect and deference.” 11 The dissent agreed that comity is important
and that courts should try to avoid conflicting rulings. 12 The dissent disagrees with the majority
because the Louisiana court should have shown comity to Delaware courts 13 and because
following what the Louisiana court decided would be “demonstrably unfair” to the parties. 14
The Corvel decision is nearly identical to the First Health decision. 15
10. This Court is going to apply the doctrine of comity here and stay this action in
deference to the New Jersey Action. The New Jersey Court has already decided that the New
Jersey Action is the first filed action and that the matter should proceed in New Jersey. In this
case, staying the Delaware Action out of deference to the New Jersey court would avoid
confusion, particularly on the issue of whether the New Jersey Action or the Delaware Action
was filed first. As stated by the Delaware Supreme Court, the doctrine of comity is important
and courts should try to avoid issuing conflicting rulings on the same issue. 16
11. The Court does need to clarify some matters that were discussed in the New
Jersey Court’s October 6, 2014 decision. This Court is a court of law and does not provide
affirmative equitable relief as that jurisdiction lies exclusively with the Delaware Court of
9
First Health, 2015 WL 1021443, at *3-6.
10
Id. at *4-5.
11
Id. at *4.
12
Id. at *6.
13
“Had the Louisiana trial court itself showed comity by staying its hand after the Delaware Superior Court made
the first ruling in the coverage issue and letting this case run its course to finality, the conflict the Majority Opinion
is trying to avoid would not have arisen in the first instance.” Id. at *12.
14
Id.
15
Corvel, 2015 WL 1021459.
16
First Health, 2015 WL 1021443, at *6.
5
Chancery. However, the Court does have available to it what the New Jersey Court described as
“equitable defenses” and the ability to apply equitable tolling doctrines. Rule 8 of the Superior
Court Civil Rules expressly lists available affirmative defenses. 17 Under Rule 8, the Court
recognizes defenses that were once considered “purely equitable defenses in nature,” including
laches. 18 Moreover, the Court has the power to toll the statute of limitation under a number of
theories including, among others, under (i) the discovery rule, (ii) fraudulent concealment, and
(iii) equitable tolling. 19
12. As was stated by the Court at the hearing on the Motion, the Court is unclear why
the attorneys for the parties did not provide readily available Delaware case law on these issues
to assist the New Jersey Court when it made its decision on October 6, 2014. 20 Accordingly, as
part of this Order, this Court is requiring Charter’s counsel to provide this Order to the New
Jersey Court.
13. The Court will stay this action. However, the Court finds no reason to dismiss
this action until a final resolution is reached in the New Jersey Action. 21
IT IS ORDERED that the Motion is GRANTED in part and DENIED in part. In
addition, counsel for Charter is to provide a copy of this Order to the Superior Court of New
Jersey, Law Division: Somerset County within ten (10) days.
/s/ Eric M. Davis
Eric M. Davis
Judge
17
Super. Ct. Civ. R. 8(c).
18
See, e.g., John Petroleum, Inc. v. Parks, C.A. No. 06C-10-039 FSS, 2010 WL 3103391, at *7 (Del. Super. June 4,
2010); USH Ventures v. Global Telesystems Group, Inc., 796 A.2d 7, 18-20 (Del. Super. 2000).
19
Van Lake v. Sorin CRM USA, Inc., C.A. No. 12C-04-036 JRJ CCLD, 2013 WL 1087583, at * 7-8. (Del. Super.
Feb. 15, 2013).
20
See Del. Rules of Prof’l Conduct R. 3.3(2)(stating that an attorney must disclose to the tribunal legal authority in
the controlling jurisdiction known by the lawyer to be directly adverse to the position of the client).
21
This is consistent with the argument made by Charter in the New Jersey Action on reconsideration that the New
Jersey Court should not have dismissed the New Jersey Action with prejudice.
6
|
537 F.3d 897 (2008)
Michael J. FEGANS, Appellant,
v.
Larry NORRIS, Director, Arkansas Department of Corrections, in his individual and official capacities; Greg Harmon, Warden, East Arkansas Regional Unit of the Arkansas Department of Corrections, in his individual and official capacities; John Lowe, Assistant Warden, in his individual and official capacities; Moses Jackson, Captain, in his individual and official capacities; Gary Cox, Chaplain, in his official capacity; Michael Humphrey, Sargent, in his individual and official capacities (originally sued as M. Humphries); Don Yancey, Chaplain, in his official capacity (originally sued as Don Yancy); Albert McKinney, Chaplain, in his official capacity (originally sued as McKinney), Appellees.
No. 06-3473.
United States Court of Appeals, Eighth Circuit.
Submitted: October 19, 2007.
Filed: August 11, 2008.
*900 David O. Bowden, argued, Steven R. Smith, on the brief, Little Rock, AR, for appellant.
Carmine Joseph Cordi, Jr., AAG, argued, Christine A. Boozer, AAG, on the brief, Little Rock, AR, for appellees.
Before RILEY, MELLOY, and COLLOTON, Circuit Judges.
COLLOTON, Circuit Judge.
Michael J. Fegans, an inmate in Arkansas, brought this suit against the director of the Arkansas Department of Corrections ("ADC"), Larry Norris, and other prison officials, alleging violations of his rights under the First and Fourteenth Amendments, the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1 et seq., the Arkansas Constitution, and the Arkansas Civil Rights Act. Fegans, a follower of the teaching of the Assemblies of Yahweh, claimed that the ADC's failure to provide Kosher meals and a religious exemption from its grooming policy created a substantial burden on the exercise of his religious beliefs that could not be justified under federal or state law. The district court[1] agreed with Fegans in part, ruling that Fegans had a clearly established constitutional right to receive Kosher meals and awarding him $1500 in damages. The district court disagreed, however, with Fegans' challenge to the grooming policy, and determined that the policy was constitutional and consistent with RLUIPA. Fegans appeals both the amount of damages awarded and the district court's decision on the grooming policy. We affirm.
I.
On December 12, 1991, Fegans was sentenced to 18 years' imprisonment for four counts of aggravated robbery, one count of second degree battery, and one count of criminal attempt to escape. In 1994, Fegans received a major disciplinary sanction after attempting to escape and possessing a weapon and drugs. In that incident, Fegans was able to smuggle a firearm, shotgun shells, smoke grenades, marijuana, and a large amount of cash through an air-conditioning vent, and to have the items placed in a maintenance van to which he was assigned. (T. Tr. 293, 326). Fegans testified that around this same time, he underwent a religious conversion, inspired by the radio broadcasts of Jacob O. Meyer. Fegans began studying the teachings of Meyer and the Assemblies of Yahweh, a Christian sect which requires its members to follow Old Testament law. Fegans eventually concluded that he should follow a Kosher diet and refrain from "rounding the corners" of his hair and beard.
Fegans stopped trimming his hair and beard in 1995. In June 1997, Fegans formally notified the ADC that he was a follower of the Assemblies of Yahweh and began requesting a Kosher diet. While the ADC's policy at the time apparently allowed Fegans to wear his hair and beard as he wished, the ADC advised Fegans that Kosher meals were not an option and placed him on a pork-free diet instead. Fegans protested the ADC's meal policy, and eventually exhausted his administrative remedies on this claim.
On April 20, 1998, Director Norris issued Administrative Directive 98-04 ("AD 98-04"), which set forth a new grooming policy for all Arkansas prisons. The policy requires all male prisoners to keep their *901 hair above their ears and no longer than the middle of the nape of the neck in the back. The policy allows female prisoners to wear shoulder-length hair. A separate provision prevents male inmates from wearing "facial hair other than a neatly trimmed mustache," but provides an exception for inmates diagnosed with dermatological problems, such as pseudofolliculitis barbae, a medical condition that causes painful bumps from shaving. Inmates with such a "diagnosed dermatological problem" are permitted to "wear facial hair," provided that it is kept "no longer than 1/4 inch." The policy's stated purpose is "[t]o provide for the health and hygiene of incarcerated offenders, and to maintain a standard appearance throughout the period of incarceration, minimizing opportunities for disguise and for transport of contraband and weapons." The policy went into effect immediately.
On April 28 and May 5, 1998, Fegans was approached by an ADC officer and ordered to get a haircut. Fegans refused, stating that cutting his hair was against his religion. The ADC issued Fegans a major disciplinary sanction for each refusal, and eventually transferred him from the Cummins Unit in Grady to the East Arkansas Regional Unit ("EARU") in Brickeys. Fegans continued to resist the grooming policy while at the EARU, and continued to receive disciplinary reports as a result of his failure to comply. In an effort to secure compliance, the ADC gradually stripped Fegans of privileges and ultimately transferred him first to a maximum security cell and then to the Varner Supermax Unit.
Fegans brought suit against several ADC officials on March 14, 2003, claiming that the ADC's failure to provide Kosher meals and a religious exemption to the grooming policy violated his constitutional rights and RLUIPA. Following a bench trial, the district court determined that Director Norris had violated Fegans's firmly established constitutional right to receive Kosher meals. The court relied on its previous holding in Love v. Evans, 2:00-cv-0091 (E.D.Ark. Dec. 19, 2002), where it held that the ADC was required to accommodate an inmate's requests for Kosher meals. Because the ADC did not begin providing Kosher meals until March 3, 2004, the district court found that Norris "knowingly violated established law requiring Kosher diets" from December 19, 2002, through March 3, 2004, and awarded Fegans $1500 in damages.
The district court found that Fegans had a sincere religious objection to the grooming policy, but rejected Fegans's challenges to the policy. The court reasoned that this court's decision in Hamilton v. Schriro, 74 F.3d 1545 (8th Cir.1996), foreclosed Fegans's claims based on the First Amendment. The court also rejected Fegans's challenge under RLUIPA, holding that the grooming policy served compelling state interests and was "no more restrictive than necessary to further its stated goals." While Fegans testified that he would have been satisfied to abide by the women's hair-length regulation, and thus implied that it presented a less restrictive means available to meet the ADC's security concerns, the district court disagreed, finding that "[t]he security concerns attendant female inmates housed in a single unit are not as great." The court rejected Fegans's Equal Protection claim for the same reason, concluding that different security concerns presented by male and female inmate populations provide a sufficient basis for the distinction in the grooming regulations. The court also ruled that the defendants were immune from suit on the state law claims, because Fegans's "conclusory allegations that Defendants acted with malice [were] not supported *902 by the evidence." In this appeal of the district court's judgment after a bench trial, we consider legal issues de novo and review the court's finding of fact for clear error. Eckert v. Titan Tire Corp., 514 F.3d 801, 804 (8th Cir.2008).
II.
A.
Prison inmates retain constitutional rights protected by the First Amendment, including the right to free exercise of religion. O'Lone v. Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987). These rights are limited, however, by the fact of incarceration and valid penological objectives, such as deterrence of crime, rehabilitation of prisoners, and institutional security. Id. The evaluation of penological objectives in this context is "committed to the considered judgment of prison administrators," and to ensure appropriate deference to those judgments, courts review prison regulations alleged to infringe constitutional rights under a "reasonableness" test that is less restrictive than ordinarily applied to alleged infringements of fundamental constitutional rights. Id.; see also Turner v. Safley, 482 U.S. 78, 87-91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).
Congress has granted additional protection for religious exercise by institutionalized persons. The RLUIPA, enacted in 2000, succeeded a similar statute, the Religious Freedom Restoration Act (RFRA), which failed to pass constitutional muster as a valid exercise of Congress's power under the Fourteenth Amendment, insofar as it applied to the States. See City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). RLUIPA, like RFRA, provides that no government shall impose a "substantial burden" on the religious exercise of an inmate, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden (1) is in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc-1. The Supreme Court has remarked that "context matters" in the application of this "compelling governmental interest" standard, and that RLUIPA does not "elevate accommodation of religious observances over an institution's need to maintain order and safety." Cutter v. Wilkinson, 544 U.S. 709, 722, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). Indeed, the Court noted that lawmakers who supported RLUIPA were "mindful of the urgency of discipline, order, safety, and security in penal institutions," id. at 723, 125 S.Ct. 2113, and expected that courts would apply the Act with "due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources." Id. (quoting 146 Cong. Rec. S7774, S7775 (July 27, 2000) (joint statement of Sen. Hatch and Sen. Kennedy on RLUIPA)).
We applied these standards, through RFRA, to a prison hair-length regulation in Hamilton v. Schriro, 74 F.3d at 1551-55, and much of Fegans's argument against the ADC's hair-length regulation is foreclosed by the reasoning of Hamilton. The regulation at issue in Hamilton, which prohibited male inmates from wearing their hair below the collar, was supported by testimony from prison officials who explained that "inmates could conceal contraband, including dangerous materials, in their long hair," and that long hair "could also cause problems with inmate identification." Id. at 1548. The officials suggested that a more liberal policy would place a strain on prison resources and inmate-staff *903 relations because, in the absence of a policy, "prison staff would be required to perform more frequent searches of inmates, which could cause conflicts between staff and inmates." Id.
In holding that the regulation did not conflict with RFRA, we cited Congress's expectation "that the courts will continue the tradition of giving due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources." Id. at 1554 (quoting S.Rep. No. 111, 103rd Cong., 1st Sess. (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1899-1900). We observed that while RFRA reinstated the "balancing test" that had been applied by some courts to free exercise claims of inmates prior to the Supreme Court's decision in O'Lone, the pre-O'Lone case law nonetheless emphasized that "judgments regarding prison security `are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.'" Id. at 1553 (emphasis in original) (quoting Pell v. Procunier, 417 U.S. 817, 827, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974)). Our opinion in Hamilton thus gave deference to "the prison officials' testimony that long hair presented a risk to prison safety and security and that no viable less restrictive means of achieving that goal existed," and upheld the hair-length restriction. Id. at 1555; accord Diaz v. Collins, 114 F.3d 69, 73 (5th Cir. 2001); Harris v. Chapman, 97 F.3d 499, 504 (11th Cir.1996).
These observations about RFRA are equally applicable to RLUIPA, see Murphy v. Mo. Dept. of Corrections, 372 F.3d 979, 987-88 (8th Cir.2004); Hoevenaar v. Lazaroff, 422 F.3d 366, 370 (6th Cir.2005), and the rationale of Hamilton thus applies with equal force in this case. As in Hamilton, the prison officials here testified that the policy was "all about security," and that it was designed to minimize the smuggling of contraband and to reduce the opportunity for disguise. To underscore the reality of these concerns, Norris and another correctional officer pointed to specific examples showing that inmates had used their hair to conceal contraband and to change their appearance after escaping. (T. Tr. 161-63, 169, 175, 228). Norris testified that there was no less restrictive means to address ADC's security concerns, both because longer hair created a greater opportunity for inmates to conceal contraband, and because correctional officers are placed at risk of assault if they are required to search through the long hair of individual inmates. (T. Tr. 279-80). We see no basis to distinguish these safety and security concerns from those deemed sufficient in Hamilton.
The partial dissenting opinion attempts to distinguish Hamilton by relying on a snippet from an unpublished opinion in Pounders v. Kempker, 79 Fed.Appx. 941 (8th Cir.2003), where the panel noted that the record in Hamilton had been "fully developed as to the prison officials' basis for denying the inmate's requests." The dissent asserts that the record in this case was not so developed. A look beyond the snippet to context, however, demonstrates that Pounders reviewed a district court's pre-service dismissal of an inmate's complaint. By a record that was "fully developed" in Hamilton, the Pounders panel meant a "hearing at which various officials testified," as opposed to the record in Pounders, which included nothing but the *904 complaint. Id. at 943. The record here, of course, involves a hearing at which various officials testified; it includes a complete bench trial conducted over three days with ten witnesses.
The dissent also relies on Teterud v. Burns, 522 F.2d 357 (8th Cir.1975), which refused to defer to a prison warden's opinion on "hair net and reidentification requirements," because it was "unsupported by empirical proof." Id. at 361. Hamilton distinguished Teterud, holding that "the hair length regulation was founded on the legitimate concern that prison safety would be compromised by inmates concealing contraband in their long hair or identifying with a particular gang." 74 F.3d at 1555 n. 11. So too here. Hamilton relied for "empirical proof" on the testimony of prison officials, "based on their collective experience in administering correctional facilities," that "prison security requires them to prevent inmates from concealing contraband in their long hair." Id. at 1554-55. The district court here relied on testimony of experienced prison officials, who opined that the hair-length policy was necessary to prevent inmates from concealing contraband in their long hair or changing appearance after an escape, and who described specific (i.e., empirical) examples of inmates who had done just these things under a previous policy that permitted long hair. There is no material distinction between this case and Hamilton. See also Rogers v. Scurr, 676 F.2d 1211, 1215-16 (8th Cir.1982) (pre-O'Lone decision vacating district court injunction against policy prohibiting the wearing of caps and robes outside prayer meetings, where explanation of prison officials that the attire "makes it too easy to conceal contraband" was "eminently reasonable").
This case is unlike Murphy v. Missouri Department of Corrections, 372 F.3d 979, a summary-judgment decision in which the court found a genuine issue of material fact concerning whether the prison's refusal to permit group worship by white separatists was necessary to prevent racial violence. Murphy did not require evidence that racial violence "had in fact occurred in the form of a riot," but said that "some evidence" must be presented to show that the prison's decision was the least restrictive means necessary to preserve its security interest. It was not clear in Murphy that the prison had considered any other options; the only evidence presented was testimony suggesting that the inmate was a racist, and that his religion limited participation to Anglo-Saxon individuals. Arkansas officials, by contrast, not only considered other options, they tried one. Under the former ADC policy, which permitted long hair, prison officials found that use of long hair to conceal contraband or to change appearance after an escape had in fact occurred. The district court's decision is thus entirely consistent with Murphy's requirement that "some evidence" short of an actual incident be presented in support of a challenged policy.
Fegans argues alternatively that the uniform hair-length regulation for male inmates is not the least restrictive means available, because the ADC is able to address safety and security concerns in the women's barracks while allowing shoulder-length hair. In contrast to male prisoners, however, female prisoners are housed in a single unit, and thus have less opportunity to obtain and transport contraband. See Kellensworth v. Norris, No. 5:98-cv-00157-SWW, slip op. at 5 (E.D.Ark. Feb. 22, 1999) ("Since most female inmates are housed in a single unit, the security concerns attendant with daily transfers of male inmates are not nearly as great.") (reproduced at R. Doc. 183-2). Based on his more than thirty years with the ADC, *905 Norris gave this further explanation for the distinction in hair-length policy: "Women are not generally as violent as men. They are not as escape prone as men. They are not as prone to give us problems with contraband as men." (T. Tr. 237-38). Unlike the situation in Warsoldier v. Woodford, 418 F.3d 989, 1000-01 (9th Cir.2005), the record here includes no data to refute Norris's expert testimony about the relative security risks in the male and female facilities, and the district court credited Norris's unrebutted testimony. This finding of fact is not clearly erroneous, and given that factual premise, the district court correctly held that the differing hair regulations for men and women did not undermine the ADC's contention that its hair-length regulation for males was the least restrictive means available to satisfy security concerns.[2]
Fegans also claims that AD 98-04 is not the least restrictive means available, because other prison systems employ more liberal grooming policies. These other policies, however, were rejected by Norris and the ADC as less effective in meeting the ADC's security and safety concerns.[3] We concluded in Hamilton that "[a]lthough prison policies from other jurisdictions provide some evidence as to the feasibility of implementing a less restrictive means of achieving prison safety and security, it does not outweigh the deference owed to the expert judgment of prison officials who are infinitely more familiar with their own institutions than outside observers." Hamilton, 74 F.3d at 1556 n. 15. Norris opined that more liberal policies would be less effective in the ADC, because he had seen one of these policies at work in the past, and "our security wasn't nearly as good then as it is now." Fegans did not effectively rebut this testimony.
Finally, Fegans proposes that a less restrictive alternative would be to house inmates seeking a religious exemption in administrative segregation, apart from the general inmate population, in order to alleviate *906 security concerns. This proposal, however, does not lessen the safety risk to correctional officials assigned to pat down the prisoners, and it would place a strain on the ADC's facilities, which are already full. See Cutter, 544 U.S. at 723, 125 S.Ct. 2113 (observing that lawmakers supporting RLUIPA expected that courts would apply the statute with deference to the expertise of prison administrators who must act "consistent with consideration of costs and limited resources"). Because this option, like the others proposed by Fegans, would allow accommodation of religious observances to override other significant state interests, see id. at 722, 125 S.Ct. 2113, we agree with the district court that AD 98-04 withstands scrutiny under RLUIPA.
Fegans's constitutional claims fail under the applicable "reasonableness" standard. O'Lone, 482 U.S. at 349, 107 S.Ct. 2400; Turner, 482 U.S. at 89, 107 S.Ct. 2254. As we noted in Hamilton, "`when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.'" 74 F.3d at 1550 (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)). Given the district court's unassailable finding that long hair poses a threat to security, the ADC's hair-length regulation does not violate an inmate's constitutional right to the free exercise of his religion. Hamilton, 74 F.3d at 1551; Iron Eyes v. Henry, 907 F.2d 810, 813 (8th Cir.1990). For similar reasons, the ADC regulation does not violate Fegans's constitutional right to equal protection of the laws. As the factual record stands in this case, the district court did not err in concluding that the ADC has a valid reason for differing hair-length rules for men and women, and that the regulations are "reasonably related" to the State's legitimate, penological interests of safety and security.
B.
Fegans also contends that the requirement of the grooming policy that he shave his beard violates his rights under the First Amendment and RLUIPA. In explaining the justification for this rule, Norris testified that the prohibition on facial hair "keeps [inmates] from being able to change their appearance," and makes it easier for law enforcement to track and identify an inmate after an escape. Norris also suggested that long beards, like long hair, facilitate the transport of contraband. These safety and security concerns are compelling governmental interests. See Cutter, 544 U.S. at 725 n. 13, 125 S.Ct. 2113.
Fegans acknowledges that institutional security is a compelling interest, but argues that the shaving requirement is not the least restrictive means available to address these concerns. He observes that the ADC grants a medical exemption from the shaving requirement for inmates with a diagnosed dermatological condition, and contends that this exemption shows that the ADC can permit facial hair without endangering institutional security.
The ADC's medical exemption does not win the day for Fegans, because he has not been disciplined merely for growing facial hair consistent with that exemption (i.e., facial hair that does not exceed a quarter-inch in length), and he did not communicate to the ADC or testify at trial that the medical exemption would satisfy his religious beliefs. Rather, Fegans testified that his religion requires that he refrain from "rounding the corners" of his beard, and he was disciplined for wearing a beard that was uncut altogether. The beard permitted by the medical exemption has rounded corners, and we therefore *907 presume that it is not satisfactory to Fegans. This is not a case, therefore, in which the ADC grants an exemption to some inmates for medical reasons, but refuses to grant the same exemption to another inmate for religious reasons. Cf. Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 366-67 (3d Cir.1999). We need not decide whether such a distinction would be permissible under RLUIPA or the First Amendment, because the record does not present the question.[4]
On this record, the ADC disciplined Fegans for wearing an uncut beard. The record shows that uncut beards create safety and security concerns that are not presented by clean-shaven faces or quarter-inch beards. Norris explained at trial that an uncut beard would make identification more difficult and would facilitate the smuggling of contraband. An uncut beard creates a better disguise for an escapee than a quarter-inch beard, because it conceals the contours of an inmate's face. (T. Tr. 262). And an uncut beard allows a prisoner to transport contraband, while a quarter-inch beard is too short to serve that purpose. See Green v. Polunsky, 229 F.3d 486, 490 (5th Cir.2000). In applying this policy to Fegans, prison officials were aware of his disciplinary history, which included two previous escape attempts and the smuggling of contraband within the prison. (T. Tr. 293-94, 326). We therefore agree with the district court that the ADC demonstrated a compelling penological interest in prohibiting Fegans from wearing an uncut beard, and that this prohibition was the least restrictive means available to further that interest.
For all of its criticism of the ADC's grooming policies, the dissent, in the end, is not prepared to order the prison to permit Fegans to grow long hair and a full beard. Rather, the dissent urges "a remand to give the prison the opportunity to conduct the individualized review RLUIPA requires." Post, at 912. We do not agree with the implication that RLUIPA calls for the federal courts to impose procedural requirements on the internal disciplinary processes used by prison administrators. Fegans was afforded individualized consideration at a bench trial in which the ADC was required to prove that the burden imposed on Fegans' religious exercise by the grooming regulations was the least restrictive means of furthering the compelling governmental interests in order, safety, and security. Moreover, particularly given the Supreme Court's emphasis in Cutter on giving "due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources," 544 U.S. at 722, 125 S.Ct. 2113 (emphasis added) (internal quotation omitted), we do not interpret RLUIPA to prevent a prison from applying certain important security regulations to all inmates without providing for exemptions. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 436, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) ("We do not doubt that there may be instances in which a need for *908 uniformity precludes the recognition of exceptions to generally applicable laws under RFRA.").
Fegans's constitutional challenges to the prohibition on uncut beards fail for the same reasons. The ADC has established that it has a compelling interest in safety and security, and that the grooming policy is "reasonably related" to those interests. See O'Lone, 482 U.S. at 349, 107 S.Ct. 2400.
C.
Fegans claims that the district court abused its discretion in awarding only $1500 in damages for the ADC's failure to provide Kosher meals. Aside from punitive damages, the Prison Litigation and Reform Act limits recovery for mental or emotional injury to nominal damages only. Royal v. Kautzky, 375 F.3d 720, 723 (8th Cir.2004). We conclude that an award of $1.44 for each constitutional violation is a sufficient nominal damage award, and that the district court did not abuse its discretion in declining to award a greater amount. See id. at 724 (affirming award of one dollar in nominal damages). To the extent that Fegans appeals the district court's refusal to award punitive damages, we discern no abuse of discretion. The district court accurately stated the legal standard for an award of punitive damages, but found that Norris and the ADC did not act with malice, and that punitive damages were not warranted to deter future unlawful conduct, because the ADC already had instituted a policy for providing Kosher meals. These reasons are sufficient to support the court's ruling.
D.
Fegans also challenges the district court's dismissal, with prejudice, of his state law claims. As the district court held, employees of the State of Arkansas acting in their official capacity are immune from civil suits for damages. See Fegans v. Norris, 351 Ark. 200, 89 S.W.3d 919, 924 (2000). While prison officials acting in their individual capacities may be liable for damages if they act with malice, id. at 924-25; Grine v. Bd. of Trustees, 338 Ark. 791, 2 S.W.3d 54, 58 (1999), the district court did not clearly err in finding that Fegans failed to present evidence of malice. Accordingly, the district court properly dismissed the state law claims.
For the foregoing reasons, we affirm the judgment of the district court.
MELLOY, Circuit Judge, concurring in part and dissenting in part.
I join the majority opinion except for Sections II.A and II.B. Because I disagree with the majority's conclusions regarding Fegans's RLUIPA claims and would reverse and remand, I respectfully dissent.
RLUIPA requires strict scrutiny. 42 U.S.C. § 2000cc-1(a). While I agree with the majority that "context matters" in the application of RLUIPA's strict-scrutiny standard and that we must accord "due deference to the experience and expertise of prison and jail administrators" in applying RLUIPA, ante at 902 (quotation omitted), I believe the majority accords Norris's conclusory justifications a level of deference that is contrary to RLUIPA. Under RLUIPA, prison officials have the burden of establishing that their policy is the least restrictive means to achieve a compelling government interest. Id.; see also Hamilton v. Schriro, 74 F.3d 1545, 1552 (8th Cir.1996) (noting that under RFRA, "prison officials bear the burden of demonstrating that the regulation is the least restrictive means of achieving a compelling interest"). Norris has the burden of demonstrating that the grooming policy is the least restrictive means to achieve *909 security as applied to Fegans. See 42 U.S.C. § 2000cc-1(a) (providing that prisons cannot "impose a substantial burden on the religious exercise of a person residing in ... an institution ... even if the burden results from a rule of general applicability" (emphasis added)); see also Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-31, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) (determining RFRA requires individualized review); Koger v. Bryan, 523 F.3d 789, 796 (7th Cir.2008) (noting that RLUIPA, unlike the Free Exercise Clause of the Constitution, requires individualized review); Spratt v. R.I. Dep't of Corr., 482 F.3d 33, 39, 40 n. 9, 41 (1st Cir.2007) (rejecting the prison's "all or nothing" argument and finding that the prison "must... establish that prison security is furthered by barring [the individual] from engaging in" the disputed conduct); Washington v. Klem, 497 F.3d 272, 285 (3d Cir.2007) (noting that RLUIPA requires an assessment of whether the government action is the least restrictive means as applied to the individual). Norris must not only justify the policy as a whole, but he must also justify his failure to grant a religious-based exception to Fegans.
In upholding the grooming policy, the majority relies on Hamilton, a case where we upheld a prison's hair-length regulation. Ante at 902-06. In Hamilton, however, we upheld the regulation based on a record that was "fully developed as to the prison officials' basis for denying the inmate's requests...." Pounders v. Kempker, 79 Fed.Appx. 941, 943 (8th Cir.2003) (unpublished) (citing Hamilton, 74 F.3d at 1547-48 and noting that the decision was based on a "fully developed" record detailing the prison officials' decision). In this case, the record indicates Norris never even considered granting Fegans a religious-based exception, and the record is certainly not "fully developed as to [Norris's] basis for denying [Fegans's] request[]". (T. Tr. 252). Also, in Hamilton, we explicitly distinguished a case where we struck down a hair-length regulation because "the only reason advanced in support of the regulation was the Warden's opinion, unsupported by empirical proof," that another alternative would be unworkable. Hamilton, 74 F.3d at 1555 n. 11 (distinguishing Teterud v. Burns, 522 F.2d 357, 361 (8th Cir.1975)). Furthermore, contrary to the facts of this case, the inmate in Hamilton was in a maximum security facility when he was denied the religious-based exception, 74 F.3d at 1547, and the Hamilton court was not faced with claims that evidence, such as a disparity in grooming policies among males and females or a medical exception, indicates that the grooming regulation could not possibly be the least restrictive alternative, see id. at 1554-55.
Our decision in Murphy v. Mo. Dep't of Corr., 372 F.3d 979, 989 (8th Cir.2004), a case decided under RLUIPA, is instructive. We remanded Murphy, noting that the prison did not demonstrate that it "seriously considered any other alternatives" to a regulation alleged to infringe on prisoners' free exercise of religion. 372 F.3d at 989. The prison denied a request by members of the Christian Separatist Church Society, a religion that believes Caucasians "are uniquely blessed by God," to engage in group worship. Id. at 981-82. Prison officials testified that they denied the request, fearing the worship services would result in racial violence. We acknowledged in Murphy, and I acknowledge here, that prison officials' security concerns are valid, id. at 988; nevertheless, under "RLUIPA's higher standard of review, prison authorities must provide some basis for their concern that [safety problems] will result from any accommodation of [the] request." Id. at 989.
*910 In justifying policies under RLUIPA, "prison authorities must do more than offer conclusory statements and post hoc rationalizations for their conduct." Hamilton, 74 F.3d at 1554 n. 10 (citing S.Rep. No. 103-111, at 10 (1993), as reprinted in 1993 U.S.C.C.A.N. 1892, 1900). Prison officials cannot "justify restrictions on religious exercise by simply citing to the need to maintain order and security in a prison. They ... must demonstrate that they actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice." Alvarez v. Hill, 518 F.3d 1152, 1156 (9th Cir.2008) (citations and quotations omitted).
The majority does not, and can not, dispute that Norris must conduct an individualized review and that strict scrutiny applies to Norris's decision not to grant a religious-based exception to Fegans. Instead, the majority opinion indicates that Norris did conduct an individualized review and that he determined that the grooming policy as applied to Fegans was the least restrictive means to achieve security. Ante at 905-08. However, the majority does not point to any evidence that prison officials considered whether to apply the policy to Fegans. Instead, the majority points to evidence that prison officials considered alternatives when formulating the policy as a whole. Ante at 903 n. 3. The majority opinion also does not cite to any evidence that Norris considered granting Fegans an exception. Norris testified he was "sure [prison officials] considered other alternatives" to the grooming policy that would achieve security; however, he could not recall any of these alternatives, nor remember how long they were considered, (T. Tr. 240), although he did testify that none of the alternatives involved a religious exception, (T. Tr. 235). Regardless of whether Norris's failure to recall was because he forgot or because he never considered other alternatives, the record does not include any examples of less restrictive alternatives Norris considered when the policy was formulated or when declining to grant Fegans an exception. In fact, Norris explicitly testified that he would not consider granting a religious-based exception to anyone, regardless of the sincerity of their beliefs, (T. Tr. 252), and the prison warden testified he would not have considered granting one to Fegans, (T. Tr. 467). Considering all the evidence the district court credited, there is still no indication that prison officials seriously considered any alternatives to the grooming policy that would not substantially burden Fegans's religious exercise. Thus, as a matter of law, I do not believe the policy can be upheld under RLUIPA. See Murphy, 372 F.3d at 989 (remanding because the record did not indicate the prison "seriously considered any other alternatives, nor were any explored before the district court").
The majority opinion concludes that "prison officials were aware" of his disciplinary history "[i]n applying this policy to Fegans." Ante at 907. While an inmate's disciplinary history may lead prison officials to conclude that security can only be achieved by applying a policy without exception to that inmate, the record does not reflect that prison officials considered Fegans's disciplinary history in declining to grant him an exception. On the contrary, as indicated above, Norris testified that he would not grant anyone a religious-based exception. (T. Tr. 252). Furthermore, although Fegans had problems with discipline in the past, he was not in a maximum security facility when the grooming policy went into effect and Fegans was denied an exception. Ante at 900-01. Fegans's placement at the time indicates prison officials did not believe he warranted the heightened restrictions of a maximum security facility. Even if prison officials *911 were aware of Fegans's disciplinary history, there is no evidence they considered it, or any other individual characteristic, in "apply[ing] this policy to Fegans."
In distinguishing the record in the instant case from the record in Warsoldier v. Woodford, 418 F.3d 989 (9th Cir.2005), the majority mischaracterizes Warsoldier and reverses the statutorily mandated burden of proof. Ante at 904-05. Warsoldier does not support the majority's holding. In Warsoldier, the Ninth Circuit granted a preliminary injunction because the prisoner was likely to succeed on the merits of his claim that a gender-based grooming regulation, similar to the one in the instant case, violated RLUIPA. Id. at 1001. The court stated that the prison presented "only conclusory statements that the hair grooming policy is the least restrictive means to ensuring prison security" in its "attempt[] to meet its burden," id. at 998, and that the data did not support the prison's conclusions, id. at 1000-01. The court rejected the prison's argument that the "court must completely defer to [the prison's] judgment." Id. at 1001. The court noted, as our court did in Murphy, 372 F.3d at 989, that the prison "cannot meet its burden to prove least restrictive means unless it demonstrates that it has actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice." Warsoldier, 418 F.3d at 999. Even though the prison attempted to justify the gender-based differences by asserting that "women inmates are `much less likely' to commit violent crimes than male inmates and, hence, that women inmates pose a lesser security concern," the court found the policy violated RLUIPA. Id. at 1000.
However, instead of acknowledging that Warsoldier supports a conclusion that the prison policy in the instant case violates RLUIPA, the majority distinguishes Warsoldier by putting the burden on Fegans to demonstrate that males do not pose a greater security risk than females. Ante at 905. I do not believe it is necessary for Fegans to provide "data to refute Norris's expert testimony about the relative security risks in the male and female facilities," ante at 905, because under RLUIPA, Fegans does not have the burden of proof. Norris does. 42 U.S.C. § 2000cc-1(a); Hamilton, 74 F.3d at 1552 (noting that under RFRA, "prison officials bear the burden of demonstrating that the regulation is the least restrictive means of achieving a compelling interest"). While the Ninth Circuit in Warsoldier did cite data to refute the prison officials' conclusory assertions, this was data provided by the prison itself. The court gave no indication that the data was necessary or that it was the plaintiff's burden to rebut the prison officials' assertions. Warsoldier, 418 F.3d at 1000. On the contrary, the court repeatedly emphasized that under RLUIPA, the prison, and not the plaintiff, had the burden to establish that the policy was the least restrictive means. Id. at 998, 1001; see also Hamilton, 74 F.3d at 1552. Regardless of whether the prison offers "a formal statistical presentation," ante at 905 n. 2, conclusory assertions alone cannot, as a matter of law, satisfy Norris's burden. See Hamilton, 74 F.3d at 1554 n. 10 (citing S.Rep. No. 103-111, at 10 (1993), as reprinted in 1993 U.S.C.C.A.N. 1892, 1900).
Additionally, I do not believe Norris has adequately justified his failure to grant Fegans a religious-based exception in light of the fact that the policy requires of Fegans what it does not require of females and those with a certain medical condition. The majority accepts Norris's conclusory statements to justify the grooming policy's gender-based differences and medical exception: "`Women are not generally as *912 violent as men.... They are not as prone to give us problems with contraband as men.'" Ante at 905 (quoting (T. Tr. 237-38)). Norris also justifies the gender-based differences in the policy by stating that the differences were implemented "to let women be as much ... a woman as they can and still maintain good security." (T. Tr. 237). Norris's testimony is unsupported by any evidence, empirical or otherwise. His testimony indicates the policy was based on "generalizations or tendencies" about the differences between men and women, which are impermissible justifications even under intermediate scrutiny. United States v. Virginia, 518 U.S. 515, 541, 550-56, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (internal quotation omitted) (holding that a gender-based policy justified on assumptions about the differences between females and males does not survive intermediate scrutiny). While the prison's gender-based policy is not subject to strict scrutiny, Norris's failure to apply the policy equally between males and females and his conclusory and unsupported justification of the policy's gender-based differences lead me to conclude the policy as applied to Fegans is not the least restrictive means to achieve safety and security.
Likewise, Norris's willingness to grant an exception to those with a dermatological condition indicates the policy is not the least restrictive alternative. The majority opinion points out that "there may be good reason to distinguish" between Fegans and those with a dermatological condition. Ante at 907 n. 4. I do not dispute that there may be good reasons to provide exceptions to some and not to others. However, it is the prison's burden to establish that the policy as applied to Fegans is the least restrictive means. Norris did not explain why this exception would not impair security but a religious-based exception would. He also did not explain why he granted this exception to "take good care of the inmates," (T. Tr. 263), but he would not consider granting a religious-based exception. The prison has failed to establish this burden, and I do not believe it can be established by post-hoc rationalizations provided by the court.
While the majority points out that the existence of a medical exception does not "win the day for Fegans," ante at 906, I believe that the medical exception, like the gender-based differences, indicates that exceptions can be made without sacrificing safety and security concerns. Norris justified his failure to accommodate Fegans by explaining that he would not allow any religious-based exceptions to the policy: "You have to treat everybody the same.... And if you don't ... there wouldn't be a grooming policy." (T. Tr. 252). However, the prison's grooming policy itself does not treat Fegans the same as females and those with a certain dermatological condition, thus undercutting Norris's testimony that the policy must be uniformly applied in order to be effective. Just as prison officials considered whether security could be achieved while "let[ting] women be as much ... a woman as they can" and while "tak[ing] good care" of those with a dermatological condition, RLUIPA requires prison officials to consider whether security could be achieved while not substantially burdening Fegans's exercise of his religion. The record indicates the prison did not consider this. It was thus improper for the district court to uphold the regulation as applied to Fegans. I would remand to give the prison the opportunity to conduct the individualized review RLUIPA requires.
NOTES
[1] The Honorable James M. Moody, United States District Judge for the Eastern District of Arkansas.
[2] Without confronting the "clear error" standard of review applicable to findings of fact, the dissent rejects the district court's decision to credit Norris's testimony about the relative security risks of male and female inmates, and launches into an inapposite discussion of which party bears the burden of proof. Post, at 910-12. In Warsoldier, the Ninth Circuit rejected a prison's argument that women inmates were "much less likely" to commit violent crimes than male inmates, because the data submitted by the prison to support its position did not focus on the relevant type of institution, and did not clearly bear out the prison's assertion. 418 F.3d at 1000-01. Here, the prison relied instead on historical testimony of the director of the ADC that female inmates are not as prone to create problems with contraband as are male inmates. The district court credited this testimony and found that it satisfied the burden of proof. While Fegans did not bear the burden of proof on this issue, he was free to present countervailing evidence. The dissent evidently would go beyond the Ninth Circuit in Warsoldier and require that the ADC make a formal statistical presentation to support the testimony of experienced prison officials. This approach is contrary to the law of our circuit, and we decline to adopt it. See Hamilton, 74 F.3d at 1554 (upholding prison hair length regulation based on testimony of prison officials).
[3] The dissent cites a moment in Norris's testimony during which he is unable to recall the details of the alternative grooming policies considered by the prison nine years earlier. Post, at 910. At other points, however, Norris explained that his staff, in 1997, had provided a memorandum detailing the hair and grooming policies of five other States and the Federal Bureau of Prisons, (App. of Exh's at 3), that this memorandum played a role in formulating the ADC policy, (T. Tr. 233), and that prison officials considered other alternatives during their deliberations. (T. Tr. 240, 278-80). Norris also discussed two other alternatives raised by counsel during the trial. (T. Tr. 290-91, 324).
[4] Security concerns underlying a grooming policy that governs inmates may differentiate such a policy from a similar rule applicable to police officers or other public employees. Where one purpose of a prohibition on beards is to prevent inmates from changing appearance in the event of escape, there may be good reason to distinguish between inmates with a dermatological condition, if it permanently precludes shaving (and a corresponding change in appearance), and inmates with no skin condition who could alter their appearances after an escape.
|
316 F.Supp. 6 (1970)
Cynthia D. GREEN, etc., et al., Plaintiffs,
v.
The SCHOOL BOARD OF the CITY OF ROANOKE et al., Defendants.
No. 1093.
United States District Court, W. D. Virginia, Roanoke Division.
August 11, 1970.
*7 S. W. Tucker, Hill, Tucker & Marsh, Richmond, Va., and George W. Harris, Jr., Roanoke, Va., for plaintiffs.
James N. Kincanon, City Atty., and H. Ben Jones, Jr., Asst. City Atty., Roanoke, Va., for defendants.
OPINION AND JUDGMENT
DALTON, Chief Judge.
This court is again faced with a controversy as to what the Roanoke City School Board must do to establish a unitary school system. This court previously approved a school plan by judgment dated November 18, 1969. The plaintiffs appealed to the United States Court of Appeals for the Fourth Circuit, which reversed the judgment of this court on June 17, 1970, and directed further proceedings consistent with its opinion. The school board and this court have been directed to "explore every reasonable method of desegregation, including rezoning, pairing, grouping, school consolidation, and transportation, including a majority to minority transfer plan." Green v. School Board of City of Roanoke, Va., 428 F.2d 811 (4th Cir., June 17, 1970).
As suggested by the Fourth Circuit, the school board obtained the services of consultants from the Department of Health, Education and Welfare. These consultants responded generously and submitted a plan of school desegregation on July 10, 1970. The features of this plan will be discussed later in this opinion. The school board considered this plan, accepting some provisions and rejecting others, and tendered its own plan to this court on July 15, 1970. The plaintiffs filed objections to the school board plan on July 21 and 22, 1970. This plan and the objections to it will also be discussed.
*8 For purposes of discussion, the school proposals may be considered as three separate sub-plans: 1) A high school plan, 2) A junior high school plan, and 3) An elementary school plan.
HIGH SCHOOL PLAN
In the past, Roanoke has had four high schools: Lucy Addison (825 capacity), William Fleming (1600 capacity), Patrick Henry (1200 capacity), and Jefferson Senior (1150 capacity). During the last school year, William Fleming and Jefferson Senior were fully integrated, but Lucy Addison was an all-black school, while Patrick Henry was completely white. To achieve full integration, the HEW consultants have proposed that Lucy Addison be closed and that the school district lines be drawn so that the percentage of black students in the three remaining schools will range from 22 to 25 percent. The school board is agreeable to this proposal and suggests the use of Lucy Addison as an advanced vocational education center and as a school for special classes which an individual school could not support. The plaintiffs expressly did not object to the closing of Lucy Addison in their exceptions filed July 21, but after a protest meeting, largely attended in the black community, did object on July 22 to the "Plan of the School Board to transfer only black pupils and to close only black schools in order to promote desegregation." The court takes notice of the understandably strong feeling in the Negro community against the closing of what they describe as "their" fine school.
JUNIOR HIGH SCHOOL
The HEW plan proposes that seven different junior high schools be utilized for the 1970-71 school session. These schools are listed with their rated capacities in parentheses:
Breckenridge (700)
Jackson (800)
Madison (950, including annex)
Monroe (700)
Ruffner (750)
Booker T. Washington (675)
Wilson (670)
HEW's proposed district lines would result in varying percentages of black students in each school from approximately 20% to almost 39%. On the other hand, the school board proposes to close Booker T. Washington and draw the remaining school district lines to take in the area now served by that school. This proposal would include black students in each school in varying ratios from 21% to 27%. As a matter of pure racial balance, the school board proposal results in more "ideal" percentages than the HEW plan. The plaintiffs object to the school board's proposed closing of Booker T. Washington.
ELEMENTARY SCHOOLS
During the past school year, the City of Roanoke operated twenty-six elementary schools. With their rated building capacities in parentheses, they are:
Belmont (540)
Crystal Spring (480)
Fairview (480)
Fishburn Park (240)
Forest Park (660)
Garden City (360)
Grandin Court (420)
Harrison (570)
Highland Park (660)
Huff Lane (420)
Hurt Park (420)
Jamison (660)
Lincoln Terrace (540)
Loudon (540)
Melrose (570)
Monterey (480)
Morningside (420)
Oakland (540)
Preston Park (420)
Raleigh Court (300)
Round Hill (420)
Virginia Heights (600)
Wasena (360)
*9 West End (570)
Washington Heights (180)
Westside (480)
The essence of the HEW elementary school proposal is that primarily black and white schools be paired so that, instead of there being two schools both having grades kindergarten through six, there will be one school having grades kindergarten through three and another having grades four through six. Therefore, it proposes to pair Loudon, a black school, with Virginia Heights, a white school; Harrison, a black school, with Highland Park, a white school; Hurt Park, a black school, with West End, an integrated school;[1] Lincoln Terrace, a black school, with Oakland, a white school; and to group Fairview, a white school, with Forest Park, an integrated school, and Melrose, a black school.
HEW also proposes to pair Washington Heights (13% black) with Westside (37% black) to achieve a better racial balance. A further provision of the plan is that Fishburn Park, a modern brick school constructed in 1960, be closed.
Under this plan, the only black elementary students not attending fully integrated schools would be six children at Jamison and one child at Raleigh Court, which are both nearly all white.
The school board plan differs fundamentally from the HEW proposal. The only two schools to be paired under this plan would be Washington Heights and Westside, both of which have been defined as integrated schools. Instead of closing Fishburn Park, a totally white school in the southwestern part of the city, the school board proposes to close Loudon, an all-black school. It then proposes to bus the Loudon children to all-white schools having excess capacity as follows: 75 to Belmont, 145 to Highland Park, 60 to Grandin Court, and 70 to Preston Park. These children would be bussed at school board expense. Under this plan, there would be 3 black schools, 11 white schools (less than 10% black), and 11 integrated schools.
The plaintiffs object to both the HEW and school board plans. They ask that this court assign a number of black and white students to each school so that no school can be identified as a "black" or "white" school. This objection apparently envisions a racial "balance" at each school and would presumably require massive cross-bussing.
The plaintiffs' other objections to the school board plan are that it should adopt a policy "to prevent the dismissal, demotion or reassignment of personnel on a racially discriminatory basis," that it should insure the transportation of all pupils on a non-segregated and non-discriminatory basis, that future school construction and consolidation should be planned to prevent resegregation and recurrence of the dual school system, and that students should not be allowed to attend schools outside of their school districts when the effect would be to lessen integration. The court is not quite clear as to the basis for the last objection because the board has proposed to continue its Majority to Minority transfer policy, which would seem to take care of this possibility.
The trouble experienced by school boards and courts attempting to solve knotty school integration problems is largely due to segregated residential housing patterns. At one time states acted affirmatively in establishing such patterns by enforcing private racial covenants to land, but since 1948 this practice has been unconstitutional. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). Even though it has been more than twenty years since that decision, segregated housing patterns largely remain for both economic and discriminatory reasons. It will no doubt take years of patience and understanding to overcome these obstacles. The problem faced by this court is to make certain that the City of Roanoke *10 has a non-discriminatory school system and at the same time avoid striking a blow at high quality public education by requiring burdensome and unnecessary bussing of school children.
In years past, bussing of school children was wrongfully practiced to achieve segregation of school children. Such was the custom in the famous case of Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), which held unconstitutional a "freedom of choice" plan which failed to abolish the dual school system. In that case there was a non-segregated residential pattern in a rural county of 4,500 population, but students would "choose" to be bussed to the schools which were farther from their homes and which were primarily constituted of members of their own race. That is, bussing was used to maintain schools which were operated along racial lines. Now the clamor of manyunhappily endorsed by many courtsis to require bussing of children beyond schools in their own area to achieve some kind of vaguely defined "integration" or racial balance. This court cannot help but observe that bussing to preserve segregation was a gross injustice to the school children involved and that, with the tensions and strains currently caused by this issue, such needless bussing to obtain "integration" is equally harmful today. The question is whether the United States Constitution as interpreted by controlling court opinions requires that the neighborhood school concept be destroyed by compulsory bussing. If that is the price of integration, then the school children will be those who have to pay it.
The United States Congress has expressed its feeling on this subject by providing in the Civil Rights Act of 1964 that, in a civil action brought by the Attorney General, "nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another * * * in order to achieve such racial balance * * *." 42 U.S.C. § 2000c-6(a) (2). This statute is mentioned for purposes of background because the present action is not one brought by the Attorney General and it has been pointed out that the statute does not prevent bussing to counteract illegal segregation of school students. Swann v. Charlotte-Mecklenburg Board of Education, 431 F.2d 138 (4th Cir., May 26, 1970). That opinion directed that in tackling a bussing problem "a school board should take into consideration the age of the pupils, the distance and time required for transportation, the effect on traffic, and the cost in relation to the board's resources." Id.
School boards have an affirmative duty to convert to a unitary school system. Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). A unitary school system is one "within which no person is to be effectively excluded from any school because of race or color." Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969). The desire of this court is to approve a plan which will achieve a unitary nondiscriminatory school system with the least bussing possible. With these goals in mind, the court proceeds to the actual mechanics of the desegregation plan.
The court has taken a tour of the City of Roanoke and has actually observed most of the schools in question. It has noted the splendid brick construction (with its 10 acres of grounds) of Lucy Addison High School, which has been used only since 1951. In addition, the fact that Addison's closing will cause overcrowding in the three remaining high schools has not escaped this court's attention. The plaintiffs' objection that the black community should not be required to shoulder the largest part of the burden involved in the desegregation process has merit, although the realities of the actual physical facts makes such imposition difficult to avoid. The court does not feel that the school board or HEW have presented sufficient reasons *11 to justify the conversion of such a splendid facility, even if the school officials do express good faith intentions to use the school for advanced and vocational classes. There is a certain student and community feeling about a school which such a conversion would drastically diminish. Therefore, both the school board and HEW high school proposals are rejected, and Lucy Addison is to retain its present status. The school board is directed to use all four high schools and to draw attendance zones to achieve as much racial integration as is reasonably possible. Each high school should strive for a reasonable percentage of both black and white students. Rising seniors are to be permitted, if they so elect, to remain in the schools previously attended.
As discussed previously, the school board proposes to close Booker T. Washington Junior High School, while the HEW proposal entails operating all of the junior high schools. It has been noted that the school board's proposal results in a more "ideal" set of racial percentages in the junior high schools.
The court has observed the Booker T. Washington school and considered the testimony concerning it. Although the school is adjacent to a city park, it has only 1.3 acres in the actual school site and it is near a noisy highway. It has been suggested that the gymnasium addition can be operated in conjunction with the park as a community facility. School officials have informed the court that it contemplates using the building as administrative offices. The school board junior high school plan is generally adopted, except that the court is of the opinion, (in view of its decision to keep Lucy Addison open) that Booker T. Washington might well be operated as the specialized educational center envisioned by school officials for Lucy Addison.
The Westwood-Wilmont Farms area intervenors complain of the school line drawn between Ruffner and Monroe junior high schools. They propose a different line which would still result in both schools being fully integrated. It appears that this appeal ought to be made to the school board instead of this court, and the school board is directed to reconsider this line and change it if the board deems it advisable.
Both the HEW and school board elementary plans are disturbing. The HEW plan results in practically 100% of the black elementary pupils attending integrated schools, but it requires extensive bussing and cross-bussing of young children. On the other hand, the school board plan requires less bussing because fewer schools are "integrated" and little cross-bussing is required. The school board's proposal to split up the Loudon children and transport them to separate schools does not particularly appeal to the court. However, in view of the age and physical condition of the building, the lack of adequate playground area, and the absence of any objection by counsel for the plaintiffs to the closing of Loudon, the court will approve the City plan in this respect. Perhaps the Loudon school may be suitable for use as school administration offices. This approval is made, however, with the request that the school board reconsider the problem of the placement of the Loudon children, keeping in mind the desire to minimize bussing. The court is not willing to say precisely how this should be done but it suggests that West End and Highland Park schools might be utilized to take care of a large number of the Loudon children.
It is further the opinion of the court that the proposed pairing of Washington Heights and Westside, two "integrated" schools, in order to achieve a "better" racial balance is unnecessary. If school district lines can be further altered to achieve greater "integration" without destroying the neighborhood concept, this should be done. Perhaps, for example, the Belmont school lines might be altered as suggested by the HEW proposal.
Except for these provisions, the school board elementary plan is approved.
*12 The court has attempted to sustain the school board plan when it has found the methods employed to be reasonable and well-suited to attain the necessary goals. Since the school board is invested with the responsibility of operating the schools, the court believes that when the board's plans are constitutional, they should receive great weight and strong consideration. See Robinson v. Shelby County Board of Education, 311 F.Supp. 97 (W.D.Tenn.1970).
It is the opinion of the court that such an overall school plan meets the requirements of a unitary school system, and does not continue a dual system. Since such a system is one in which "no person is to be effectively excluded from any school because of race or color," Alexander v. Holmes County Board of Education, supra, it is the judgment of this court that the school board must furnish free transportation to a student in a "non-integrated" school who wants to attend the nearest or most convenient "integrated" school or school attended by students of another race. Such a policy must be carried out in conjunction with the Majority to Minority transfer plan, which the city is voluntarily practicing and should continue.
This proposal does not place the burden on individuals to change over from a dual school system because the court holds the plan adopted in this opinion constitutes the establishment of a unitary school system. See, Green v. County School Board of New Kent County, supra.
School officials should also enlarge and continue their efforts to involve children who attend "non-integrated" schools in activities with students of "integrated" schools or children of other races. These activities can take the form of athletic events, field trips, special classes, programs, and other endeavors which can be conducted on an integrated basis. It is believed that such activities can preserve the neighborhood school concept, spread the burden of desegragation equally, and bring children of differing races and backgrounds together in a less tense and more productive atmosphere.
It is recognized that this amount of "integration" in the elementary schools may be considered insufficient by some. The end result is that at least seven elementary schools will be "integrated": Forest Park, Huff Lane, Hurt Park, Round Hill, West End, Washington Heights, Westside, and possibly Highland Park and Belmont. Along with the fully "integrated" status of all the junior and senior high schools, the reasonable additional steps which will be taken at the elementary level are considered sufficient to establish a unitary school system. It is believed that it is a better policy to be cautious in the application of the law in this area than to require more bussing than is absolutely necessary. It is the court's view that the school board can better use the funds which would have been required for extensive bussing of students for the purpose of giving equally to all Roanoke school children a high quality educational program.
The assignment of black and white teachers to each school so that a balanced ratio can be obtained, as directed by the Fourth Circuit, is approved. The plaintiffs object to the absence of any non-racial objective criteria to be used in determining questions of dismissal, demotion or reassignment of personnel. This objection has merit and the school board is directed to adopt basically the "Desegregation of Faculty and Other Staff" proposals of the HEW consultants. It is meant by this for the school board to adopt fully non-discriminatory criteria in desegregation of school personnel, and it is believed that a smoother and more harmonious transition will thereby be accomplished.
Plaintiffs also object to the lack of any policy regarding future school construction and site selection. This objection also has merit. The school board is advised that the effect of a school's location on desegregation is a factor to be accorded substantial weight in deliberations on future constructions. New *13 schools ought to be built, so far as reasonably practicable, to alleviate the effects of segregated housing patterns and to prevent recurrence of a dual school system.
As previously set forth, the continuance of the Majority to Minority transfer plan and the adoption of a transportation policy providing free transportation to any student in a "non-integrated" school who wants to attend an "integrated" school in another district are also approved.
Continuing, the court would observe that integration has worked and is going forward in Roanoke and that there is little animosity existing between the races, and it is the hope that the momentum will steadily progress. Obviously, there is a general disturbance over bussing; understandably the vast majority of citizens of both races do not like the idea of bussing with its inconvenience and other objections. This court feels that all working together, that new plans can be devised and improvements made in existing plans for integration which will find support among public-spirited citizens, and thus increase the educational opportunities of the Roanoke school children.
CONCLUSION
Admittedly the findings and conclusions set forth herein (and for that matter any other plan) have shortcomings and imperfections, but considering the total picture, the court is of the opinion that under the opinion and judgment here made, it may not be said that the Roanoke School System effectively excludes any child from any school because of his race.
The court will retain this case on the docket for such other and further relief as may be appropriate. All of which foregoing opinion and judgment the court doth ADJUDGE and ORDER.
The court is of the opinion that this decision and the order entered herein involve a controlling question of law as to which there is a substantial ground for difference of opinion, and that an immediate appeal may materially advance the ultimate determination of this litigation, pursuant to the provisions of Title 28, U.S.C. § 1292(b). The decision of this court is binding on all litigants and interested persons until it is stayed, modified or reversed by the United States Court of Appeals for the Fourth Circuit.
The clerk of this court is directed to send a certified copy of this opinion and judgment to counsel of record.
NOTES
[1] This court is of the view that an integrated school could be defined as one having 10% or more black students and 25% or more white students.
|
[J-71-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 56 WAP 2017
:
Appellee : Appeal from the Order of the Superior
: Court entered May 23, 2017 at No.
: 951 WDA 2015, affirming the
v. : Judgment of Sentence of the Court of
: Common Pleas of Allegheny County
: entered May 21, 2015 at No. CP-02-
MOLLY HLUBIN, : CR-0003205-2014
:
Appellant : ARGUED: October 23, 2018
Justice Donohue delivers an Opinion of the Court as to Parts
I and IV, delivers an opinion as to Parts II and III joined by
Justices Todd and Wecht, and announces the Judgment of
the Court.
OPINION
JUSTICE DONOHUE DECIDED: MAY 31, 2019
This discretionary appeal addresses the interplay between the Intergovernmental
Cooperation Act, 53 Pa.C.S. §§ 2301–2317 (the “ICA”), and the Municipal Police
Jurisdiction Act. 42 Pa.C.S. §§ 8951–8954 (“MPJA”). An en banc panel of the Superior
Court ruled that Appellant Molly Hlubin’s (“Hlubin”) stop and arrest at a sobriety
checkpoint in Robinson Township, conducted by a task force that included police officers
from a number of other municipalities operating outside of their primary jurisdictions, was
lawful. According to the Superior Court, formation of the task force did not require
compliance with the ICA, as the MPJA contains exceptions to the general limitation on
police activities outside of an officer’s primary jurisdiction. For the reasons set forth
herein, we reverse the decision of the Superior Court. The sobriety checkpoint task force
at issue required compliance with the ICA, as none of the exceptions in the MPJA
authorized the extraterritorial police activities performed here.
On September 29, 2013, at approximately 12:25 a.m., Hlubin was driving along
Steubenville Pike in Robinson Township when she was stopped and questioned at a
sobriety checkpoint. N.T., 3/13/2015, at 30-31. Sergeant Douglas Ogden (“Sergeant
Ogden”) from the Moon Township police department stopped Hlubin and requested her
driver’s license, registration, and proof of insurance. Id. at 31. He detected an odor of
alcohol and observed that her speech was slurred. Id. at 31-32. Upon questioning, Hlubin
admitted that she drank a shot and a beer that night. Id. at 32. Sergeant Ogden then
escorted Hlubin to a testing area, where Robinson Township Police Officer Dominic Sicilia
took over and directed her to perform sobriety tests. Id. at 33. Based upon her
performance and the information he learned from Sergeant Ogden, Officer Sicilia placed
Hlubin under arrest for suspicion of driving under the influence (“DUI”). Id. at 63-67.
Hlubin consented to a blood draw, which was performed by a phlebotomist stationed in a
nearby trailer on site. Id. Based upon the results of the blood testing, she was charged
with two counts of DUI.1
On March 9, 2015, Hlubin filed an omnibus pretrial motion asserting, inter alia, that
Sergeant Ogden “was acting outside of his primary jurisdiction when he was operating a
sobriety checkpoint in Robinson Township” and therefore, did not have the authority to
1 75 Pa.C.S. § 3802(a)(1) (general impairment) and 75 Pa.C.S. § 3802(b) (high rate of
alcohol).
[J-71-2018] - 2
conduct the stop and detention. See Omnibus PreTrial Motion, 3/9/2015, at 7.2 Hlubin
maintained that the task force did not comply with the ICA and that no exceptions set forth
in the MPJA permitted members of the task force to operate outside of their primary
jurisdiction. She sought suppression of all evidence gathered during her unauthorized
and unlawful detention and dismissal of all charges. Id. at 8-9.
At a suppression hearing on March 13, 2015, the Commonwealth presented
evidence to show both that the task force was in compliance with the statutory
requirements in the ICA and that Sergeant Ogden’s presence at the checkpoint was
authorized by certain exceptions in the MPJA permitting police actions outside of an
officer’s primary jurisdiction. The Commonwealth asserted that the task force was “set
up between the police forces themselves,” with “their chiefs themselves sign[ing] off” on
the individual checkpoints. N.T., 3/13/2015, at 102. Sergeant Ogden testified, identifying
himself as the program coordinator and project manager for the “Western PA DUI task
force,”3 a group comprised of law enforcement officers from fifteen municipal police
departments and the City of Pittsburgh. As the program coordinator and project manager,
Sergeant Ogden trains police officers in conducting the task force’s sobriety checkpoints.
2 She also asserted various issues not before us in this appeal, including that the
checkpoint was constitutionally infirm in that it did not comply with the “comprehensive
requirements” established in Commonwealth v. Worthy, 957 A.2d 720, 725 (Pa. 2008),
Commonwealth v. Tarbert, 535 A.2d 1035 (Pa. 1987) (plurality), and Commonwealth v.
Blouse, 611 A.2d 1177 (Pa. 1992). She also challenged the legality of the roadside blood
draw, claiming that it did not occur at an “approved facility” in violation of 75 Pa.C.S. §
1547(c)(2)(i). Finally, she argued that there was not probable cause to request a chemical
test.
3 In his testimony at the suppression hearing, Sergeant Ogden referred at times to the
task force as the “Western PA DUI task force” and at others, to the “West Hills DUI task
force.” N.T., 3/13/2015, at 9, 14.
[J-71-2018] - 3
Id. at 9, 14. This training adheres to procedural guidelines laid out in a manual, entitled
the “West Hills DUI task force policy and procedural guidelines,” which was entered into
evidence. Id. at 14. Sergeant Ogden also testified that he annually applies for and
administers a grant to fund the task force. Id. at 10-11.
With respect to the sobriety checkpoint on September 29, 2013, Sergeant Ogden
explained that its location on Steubenville Pike in Robinson Township was selected
because that area has been an “ongoing problem” when a nearby concert venue lets out.
Id. at 11-12. In support of this contention, he cited to statistics regarding the number of
DUI arrests, crashes and fatalities on that road dating back to 2008. Id. at 11-12. Having
selected this location, Sergeant Ogden indicated that he, along with Sergeant Joel
Hamilton of the Robinson Township police department, scheduled a checkpoint on the
night of a concert, starting at 11 p.m. on September 28, 2013 and ending at 4 a.m. the
next day. Sergeant Hamilton and Robinson Township Police Chief Dale Vietmeier (“Chief
Vietmeier”) signed a “sobriety checkpoint authorization form,” which the Commonwealth
entered into evidence, that purported to “authorize the operation of a sobriety checkpoint”
in adherence with the task force’s “standard operating procedures.” Id. at 19. Sergeant
Ogden also signed the form. Id. at 20. Following the suppression hearing, the
Commonwealth sought to reopen the record to admit into evidence a 2003 resolution
signed by the township’s manager.4 The Commonwealth argued that this resolution
4 Resolution #14-2003, signed by Robinson Township Manager Timothy Little in 2003,
stated as follows:
BE IT RESOLVED, by the authority of the Board of
Commissioners of the Township of Robinson, Allegheny
County, and it is hereby resolved by authority of the same,
that the Township Manager of said Municipality, authority be
[J-71-2018] - 4
demonstrated that the township’s board of commissioners had both authorized its police
to participate in the task force’s activities and signaled that Sergeant Ogden would be
present at all checkpoints. See Commonwealth’s Motion to Reopen the Record and
Admit New Evidence, 4/13/2015, ¶ 8.
Over Hlubin’s objection, the trial court permitted the Commonwealth to admit the
resolution into the record. N.T., 5/21/2015, at 13-15. It denied Hlubin’s suppression
motion and conducted a bench trial. Based upon the testimony from the suppression
hearing and a lab report indicating a 0.152 blood alcohol content, the trial court found
Hlubin guilty of two counts of DUI. Id. at 17-18, 23. The trial court sentenced Hlubin to
thirty days of county intermediate punishment with eligibility for educational, medical,
religious and work release, followed by six months of probation and a $750.00 fine.
Hlubin filed a notice of appeal to the Superior Court. In its written opinion pursuant
to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, the trial court
concluded that the sobriety checkpoint at issue was authorized under both the ICA and
authorized and directed to sign the attached agreement on its
behalf.
Further be resolved that the Township of Robinson
shall participate with the West Hills DUI task force for the
purpose of promoting safer highways in the Commonwealth
by educating and enforcing driving under the influence of
alcohol or drugs statutes.
I, Timothy Little, Township Manager of the Township of
Robinson do hereby certify that the foregoing is a true and
correct copy of the resolution adopted at the regular meeting
of the Board of Commissioners held the 14 of July, 2003.
N.T., 5/21/2015, 13-14.
[J-71-2018] - 5
the MPJA. Trial Court Opinion, 1/5/2016, at 3-5. With respect to the ICA, the trial court
found that, pursuant to resolution #14-2003, Robinson Township became a member of
the task force and that Robinson Township and Moon Township were amongst its fifteen
members. Id. at 6. As such, the sobriety checkpoint was a “valid exercise of a joint
governmental cooperation agreement.” Id. As for the MPJA, the trial court stated that
Sergeant Ogden was in Robinson Township solely to participate in the operation of the
checkpoint and that his presence had been specifically requested in the “sobriety
checkpoint authorization form” signed by Chief Vietmeier of Robinson Township. Id. at
3, 6. According to the trial court, “[b]y requesting and authorizing the [task force] to
operate a sobriety checkpoint, Chief Vietmeier was requesting aid or assistance from the
other participating members of the [task force] to provide the manpower and experience
necessary to operate the sobriety checkpoint.” Id. at 6. As a result, this request for aid
or assistance constituted a valid exercise of subsection 8953(a)(3) of the MPJA,5
permitting Sergeant Ogden and the other officers at the checkpoint to cross municipal
5 Pursuant to section 8953(a) of the MPJA:
(a) General rule.—Any duly employed municipal police officer who is within
this Commonwealth, but beyond the territorial limits of his primary
jurisdiction, shall have the power and authority to enforce the laws of this
Commonwealth or otherwise perform the functions of that office as if
enforcing those laws or performing those functions within the territorial limits
of his primary jurisdiction in the following cases:
* * *
(3) Where the officer has been requested to aid or assist any local, State or
Federal law enforcement officer or park police officer or otherwise has
probable cause to believe that the other officer is in need of aid or
assistance.
42 Pa.C.S. § 8953(a)(3).
[J-71-2018] - 6
boundaries and conduct police-related operations outside of their primary jurisdictions.
Id. at 6-7 (citing 42 Pa.C.S. § 8953(a)(3)).
A three-judge panel of the Superior Court affirmed, with one judge dissenting.
Commonwealth v. Hlubin, 951 WDA 2015, 2016 WL 5874381 (Pa. Super. Oct. 6, 2016)
(non-precedential) (withdrawn). Hlubin filed a petition for reargument en banc, which the
Superior Court granted on December 15, 2016.
On May 23, 2017, the intermediate appellate court affirmed the trial court’s
decision. Commonwealth v. Hlubin, 165 A.3d 1 (Pa. Super. 2017) (en banc). It began
by acknowledging (and agreeing with) the Commonwealth’s concession that, contrary to
the trial court’s conclusion, the September 29, 2013 sobriety checkpoint did not comply
with the ICA. Id. at 6. The ICA requires that that every participating municipality to a joint
cooperation agreement must adopt an ordinance reflecting its entry into the agreement.
Id. (citing 53 Pa.C.S. §§ 2303, 2305). Here, none of the fifteen townships or the City of
Pittsburgh had adopted any such ordinance. Id. Therefore, according to the en banc
panel, the trial court’s reliance upon Robinson Township’s resolution #14-2003 was
misplaced, as it was not an ordinance and had not been adopted by the other task force
municipalities.6 Id.
The en banc panel also concluded that the lack of ICA compliance did not end its
“inquiry with regard to whether the checkpoint was valid.” Id. It held that the ICA and the
MPJA are “not mutually exclusive,” as they “address different circumstances that may
6Though not raised at the suppression hearing, we may take judicial notice that resolution
#14-2003 was void. In 2010, Robinson Township enacted a new municipal code which
provided that any prior actions by its governing body were nullified unless properly re-
ratified (resolution #14-2003 was not).
[J-71-2018] - 7
arise within local municipalities.” Id. It found that the ICA applies to “all local
governments,” whereas the MPJA applies to any “duly employed municipal police officer
who is within the Commonwealth, but beyond the territorial limits of his primary
jurisdiction.” Id. The Superior Court then turned its attention to the question of whether
the sobriety checkpoint was permitted pursuant to one of the MPJA exceptions.
Like the trial court, the en banc panel read subsection 8953(a)(3) of the MPJA as
authorization for the participation of Sergeant Odgen and other officers in a sobriety
checkpoint outside of their primary jurisdictions. It viewed the Robinson Township Police
Chief’s signed authorization as a request for “aid or assistance” to carry out the legitimate
purpose of reducing DUI accidents and casualties in neighboring municipalities. Id. at 9.
The court rejected Hlubin’s contention that a request for aid or assistance under
subsection (a)(3) must be contemporaneous with specific criminal activity, as it indicated
that the subsection contains no language imposing a “contemporaneous element” into
the subsection. Id. In a footnote, the court also recognized that subsection 8953(a)(4)7
might also have provided authorization for Sergeant Ogden’s participation, as the
“sobriety checkpoint authorization form” signed by Chief Vietmeier constituted “consent
to conduct official task force duties in Allegheny County.” Id. at 7 n.9.
7 Subsection 8953(a)(4) of the MPJA authorizes the performance of the functions of a
police officer outside of his or her primary jurisdiction:
(4) Where the officer has obtained the prior consent of the chief law
enforcement officer, or a person authorized by him to give consent, of the
organized law enforcement agency which provides primary police services
to a political subdivision which is beyond that officer's primary jurisdiction to
enter the other jurisdiction for the purpose of conducting official duties which
arise from official matters within his primary jurisdiction.
42 Pa.C.S. § 8953(a)(4).
[J-71-2018] - 8
Finally, the en banc panel found that even if the checkpoint was not authorized
under the MPJA, suppression was not warranted. It relied upon the test devised in
Commonwealth v. O’Shea, 567 A.2d 1023 (Pa. 1989), which considers the intrusiveness
of the police conduct, the extent of deviation from the letter and spirit of the MPJA, and
the prejudice to the accused to determine whether suppression is warranted on a case-
by-case basis. Id. at 9 (citing O’Shea, 567 A.2d at 1030). The en banc panel stated that
the police conduct was not intrusive, as the detentions generally lasted only thirty to forty-
five seconds and involved limited interactions; the checkpoint “furthered the purpose of
the MPJA” by reducing DUI accidents and casualties; and finally, drivers stopped at the
checkpoint suffered “minimal to no prejudice” from its operations. Id. The en banc panel
thus affirmed the denial of suppression and the judgment of sentence.8
This Court granted allowance of appeal to consider the following questions:
1. Did the Superior Court erroneously broaden municipal police
powers by holding that when municipal police officers leave
their primary jurisdiction for the purpose of conducting
sobriety checkpoints, it is not necessary to comply with the
[ICA], by entering into written agreements and passing an
ordinance because such actions are permitted under the
[MPJA]?
2. Did the Superior Court erroneously eliminate the longstanding
requirement that a “crime in progress” investigation must be
taking place before police officers can leave their primary
jurisdiction and enter into extraterritorial forays for the purpose
of conducting an investigation under section 8953(a)(3) of the
[MPJA]?
3. Did the Superior Court erroneously eliminate the statutory
requirement in section 8953(a)(4) of the [MPJA], that before a
police officer can enter another jurisdiction to conduct an
8 In an issue not before this Court, the en banc panel also rejected Hlubin’s challenge
that her arrest was not supported by probable cause. Hlubin, 165 A.3d at 10.
[J-71-2018] - 9
investigation, the crime being investigated must have taken
place in the officer’s primary jurisdiction?
Commonwealth v. Hlubin, 174 A.3d 576 (Pa. 2017) (per curiam).
I. The ICA and the MPJA
The questions presented for our review raise issues of statutory interpretation. As
a result, our scope of review is plenary and the standard of review is de novo.
Commonwealth v. Popielarcheck, 190 A.3d 1137, 1140 (Pa. 2018). We are guided in our
analysis by the Statutory Construction Act, which provides in relevant part as follows:
§ 1921 Legislative intent controls.
(a) The object of all interpretation and construction of statutes
is to ascertain and effectuate the intention of the General
Assembly.
* * *
(c) When the words of the statute are not explicit, the intention
of the General Assembly may be ascertained by considering,
among other matters:
* * *
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the
same or similar subjects.
(6) The consequences of a particular interpretation.
1 Pa.C.S. § 1921(a), (c).
The Pennsylvania Constitution defines a “municipality” as a “county, city, borough,
incorporated town, township or any similar general purpose unit of government which
shall hereafter be created by the General Assembly.” Pa. Const. art. IX, § 14. By acts of
its governing body, initiative, or referendum, a Pennsylvania municipality may agree, inter
[J-71-2018] - 10
alia, to cooperate with another municipality (or other governmental unit) with respect to
any of its functions, powers, or responsibilities. Article IX, Section 5 provides:
A municipality by act of its governing body may, or upon being
required by initiative and referendum in the area affected
shall, cooperate or agree in the exercise of any function,
power or responsibility with, or delegate or transfer any
function, power or responsibility to, one or more other
governmental units including other municipalities or districts,
the Federal government, any other state or its governmental
units, or any newly created governmental unit.
Pa. Const., art IX, § 5.
The General Assembly, through its passage of the ICA, 53 Pa.C.S. §§ 2301–2317,
established formal rules of compliance for intergovernmental cooperation. Section 2303
of the ICA authorizes said cooperation and provides that it shall be effectuated by joint
agreements with the other governmental entities:
§ 2303. Intergovernmental cooperation authorized
(a) General rule.--Two or more local governments in this
Commonwealth may jointly cooperate, or any local
government may jointly cooperate with any similar entities
located in any other state, in the exercise or in the
performance of their respective governmental functions,
powers or responsibilities.
(b) Joint agreements.--For the purpose of carrying the
provisions of this subchapter into effect, the local
governments or other entities so cooperating shall enter into
any joint agreements as may be deemed appropriate for those
purposes.
53 Pa.C.S. § 2303. Section 2305 further provides that any agreement for
intergovernmental cooperation necessitates that the governing body of the municipality
must pass an ordinance with respect to said agreement.
[J-71-2018] - 11
§ 2305. Ordinance
A local government may enter into intergovernmental
cooperation with or delegate any functions, powers or
responsibilities to another governmental unit or local
government upon the passage of an ordinance by its
governing body. If mandated by initiative and referendum in
the area affected, the local government shall adopt such an
ordinance.
53 Pa.C.S. § 2305. Any such ordinance must include seven specific items of agreement:
§ 2307. Content of ordinance
The ordinance adopted by the governing body of a local
government entering into intergovernmental cooperation or
delegating or transferring any functions, powers or
responsibilities to another local government or to a council of
governments, consortium or any other similar entity shall
specify:
(1) The conditions of agreement in the case of
cooperation with or delegation to other local
governments, the Commonwealth, other states
or the Federal Government.
(2) The duration of the term of the agreement.
(3) The purpose and objectives of the
agreement, including the powers and scope of
authority delegated in the agreement.
(4) The manner and extent of financing the
agreement.
(5) The organizational structure necessary to
implement the agreement.
(6) The manner in which real or personal
property shall be acquired, managed, licensed
or disposed of.
(7) That the entity created under this section
shall be empowered to enter into contracts for
policies of group insurance and employee
[J-71-2018] - 12
benefits, including Social Security, for its
employees.
53 Pa.C.S. § 2307. Finally, a cooperation agreement is deemed to be in force (and
enforceable) only after its adoption by ordinance by all of the cooperating governmental
units. 53 Pa.C.S. § 2315.
Turning to the other statute at issue in this appeal, in Commonwealth v. Merchant,
595 A.2d 1135 (Pa. 1991), this Court recognized that the principal object of the MPJA is
“the promotion of public safety while maintaining jurisdictional police lines.” Id. at 1138.
Section 8952 of the MPJA provides that a municipal police officer may perform the
functions of his or her office anywhere within his or her primary jurisdiction9:
§ 8952. Primary municipal police jurisdiction
Any duly employed municipal police officer shall have the
power and authority to enforce the laws of this
Commonwealth or otherwise perform the functions of that
office anywhere within his primary jurisdiction as to:
(1) Any offense which the officer views or
otherwise has probable cause to believe was
committed within his jurisdiction.
(2) Any other event that occurs within his
primary jurisdiction and which reasonably
requires action on the part of the police in order
to preserve, protect or defend persons or
property or to otherwise maintain the peace and
dignity of this Commonwealth.
42 Pa.C.S. § 8952.
9 The MPJA defines “primary jurisdiction” as “[t]he geographical area within the territorial
limits of a municipality or any lawful combination of municipalities which employs a
municipal police officer[.]” 42 Pa.C.S. § 8951.
[J-71-2018] - 13
The MPJA previously included only one exception to police action outside of an
officer’s primary jurisdiction, namely where the officer was in hot pursuit of a fleeing
suspect. Relevant to the present situation, it authorized a police officer to arrest any
person beyond the territorial limits of his primary jurisdiction only when the officer
continued in pursuit of such person after commission of a summary or other offense. 42
Pa.C.S. § 8901 (repealed).10 In apparent response to decisions by our Superior Court
that did not permit what appeared to be reasonable extraterritorial police actions outside
of an officer’s primary jurisdiction,11 in 1982 the General Assembly added five additional
exceptions. “Apparently, the General Assembly recognized that constructing
impenetrable jurisdictional walls benefited only the criminals hidden in their shadows.”
Merchant, 595 A.2d at 1139. Section 8953(a) now provides, in relevant part:
(a) General rule.--Any duly employed municipal police officer
who is within this Commonwealth, but beyond the territorial
limits of his primary jurisdiction, shall have the power and
authority to enforce the laws of this Commonwealth or
otherwise perform the functions of that office as if enforcing
10 Sometimes referred to as the “hot pursuit statute,” the provision as enacted in 1963
provided the following:
Any police officer in the employ of a county, city, borough, town or township
may arrest, with or without a warrant, any felon beyond the territorial limits
of the political subdivision employing such officer for a felony committed by
the felon within the political subdivision employing the police officer if such
officer continues in pursuit of the felon after commission of the felony.
Act of Aug. 6, 1963, P.L. 511, No. 267.
11 See Commonwealth v. Novick, 438 A.2d 974, 975-76 (Pa. Super. 1981) (officer
requested to assist in arresting burglary suspect seven blocks outside of his primary
jurisdiction had no authority under hot pursuit statute or “mutual aid pact” to engage in
extraterritorial police conduct); Commonwealth v. Bable, 385 A.2d 530, 531 (Pa. Super.
1978) (Greenville police officer responding to a radio call regarding a possible ongoing
burglary at a store in a neighboring jurisdiction was not authorized to follow burglary
suspect under hot pursuit statute because the officer had not entered Hempfield
Township in pursuit of the suspect).
[J-71-2018] - 14
those laws or performing those functions within the territorial
limits of his primary jurisdiction in the following cases:
(1) Where the officer is acting pursuant to an
order issued by a court of record or an order
issued by a district magistrate whose
magisterial district is located within the judicial
district wherein the officer's primary jurisdiction
is situated, or where the officer is otherwise
acting pursuant to the requirements of the
Pennsylvania Rules of Criminal Procedure,
except that the service of an arrest or search
warrant shall require the consent of the chief law
enforcement officer, or a person authorized by
him to give consent, of the organized law
enforcement agency which regularly provides
primary police services in the municipality
wherein the warrant is to be served.
(2) Where the officer is in hot pursuit of any
person for any offense which was committed, or
which he has probable cause to believe was
committed, within his primary jurisdiction and for
which offense the officer continues in fresh
pursuit of the person after the commission of the
offense.
(3) Where the officer has been requested to aid
or assist any local, State or Federal law
enforcement officer or park police officer or
otherwise has probable cause to believe that the
other officer is in need of aid or assistance.
(4) Where the officer has obtained the prior
consent of the chief law enforcement officer, or
a person authorized by him to give consent, of
the organized law enforcement agency which
provides primary police services to a political
subdivision which is beyond that officer's
primary jurisdiction to enter the other jurisdiction
for the purpose of conducting official duties
which arise from official matters within his
primary jurisdiction.
(5) Where the officer is on official business and
views an offense, or has probable cause to
[J-71-2018] - 15
believe that an offense has been committed,
and makes a reasonable effort to identify
himself as a police officer and which offense is
a felony, misdemeanor, breach of the peace or
other act which presents an immediate clear
and present danger to persons or property.
(6) Where the officer views an offense which is
a felony, or has probable cause to believe that
an offense which is a felony has been
committed, and makes a reasonable effort to
identify himself as a police officer.
42 Pa.C.S. § 8953(a). This Court has stressed that section 8953(a) extends the authority
of police officers to exercise official police duties outside of their primary jurisdictions only
in these six specific and limited circumstances. See, e.g., Martin v. Commonwealth, Dept.
of Transp., Bureau of Licensing, 905 A.2d 438, 445-46 (Pa. 2006). In addition, these
exceptions must be interpreted consistently with the MPJA’s “ultimate goal of maintaining
police accountability to local authority.” Merchant, 595 A.2d at 1139.
As an initial matter, the Commonwealth concedes here, as it did before the
Superior Court, that no agreement exists consistent with the ICA that authorized the
activities of the task force in conducting sobriety checkpoints. Nevertheless, the Superior
Court’s en banc panel held, and the Commonwealth argues here, that “neither the [t]ask
[f]orce nor the Robinson Township Police Department should be penalized for failing to
comply with the ICA” because the MPJA, rather than the ICA, governs extraterritorial
policing. Hlubin, 165 A.3d at 6; Commonwealth’s Brief at 18. Under this view, the ICA
applies generally to agreements by local municipal governments for cooperation, but has
no application to agreements dealing with cooperation between municipal police forces,
as extraterritorial policing by municipal police officers falls under the specific dictates of
the MPJA. Id. at 19, 22 (citing Hlubin, 165 A.3d at 3). The Commonwealth insists that
[J-71-2018] - 16
section 1933 of the Statutory Construction Act compels this conclusion. Section 1933
provides that where a “general provision in a statute” irreconcilably conflicts with a specific
provision in the same or another statute, the specific provision shall be construed as an
exception to the general provision unless the general provision was enacted later in time
and reflects the manifest intention of the General Assembly that it shall prevail over the
specific provision. 1 Pa.C.S. § 1933. The Commonwealth argues that with respect to
extraterritorial policing, the ICA and the MPJA are irreconcilable and thus we must apply
the specific statute (the MPJA) rather than the general statute (the ICA), as the MPJA
was more recently amended. Commonwealth’s Brief at 21.
Hlubin, by contrast, argues that municipal police officers may only leave their
primary jurisdictions to participate in a sobriety checkpoint like the one at issue here upon
an agreement under the ICA, because the responsibility of supervising police is a basic
function of local municipal government. Hlubin’s Brief at 17. In her view, municipal
government officials, not police officers, must decide whether their municipal police
officers should be deployed in other jurisdictions to conduct cooperative activities with
other police forces, or should instead remain, to the extent possible, in their primary
jurisdiction serving their own citizens. Id. at 25. According to Hlubin, such decisions are
integral to maintaining police accountability to local authority, as they affect core functions
for local governing bodies, including expenditures, allocation of personnel and liability
issues. Id.
The Commonwealth’s view requires an interpretation that policing is not a
government function, but rather that decisions in this area are best left to police
departments to make for themselves. Absent this interpretation, no irreconcilable conflict
[J-71-2018] - 17
exists between the ICA and the MPJA with respect to extraterritorial policing. The clear
language of both statutes reflects that they apply in different circumstances. The ICA
deals with durational agreements to permit municipalities to work together on a regular
and ongoing basis over time. The MPJA, in contrast, deals with the authority of municipal
police officers to respond as necessary to a specific criminal episode or an event that
immediately threatens public safety. Any suggestion that the ICA does not require joint
agreements between participating municipalities to permit ongoing cooperation between
their police departments ignores the reality that one of the core “functions, powers and
responsibilities” of local municipal governments is the provision of police services to their
citizens.12 53 Pa.C.S. § 2303. When two or more municipalities decide to cooperate with
each other in the provision of such services to their respective citizenry, an ICA
agreement, adopted by ordinance by each of the member municipalities, is required. 53
12 One clear example of the General Assembly’s manifest intention in this context is its
2014 amendments to the Borough Code. As amended, the Borough Code requires that
a borough council establish a police department and appoint officers, 8 Pa.C.S. § 1121(a),
and further authorizes the borough council to enter into ICA agreements with other
governmental entities to provide for “mutual aid or assistance” with other governmental
entities for the provision of police services. In particular, the 2014 Borough Code
empowers a borough:
[t]o enter into agreements with other political subdivisions, in accordance
with existing laws, … in carrying into effect provisions of 53 Pa.C.S. Ch. 23
Subch. A (relating to intergovernmental cooperation), and agreements with
the proper authorities of municipal corporations, regional police or fire forces
or other public safety or governmental entities created by two or more
municipal corporations under 53 Pa.C.S. Ch. 23 Subch. A, either for mutual
aid or assistance in police and fire protection or any other public safety
services, or for the furnishing to or receiving from the municipal corporations
or governmental entities police and fire protection or any other public safety
services, and to make appropriations for public safety services.
8 Pa.C.S. § 1202(24).
[J-71-2018] - 18
Pa.C.S. § 2305. The ordinance of each municipal governing body must reflect its local
control over the precise nature of the cooperation with the other municipalities, as it must
include agreement with regard to duration, purposes and objectives, financing and the
organizational structure necessary to implement the cooperation agreement. 53 Pa.C.S.
§ 2307.
Moreover, we note that neither the ICA nor the MPJA contains any language to
demonstrate that the General Assembly considered there to be any conflict between
them. To the contrary, section 8953(e) of the MPJA specifically references “cooperative
police service agreements with another municipality.”
(e) Existing and future municipal police service agreements
preserved.--Nothing in this section shall be construed to
restrict the authority of any municipality to maintain current or
to enter into new cooperative police service agreements with
another municipality or municipalities for purposes including,
but not limited to, describing conditions of mutual aid,
assigning liability and determining appropriate costs of these
cooperative efforts.
42 Pa.C.S. § 8953(e). The Commonwealth argues that this provision does not expressly
reference the ICA, but the section as a whole clearly speaks to the authority of
municipalities to enter into cooperation agreements with other municipalities of the type
envisioned in the ICA. As described in this section, such “joint police service agreements”
must include precisely the same information required of joint agreements under section
2307 of the ICA, including the nature and conditions of the cooperative relationship and
the costs associated therewith. As such, section 8953(e) may fairly be read to indicate
that cooperative relationships between municipalities with respect to the provision of
police services require compliance with the ICA unless authorized by one of the six
exceptions in section 8953(a).
[J-71-2018] - 19
The Commonwealth does not contest that the operations of the task force at issue
here could have been authorized pursuant to an ICA agreement. The governing bodies
of the fifteen municipalities and the City of Pittsburgh could have each passed ordinances
reflecting their understanding and agreement to permit their municipal police officers to
participate in sobriety checkpoints in other (non-primary) jurisdictions. Evidence
presented at the suppression hearing demonstrated that the task force is an ongoing
entity that has been in operation for many years and conducted between five and eleven
checkpoints annually. N.T., 3/13/2015, at 57. The policies and procedures manual
entered into evidence at the suppression hearing contains most, if not all, of the specific
information required by section 2307 of the ICA, including the purposes and objectives of
the task force, its principal funding mechanism, its organizational structure and the duties
and responsibilities of each participating police officer. Id. at 17 (Commonwealth’s Exhibit
1). This manual could have been converted into a qualifying ICA agreement and
submitted to the governing bodies of each of the municipalities for adoption by ordinance.
This did not occur. Instead, counsel for the Commonwealth represented at the
suppression hearing that the task force was “set up between the police forces
themselves.” N.T., 3/13/2015, at 99.
Because the efforts of the task force that resulted in Hlubin’s arrest and conviction
were not authorized by the ICA, its participating non-Robinson Township police officers,
including in particular Sergeant Ogden, had the authority to act outside the territorial limits
of their primary jurisdictions only if an exception in the MPJA so provides. The Superior
Court relied primarily on the exception in subsection 8953(a)(3) of the MPJA, which
authorizes a municipal police officer to operate outside of his primary jurisdiction when
[J-71-2018] - 20
“the officer has been requested to aid or assist any local, State or Federal law
enforcement officer or park police officer or otherwise has probable cause to believe that
the other officer is in need of aid or assistance.” 42 Pa.C.S. § 8953(a)(3). Hlubin submits
that such request must be contemporaneous with some criminal activity, anchoring her
argument in the subsection’s reference to “probable cause.” By contrast, the Superior
Court and Commonwealth maintain that 8953(a)(3) authorizes a municipal police officer
to cross jurisdictional boundaries upon any request for assistance by any other police
officer without restriction. In other words, the Commonwealth would read the two clauses
in subsection 8953(a)(3) as disjunctive, with only the second clause requiring any
contemporaneous criminal activity to justify the provision of aid or assistance.
We agree with the Commonwealth that the two situations described in subsection
8953(a)(3) are “disjunctive” in the sense that they in fact describe two different
circumstances. We disagree, however, to the extent that the Commonwealth intends to
convey that the two situations do not need to be read together to give meaning to both.
Instead, they are related to each other in that each imputes the element of probable
cause. The first situation authorizes a municipal police officer to respond across
jurisdictional lines to assist another officer who, in addressing specific ongoing criminal
activity, requests aid or assistance.13 The second situation allows extraterritorial policing
13 In Hlubin’s view, with which we agree, classic requests for aid or assistance
encompassed by the first situation in subsection 8953(a)(3) involve calls over police radio
from an officer seeking assistance in detaining a fleeing burglary or robbery suspect, such
as in Commonwealth v. Palagonia, 868 A.2d 1212 (Pa. Super. 2005) (burglary) and
Commonwealth v. Peppers, 515 A.2d 971 (Pa. Super. 1986) (robbery). Hlubin’s Brief at
27-28. We further note that it authorizes extraterritorial policing in the circumstances
involved in Novick and Bable, which, under the prior statute, were not encompassed by
the hot pursuit exception. See supra n.11.
[J-71-2018] - 21
if a municipal police officer otherwise (i.e., other than by request) has probable cause to
believe that the other officer is in need of aid or assistance in addressing a specific
criminal episode. The General Assembly’s use of the words “or otherwise” to describe
the second situation compels this interpretation. Under the Commonwealth’s preferred
interpretation, the first situation broadly refers to any request for aid or assistance by an
officer in another jurisdiction while the second situation is narrowly tailored to a
circumstance where the officer has probable cause that the other officer is in need of aid
or assistance. This interpretation, however, treats the word “otherwise” as unnecessary
surplusage without any interpretative value. Our basic statutory construction principles
forbid this practice. See, e.g., 1 Pa.C.S. § 1921(a) (“Every statute shall be construed, if
possible, to give effect to all its provisions.”); Reginelli v. Boggs, 181 A.3d 293, 305 (Pa.
2018); Burke by Burke v. Independence Blue Cross, 171 A.3d 252, 260 (Pa. 2017).
Giving meaning to the General Assembly’s inclusion of the word “otherwise” necessitates
that the reference to “probable cause” applies to both the first and second situations in
the subsection – and thus to instances where aid and assistance is requested or where
provided in response to a belief that another officer is in need of the same. The reference
to “probable cause,” in turn, connotes ongoing criminal activity or a crime in progress, as
the term invokes the well-known legal standard applicable to the commission of criminal
offenses. See, e.g., Commonwealth v. Burno, 154 A.3d 764, 781 (Pa. 2017) (explaining
that probable cause exists when “the facts and circumstances within the police officer's
knowledge and of which the officer has reasonably trustworthy information are sufficient
in themselves to warrant a person of reasonable caution in the belief that an offense has
been committed by the person to be arrested.”).
[J-71-2018] - 22
We further reject the Commonwealth’s preferred interpretation of subsection
8953(a)(3) because it is entirely at odds with this Court’s repeated insistence that the
exceptions to the MPJA must not “adversely affect the ultimate goal of maintaining
police accountability to local authority.” See, e.g., Merchant, 595 A.2d at 1139
(emphasis added). The Commonwealth’s interpretation, which would permit police
officers to cross jurisdictional lines in response to any request for aid or assistance
(including those unrelated to any particular criminal activity), is so broad that it essentially
eliminates local governing bodies from the decision-making process with respect to the
deployment of the police officers that they employ. If police departments may agree,
without legislative approval by their local governing bodies, to commit their police officers
to cooperative efforts with other police departments, then police departments, rather than
local governing bodies, effectively exercise control over the municipality’s expenditures,
allocation of personnel, as well as exposing the municipality to a potential liability that
may arise from the extra-jurisdictional activity. Merchant and our holding in this case
recognize the limits of the specifically authorized extraterritorial policing and the place of
intergovernmental agreements to effectuate broader arrangements for cooperation in
policing functions. For these reasons, we conclude that subsection 8953(a)(3) does not
authorize police officers to cross jurisdictional lines to participate in pre-arranged sobriety
checkpoints.
The Superior Court also suggested that the exception in subsection 8953(a)(4) of
the MPJA might also have authorized Sergeant Ogden’s participation in the September
28, 2013 sobriety checkpoint at issue here. Hlubin, 165 A.3d at 7 n.9. That court
reasoned that subsection 8953(a)(4) is applicable because Police Chief Vietmeier of
[J-71-2018] - 23
Robinson Township gave Sergeant Ogden his consent to participate in the sobriety
checkpoint in Robinson Township “as a member of the Task Force executing a joint DUI
checkpoint.” Id. Pursuant to subsection 8953(a)(4), the police officer must have prior
consent to enter the other jurisdiction from the chief law enforcement officer of the political
subdivision which is beyond the police officer’s primary jurisdiction “for the purpose of
conducting official duties which arise from official matters within his primary jurisdiction.”
42 Pa.C.S. § 8953(a)(4). We need not engage in any extended interpretative analysis of
this exception, however, as it plainly cannot apply with respect to conducting sobriety
checkpoints in another jurisdiction. Sergeant Ogden did not receive permission to enter
Robinson Township to perform any “official duties” relating to any official matters arising
“within his primary jurisdiction” of Moon Township. The record contains no evidence that
Sergeant Ogden observed Hlubin driving while intoxicated in Moon Township and then
obtained Chief Vietmeier’s consent to enter into Robinson Township to effectuate her
arrest. Simply put, Sergeant Ogden was not in Robinson Township to perform any police
duties associated with any official matters that “arose in his primary jurisdiction.”
The Superior Court erred in concluding that the exceptions in subsections
8953(a)(3) and/or 8953(a)(4) authorized any police officers, including Sergeant Odgen,
to cross jurisdictional lines to participate in a sobriety checkpoint in Robinson Township.
To conduct the type of sobriety checkpoint at issue in this case, a multi-jurisdictional task
force must be authorized by a joint agreement that complies with the requirements of the
ICA. Such compliance assures that DUI checkpoints allow police to generally promote
public safety by removing intoxicated drivers from our roads, and ensures that the
[J-71-2018] - 24
governing bodies of the participating municipalities retain local control over their police
forces.
II. Remedy
Hlubin contends that suppression is the required remedy because the police
officers conducting the sobriety checkpoint, including Sergeant Ogden, acted without any
authority conferred by either an ICA agreement or the MPJA. Hlubin’s Brief at 35.
Following the rationale of the Superior Court, the Commonwealth instead argues that at
most a “technical violation” of the MPJA occurred and that, accordingly, we should apply
the three-part test set forth in O’Shea. Commonwealth’s Brief at 45-48. The
Commonwealth submits that Sergeant Ogden’s brief detention of Hlubin was “more than
reasonable” and non-prejudicial, and that as a result suppression is not warranted. Id.
In O’Shea, in the course of investigating a murder, City of Pittsburgh police
detectives went to a suspect’s home in another jurisdiction, Shaler Township. The
detectives asked questions of the suspect’s family and, with the family’s consent, entered
and searched the home. Shortly thereafter, the suspect arrived home and voluntarily
accompanied the detectives to the Pittsburgh Public Safety Building, where he confessed
to the murder. O’Shea, 567 A.2d at 1028-29. The suspect later contended that the
detectives violated the MPJA when they pursued their investigation in Shaler Township.
This Court disagreed and stated that the detectives’ unobtrusive police conduct was
“outside the scope of 8953” and thus “not illegal[.]” Id. at 1029. The Court concluded that
while the detectives’ entry into Shaler Township was not specifically authorized by any
section 8953(a) exception to the MPJA, it was also not expressly prohibited by any of
these exceptions. Id. To the contrary, the Court acknowledged that any private citizen
[J-71-2018] - 25
could do precisely what these detectives had done (go to Shaler Township to ask
questions at the residence in question and search the home with consent), and thus
indicated that “we will not prohibit police officers from doing that which a private citizen
could do.” Id. Accordingly, the O’Shea Court held that the detectives had not violated
the MPJA or otherwise committed any constitutional violation whatsoever. Id. at 1029-
30.
Having determined that the detectives did not lack statutory authority under the
MPJA to enter Shaler Township, and that their search of the residence did not violate any
provision of the Pennsylvania or United States Constitutions, the Court alternatively
addressed the suppression court’s rationale that even if the detectives had violated the
MPJA, suppression was not required. Id. at 1030. Relying principally on Commonwealth
v. Mason, 490 A.2d 421 (Pa. 1985), a case involving the extraterritorial service of an
arrest warrant in violation of the Pennsylvania Rules of Criminal Procedure, the Court
held that suppression was not required where “said violation did not implicate
fundamental, constitutional concerns, was not conducted in bad faith or did not
substantially prejudice the accused in the sense that the search would not otherwise have
occurred or would not have been as intrusive.” Id. at 1030 (citing Mason, 490 A.2d at
426). The O’Shea Court approved of a case-by-case three-factor test to determine the
remedy for violations of the MPJA which considers “all of the circumstances of the case
including the intrusiveness of the police conduct, the extent of deviation from the letter
and spirit of the [MPJA], and the prejudice to the accused.” Id.
In applying the O’Shea test in the present case, we reach a result contrary to that
of the Superior Court, as we conclude that all three factors weigh in favor of suppression.
[J-71-2018] - 26
With respect to the test’s first factor, the intrusiveness of the police conduct, O’Shea, 567
A.2d at 1030, the Superior Court pointed to Sergeant Ogden’s testimony that stops at the
task force’s checkpoints “lasted only 30 to 45 seconds in length and involved officers first
identifying themselves, asking for a driver's identifying documents (license, registration
and insurance), and posing limited follow-up questions.” Hlubin, 165 A.3d at 9 (citing
N.T., 3/13/15, at 26–27). This testimony, however, is irrelevant to the application of the
first O’Shea factor, as it describes only the level of intrusiveness (or lack thereof) of a
checkpoint stop that does not result in any additional investigative measures, i.e., the
driver is permitted to leave the checkpoint immediately after providing identifying
documents and answering limited follow-up questions. In the sobriety checkpoint context,
the first O’Shea factor must instead measure the level of intrusion of a stop that results in
an arrest, since only in this circumstance does the issue of possible suppression of
evidence arise. Here, based upon his initial questions and observations, Sergeant Ogden
removed Hlubin from her vehicle and took her to a testing area, where she was subjected
to field sobriety testing, blood testing and arrest. N.T., 3/13/15, at 33-34, 62-68. Without
question, the interaction between Sergeant Ogden and Hlubin resulted in a high level of
intrusiveness for Hlubin.
With respect to the second factor, the extent of deviation from the “letter and spirit
of the [MPJA],” O’Shea, 567 A.2d at 1030, the Superior Court again erred in its analysis.
The intermediate appellate court, citing to the task force’s policies and procedures
guidelines, stated that sobriety checkpoints “furthered the purpose of the MPJA by
‘reduc[ing] the accidental death, injury and property-damage resulting from motor vehicle
crashes involving intoxicated and chemically impaired operators ... decreas[ing] the
[J-71-2018] - 27
number of intoxicated and chemically impaired offenders on the highways of the member
communities by conducting sobriety checkpoints.’” Hlubin, 165 A.3d at 9 (citing Ex. 1 at
2. While this may be a generally accurate statement of the purpose of sobriety
checkpoints, it is not in any respect an accurate statement of the “letter and spirit of the
[MPJA].”
In Merchant, this Court held that the goals of the MPJA are “the promotion of public
safety while maintaining jurisdictional police lines” and to “expand the powers of local
police to protect the public, where such expansion would not adversely affect the ultimate
goal of maintaining police accountability to local authority.” Merchant, 595 A.2d at 1139.
The presence of municipal police officers from a large number of municipalities
converging at a single location to conduct extraterritorial policing activities without the
approval of the governing bodies of their respective townships, neither promotes the
maintenance of jurisdictional lines nor preserves accountability to local authority. The
MPJA allows extraterritorial policing only in “six specific circumstances.” Id. (emphasis
in original); see also Commonwealth v. Ebersole, 492 A.2d 436, 438 (Pa. Super. 1985)
(stating that one of the purposes of the MPJA is “to provide police officers with authority
to make arrests outside of their primary jurisdictions in limited situations.”) (emphasis
added). Where municipal police officers leave their primary jurisdictions to participate in
task force activities on a regular basis in other jurisdictions, jurisdictional lines are not
maintained but rather are obliterated. Moreover, as explained hereinabove, where this
extraterritorial activity has no advance legislative approval or legal oversight, there is
plainly no accountability to local authority.
[J-71-2018] - 28
The third factor requires consideration of the prejudice to the accused, which we
defined in O’Shea to require consideration of whether “the search would not have
otherwise occurred or would not have been as intrusive.” O’Shea, 567 A.2d at 1030. On
the current record, this factor also weighs in favor of suppression. Sergeant Ogden
testified that the sobriety checkpoint that resulted in Hlubin’s arrest required the
participation of twenty-five police officers to conduct it. N.T., 3/13/2015, at 15. He did not
indicate, however, how many extraterritorial officers were required to fill this quota on the
night in question. As a result, on this record there is no way to determine whether the
sobriety checkpoint operation at issue here could have been conducted at all without the
participation of Sergeant Ogden and other extraterritorial officers. Accordingly, absent
multiple violations of the MPJA, there may have been no sobriety checkpoint in Robinson
Township on September 29, 2013 and thus no stop of Hlubin on that occasion. Moreover,
the task force’s policies and procedures manual provides that Sergeant Ogden, as the
task force’s grant coordinator, was required to be present at every sobriety checkpoint
conducted by the task force. Commonwealth Exhibit 1 at 2 (“The Grant Coordinator shall
be present to oversee every checkpoint operation… .”), and at 3 (“The Grant Coordinator
will be present at all checkpoint operations… .”). As such, without Sergeant Ogden’s
unauthorized presence at the Robinson Township sobriety checkpoint, it could not have
taken place and Hlubin would not have been stopped. The extraterritorial efforts of
Sergeant Ogden, among others, were therefore prejudicial to Hlubin, as it is likely that
there would not have been a sobriety checkpoint in Robinson Township to stop and arrest
her, absent multiple violations of the MPJA. Thus, the analysis under the three-factor
[J-71-2018] - 29
O’Shea test leads to the suppression of the evidence derived from the illegal detention
and arrest.
III. Continued Vitality of O’Shea
We recognize that since our decision in O’Shea, the Superior Court has on several
occasions applied O’Shea’s three-factor test to determine whether evidence obtained as
a result of an MPJA violation should be suppressed. See, e.g., Commonwealth v.
Bergamasco, 197 A.3d 805, 813 (Pa. Super. 2018); Commonwealth v. Borovichka, 18
A.3d 1242, 1250 (Pa. Super. 2011); Commonwealth v. Hilliar, 943 A.2d 984, 992 (Pa.
Super. 2008); Commonwealth v. Henry, 943 A.2d 967, 973 (Pa. Super. 2008);
Commonwealth v. Peters, 915 A.2d 1213, 1222 (Pa. Super. 2007); Commonwealth v.
Chernosky, 874 A.2d 123, 129-30 (Pa. Super. 2005) (en banc); Commonwealth v.
McPeak, 708 A.2d 1263, 1267 (Pa. Super. 1998); Commonwealth v. Garnett, 613 A.2d
569, 572 (Pa. Super. 1992); Commonwealth v. Fetsick, 572 A.2d 793, 797 (Pa. Super.
1990)..
While the parties to the present appeal have not asked this Court to overrule
O’Shea and raise no arguments to suggest that it has been overruled by implication, for
the reasons that follow, however, we are unwilling to expressly condone the continued
application of its three-factor test.
First, we note that this Court has never again applied the O’Shea test in any
subsequent suppression case involving a violation of the MPJA. More pointedly, in the
one case to raise this issue since we decided O’Shea in 1989, Commonwealth v.
McCandless, 648 A.2d 309 (Pa. 1994), this Court conspicuously did not apply it. In
McCandless, after concluding that the police officer lacked any statutory authority to cross
[J-71-2018] - 30
a municipal boundary under subsection 8953(a)(2) of the MPJA to follow a driver on
suspicion (but not probable cause) of speeding, this Court summarily reversed the
Superior Court’s decision that the evidence of speeding should not have been
suppressed. Id. at 311 (“Appellant's motion to suppress was, therefore, properly granted
by the lower court. In reversing, the Superior Court erred.”). We did so without
referencing the three-factor case-by-case test adopted in O’Shea to determine whether
suppression is the appropriate remedy for violations of the MPJA. In dissent, then-Justice
Castille protested that “the majority fails even to cite to O’Shea[,]” in “disregard of its
reasoning … adopted only five years ago.” Id. at 313 (Castille, J., dissenting).
Second, in cases decided since McCandless, this Court has consistently held that
when individuals engage in criminal law enforcement activities without any statutory
authority to do so, evidentiary suppression is the remedy for any and all breaches. 14
14 Contrary to Chief Justice Saylor’s contention in his Concurring and Dissenting Opinion,
the present Opinion does not “effectively overrule” the O’Shea test. That test was
“effectively overruled” by our 1994 decision in McCandless, where, over the pointed
objection of a dissenting Justice, we did not even mention it in a circumstance where its
application would have been patently obvious if the test had any continuing vitality. We
have not applied the test on a single occasion in the twenty-five years since McCandless
was decided. Rote application of O’Shea under these circumstances would require that
we turn a blind eye to our own precedent.
The reason for the Chief Justice’s continuing attachment to the O’Shea test is not entirely
clear, particularly given his call for statutory interpretation to resolve these jurisdictional
issues. Concurring and Dissenting Op. at 2. The O’Shea test is a straightforward test of
“good faith,” measuring the degree of intrusiveness and extent of deviation from the MPJA
against the resulting prejudice. As such, it is antithetical to the notion of interpreting the
statutory language of the MPJA. Section 8952 provides municipal police officers with
extensive powers to act within their primary jurisdiction, but section 8953 makes clear that
these powers may only be exercised outside of the primary jurisdiction in circumstances
where one of the six specific exceptions in section 8953(a) applies. See infra at 34-35.
Rather than apply the unambiguous language of the MPJA, O’Shea allows courts to
ignore the clear jurisdictional lines drawn by the General Assembly.
[J-71-2018] - 31
Commonwealth v. Mathis, 173 A.3d 699, 706-07 (Pa. 2017).15 In Commonwealth v.
Marconi, 64 A.3d 1036 (Pa. 2013), for example, we held that sheriffs lack any statutory
authority under the Motor Vehicle Code (“MVC”) to conduct sobriety checkpoints, as
section 6308(b) of the MVC limits authorization to conduct such activities to “police
officers.” Id. at 1043-44. Noting that the MVC defines “police officer” as a “natural person
authorized by law to make arrests for violations of law,” 75 Pa.C.S. § 102, and concluding
that sheriffs’ common-law peacekeeping powers did not satisfy this definition, we agreed
with the Superior Court’s decision to affirm the trial court’s grant of suppression. Marconi,
64 A.3d at 1044.
In other cases, we vacated the Superior Court’s decision to deny suppression after
we rejected a sheriff's claim of authority to conduct independent investigations pursuant
to the Controlled Substance, Drug, Device and Cosmetic Act, Commonwealth v. Dobbins,
934 A.2d 1170 (Pa. 2007); we suppressed evidence obtained pursuant to a traffic arrest
conducted by a constable after concluding that constables have no statutory authority to
enforce motor vehicle laws, Commonwealth v. Roose, 710 A.2d 1129, 1130 (Pa. 1998);
and similarly suppressed evidence after concluding that FBI agents lack any statutory
authority to stop and arrest a motorist for MVC violations, Commonwealth v. Price, 672
A.2d 280 (Pa. 1996); see also Kopko v. Miller, 892 A.2d 766 (Pa. 2006) (explaining that
sheriffs do not have criminal investigative and arrest authority relative to the Wiretapping
15 In Mathis, the Court did not suppress evidence obtained pursuant to a Terry frisk of a
non-offender by a parole agent during the course of his supervisory duties with regard to
a parolee despite the lack of express authority to do so. In so doing, however, we
distinguished the situation in that case from the “lack of statutory authorization cases cited
here, on the grounds that the Terry search was conducted solely for the safety of the
agent and not for the discovery of evidence of crime or any exercise of criminal
investigative powers.” Id. at 710.
[J-71-2018] - 32
and Electronic Surveillance Control Act). We know of no principled reason why we should
treat the actions of municipal police officers lacking statutory authorized under the MPJA
any differently than statutorily unauthorized actions of sheriffs, constables or FBI agents.
This Court has also addressed the propriety of the suspension of a driver’s license
where the evidence supporting the suspension was obtained as a result of a violation of
the MPJA. ln Martin v. Commonwealth, Dept. of Transp., Bureau of Licensing, 905 A.2d
438 (Pa. 2006), a municipal police officer, without any authority to do so under the MPJA,
crossed a municipal line to follow a driver that he suspected (but lacked probable cause)
of speeding. Id. at 439. After stopping the vehicle, the officer observed signs of
intoxication and requested that the driver submit to field sobriety testing. Id. She refused
and began to walk away, at which time the officer arrested her for DUI. Id. At a booking
center, she refused to submit to chemical testing. Id. In reviewing the suspension of her
driver’s license under the Implied Consent Law, 75 Pa.C.S. § 1547, this Court agreed
with the trial court that the officer lacked authority under the MPJA to pursue and arrest
appellant in an adjoining jurisdiction. Id. at 446. Based upon this determination, we
further concluded that the officer lacked the authority to implement the Implied Consent
Law. Id. at 448. As a result, we ruled that the appropriate remedy was to reinstate the
trial court’s order invalidating the license suspension. Id.
In so ruling, we followed our prior decision in McKinley v. Commonwealth, Dep’t of
Transp., Bureau of Driver Licensing, 838 A.2d 700 (Pa. 2003), a case involving an
extraterritorial stop by a corporal of the Harrisburg International Airport of a motorist he
suspected of DUI. Upon determining that the encounter took place beyond the corporal’s
territorial jurisdiction, this Court invalidated the driver’s license suspension. Id. at 706
[J-71-2018] - 33
(holding that “as the Legislature has circumscribed their police authority,” the airport
police lack “the ability to act as a police officer in the implementation of the Implied
Consent Law outside territorial boundaries, in the absence of an express, legislative grant
of extraterritorial authority”). With respect to our decisions in both Martin and McKinley,
we recognize that suppression of evidence in the criminal context is not precisely on the
same footing as the suspension of driver’s licenses. We perceive no good explanation,
however, as to why, in circumstances in which statutory authority to act is lacking, the
lenient standard for avoiding the remedy of suppression of evidence associated with
criminal arrests under the O’Shea three-factor test (implicating the constitutional rights of
the accused) would not have also applied to civil penalties under the Implied Consent
Law if the O’Shea test had any continued vitality.
IV. Conclusion
Section 8952 of the MPJA provided Sergeant Ogden, as a municipal police officer,
with extensive powers to act within his primary jurisdiction, including to “enforce the laws
of this Commonwealth or otherwise perform the functions of that office” as to any offense
which he viewed or otherwise had probable cause to believe was committed within his
primary jurisdiction, or any other event that occurs within his primary jurisdiction to
“preserve, protect or defend persons or property or to otherwise maintain the peace and
dignity of this Commonwealth.” 42 Pa.C.S. § 8952. Section 8953(a) of the MPJA,
however, limited his exercise of these powers outside of his primary jurisdiction to
circumstances where he left his primary jurisdiction based upon one of the six specific
exceptions set forth therein. 42 Pa.C.S. § 8953(a). Section 8953(b) makes clear that the
powers described in section 8952 may be exercised outside of a municipal police officer’s
[J-71-2018] - 34
primary jurisdiction only where one of the six exceptions set forth in section 8953(a)
applies. 42 Pa.C.S. § 8953(b) (“Nothing contained in subsection (a) shall be deemed to
extend or otherwise enlarge a municipal police officer's power and authority to arrest any
person for an offense unless specifically authorized by law.”).
Based upon the clear language of these provisions of the MPJA and our conclusion
that no exception in section 8953(a) applied here to permit Sergeant Ogden to leave his
primary jurisdiction of Moon Township to participate in a sobriety checkpoint in Robinson
Township, we must conclude that he lacked any authority to exercise the powers of a
municipal police officer when he did so. On the night in question, Sergeant Ogden pulled
Hlubin over and detained her. He requested her driver’s license and questioned her. The
Commonwealth does not contest that his actions constituted a detention and played a
significant role in developing probable cause to arrest and charge her with DUI. Because
the task force in which Sergeant Ogden was participating was not authorized by a joint
agreement compliant with the ICA, and because his actions were not authorized pursuant
to an exception under MPJA, all evidence gathered at the sobriety checkpoint against
Hlubin must be suppressed.
The order of the Superior Court is hereby reversed.
Justices Todd and Wecht join the opinion in full, and Chief Justice Saylor and
Justices Baer and Dougherty join Parts I and IV.
Chief Justice Saylor files a concurring and dissenting opinion in which Justices
Baer and Dougherty join.
Justice Mundy files a dissenting opinion.
[J-71-2018] - 35
|
64 F.2d 634 (1933)
O'DONNELL
v.
COMMISSIONER OF INTERNAL REVENUE.[*]
No. 7002.
Circuit Court of Appeals, Ninth Circuit.
April 10, 1933.
Thomas R. Dempsey and A. Calder Mackay, both of Los Angeles, Cal., for petitioner.
Sewall Key, John H. McEvers, and Wm. Cutler Thompson, Sp. Assts. to Atty. Gen. (C. M. Charest, Gen. Counsel, and Alva C. Baird, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for respondent.
Before WILBUR, SAWTELLE, and MACK, Circuit Judges.
WILBUR, Circuit Judge.
Petitioner seeks to review a decision of the Board of Tax Appeals fixing a deficiency tax of $39,731.98 upon petitioner's income for the year 1923. The principal question in the case is whether or not the royalty of $114,908.31, upon which the deficiency is based, is income or is a return of capital, and this in turn depends upon the value of one-third of the capital stock of the San Gabriel Petroleum Company, owned by the petitioner, and upon the value of options upon the other two-thirds of that stock, all of which were exchanged for the royalty agreement to petitioner from which the amount above mentioned ($114,908.31) was received by the petitioner in 1923.
With the exception of this value all the facts were stipulated. The Board of Tax Appeals upon this disputed question found that the value of the above-mentioned property, exchanged by the petitioner for the royalty agreement, was not in excess of the royalties therefrom received by the petitioner prior to 1923, to wit, $413,672.14, and consequently held that the petitioner, having recovered his capital investment before the taxable year here involved, was chargeable with the amounts received in 1923 as income. The petitioner contends that this finding is not based on the evidence before the Board of Tax Appeals, and, since the burden of showing the value of this property was on the Commissioner, contends that the finding is erroneous.
A brief summary of the facts is necessary to explain the situation. In March, 1917, the petitioner and M. L. and L. A. McCray, for a nominal consideration, secured five development oil leases. In June, 1917, they transferred these leases to a corporation organized by them, the San Gabriel Petroleum Company, for all its capital stock, each receiving one-third thereof. On December 24, 1917, and December 31, 1917, respectively, petitioner secured, for nominal consideration, six-day options to purchase the remaining two-thirds of the stock, one-third owned by M. L. and one-third owned by L. A. McCray, for $75,000, to be paid to each of them for his one-third of the stock. Each option provided that the petitioner should assume all the outstanding indebtedness of the San Gabriel Petroleum Company, including a note to the bank for $45,000, in the event the option was exercised, thus relieving the sellers of their statutory stockholders' liability. Both options were to expire on January 6, 1918. On January 4, 1918, petitioner assigned both options to the Petroleum Midway Company, Limited, and on January 7, 1918, the day after the options expired, that company entered into an agreement with M. L. and L. A. McCray by which it assumed all the obligations *635 that were to be imposed upon petitioner, in the event that he had exercised the options, which agreement also recited that the petitioner had agreed to sell to it his one-third stock in the San Gabriel Petroleum Company. On January 9, 1918, petitioner entered into a separate agreement with the Petroleum Midway Company, Limited, at the time he transferred his one-third of the stock of the San Gabriel Petroleum Company to it, by which that company assumed the burden of developing the property covered by the leases, agreed to pay all the outstanding liabilities of the San Gabriel Petroleum Company and to pay to the petitioner one-third of the income from the oil properties after deducting therefrom the cost of development and the amount of the San Gabriel Company's outstanding obligations paid by the Petroleum Company, Limited, with 6 per cent. interest thereon.
Now it is evident that the parties to this transaction all considered that one-third of the stock of the San Gabriel Company was worth $75,000 over and above the obligations of the company during the period from December 31, 1917, to January 9, 1918, when the deal was consummated. L. A. McCray and M. L. McCray each accepted that amount for his speculation. The only difference between the McCrays and the petitioner is that the latter was willing to accept, or rather to retain, his interest in the speculation, freed from its obligations. The purchaser accepted this situation, assumed all the burdens of development, and paid the McCrays $75,000 each and agreed to pay to the petitioner a third of the net income derived from the leases after payment of expenses. The petitioner has not only rcovered his $75,000, which puts him on an equality with his joint venturers, but had received in addition $338,672.14 prior to 1923 and received $114,908.31 in 1923. These facts point to the conclusion that $75,000 was the reasonable value of the property exchanged by petitioner on January 9, 1918, for the royalty interest he retained in the income derived from the oil properties, in the absence of testimony pointing to a different conclusion, such as the discovery of oil between December 31, 1917, and January 9, 1918, and justified the finding of the Board of Tax Appeals. The finding of the Board of Tax Appeals that the value of this property exchanged for the royalty agreement was not in excess of $413,672.14 amounts in effect to a finding that petitioner had theretofore recovered his capital investment in said royalty agreement and the stipulation of facts supports that finding. This is the fact with which the Board of Tax Appeals was particularly concerned and not the exact value of the property exchanged for the royalty agreement.
Another question remains to be determined. The petitioner assigned his royalty interest under his contract with the Petroleum Midway Company, Limited, to the Security Trust & Savings Bank, as trustee, under trust No. 5106, on July 25, 1919, which received and disbursed the income under said contract in the total amount of $348,986.66 up to and including December 31, 1922. During the year 1923 the trustee received $31,760.15 up to April 9, 1923, under trust No. 5106, which was revoked on that date and a new trust (No. 5549) substituted, changing the beneficiaries and the amounts they were to receive, under which the trustee received $83,984.08 during the balance of the year. The petitioner claims that he is not taxable for the income thus received and distributed by the trustee.
Under the Revenue Act of 1924 (43 Stat. 253, 275, 277) the income would be properly taxed to the creator of the trust (section 219 (h), 26 USCA § 960 note). Corliss v. Bowers, 281 U. S. 376, 50 S. Ct. 336, 337, 74 L. Ed. 916. While it is true that section 219 (h) of the Revenue Act of 1924 was not expressly made retroactive, it is generally considered to be merely a declaration and clarification of existing law and not a change of legislative intent. Stoddard v. Eaton (D. C.) 22 F.(2d) 184; McCauley v. Commissioner (C. C. A.) 44 F.(2d) 919; Dickey v. Burnet (C. C. A.) 56 F.(2d) 917, 920. As was said by the Supreme Court in Corliss v. Bowers, supra, "The income that is subject to a man's unfettered command and that he is free to enjoy at his own option may be taxed to him as his income, whether he sees fit to enjoy it or not."
We think that, as the income received by the trustee was at all times under the control of petitioner by reason of his power of revocation, the petitioner is liable for the tax thereon. This case comes within the principles announced by the Supreme Court in Lucas v. Earl, 281 U. S. 111, 50 S. Ct. 241, 74 L. Ed. 731, and Burnet v. Leininger, 285 U. S. 136, 52 S. Ct. 345, 76 L. Ed. 665, which we recently applied to the situation developed in Daugherty v. Commissioner of Internal Revenue (C. C. A.) 63 F.(2d) 77, decided January 30, 1933.
Affirmed.
NOTES
[*] Rehearing denied June 2, 1933.
|
476 So.2d 432 (1985)
UNITED LAND INVESTORS, INC., Plaintiff-Appellee,
v.
The NORTHERN INSURANCE COMPANY OF AMERICA, Defendant-Appellant.
No. 17162-CA.
Court of Appeal of Louisiana, Second Circuit.
September 25, 1985.
*433 Cook, Yancey, King & Galloway by Steven H. Beadles, Shreveport, for appellant.
Rogers & White by David White & Graham W. Rogers, Bossier City, for appellee.
Before HALL, MARVIN, LINDSAY, JJ.
LINDSAY, Judge.
Defendant, The Northern Insurance Company of America, appeals from the *434 judgment of the trial court in favor of plaintiff, United Land Investors, Inc., in the action of plaintiff-restaurant owner to recover for loss of earnings under a business interruption clause in an insurance policy issued by the defendant to plaintiff after plaintiff's restaurant was damaged by fire, causing the restaurant to be closed for an extended period of time until it was repaired. For the following reasons, we amend and affirm the trial court judgment.
FACTS
Plaintiff was the operator of a Shreveport restaurant, Amendment XXI, and was insured by defendant against fire loss. The policy provided coverage for loss of the building and loss or damage to the contents. It also provided business interruption coverage up to $60,000.00 for loss of earnings, as those terms were defined in the policy.
On November 8, 1981, plaintiff's business burned. After the fire, various estimates were obtained to pay for damage to the building and its contents, as well as the amounts due under the business interruption clause of the policy. The amounts to be paid by the defendant and accepted by plaintiff had not been resolved by December 22, 1981 so a meeting took place on that date. At that meeting, plaintiff's principal stockholders were present, with their attorney. The defendant was represented by its claim adjuster. At that meeting, it became apparent that disputes existed as to the sums to be paid under the policy, and there was concern as to the accuracy of plaintiff's proof of loss. As a result of that meeting on December 22, 1981, and because the total amounts to be paid under the policy had not been resolved, but recognizing its obligation to pay under the policy, defendant advanced to plaintiff the sum of $25,000. Of this amount, $10,000 was to be credited as compensation for lost earnings, the balance being advanced for replacement and repair of contents. Defendant ultimately paid for all damage to the building and contents and plaintiff does not dispute recovery on these claims.
With respect to the plaintiff's claim for loss of earnings under the business interruption clause of this policy, defendant determined plaintiff suffered a loss of earnings of $18,227.83 and on March 5, 1982, defendant presented to plaintiff what it determined to be the total amount due under the policy for all losses. Plaintiff accepted the payments made by the defendant for damage to the building and contents. However, plaintiff rejected the payment which was offered for loss of earnings, claiming it was due the policy limit of $60,000.00.
The primary issues presented by this litigation are (1) the proper method for calculating the amount of business interruption losses and, (2) the time period for which those losses were to be paid. Plaintiff contends that under the policy, it was entitled to $9,960.00 every 30 days up to $60,000.00.[1] Since the loss occurred in November, 1981 and repairs did not begin until March, 1982, when defendant tendered and plaintiff accepted the full sum necessary to make the repairs, plaintiff argued it was due the policy limit on loss of earnings. Defendant argued plaintiff could have begun the repairs as soon as the cash advance was made in December, 1981. The evidence revealed and the trial court found that repairs could be made within 12 weeks. Defendant's accountant devised a mathematical formula under the terms of the policy aimed at calculating the plaintiff's actual loss of earnings and arrived at the conclusion that plaintiff was due $18,227.23 for loss of earnings during this 12 week period.
Plaintiff filed suit to recover the $60,000 policy limit for loss of earnings subject to a $10,000 credit for the cash advance and also sought penalties and attorney fees, *435 claiming defendant's failure to pay was arbitrary, capricious, and without probable cause. Defendant answered, denying plaintiff's allegations and asserted that the amount of earnings actually lost by plaintiff was $18,227.83.
TRIAL COURT JUDGMENT
The trial court found the business interruption clause of the policy to be ambiguous and construed it in favor of the plaintiff. The court found that plaintiff had fixed monthly expenses of approximately $13,000, which exceeded the policy limit of $60,000 and that the twelve week period in which plaintiff was to make repairs did not begin to run until March, 1982, when defendant tendered payment for the full amount necessary to make the repairs. Based upon these findings, the trial court awarded plaintiff the total policy limit of $60,000, with a credit to the defendant for $10,000 already paid for this loss.
ASSIGNMENTS OF ERROR
Defendant presents several assignments of error essentially alleging the following:
1. The trial court erred in its calculation of the amount of business interruption losses.
2. The trial court erred in the length of time used to calculate business interruption losses.
The plaintiff answered the appeal alleging the trial court erred in denying plaintiff's claim for penalties and attorney fees.
METHOD OF CALCULATING AMOUNT OF LOST EARNINGS DUE TO BUSINESS INTERRUPTION
The insurance policy issued to plaintiff by defendant contained the following language concerning lost earnings:
1. Subject to all the provisions applicable to Section 1 of this policy, except the co-insurance clause and the deductible clause, this policy is extended to insure against loss of earnings resulting directly from necessary interruption of business caused by the perils insured against damaging or destroying, during the policy period, real or personal property (except finished stock) at the premises described in this endorsement, subject to the limit of liability specified above for the premises of which the damage or destruction occurs. For the purposes of this insurance, "perils insured against" shall mean the perils, as defined and limited in the forms and endorsements listed above, for each premises specified and also subject to the provisions of this endorsement.
2. The company shall be liable for:
a. The actual loss sustained by the insured resulting directly from necessary interruption of business, but not exceeding the reduction in earnings less charges and expenses which do not necessarily continue during the interruption of business, for only such length of time as would be required with the exercise of due diligence and dispatch to rebuild, repair or replace such part of the property herein described as has been damaged or destroyed, commencing with the date of such damage or destruction and not limited by the date of expiration of this policy. Due consideration shall be given for the continuation of normal charges and expenses, including payroll expenses, to the extent necessary to resume operations of the insured with the same quality of service which existed immediately preceding the loss.
"Earnings" are defined in the policy as follows:
5.a. For the purposes of this insurance, "earnings are defined as net profit plus payroll expense, taxes, interest, rents, and all other operating expenses earned by the business.
The trial court found these provisions of the policy to be ambiguous and construed the policy against the defendant. As a result, the trial court found that the plaintiff had monthly fixed expenses exceeding $13,000 and should receive the policy limit of $60,000 for business interruption losses. *436 We find the trial court erred in holding the policy was ambiguous and in finding plaintiff was due the policy limit of $60,000.
No Louisiana cases exist concerning the interpretation of business interruption clauses. However, similar policy provisions and their alleged ambiguity have been dealt with by other courts. Such clauses containing practically identical language to the clause in question here have been found to be unambiguous and constitute the law between the contracting parties. See Rogers v. American Ins. Co., 338 F.2d 240 (U.S.Ct. of App. 8th Cir.1964); Associated Photographers v. Aetna Casualty and Surety Co., 677 F.2d 1251 (U.S.Ct. of App. 8th Cir.1982); Eastern Associated Coal Corp. v. Aetna Casualty and Surety Co., 632 F.2d 1068 (U.S.Ct. of App. 3d Cir.1980).
We hold that the business interruption clause in the policy in this case is unambiguous. The language of the policy sets forth the formula for calculating the amount actually lost by an insured when business is interrupted, and allows the business to remain inthe same financial condition as before the loss. Although the policy is designed to protect the insured, it is also designed to prevent the insured from being placed in a better position than if no loss or interruption of business had occurred.
In determining the amount to be paid for business interruption losses in this case, the record shows that the formula applied by Mr. Paul Sutphen, defendant's expert accountant, correctly applied the clear language of the policy. In order to arrive at a figure for the loss of earnings, paragraph 5(a) of the policy, supra, defining "earnings" is applied to the financial condition of the business. Mr. Sutphen examined the records of the restaurant from April 1, 1981 to October 1, 1981, a period of 214 calendar days, and determined that the restaurant was losing money to the extent of $48,023. Therefore, there was no "net profit." Mr. Stuphen next calculated the "payroll expenses, taxes, interest, rents, and all other operating expenses ..." of the business and found that the total operating expenses of the business were $168,640. However, the books and records of the business revealed that the business had not "earned" all of its expenses because it had operated at a loss of $48,023. Therefore, since $48,023 of the expenses of the business had not been "earned," that figure was deducted from the amount of total operating expenses, leaving the sum of $120,617 of "earnings." Put another way, the total gross sales of the business amounted to only $120,617. On these gross sales of $120,617, it was costing the business $168,640 to remain in operation. At any rate, after arriving at the "earnings" of the business of $120,617 computed as required by paragraph 5(a) of the policy, Mr. Sutphen testified that the next step is to determine the "actual loss" sustained by the insured by reference to paragraph 2(a) of the policy, supra. When the business closed due to the fire, plaintiff experienced a reduction of earnings of $120,617 as previously mentioned. Under paragraph 2(a) of the policy, from the reduction in earnings is deducted those "charges and expenses which do not necessarily continue during the interruption of the business." Mr. Sutphen's review of the books and records revealed non-continuing expenses to be $74,151. This sum was deducted from the total reduction of earnings of $120,617 for a total reduction in earnings of $46,466. This amount, divided by the 214 calendar business days reviewed, revealed an average daily loss of $217.13. (It should be noted that this figure is a few cents higher than the amount testified to by Mr. Sutphen.) Under the terms of the policy, this is the daily business interruption loss suffered by the business while it was not operational.[2]
*437 Plaintiff does not question the accounting methods used by Mr. Sutphen, or his analysis of the books and records of the business. As a matter of fact, the record shows that plaintiff was given every benefit possible in Mr. Sutphen's analysis.
However, it is plaintiff's contention that it is entitled to collect all its "fixed expenses" which it incurred while the business is not in operation. Plaintiff contends that under paragraph 2(a) of the policy, supra, the phrase "due consideration shall be given to the continuation of normal charges and expenses, including payroll expenses, to the extent necessary to resume operations" should be interpreted to mean that all fixed expenses of the business should be reimbursed under the policy. However, plaintiff's calculation of the amount due failed to consider that it could recover only those expenses "earned" by the business. This was required under the terms of the policy. Plaintiff's calculation failed to consider the fact that the business was operating at a loss.
A review of the record shows that Mr. Sutphen properly calculated the expenses which continued and those which did not and thereby gave "due consideration" to the charges and expenses as required by the policy. We conclude that the policy is not ambiguous. Plaintiff is entitled to recover for its loss of earnings as computed under the terms of the policy, rather than to recover all of its "continuing fixed expenses," computed without regard to the specific provisions of the policy.
Having determined that plaintiff's average daily business interruption loss was $217.13 for each day the business was not operational, we next consider the length of time for which defendant was required to pay this business interruption loss.
TIME PERIOD FOR BUSINESS INTERRUPTION
Paragraph 2.a. of the policy, supra, provides that business interruption losses shall be paid, "for only such length of time as would be required with the exercise of due diligence and dispatch to rebuild, repair, or replace such part of the property herein described as has been damaged or destroyed, commencing with the date of such damage or destruction and not limited by date of expiration of this policy." In the context of this case, this policy provision provides that the insurance company shall pay actual losses sustained (as computed under the terms of the policy) from the date of the loss until the building can, with due diligence, be repaired.
Paragraph 3 of the policy provides that the company shall not be liable for more than $9,960 in each consecutive 30 day period following the loss up to a total aggregate limit of $60,000. Although the limit of liability of $9,960 during each 30 day period during which business has been interrupted is 16 2/3 percent, or approximately 1/6 of the total limit of $60,000, there appears to be no six month time limit or "cut-off" date in the policy. The policy provides for a 30-day money limit to be paid until the repairs are made. Therefore, under the terms of the policy, the length of time during which payments are due is the actual length of the business interruption caused by the insured peril. This time may extend until the maximum aggregate policy limit of $60,000 is reached. The period of business interruption for which payments are due may be longer than six months, as it was here.
Defendant argues that plaintiff should have begun repairs immediately after the payment of the cash advance on December 22, 1981. Defendant argues *438 that liability for business interruption losses should be levied only for a twelve week period beginning on November 8, 1981, the date of the loss. However, the policy provisions, "commencing with the date of such damage or destruction" simply refer to the commencement date from which the business interruption loss is to be calculated.
The trial court correctly ruled that plaintiff could not commence repairs until he received the money to complete the work. Until plaintiff and the insurance company had arrived at the amount which was paid, plaintiff was in no position to contract for or begin the repairs to the building. Therefore, plaintiff should recover the business interruption losses from the date of the loss until the repairs were completed 12 weeks after March 5, 1982.
Delay in making payment for structural damage was caused by a combination of factors, including the time necessary for plaintiff to furnish adequate proofs of loss, submission of accurate estimates for repairs by building contractors and the time required for both parties to engage in the negotiations over the amount to be paid. Considering all the factors involved in this case, we find that defendant is liable to plaintiff for the business interruption loss for a total of 202 days at the rate of $217.13 per day, for a total amount of liability of defendant to plaintiff of $43,860.26, with a credit of $10,000 previously paid to plaintiff for this loss.[3]
PENALTIES AND ATTORNEY FEES
In the trial court, plaintiff sought penalties and attorney fees on the undisputed amount of approximately $8,000 due under the business interruption clause. Plaintiff claims defendant was arbitrary and capricious in failing to tender this undisputed amount before March 5, 1982. The trial court denied this demand and plaintiff asserts this as error on appeal. A trial court's conclusion concerning the assessment of statutory penalties is in part a factual determination which should not be disturbed in the absence of a finding that it is manifestly in error. Meshell v. Insurance Company of North America, 416 So.2d 1383 (La.App. 3rd Cir.1982); Cameron State Bank v. American Employers' Insurance Company, 401 So.2d 1090 (La. App. 3rd Cir.1981), writ denied 409 So.2d 674 (La.1981). The trial court's ruling on this issue was not manifestly wrong.
LSA-R.S. 22:658 provides that all insurers shall pay the amount of any claims due an insured within 60 days after receipt of satisfactory proof of loss from the insured. Failure to do so which is arbitrary, capricious, or without probable cause subjects the insurer to a penalty of 12% damages on the total amount of the loss together with reasonable attorney fees. Adequate proof of loss is accomplished when the insurer has adequate knowledge of the loss. Hart v. Allstate Insurance Company, 437 So.2d 823 (La. 1983). To avoid imposition of penalties, the insurer must unconditionally tender to the insured that part of the claim for which there is no dispute. Sibley v. Insured Lloyds, 442 So.2d 627 (La.App. 1st Cir. 1983). This section is penal in nature and should be imposed only in those instances which negate probable cause for non-payment. Moore v. Miller's Mutual Fire Insurance Company of Texas, 406 So.2d 708 (La.App. 2d Cir.1981); Cole v. State Farm Mutual Auto Insurance Company, 427 So.2d 522 (La.App. 3d Cir.1983) writ denied 433 So.2d 710 (La.1983). The burden is on the claimant to prove lack of probable cause, arbitrariness or capriciousness. Batiste v. Pointe Coupee Constructors, Inc., *439 401 So.2d 1263 (La.App. 1st Cir.1981), writ denied 409 So.2d 615 (La.1981).
Testimony at trial indicates defendant contacted an accountant on December 9, 1981 to calculate the amount of liability due under the business interruption clause. On December 17, 1981 the accountant met with plaintiff's bookkeeper. On December 22, 1981, the accountant filed an oral report with the defendant followed by a written report on January 6, 1982. On February 4, 1982, a meeting was held with the accountant, plaintiff, plaintiff's attorney, and an insurance adjuster from the defendant company. Plaintiff and his attorney were not satisfied with the calculations made by the accountant and plaintiff made recommendations toward revising those calculations. Although the accountant did not think the changes were necessary, nevertheless, he incorporated the plaintiff's recommendations and filed a revised report on February 15, 1982. Within less than 30 days, defendant tendered to plaintiff the amount determined to be due under the business interruption clause of the policy. Plaintiff refused the money because it was offered in full settlement of the claim. Defendant then offered the money again on an unconditional basis. However, even up to the date of oral argument before this court, plaintiff has refused to accept defendant's tender. We find that defendant made a timely tender to plaintiff of the undisputed amount due under the business interruption clause and therefore was not arbitrary and capricious in payment of the claim. Further, the record shows that defendant made good faith efforts to bring the claim negotiations to a conclusion. The trial court properly denied plaintiff's request for penalties and attorney's fees.
CONCLUSION
For the reasons stated above, we amend the trial court judgment to reduce the amount thereof to the sum of $43,860.26, with a credit of $10,000 representing the amount previously paid plaintiff on this loss, and as amended, affirm the judgment, costs of the appeal are assessed to the defendant.
AMENDED AND AS AMENDED, AFFIRMED.
NOTES
[1] Paragraph 3 of the policy reads as follows:
3. The company shall not be liable for more than the amount set forth in the limits of liability for each premises above as applicable to "Each 30 Days" for loss in any 30 consecutive calendar days, nor in any event for more than the amount set forth above as in "Aggregate" limit of liability.
[2] The calculations for the loss of earnings of the business are shown as follows:
REDUCTION OF EARNINGS
NET PROFIT $ 0.00
___________
PLUS: OPERATING EXPENSES 168,640.
___________
Subtotal 168,640.
___________
LESS EXPENSES NOT EARNED [ 48,023. ]
___________
EARNINGS 120,617.
___________
POST LOSS EARNINGS 0.00
___________
REDUCTION 120,617.
-----------
LOSS COMPUTATION
REDUCTION IN EARNINGS 120,617.
___________
LESS:
NONCONTINUING EXPENSES [ 74,151. ]
___________
Subtotal 46,466.
___________
DIVIDE: NUMBER OF DAYS 214
___________
AVERAGE DAILY LOSS 217.13
-----------
[3] The evidence showed that on December 22, 1981, plaintiff received a $10,000 advance to be applied on the business interruption loss. Subsequently, defendant tendered a check to plaintiff in the amount of $8,227.83. This check, although tendered by defendant, and made the subject of a discussion during the trial, was never accepted or negotiated by plaintiff. Even as late as the oral argument before this court, the status of the check had not been resolved. Since that check has not been negotiated as of the time of oral argument, it must be returned to defendant.
|
252 S.W.2d 306 (1952)
CARTER
v.
SKELLY OIL CO. et al.
No. 43136.
Supreme Court of Missouri, Division No. 1.
November 10, 1952.
William D. Cosgrove, Kansas City, for appellant.
Carl C. Lovell and C. A. Randolph, Kansas City, for respondent, Skelly Oil Co.
HOLLINGSWORTH, Judge.
This is an action to recover damages in the sum of $40,000 for personal injuries *307 suffered by plaintiff from an explosion of gasoline on premises owned and operated by defendants. The sole question for determination is whether the petition states a cause of action under the res ipsa loquitur doctrine.
Defendants filed separate motions to dismiss upon the ground the amended petition failed to state a cause of action, or, in the alternative, to require plaintiff to specifically plead the negligence with which he charged defendants. The motions to dismiss were overruled, and the alternative motions were sustained. Upon plaintiff's refusal to further plead, the petition was dismissed and judgment entered in favor of defendants. Plaintiff appealed. No brief has been filed in behalf of defendant Scott.
The petition, reduced to narrative, alleged:
On November 8, 1951, defendant Skelly Oil Company, a corporation, owned and operated a service and filling station in Kansas City. Defendant William N. Scott and James Merritt, Jr., now deceased, and then Scott's partner, were agents of Skelly Oil Company in the operation of said station. On said date, plaintiff drove his automobile to the station for service and repairs. Defendants drove the car into their lubrication room and closed the outer doors thereof, and caused the car to be raised upon their hydraulic grease rack. The lubrication room was equipped with a kerosene heating stove; the outdoor temperature was 43 degrees, Fahrenheit. While attempting to repair and service the car, defendants drained approximately ten gallons of gasoline from the car tank onto the concrete floor of the lubrication room. As the gasoline was draining, defendants were pushing it along the floor with a squeegee. Defendants "carelessly and negligently allowed said gasoline to violently explode and catch fire", injuring plaintiff.
Although the petition does not so allege, defendant states, and plaintiff's reply brief impliedly admits, that plaintiff was present in the lubrication room when the explosion occurred.
Much has been written on the doctrine of res ipsa loquitur. The difficulty is not in stating the rule, but in determining its applicability to the facts. "In general and on principle the doctrine res ipsa loquitur does not apply except when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence." McCloskey v. Koplar, 329 Mo. 527, 533, 46 S.W.2d 557, 559, 92 A.L.R. 641. See also Cruce v. Gulf, Mobile & Ohio R. Co., 358 Mo. 589, 216 S.W.2d 78, 80-82; Hart v. Emery-Bird-Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509, 510-512.
It is a matter of common knowledge that gasoline is highly volatile and explosive when exposed to flame or spark and that it must be carefully guarded therefrom. Defendant Skelly Oil Company concedes as much, and suggests: "The necessary spark might have been produced by the fire in the kerosene oil stove, if it were burning, by nails in his [plaintiff's] or the attendant's shoes in walking on the concrete floor, by either smoking or lighting a cigarette, by either turning a light switch, by dropping a tool on the concrete floor, by a running motor in this work shop, and perhaps by other means."
Defendant contends, however, that an explosion such as is charged in the petition is "not unusual or out of the ordinary", citing Kapros v. Pierce Oil Co., 324 Mo. 992, 25 S.W.2d 777, 78 A.L.R. 722; Nomath Hotel Co. v. Kansas City Gas Co., 204 Mo.App. 214, 223 S.W. 975, 981; Kelley v. National Lead Co., 240 Mo.App. 47, 210 S.W.2d 728, 733. Neither of these cases is in point here. In the Kapros case, this court especially noted that the fire there in question started on a driveway accessible to and used by the customers of defendant in driving their cars to defendant's gasoline pumps to have their car tanks filled. The court said of the facts, 25 S.W.2d loc. cit. 781: "In entering the filling station with his automobile's electrical mechanism working and lights burning, the plaintiff passed over the spot where the fire later flared *308 up. He got out and took a position on that spot. He said he was unable to testify whether there was any gasoline or other inflammable substance there, and the attendant says there was none. When the fire started, it was on the ground back of the car, and not on the pump or hose. * * * The testimony of all of plaintiff's witnesses was, furthermore, that no explosion occurred." In the course of the opinion the statement was made, 25 S.W.2d loc. cit. 782: "It cannot be said as a matter of common knowledge that fires ordinarily do not occur at gasoline filling stations except from negligence on the part of the proprietor, especially when automobiles are being charged with gasoline." That statement is made in connection with the facts there under consideration. It is not applicable to the facts here alleged.
In the Nomath Hotel case, supra, specific negligence was alleged and the case was determined on that basis. The Kelley case, supra, did not deal with a fire or explosion and what is said therein is in no way akin to the problem here posed.
Defendant also says that the mere fact that there was an explosion does not make out a prima facie case or raise a presumption of negligence, under the res ipsa loquitur theory. True, the mere fact of the explosion, without more, does not bespeak negligence. Niswander v. Kansas City Gas Co., Mo.App., 181 S.W.2d 165; Nomath Hotel Co. v. Kansas City Gas Co., 204 Mo. App. 214, 223 S.W. 975. If, however, in addition to the explosion, there are other facts and circumstances from which the jury may reasonably infer that the explosion was caused by a flame or spark emanating from an instrumentality under the management and control of defendants, then their negligence may be inferred.
The case of Nelson v. Zamboni, 164 Minn. 314, 204 N.W. 943, is fairly analogous. In that case, plaintiff's decedent was using a toilet in defendant's filling station when an explosion occurred in the building, fatally injuring decedent. There was no direct evidence of its cause. There was evidence that two large gasoline tanks were in the basement. They were not buried as is usually the case. Air pressure was supplied to them by an electrically operated pump controlled by an automatic switch. There was evidence that the switch was uncovered. Plaintiff's theory was that gasoline vapors could come into contact with a spark from the switch. The court held, 204 N.W. loc. cit. 944: "We do say, however, that the case as made by plaintiff was a proper one for the application of the rule of res ipsa loquitur. The accident was of a kind not likely to happen if those in control of the instrumentality use a degree of care commensurate with the danger. The propensity of gasoline to vaporize, and thereby produce material for a violent explosion, is well known and ordinarily controlled by due care. So the mere explosion of a filling station is some evidence that those responsible for its safe operation have failed at some point to exercise due care."
We think the facts pleaded in this case would justify a finding that the explosion here alleged would not ordinarily occur if due care had been exercised.
Defendant further says the danger of explosion and fire from gasoline draining from plaintiff's car to the concrete floor was so open and visible and well known to plaintiff there is no necessity to invoke the doctrine. The draining of the gasoline onto the floor and pushing it with a squeegee is not the negligence charged. While that fact well may denote negligence in the manner of handling such a highly inflammable and explosive substance, yet the negligence charged against defendants is that they "allowed said gasoline to violently explode and catch fire". It does not necessarily follow that plaintiff knows the cause of the explosion simply because he saw gasoline being spilled upon the floor.
It is further contended that defendants did not have exclusive control and management over all of the agencies involved in the occurrence and had no knowledge or means of information of the cause of the explosion superior to that of plaintiff. This contention is based upon the theory that plaintiff was present and that some act of his may have caused the explosion or *309 that by reason of his presence he would have knowledge or means of information as to the cause of the explosion equal to that of defendants.
We are not here concerned with what the evidence may show. We are concerned only with the sufficiency of plaintiff's petition. Generally speaking, the doctrine of res ipsa loquitur has no application to the pleadings. 65 C.J.S., Negligence, § 187(e), p. 895. Rather is it an inference aiding in the proof. Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001, 1003; 38 Am.Jur., Negligence, § 298, p. 994. Where the nature of the case is such that the plaintiff would not be expected to know the exact cause of the precise negligent act producing the occurrence and the facts alleged may reasonably be found to be peculiarly within the knowledge of defendant, the plaintiff is not required to allege the particular cause. Maybach v. Falstaff Brewing Corp., 359 Mo. 446, 222 S.W.2d 87, 92; 38 Am.Jur., Negligence, § 262, p. 954. It is sufficient to invoke the doctrine if plaintiff allege such affirmative facts touching the manner of the happening of the casualty as to negative by fair inference any fact that would make the rule inapplicable. Removich v. Bambrick Bros. Const. Co., 264 Mo. 43, 173 S.W. 686, 690, L.R.A. 1917E, 233. It is only necessary to "allege the facts in a general way, which will give the defendant notice of the character of proof that would be offered to support the plaintiff's case". 38 Am.Jur., Negligence, § 262, p. 954.
The petition does not expressly state that plaintiff's car was placed under the management and control of defendants or that the lubrication room and the equipment therein were under their management and control, or that plaintiff had no knowledge of the precise cause of the explosion. It is not to be commended as a model. Upon specific motion to make more definite and certain in these respects, it should be amended to do so. But it does allege that defendants drove plaintiff's car into their lubrication room, closed the outer doors thereof, caused it to be raised upon their hydraulic grease rack, drained gasoline onto the floor and pushed it with a squeegee and negligently allowed the gasoline to explode. We hold that these allegations, in the absence of motion to make more definite and certain, are sufficient to charge defendants with the management and control of the agencies allegedly involved in the occurrence, and, by fair inference, to negative plaintiff's knowledge of the precise negligent act producing the explosion.
Defendant further says that the doctrine does not apply "where the act which caused the injury was beyond doubt the voluntary and intentional act of some person", and then says: "The only matters charged in the petition are that the attendant drained the gasoline out of plaintiff's automobile tank on the concrete floor, and while it was draining out of the tank he was pushing it along the concrete floor with a squeegee after he had shut the doors to the garage. It would be difficult to imagine a more perfect example of a charge that the occurrence complained of resulted from the voluntary and intentional act of some person." Again defendant deals with a matter of evidence. See Jones v. Terminal R. R. Ass'n of St. Louis, Mo.Sup., 242 S.W.2d 473, 476 [3-5]. But, in any event, the petition does not allege any fact tending to show a voluntary and intentional ignition of the gasoline. The point is without merit.
Defendant finally says that plaintiff was guilty of contributory negligence as a matter of law in remaining in the room when he saw the presence of gasoline upon the floor and so glaringly available for contact with spark or flame. We do not decide that question. It is purely a defensive matter which plaintiff is not required to negative in his petition. Long v. F. W. Woolworth Co., Mo.Sup., 159 S.W.2d 619, 624.
The cause is reversed and remanded with directions to set aside the order and judgment dismissing the action and to reinstate the petition and for such further action as the parties may desire to take in accordance with the views expressed in this opinion.
All concur.
|
14 B.R. 623 (1981)
In re CEDAR CITY ELEVATOR & REFRIGERATION COMPANY, Debtor.
NOLAND COMPANY, Plaintiff,
v.
T. Larry EDMONDSON, Trustee, Defendant.
Bankruptcy No. 380-02148, Adv. No. 381-0189.
United States Bankruptcy Court, M.D. Tennessee.
September 22, 1981.
Gary S. Rubenstein, Nashville, Tenn., for plaintiff.
T. Larry Edmondson, Nashville, Tenn., for defendant.
MEMORANDUM
RUSSELL H. HIPPE, Jr., Bankruptcy Judge.
The plaintiff in this adversary proceeding originally filed its complaint in the Chancery *624 Court for Davidson County, Tennessee, asserting a statutory lien against certain real property securing payment of $5,852 for materials and labor furnished in the erection of an improvement on that property. The complaint included as a defendant the debtor, a subcontractor which had contracted with the plaintiff for the material and labor in question. Pursuant to an agreed order entered in the Chancery Court the property owner paid the $5,852 to the Clerk and Master and the lien asserted by the plaintiff was transferred from the real property to the funds.
The trustee caused the proceeding to be removed to this court and in the answer filed in this court contends that the plaintiff failed to comply with the pertinent statutes regulating its lien rights and that as a consequence the funds being held by the Clerk and Master of the Chancery Court should be paid over to him for distribution among all of the unsecured creditors of the debtor, including the plaintiff.
The matter now is before the court on what appears to be a motion for partial summary judgment. In that motion the plaintiff asserts a right to the funds solely on the ground that they are impressed with a trust in its favor and that the trustee accordingly has no interest in same. The plaintiff relies upon the provisions of § 64-1140, et seq., of the Tennessee Code as creating such a trust and on the decision of the Sixth Circuit Court of Appeals in Selby v. Ford Motor Co., 590 F.2d 642 (6th Cir. 1979) as requiring that it be recognized by this court in this proceeding.
The trustee has filed a motion in opposition to the summary judgment relief sought by the plaintiff, objecting to the imposition of a trust on the funds and urging that Selby is distinguishable.
The issue which thus has been presented is a significant one with which this court has wrestled on several occasions since the Sixth Circuit released its opinion in Selby.
In Selby the trustee of a bankrupt general contractor sought to recover as preferential transfers payments made by the property owner and contractor to subcontractors who had furnished labor and materials in improving certain real property. The court held that the effect of certain Michigan statutes was to impress such construction funds with a trust in favor of subcontractors and accordingly the general contractor's bankruptcy trustee, who represented the bankrupt's general unsecured creditors, had no interest in same. The Michigan statutes involved provided as follows:
570.151. Building contract funds; status as a trust fund
Sec. 1. In the building construction industry, the building contract fund paid by any person to a contractor, or by such person or contractor to a subcontractor, shall be considered by this act to be a trust fund, for the benefit of the person making the payment, contractors, laborers, subcontractors or materialmen, and the contractor or subcontractor shall be considered the trustee of all funds so paid to him for building construction purposes. As amended P.A. 1966, No. 104, § 1, Eff. Oct. 1.
570.152. Same; fraudulent detention or use by contractor or subcontractor, penalty
Sec. 2. Any contractor or subcontractor engaged in the building construction business, who, with intent to defraud, shall retain or use the proceeds or any part thereof, of any payment made to him, for any other purpose than to first pay laborers, subcontractors and materialmen, engaged by him to perform labor or furnish material for the specific improvement, shall be guilty of felony in appropriating such funds to his own use while any amount for which he may be liable or become liable under the terms of his contract for such labor or material remains unpaid, and may be prosecuted upon the complaint of any persons so defrauded, and, upon conviction, shall be punished by a fine of not less than 100 dollars or more than 5,000 dollars and/or not less than 6 months nor more than 3 years imprisonment in a state prison at the discretion of the court.
*625 570.153. Same; evidence of fraudulent detention or use
Sec. 3. The appropriation by a contractor, or any subcontractor, of any moneys paid to him for building operations before the payment by him of all moneys due or so to become due laborers, subcontractors, materialmen or others entitled to payment, shall be evidence of intent to defraud.
Mich.Comp.Laws Ann. §§ 570.151-570.153 (1967). The Sixth Circuit labeled these and similar statutory provisions which it recognized as having been enacted by a number of other states in the depression era of the 1930's as "state builders-trust-fund statutes."
The comparable Tennessee statutory provisions are codified in Title 64 of the Tennessee Code as follows:
64-1140. Misapplication of contract payments. Any contractor, subcontractor, or other person who, with intent to defraud, shall use the proceeds of any payment made to him on account of improving certain real property for any other purpose than to pay for labor performed on, or materials furnished by his order for, this specific improvement, while any amount for which he may be or become liable for such labor or materials remains unpaid, shall be guilty of a felony and punished accordingly.
64-1142. Prima facie evidence of intent to defraud. Such use of the proceeds mentioned in §§ 64-1139 64-1141 for any purpose other than the payment of such unpaid amount shall be prima facie evidence of intent to defraud.
Section 64-1140 was enacted in 1931 as § 7944 of the Tennessee Code of 1932. Although the Tennessee General Assembly did not include an express reference to a trust relationship comparable to § 570.151 of the Michigan Code, the Tennessee Supreme Court has held that § 64-1140 has the same effect. In Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 741 (1965), that court sustained the constitutionality of the criminal sanctions imposed by § 64-1140 with the explanation that the statute was "intended to make the payments to the contractor trust funds for the payment of labor and materials" the misapplication of which constituted a conversion. In a decision more pertinent to the issue before this court since it was rendered in a civil case, the Tennessee Court of Appeals had previously held that as a result of this statutory provision a contractor "received and held the proceeds of the loan in trust for the benefit of the loan company and the owners of the property" and as a consequence could not apply those funds to the payment of materials delivered to another job site "without being guilty of a breach of trust." Hammer-Johnson Supply, Inc. v. Curtis, 51 Tenn.App. 72, 364 S.W.2d 496, 498 (1962) cert. denied (1962).
This court concluded in T.B. Doggett Construction Co. v. Griffin, BK No. 78-31507 (M.D.Tenn., Dec. 31, 1979) (B.J.) that the Tennessee statutes, as construed by the Tennessee courts up to that point in time, were indistinguishable from those of Michigan. The court accordingly deemed itself bound by Selby to hold that the Tennessee statutes imposed a similar trust on construction funds which must be recognized by this court. This decision was affirmed by the district court. No. 80-3078-NA-CV (M.D.Tenn., Feb. 28, 1980).
Griffin was a dischargeability proceeding[1] and this court subsequently has continued to recognize such trusts in other such proceedings, although with growing disenchantment.
In 1980 the Fifth Circuit Court of Appeals rendered what this court deemed to be a much better-reasoned approach to such state statutes. In In re Angelle, 610 F.2d 1335 (5th Cir. 1980), that court declined to give trust effect in a bankruptcy case to *626 statutory provisions similar to those of Tennessee and Michigan because they did not impose upon the statutory trustees specific duties normally required of traditional trustees, such as the requirement that funds for each project be segregated. Such specific duties are imposed, for example, by the New York builders-trust-fund statute. See Besroi Construction Corp. v. Kawczynski, 442 F.Supp. 413 (W.D.N.Y.1977).
In the most recently reported circuit court opinion addressing the issue, the Ninth Circuit Court of Appeals has declined to give trust effect to comparable California statutes, Runnion v. Pedrazzini, 644 F.2d 756, 7 Bankr.Ct.Dec. 1167 (9th Cir. 1981), noting pertinently:
Several recent cases have discussed whether section 17(a)(4) prevents the discharge of a general contractor's debt to the owner when the general contractor has diverted payments intended to go to the subcontractor. See, e.g., Angelle v. Reid (In re Angelle), 610 F.2d 1335 (5th Cir. 1980), and cases cited therein. The question in all of these cases is whether a trust relationship is established in this situation. While the meaning of "fiduciary" in section 17(a)(4) is an issue of federal law, state law, within limits, will be recognized:
[T]he scope of the concept fiduciary under § 17a(4) is a question of federal law. The Supreme Court has repeatedly made clear that the concept is limited to technical trusts. . . .
On the other hand, state law takes on importance in determining when a trust exists. The state may impose trust-like obligations on those entering into certain kinds of contracts, and these obligations may make a contracting party a trustee.
In re Angelle, 610 F.2d at 1341. The core requirements are that the relationship exhibit characteristics of the traditional trust relationship, and that the fiduciary duties be created before the act of wrongdoing and not as a result of the act of wrongdoing. Schlecht v. Thornton, (In re Thornton) 544 F.2d 1005, 1007 (9th Cir. 1976). Thus, constructive or resulting trusts are excluded.
With one exception, all of the courts that have dealt with statutes imposing criminal or other penalties for this kind of diversion of funds have refused to find a trust relationship. The rationale is that even if a trust is created by such a statute, the trust arises only upon the act of misappropriation and cannot be said to exist prior to the wrong and without reference to it. [Citations omitted].
In declining to give trust effect to the Tennessee fraudulent breach of trust statute in a dischargeability proceeding, this court cited Angelle with approval in Borg-Warner Acceptance Corp. v. Binkley, BK No. 79-30291 (M.D.Tenn., June 4, 1980) (B.J.).
In November of 1980 the same section of the Tennessee Court of Appeals that had rendered the key opinion in Hammer-Johnson Supply, Inc. v. Curtis, supra, addressed the very issue which is now before this court. In a contest between a bankrupt subcontractor's trustee and a sub-subcontractor, the court held that funds due the bankrupt were not impressed with a trust in favor of its subs as a result of § 64-1140 of the Tennessee Code. Without indicating any awareness of its prior decision, the court stated pertinently:
While several states have statutes explicitly making funds paid to a contractor a trust for the benefit of laborers and materialmen, Tennessee only has T.C.A. 64-1140, which imposes criminal liability for misapplication of contract payments before debts to subcontractors have been satisfied. See generally Selby v. Ford Motor Co., 590 F.2d 642 (6th Cir. 1979). To prevent construction payments from becoming part of a bankrupt contractor's property in the absence of a state builders trust fund statute, courts generally will set up either an equitable lien or a constructive trust for subcontractors who possess valid mechanics liens or inchoate liens that are still capable of becoming valid within the prescribed state statutory time limits and requirements. See 9 *627 Am.Jur.2d Bankruptcy § 1029 (1963); 8A C.J.S. Bankruptcy § 243(3) (1962); Cutler-Hammer v. Wayne, 101 F.2d 823 (5th Cir. 1939); In re Crow, 3 Collier Bankruptcy Cases 164 (E.D.Tenn.1974). Constructive trusts will also be established to ensure that direct payments from the landowner to the materialmen or laborers either pursuant to a prior agreement or in exchange for an agreement not to file a lien are not held to be voidable preferences under § 60 of the Bankruptcy Act. [Citations omitted.] Since this court is unable to find authority establishing a construction fund trust in the absence of an explicit state builders trust fund statute, a prior agreement between the parties for direct payment to the subcontractor, or the possession of a valid or inchoate mechanics lien by the subcontractor, we hold that Sequatchie Concrete is not entitled to have the funds owed to Tate [the bankrupt] held in trust for it.
Sequatchie Concrete Service, Inc. v. Cutter Laboratories, 616 S.W.2d 162 (Tenn.App. 1980). On April 27th of this year the Tennessee Supreme Court denied the sub-subcontractor's application for permission to appeal.
The effect of the decision in Sequatchie Concrete Service is to leave the status of the law in Tennessee relative to construction funds although not as certain as this court would like sufficiently different from that in Michigan to warrant this court distinguishing Selby. There now appear to be three significant state-court decisions in each state construing the pertinent statutory provisions. The earliest opinion was rendered by the Michigan Supreme Court in 1935 with that court concluding that the Michigan statutes did no more than create a particular statutory crime and did not affect the civil rights and obligations between owners, contractors, subcontractors and materialmen. Club Holding Co. v. Flint Citizens' Loan & Investment Co., 272 Mich. 66, 261 N.W. 133 (1935). The next opinion was by the Tennessee Court of Appeals in Hammer-Johnson Supply Co., Inc. v. Curtis, supra, in which that court held that the Tennessee statutes did affect the civil rights and the relationships between owners and contractors. This decision was followed by that of the Tennessee Supreme Court in the criminal case of Dougherty v. State, supra. One year after Dougherty, in a case involving the interest of a contractor's bankruptcy trustee in such funds, the Michigan Supreme Court reversed Club Holding and held that the Michigan statutes did impress construction funds with a trust in favor of subcontractors to the exclusion of such a trustee. B.F. Farnell Co. v. Monahan, 377 Mich. 552, 141 N.W.2d 58 (1966). Ten years later the Michigan Supreme Court reaffirmed the decision in Monahan in the case of National Bank of Detroit v. Eames & Brown, 396 Mich. 611, 242 N.W.2d 412 (1976) even though the court had considerable difficulty reconciling the trust with pertinent provisions of the Uniform Commercial Code in a contest between a creditor with a perfected security interest in a contractor's receivables and a subcontractor beneficiary of the trust. The last decision is that of the Tennessee Court of Appeals in Sequatchie Concrete Service.
The major difference in the status of the law in the two states is that the highest court in Michigan twice has held unequivocably that the effect of that state's statutes is to impress construction funds with a traditional trust. The Tennessee Supreme Court has only touched on the issue in a criminal proceeding and, although that court did indicate that the trust relationship was the predicate for the imposition of criminal sanctions, its decision is as consistent with a trust ex maleficio, which arises as a result of wrongdoing, as with a traditional trust, which exists prior to and independent of any wrongdoing. Although the Tennessee Supreme Court was given an opportunity to review the Sequatchie Concrete Service decision, it declined to do so. Apparently the construction fund trust issue was not the principal issue raised on appeal and was mentioned only in passing in one of the briefs filed with that court. The decision to deny the appeal does not appear to constitute any indication of approval of the result reached by the lower *628 court. See, Sobieski, "A Survey of Civil Procedure in Tennessee 1977," 46 Tenn.L. Rev. 271, 387 (1979). Thus it is possible that Tennessee's highest court at some future date might reach a different result than the Court of Appeals in Sequatchie Concrete Service. In any event, the same section of the Court of Appeals which rendered the opinion in Hammer-Johnson Supply Company v. Curtis, supra, one which this court deemed to be critical in Griffin, apparently has reversed it, although not expressly so.
It appears to this court that the result in Sequatchie Concrete Service is the appropriate one under either the Michigan or Tennessee statutes which essentially are indistinguishable. Section 570.151 of the Michigan Code does not expressly create a trust but merely recites that construction funds "shall be considered by this Act to be a trust fund" and contractors "shall be considered the trustee." [Emphasis added.] As the Tennessee Supreme Court noted in Daugherty v. State, supra, such statutes predicate the imposition of criminal sanctions not on breach of a contractual obligation but upon the conversion of trust funds. Such statutes thus create not true traditional trusts but merely trusts ex maleficio as the Michigan Supreme Court correctly concluded in its initial opinion in Club Holding Co. v. Flint Citizens' Loan & Investment Co., supra. The opinion of the Michigan Supreme Court in B.F. Farnell Co. v. Monahan, supra, is not well-reasoned and the problems which flow from treating such funds as being impressed with such a trust without clear directions to contractors on how they are to be handled were manifested in that court's subsequent opinion in National Bank of Detroit v. Eames & Brown, supra. Thus, this court would hope that the Tennessee courts would not reverse Sequatchie Concrete Service on the basis of Tennessee's present statutory provisions. The contractors of this state are entitled to specific legislative guidelines as to how they are to handle the funds which they receive. It is unrealistic to apply to the typical contractor, who has an interest in such funds, the same standards applicable to a disinterested traditional trustee. Statutes such as those in Michigan and Tennessee should not be given the effect of creating traditional trusts unless they specifically impose upon the contractor trustees explicit trustee-like duties.
In several opinions rendered since the Tennessee Supreme Court denied the application to appeal in Sequatchie Concrete Service, Judge Clive W. Bare of the eastern district has held that § 64-1140 no longer should be given the effect of impressing construction funds with a trust recognizable in bankruptcy proceedings. E.g., Kannon v. Blalock, Adv.Proc. No. 3-81-0100 (Bankr. Ct.E.D.Tenn., August 21, 1981); Witt Building Material Co. v. Booker, Adv.Proc. No. 3-80-0630 (Bankr.Ct.E.D.Tenn., July 15, 1981). Both of these opinions contain excellent discussions of the various types of trusts created under state law, ranging from traditional express trusts to trusts ex maleficio, and the treatment they are accorded in bankruptcy cases. Judge Bare concludes that in the aftermath of Sequatchie Concrete Service whatever trust may be created by section 64-1140 is not the traditional trust recognizable in bankruptcy proceedings.
This court concurs with Judge Bare's analysis. The effect of the recent decision by the Tennessee Court of Appeals in Sequatchie Concrete Service is to establish that the trust created by §§ 64-1140, et seq., of the Tennessee Code is a trust ex maleficio and not a traditional trust. This court accordingly declines to give effect to that trust in this proceeding.[2]Griffin and *629 those decisions following Griffin are reversed.
An appropriate order will be entered denying the plaintiff's summary judgment motion and setting this matter for hearing on the validity of the plaintiff's lien.
NOTES
[1] Under § 17(a)(4) of the old Bankruptcy Act of 1898, as amended, former 11 U.S.C. § 35(a)(4), there was excepted from the discharge "debts . . . created by . . . fraud, embezzlement, misappropriation or defalcation while acting . . . in any fiduciary capacity." This exception, with certain modifications, has been carried over in the Bankruptcy Reform Act of 1978. 11 U.S.C. § 523(a)(4) (1979).
[2] The plaintiff also has directed the court's attention to the following statutory provisions but they are not applicable to the facts of this proceeding and would not appear to alter the result in any event:
64-1148. Portion of contract price held in escrow. Whenever, in any contract for the improvement of real property a certain amount or percentage of the contract price is held back by the owner or contractor, that retained amount shall be deposited in a separate escrow account with a third party giving proper security for the performance of their obligation.
64-1149. Effect of placing funds in escrow. As of the time of the deposit of the retained funds, they shall become the sole and separate property of the contractor, subcontractor, materialman, or laborer to whom they are owed.
64-1150. Release of escrow funds. Upon satisfactory completion of the contract, to be evidenced by a written release by the owner or contractor, all funds accumulated in the escrow account together with any interest thereon shall be paid immediately to the contractor, subcontractor, materialman or laborer to whom it is owed.
|
261 F.2d 929
Peter T. RIBAUDO, Trustee of Visser Plumbing and Heating Co., Inc., Bankrupt, Appellant,v.CITIZENS NATIONAL BANK OF ORLANDO et al., Appellees.
No. 17204.
United States Court of Appeals Fifth Circuit.
November 26, 1958.
COPYRIGHT MATERIAL OMITTED Stephen R. Magyar, Orlando, Fla., for appellant.
C. O. Andrews, Jr., Andrews & Smathers, Orlando, Fla., for appellees.
Before HUTCHESON, Chief Judge, and CAMERON and BROWN, Circuit Judges.
JOHN R. BROWN, Circuit Judge.
1
The Trustee appeals from an Order of the District Court affirming a series of similar Orders of the Referee arising out of the bankruptcy of Visser Plumbing and Heating Co., Inc., a corporation, engaged in the plumbing contract and supply business. The holdings were that (1) two air conditioning window units and a heating unit were fixtures annexed to the leased realty; and that a Bank, as Creditor of the Bankrupt, (2) was entitled to set off deposits against the Bankrupt's debts to the Bank, (3) was a secured Creditor as to inventory pledged under a field warehousing plan, and (4) was entitled to retain collections from accounts receivable assigned as security for loans by the Bank.
I.
2
Motion to Dismiss Appeal.
3
Before we get to these questions, we must take notice of the Motion to Dismiss the appeal for untimely filing of the Notice of Appeal.
4
By its corrected order of December 23, 1957, the District Court denied the Trustee's Petition for Review from the Referee's adverse decisions on all of these points. On December 31, 1957, well within the 30 days' time available for appeal under the controlling provision of the Bankruptcy Act1 the Trustee filed a petition for rehearing and in the alternative for an amendment of the order as corrected December 23. By order2 dated January 13, entered January 15, 1958, the District Court denied this petition. Notice of Appeal was filed February 13, 1958. This was within thirty days from the last order but some fifty days after the initial order of December 23, 1957.
5
The Federal Rules of Civil Procedure are only conditionally applicable. F.R. C.P. 81, 28 U.S.C.A. expressly excludes cases in bankruptcy. But the Supreme Court General Order in Bankruptcy 36, 11 U.S.C.A. following § 53, prescribes that appeals in bankruptcy "shall be regulated, except as otherwise provided in the Act, by the rules governing appeals in civil actions in the courts of the United States, including the Rules of Civil Procedure for the District Courts of the United States." Stressing cases involving motions to amend or alter judgments under F.R.C.P. 59, the Trustee insists that this appeal would have been held timely in civil actions and a similar result should follow here. Stevens v. Turner, 7 Cir., 1955, 222 F.2d 352; Segundo v. United States, 9 Cir., 1955, 221 F.2d 296; Papanikolaou v. Atlantic Freighters, Inc., 4 Cir., 1956, 232 F.2d 663; McConville v. United States, 2 Cir., 1952, 197 F.2d 680; Calvin v. Calvin, 1954, 94 U.S.App.D.C. 42, 214 F.2d 226.
6
Whether anything is gained by importing the Federal Civil Rules decisions into this problem is doubtful. While the express provision in F.R.C.P. 59 for motions to alter or amend judgments has no counterpart in the Bankruptcy Act or any express General Order, it is clear that, as between the Court functioning in bankruptcy and in civil proceedings, it has much greater powers to entertain petitions for rehearing in bankruptcy. It may be done even after time for appeal has elapsed. Wayne United Gas Co. v. Owens-Illinois Glass Co., 1937, 300 U.S. 131, 57 S.Ct. 382, 81 L.Ed. 557; Bowman v. Lopereno, 1940, 311 U.S. 262, 61 S.Ct. 201, 85 L.Ed. 177.
7
Wayne United condenses the troublesome dilemma facing counsel. "A defeated party who applies for a rehearing and does not appeal from the judgment or decree within the time limited for so doing, takes the risk that he may lose his right of appeal, as the application for rehearing, if the court refuse to entertain it, does not extend the time for appeal." 300 U.S. at page 137, 57 S.Ct. at page 385, 81 L.Ed. at page 561. Bowman repeats this caveat but sounds the hope which both of those cases made a reality by their respective orders of reversal: "* * * But where a court allows the filing and, after considering the merits, denies the petition, the judgment of the court as originally entered does not become final until such denial, and the time for appeal runs from the date thereof." 311 U.S. at page 266, 61 S.Ct. at page 203, 85 L.Ed. at page 180.
8
The key is that the Court must "entertain" the petition, and this seems to be that it must consider it on its merits as a good faith request that the Court take a second look and reverse itself at least in part. If it is so treated, the result is not altered by the fact that the decision on rehearing is the same as the initial order. In that light, there is nothing to suggest that we are not entitled to read Judge Barker's order, note 2, supra, literally that he heard the petition for rehearing and considered it after being fully advised. Certainly with the petition for rehearing filed within ten days of the corrected initial order and twenty clear days left for appeal, he could hardly ascribe to the Trustee's counsel a purpose to use the petition for rehearing as a way to resurrect a right to appeal then gone.
9
On this interpretation of the District Court's action, MacNeil v. State Realty Company of Boston, Inc., 1 Cir., 1956, 229 F.2d 358, supports our view that the appeal was timely. Carpenter, Babson & Fendler v. Condor Pictures, Inc., 9 Cir., 1939, 108 F.2d 318.
II.
10
The Fixtures.
11
The Referee denied the request that the Trustee be awarded two window air conditioning units and circulating hot water furnace (not including ducts) installed by the Bankrupt in the leased premises. The two air conditioning units were typical window type. However, to install them the Bankrupt had removed the window frames of the two windows on the mezzanine floor and had replaced them with concrete blocks and glass blocks except for an opening to fit each unit. The Bankrupt had also installed a circulating hot water furnace that included numerous pipes, which, through walls and floors, were connected with radiators permanently affixed to the walls. The heater unit itself was affixed to the floor to which was attached permanent type water and electrical connections.
12
There is no disagreement over applicable legal principles. 22 Am.Jur., Fixtures, §§ 3-12, 54-62 (1939); Commercial Finance Co. v. Brooksville Hotel Co., 1929, 98 Fla. 410, 123 So. 814, 64 A.L.R. 1219; Ridgefield Investors, Inc., v. Holloway, Fla.1954, 75 So.2d 208. It is finally a question of fact under these principles.
13
Like the District Court, and for reasons so well stated there, there is no basis to alter the decision. "[T]he record submitted to the Court does not contain the oral testimony upon which the Referee based his Order in reference to the air conditioning units and heating system. The only evidence in this regard being photographs of the air conditioning units and the furnace. Therefore, the Court does not have before it sufficient evidence to reverse the Referee's Order finding that the said units and heating system became part of the leased premises."
III.
14
The Setoff of Bank Deposits.
15
On September 10, 1956, the date of bankruptcy, the Bankrupt was indebted to the Citizens National Bank of Orlando on three demand notes aggregating $64,613.30. On that date there was $778.09 on deposit in the Bankrupt's regular checking account and $835.53 in a special payroll account. Between that date and a week later, when all items previously deposited for collection had cleared, the Bank set off this total of $1,613.62 against the loans then due. As security for their payment the promissory notes expressly pledged "* * * also any balance on deposit account of the undersigned with the Bank."
16
Here again there is no dispute as to the legal principles. Both recognize that a general setoff is permissible in respect of deposits made in the ordinary course of business. 4 Fla.Jur., Banks & Trust Companies, § 83; and see 4 Collier, Bankruptcy § 68.16 (14th ed. 1942). However, both contentions of the Trustee are without merit. The Bank did not lose the right to exercise this option on the filing of the Petition for Bankruptcy. The special payroll account was special in name only. It was not a trust or similar immobilized account. Segregation under that label was for the Bankrupt's convenience only and the funds were subject to its unlimited dominion.
IV.
17
The Field Warehousing.
18
Over the period from March 1955 through March 27, 1956, this same Bank, on notes ranging in the neighborhood of $15,000 each, had loaned the Bankrupt an aggregate of $207,462. These loans were secured, the Bank contends, by assignment of construction contracts then in progress and traditional accounts receivable. We discuss these assignments later, infra V. However, more capital was needed and on April 9, 1956, the Bank, the Bankrupt and American Express Field Warehousing Company entered into a contract for the field warehousing of all of the Bankrupt's inventory. On April 11, 1956, the Bank loaned $50,000, then simultaneously deposited to the Bankrupt's general account as new funds, against the security of nonnegotiable warehouse receipts executed by American Express. None of this loan had been repaid and obviously it represented the greater share of the outstanding indebtedness of $64,613.30 referred to above in the discussion of the setoff of bank deposits. The District Court declared that the Bank had a "preferred lien" on the merchandise covered by the warehouse receipts held by the Bank, but it is clear that the term was an inadvertent slip. We look upon it as though the order declared the Bank to have a secured claim.
19
We see no point in discussing the evidence in detail. It suffices to say that it was the nature of this tripartite arrangement which preoccupied the attention of the Referee, the Trustee personally, and all counsel in the hearings reflected in the 150 printed pages of oral testimony plus many more of written exhibits. From the bank loan officers, the resident vice president of American Express, on down through the bonded warehouse custodian, the Referee saw in flesh and blood those who knew and stated the actual facts with regard to the genuineness of possession and control of the stock by American Express. He held it valid, and the Trustee does not show where, in reaching this conclusion, the Referee either misperceived the facts or misapplied the law.
20
Following the typical pattern of field warehousing which is now so well recognized as a desirable and legitimate method of financing, the Bankrupt first subleased its warehouse premises and storage yard to American Express under formal leases which were recorded. Locks on all access doors and gates were changed. The keys were in the sole control of American Express's custodians. Liberally scattered around the premises and on doors and gates were signs in large and readable print showing possession by American Express.3 This was brought closer home by Reference Stock Cards4 on numerous stock bins and shelves.
21
The bonded warehouse custodian and assistants were hired under express written contracts of employment. Their wages were paid, after usual deductions for social security and withholding tax, by checks sent from the New York office of American Express. Under the contract the Bankrupt, of course, reimbursed all expenses, which included these. But these people were still employees of American Express and access to the premises and release of any of the stock to Bankrupt was under their exclusive control. Under the physical arrangement of the building executives and employees of the Bankrupt and business visitors had to pass through the leased warehouse to a balcony on the mezzanine which formed the office. However, this did not interfere with the complete control by the custodian over the goods.
22
As required by the contract an actual detailed inventory was taken by the custodian in person. The typed list comprising 85,888 units with a value declared by the Bankrupt to be $80,210.62 was affixed to the initial non-negotiable warehouse receipt5 dated April 11, 1956. On the reverse of a duplicate copy of each such Warehouse Receipt, the Bankrupt, described as the Depositor, warranted the quantity, description and value of the items covered, and declared that "* * * the said merchandise or commodities have been delivered * * * to American Express Field Warehousing Corporation for warehousing purposes * * *. Said receipt is to be delivered to the Citizens National Bank * * * for release of stored goods to be made."
23
By a contemporaneous written instruction the Bank directed American Express to retain in its custody in the warehouse merchandise worth 133 1/3% of the $50,000 loaned. So long as American Express kept merchandise of $66,666.67 on hand, it was expressly authorized to release merchandise to the Bankrupt on its receipt. As new merchandise was received and stock in excess of the 133 1/3% was released to Bankrupt, the custodian kept detailed records. The custodian issued new receipts on behalf of American Express reflecting net gain for the period covered, usually a week. These serially numbered receipts were consolidated in one dated August 20, 1956.
24
Only in the most trivial respects was there any defect in the possession and control by American Express. There was, first, the passage of people through part of the warehouse area. They could walk, but could not take, and they never did. Next, some miscellaneous items of merchandise, as well as work tools and certain trucks, not actually covered or intended to be covered by a warehouse receipt, were within the posted area and apparently, although not actually, under the control of the custodian. But this did not lessen, it enhanced, apparent exclusive possession. Also, American Express, which had otherwise qualified to do business as a foreign corporation in Florida, had inadvertently failed to procure a local license as to this operation described as "Field Warehouse 57." And the warehouse receipts failed to specify certain technical particulars which would have been required as to a public warehouse under Florida statutes. None of these detracted from the absolute dominion which the contracts clearly invested in American Express and which the parties faithfully respected in actual practice.
25
The arrangement was a valid field warehousing operation and did not contravene the Florida Bulk Sales Law. Fla. Stat.Ann. § 726.04; Bradley v. St. Louis Terminal Warehouse Co., 8 Cir., 1951, 189 F.2d 818; Barry v. Lawrence Warehouse Co., 9 Cir., 1951, 190 F.2d 433, 438; Bostian v. Park National Bank of Kansas City, 8 Cir., 1955, 226 F.2d 753; Sampsell v. Lawrence Warehouse Co., 9 Cir., 1948, 167 F.2d 885, certiorari denied 335 U.S. 820, 69 S.Ct. 42, 93 L.Ed. 375; 4 Collier, Bankruptcy § 70.86 at 1454-62 (14th ed. 1942).
26
Finally, the fact that the Bankrupt's financial statements of April 30, 1956, delivered to the Bank sometime during May, showed a deficit, cannot satisfy the Trustee's burden of proof that on April 11, the date of the loan and the commencement of the field warehousing pledge, the Bank had reasonable cause to believe the Bankrupt insolvent. Canright v. General Finance Corporation, 7 Cir., 1941, 123 F.2d 98.
V.
27
Assignment of Accounts Receivable.
28
This issue seems to have slipped in through the back door. In the course of the hearing on the Bank's petition to obtain a secured claim on the inventory, under the field warehouse receipts, the testimony of the Bank's witnesses disclosed the numerous prior loans aggregating over $200,000 secured, so the Bank said, by assignments of accounts receivable and plumbing contracts in progress. The Bank orally moved for an order allowing it to retain all collections from such accounts. The Trustee, by a similar oral motion, later reduced to formal writing, sought an order compelling the Bank to furnish a detailed list of such assigned accounts, collections made therefrom in the year preceding the bankruptcy, to account for such collections, and an order to remaining account debtors of the Bankrupt to pay the outstanding balance of such accounts to the Trustee. The Referee granted the Bank's request but denied that of the Trustee.
29
This order, with no accompanying findings of fact, recited in the prefatory part that it appeared to the Court that the Bankrupt "* * * did execute an assignment of receivables under the provisions of Chapter 24297, Laws of Florida, 1947, dated April 5, 1955, and that a renewal of said assignment of receivables dated July 30, 1956, was duly filed with the Secretary of State as provided by said laws of Florida; that copies of said assignments were attached to the claim of Citizens National Bank of Orlando filed in this cause; that said assignments of receivable were given as security for advances made by Citizens National Bank of Orlando in the usual course of business; that certain sums have been collected thereon, * * *."
30
Two problems come to us, both directly related to the Florida Accounts Receivable Act, Fla.Stat.Ann. c. 524. One is a factual inquiry whether assignments were actually made as the Act prescribes. The second, and a more important question, concerns the construction of the statute.
31
On the latter, the Bank's counsel, taking as his golden text the sage advice of the late and pre-eminent advocate John W. Davis that "several guides * * * are to be found in three `C's' — chronology, candor, and clarity * * * candor, the telling of the worse as well as the best * * *"6 brings out in the open two things which neither the obscure record nor the Trustee's brief make at all clear. The first is that all such accounts receivable came into existence long after the Notice of Assignment was filed with the Secretary of State. And second, the situation is identical with that in Republic National Bank of Dallas v. Vial, 5 Cir., 1956, 232 F.2d 785, in which this Court, under a similar Texas statute, held that such subsequent accounts are not protected. The Vial case, to be sure, so decides. But as is so usual, such candor has not been costly. For this was a Texas case in which, subsequent to our earlier decision in Second National Bank of Houston v. Phillips, 5 Cir., 1951, 189 F.2d 115, which dealt with this general matter7 in Texas, an authoritative Texas decision came down which foreclosed this precise question. Whether rightly or wrongly, Keeran v. Salley, Tex.Civ.App.1951, 244 S.W.2d 663, error ref'd, categorically held that under the definition provisions8 of the Texas Act the contract between the account debtor and the assignor must be in existence at the time the statutory notice of assignment is filed. The Court stated this in reverse form. "The contract which gave rise to the `account' here involved was obviously not in contemplation when the notice was executed." 244 S.W.2d at page 666.
32
Both cases have come in for considerable criticism,9 and each led to precautionary amendments10 in almost identical language in Texas and Florida as well as in other states.
33
But the fact remains that Vial speaks only for Texas and for our present inquiry concerning Florida, from whence has yet come no compelling deliverance, Keeran v. Salley is but an aid. Quite naturally, in this process, the differences in the two statutes are of some relevance notwithstanding their more or less common genesis, see note 10, supra, and admitted common aim.
34
At the outset there is the difference that the Court in Keeran v. Salley presumably deemed significant by its emphasis with italics ("presently due, or to become due under an existing contract * * *." 244 S.W.2d at page 666).
35
More important, the Florida statute11 in terms more affirmative and positive than the Texas Act12 prescribes the nature of a protected assignment and the steps necessary to be taken to secure it.
36
Four situations are likely to occur: (1) delivery of an assignment of an account receivable followed by filing of the statutory Notice of Assignment; (2) filing of a statutory Notice that assignor intends13 to assign accounts followed by subsequent delivery of an assigned account; (3) a simultaneous assignment and filing of Notice; (4) a failure to file statutory Notice or deliver a written assignment.
37
Situation (1) is covered precisely by § 524.04(1)(a). The same is true of situation (2) under the literal terms of 524.04 (1)(b). As to this the statute plainly states that the assignment "* * * becomes protected at the time the assignee: * * * (b) Takes an assignment during the effective period of the notice." This fits into the pattern of the Act as a whole. Section 524.03 provides that Notice shall be for one year subject to a right of renewal. Subsections (a) and (b) are expressly in the disjunctive. This recognizes the likelihood of these alternative situations and as to each prescribes the time and method of acquiring a protected status.
38
If the holding of Keeran v. Salley is transposed onto the Florida statute, it effectually destroys subparagraph (1) (b).
39
The definitive portion regarded as decisive in Keeran v. Salley does not purport to cover the consequence of filing statutory notice, or when or how that is to be accomplished. It dealt only with those characteristics of an "account" or "account receivable" essential to raise a protected status. When viewed in this light, the definition, in both the Texas and Florida statutes, makes a good deal of sense. It gives a cohesion to the Act as a whole and at the same time avoids consequences which are quite out of keeping with the purpose of such Acts to establish a workable and relatively simple mechanism for non-notification financing. As a definition of "account" the meaning was essentially that, at the time of the assignment (without regard to the filing of Notice) there must be a valid and then subsisting contract obligating the account debtor then, or in the future, to make a payment of money. Where the act of assignment is the requisite step, the particular account represented must then be in existence as a legally enforceable obligation. It did not mean to prohibit the agreement to assign such accounts when and as they came into being for their actual assignment during the effective period of a statutory Notice.
40
By weaving Section 524.01(1) (a) and (4) defining assignment14 into Section 524.04(1) (b), the Act is expanded to read substantially as follows. The assignment becomes protected during the effective period of a prior statutory Notice the moment the assignee takes a written assignment of an account receivable then in existence as a valid and then subsisting contract which obligates the account debtor then or in the future to pay money.
41
Consequently we determine for Florida that an assignment of an existing account during the effective period of the previously filed Notice affords the protected status.
42
But Section 524.04, note 11, supra, expressly requires that it be "A written assignment for value, signed by the assignor * * *." On the oral argument much was said pro and con about the mechanics in the handling of these loans and the so-called pledge of the accounts receivable. Much of it took the direction of an analysis of the Benedict v. Ratner, 1925, 268 U.S. 353, 45 S.Ct. 566, 69 L.Ed. 991, concept. This we regard as immaterial if the facts adequately show that there was a protected assignment under the Florida Accounts Receivable Act. Cf. M. M. Landy, Inc., v. Nicholas, 5 Cir., 1955, 221 F.2d 923. In the confused state of this record, we regard this as one in which the interests of justice require that there be a remand to determine whether there was a written assignment within the meaning of the Act. Fireman's Fund Ins. Co. v. Wilburn Boat Co., 5 Cir., 1958, 259 F.2d 662. If there was, the assignments were protected. If not, then the rights are to be determined under appropriate Florida and Federal principles as though the Act were not in existence. M. M. Landy, Inc., v. Nicholas, supra; Costello v. Bank of America Nat. Trust & Savings Ass'n, 9 Cir., 1957, 246 F.2d 807.
43
The Orders of the District Court are affirmed as to all matters except "V. Assignment of Accounts Receivable." As to this phase, the order is reversed and the cause is remanded for further and not inconsistent proceedings.
44
Affirmed in part and reversed and remanded in part.
Notes:
1
"Appeals under this title to the United States court of appeals shall be taken within thirty days after written notice to the aggrieved party of the entry of the judgment, order or decree complained of, proof of which notice shall be filed within five days after service or, if such notice be not served and filed, then within forty days from such entry." 11 U.S.C.A. § 48, sub. a
2
"This cause coming on this day to be heard upon Petition for rehearing and in the Alternative Amendment of Order filed by the Trustee, and the Court having considered the same and being fully advised in the premises, it is, thereupon —
"Ordered and Adjudged that said Petition be, and the same is hereby denied.
"Done and Ordered in Tampa, Florida, this the 13th day of January 1958.
"William J. Barker,
"Chief Judge,
U.S. District Court."
3
The legend on them was:
"Warehouse
of
American Express
Field Warehousing Corp.
All Goods Are In Its Custody"
or,
"Notice
These Premises Leased By
American Express
Field Warehousing Corp.
All Goods Are In Its Custody."
4
These were printed cards about 6" X 3" which stated:
"Reference Stock Card
Merchandise or Commodities in the Possession of and Under the Control Of
American Express Field Warehousing Corporation
Warehouse Receipt
Issued To: Citizens National Bank of Orlando
For Information See
Warehouse Custodian in Charge of this Warehouse."
5
Each receipt was serially numbered and dated and signed by an authorized custodian. Subject only to certain stated exceptions, none of which are applicable here, the receipt read:
"This Is To Certify that we have received in Storage Warehouse, 538 West Central Avenue, Orlando, Florida, No. 57 Ex Visser Plumbing & Heating Co. the following described property, subject to all terms and conditions contained herein, For the Account Of and To Be Delivered To Citizens National Bank of Orlando, Orlando, Florida upon the payment of all storage, handling and other charges incurred thereon: * * *."
6
Davis, The Argument of an Appeal, 26 A.B.A.J. 895 (1940)
7
For a discussion of the historical background on non-notification assignment of accounts receivable see M. M. Landy, Inc., v. Nicholas, 5 Cir., 1955, 221 F.2d 923, 53 A.L.R.2d 1385, and Costello v. Bank of America Nat. Trust & Savings Ass'n, 9 Cir., 1957, 246 F.2d 807. As to the Texas Act, art. 260-1, Vernon's Tex.Rev.Stat., see also 25 Tex.L.Rev. 606, 30 Tex.L.Rev. 233, 4 Baylor L. Rev. 392. See also, Koessler, Assignment of Accounts Receivable, 33 Cal.L. Rev. 40 (1945), and, New Legislation Affecting Non-Notification Financing of Accounts Receivable, 44 Mich.L.Rev. 563 (1946)
8
"In this Act, unless the context otherwise requires: (1) `Account' or `account receivable' means an existing or future right to the payment of money presently due, or to become due (a) under an existing contract * * *." Art. 260-1, § 1, Vernon's Tex.Rev.Stat
9
As to Keeran, see 31 Tex.L.Rev. 63. But to Texas Courts this case has lost none of its vitality, Scarborough v. Victoria Bank & Trust Co., Tex.Civ.App. 1952, 250 S.W.2d 918, 920, error ref'd; Tezel & Cotter v. Roark, Tex.Civ.App. 1957, 301 S.W.2d 179, 180, error ref'd. See also National Surety Corp. v. United States, 1955, 133 F.Supp. 381, 385, 132 Ct.Cl. 724. In United States v. Phillips, 5 Cir., 1952, 198 F.2d 634, we bypassed, as we do here, the question whether Keeran overturned for Texas our decision in Second National Bank of Houston v. Phillips, 5 Cir., 1951, 189 F.2d 115
As to Vial, see Moore & Kupfer, Accounts Receivable — Current Developments, The Business Lawyer (A.B.A. Section on Corporation Banking and Business Law), reprinted in 75 Banking L.J. 105 (Feb. 1958).
10
The Texas 1955 Amendment and the Florida 1957 Amendment added to the clause "(a) under an existing contract" the following: "or under a future contract entered into during the effective period of the notice of assignment * * *." Tex.Sess.Laws 1955, c. 305, § 1, amending art. 260-1, Vernon's Tex. Rev.Stat.; Fla.Sess.Laws 1957, c. 57-22, § 1, amending Fla.Stat.Ann. c. 524.01(1) (a)
Its purpose was made doubly sure in Texas by the addition of the italicized portions to article 260-1, § 4: "Such notice of assignment shall be effective for a definite period of time to be stated therein, not to exceed a period of three (3) years, and such notice shall protect the assignment of accounts which arise during such effective period and which originate out of existing or future contracts, and are assigned by assignor to assignee at any time during such three (3) year period, regardless of whether such account was in the contemplation of the assignor and assignee when such notice was executed." Art. 260-1, § 4, Vernon's Tex.Rev.Stat. as amended Tex.Sess.Laws 1955, c. 305, § 1.
11
"524.04 Protected assignments
"(1) A written assignment for value, signed by the assignor, becomes protected at the time the assignee: (a) Files a notice of assignment after taking an assignment or (b) Takes an assignment during the effective period of the notice.
"(2) A protected assignee takes subject to: (a) Judicial liens on the account at the time his assignment became protected; (b) An assignment to another person which was protected before his assignment, except that an assignee takes priority over another assignee who files later than he did, regardless of the relative dates of their assignments. Notwithstanding the provisions of subsection (2) (b), a protected assignee takes subject to:
"1. An assignment, prior in time to his, of which he had written notice at the time he took his assignment, and,
"2. Any written contract made by him as to priorities.
"(3) Subject to subsection (2), above, regardless of notice to the debtor a protected assignee has rights to the account and to the proceeds thereof in any form superior to the rights of the assignor and his creditors and assignees from him and may recover the proceeds from any such person in possession of them.
"(4) A protected assignment remains protected while a notice of assignment, a renewal, thereof, or an affidavit of continuance is effective."
The notice is effective for one year and may be successively renewed. § 524.03(1), (2) and (3).
12
"Whenever any person, firm or corporation shall in good faith take a protected assignment of any account or accounts, which shall not have been satisfied, cancelled or released by the assignor, all creditors of, and all subsequent assignees, purchasers and transferees of or from the assignor shall be conclusively deemed to have received notice of such assignment, dating from the time of the filing for record of the notice of assignment hereinabove provided; and after such filing for record, no purchaser from the assignor, no creditor of any kind of the assignor, and no prior or subsequent assignee or transferee of the assignor, holding an assignment not protected, or holding an assignment under a notice of assignment subsequently filed for record, shall in any event have, or be deemed to have acquired, any right in the account or accounts so assigned or in the proceeds thereof, or in any obligation substituted therefor, superior to the rights therein of the assignee named in such prior protected assignment." Art. 260-1, § 6, Vernon's Tex.Rev.Stat
13
Section 524.02 prescribes "the following form of notice of assignment, or any other form containing substantially the same information:
"Notice of Assignment of Accounts Receivable
"For Filing with the Secretary of State
Date ..............
............... has assigned or intends
to assign * * * one or more
accounts receivable to ................
(Signed) (Signed)
......................................
Assignor Assignee
* * * * *"
14
"(4) `Assignment' means any transfer of an account, other than by operation of law, including a transfer as security, and the creation by agreement of a lien on an account." Fla.Stat.Ann. § 524.01(4)
|
717 F.2d 1400
***U. S.v.Diaz
82-5870
UNITED STATES COURT OF APPEALS Eleventh Circuit
9/28/83
1
S.D.Fla.
AFFIRMED
*
Fed.R.App. P. 34(a); 11th Cir. R. 23
**
Local Rule: 25 case
|
608 S.W.2d 211 (1980)
David MONTEZ, Jr., Appellant,
v.
The STATE of Texas, Appellee.
No. 59179.
Court of Criminal Appeals of Texas, Panel No. 3.
July 16, 1980.
On Rehearing December 17, 1980.
Kent H. Poynor and William T. Knox, Dallas, on appeal only, for appellant.
Henry Wade, Dist. Atty., Stanley Keeton, William M. Lamb and L. S. Eubanks, Jr., Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.
Before ODOM, TOM G. DAVIS and CLINTON, JJ.
*212 OPINION
CLINTON, Judge.
This is an appeal from a conviction for the felony offense of possession of more than four ounces of marihuana. The trial court assessed punishment at confinement in the Texas Department of Corrections for three years notwithstanding appellant's sworn motion for probation.
In the three grounds of error presented, appellant contends that the evidence is insufficient to support the jury verdict below; that the fruits of an illegal search and seizure were introduced over his timely objection; and that the trial court erred in refusing to submit a timely requested jury charge on the lesser offense of possession of less than four ounces of marihuana. We sustain the second contention and reverse.
In ground of error number two, complaint is made that fruits of an illegal search and seizure were admitted over appellant's timely objection. At the hearing on the motion to suppress, Officer Kenton Koop of the Dallas Police Department testified that on August 16, 1976, he received information from a confidential informant that appellant was in possession of a controlled substance, namely marihuana. Koop noted that he had received information from his informant prior to August 16, 1976 and that, on each occasion, such information had proven to be true and correct. Based upon this information, Koop obtained a search warrant to search the residence of appellant and proceeded toward that destination. While enroute, however, Koop received additional information from this same confidential informant that the appellant was at a garage on May Street dividing up a quantity of marihuana in excess of one hundred pounds. The informant told the officer that the appellant would not remain at the garage for very long and that he would find the contraband in a 1974 black Chevrolet with Texas license plates HPQ-274.
Koop arrived at the May Street address at approximately 9:45 p. m. and observed the black Chevrolet within a fenced area about thirty to forty feet from the garage with a male occupant sitting in the driver's seat. Koop presented himself to the occupant, later identified as Joe Martinez,[1] who said that he was not the appellant but that appellant could be found inside the garage. The officer found appellant, told him he was a police officer and asked him for the keys to his automobile. Appellant handed the keys to Koop who opened the trunk of the vehicle and discovered two plastic garage bags containing some twenty-four "kilos" of what he later formed the opinion was marihuana. Koop testified that he did not procure a warrant to search the trunk of the automobile inasmuch as his informant had told him there would not be adequate time to do so. After taking custody of the over fifty pounds of contraband, Koop placed appellant under arrest and then proceeded to the residence to execute the search warrant alluded to above. The wife of appellant met Koop at the front door and, after a search of the residence's attic revealed approximately two hundred pounds of marihuana, she too was arrested.
The thrust of appellant's complaint is that in spite of the fact that Officer Koop effectively had both appellant and his vehicle under control and could well have obtained a search warrant to search the vehicle, he did not do so. Though Koop testified that he did not secure a search warrant because he felt that it was impracticable to do so, appellant advances the contention that no showing was made as to why it was impracticable to secure a warrant, especially given the fact that appellant and his vehicle were both in police custody.
In support of his contention, appellant refers us to Stoddard v. State, 475 S.W.2d 744 (Tex.Cr.App.1974), a fact situation not totally unlike the one at bar. The defendant *213 in Stoddard had been taken to the police station following his arrest for possession of marihuana at his office pursuant to a search warrant. The officers requested permission to search his automobile, which was parked on the street near the office where the defendant worked; the defendant, however, refused this request. A key to the vehicle was taken from the defendant during a search of his person at the police station and the officers then proceeded to obtain what they felt was a valid warrant to search the defendant's automobile. The subsequent search revealed a quantity of marihuana in the trunk of the vehicle replete with the fingerprints of Stoddard on one of the containers of contraband. After finding the warrant to search the automobile defective, the Court addressed the remaining contention that the search of the vehicle was nevertheless permissible because "exigent circumstances" effectively precluded the procurement of a warrant at all. The Court, however, concluded that there were no "exigent circumstances" which would have justified a warrantless search of the automobile: the accused was in custody at the time of the search; the police were in possession of at least one set of keys to the automobile; one officer remained with the vehicle while the warrant was being prepared; there was nothing tending to indicate that the vehicle was about to be moved; there was no reason to believe that one of the defendant's compadres might have moved the vehicle; and finally, the defendant could not have alerted anyone to move the automobile inasmuch as he was in continuous police custody from the very moment that he was arrested at his office. But in reversing the defendant's conviction, the Court pointed out:
"We do not mean to hold that `exigent circumstances' may never exist in the case of a parked car. Nor does the fact that the place which is searched is an automobile serve as an automatic justification for a warrantless search ... The test is whether `exigent circumstances' make the obtaining of a warrant impracticable. In the instant case no showing is made as to why the obtaining of a warrant was not practicable."
475 S.W.2d at 752. See also Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
For its part, the State relies on Harris v. State, 486 S.W.2d 88 (Tex.Cr.App.1972), where both Stoddard v. State, supra, and Coolidge v. New Hampshire, supra, were distinguished. In Harris, as here, a confidential informant told police that the defendant would be arriving at the China Doll Lounge in a white Cadillac bearing license plates "LTC 92" with "around 100 capsules of heroin and a bunch of red birds [barbiturates]." The officers saw the accused arrive in the described vehicle, park it, lock it and enter the lounge. Following the defendant into the lounge, the officers arrested him; after a search yielded nothing in the way of contraband, they escorted him back to his vehicle where a search turned up a quantity of heroin. The defendant in Harris raised the same contention on appeal that our appellant makes-the lack of exigent circumstances precluded a warrantless search of an automobile which was locked and capable of being secured. The Court, however, pointed out an important factual distinction between Stoddard and Coolidge, on the one hand, and Harris, on the other: the accused in the former were custodially confined before the challenged search was initiated whereas in the latter the accused, though under arrest and subjected to a fruitless search of his person, was still present at the scene during the search of his automobile. In this different situation the Harris Court found legal justification for an immediate search, based on probable cause, in the notion that to continue to detain Harris and to deprive him of the use of his car while an officer found and obtained from a magistrate a search warrant "would have clearly been an intrusion upon appellant's constitutional rights."
Happily, we are not required to choose between Stoddard and Harris or resolve the *214 anomaly they together create.[2] Since they were decided in 1972 the focus of inquiry as to reasonableness of a warrantless seizure or search of a motor vehicle has moved somewhat away from the custodial status of its owner or operator and more to the mobility potential of the vehicle itself. Thus, learning from Cardwell v. Lewis, 417 U.S. 583, 594-595, 94 S.Ct. 2464, 2471, 41 L.Ed.2d 325 (1973) and Cady v. Dombrowski, 413 U.S. 433, 446-447, 93 S.Ct. 2523, 2530-2531, 37 L.Ed.2d 706 (1973), we have recently subdivided the "automobile exception" to the warrant requirement[3] into "moving" and "movable" vehicles because of "the readily apparent difference in exigencies involved," Hudson v. State, 588 S.W.2d 348, 354 (Tex.Cr.App.1979).[4] The classification in a given case is conditioned, in turn, partially at least on the character of the location of the motor vehicle, for as the Supreme Court has pointed out in distinguishing Coolidge v. New Hampshire, supra, from Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970):
"... The present case differs from Coolidge both in the scope of the search and in the circumstances of the seizure. Since the Coolidge car was parked on the defendant's driveway, the seizure of that automobile required an entry upon private property. Here, as in Chambers v. Maroney ... the automobile was seized from a public place where access was not meaningfully restricted. This is, in fact, the ground upon which the Coolidge plurality opinion distinguished Chambers...," Cardwell v. Lewis, supra, 417 U.S. at 594, 94 S.Ct. at 2471.
And, further coupling Chambers and Cardwell v. Lewis, the Supreme Court went on to observe as to moveability of the Lewis car:
"In fact, because the interrogation session ended with awareness that Lewis had been arrested and that his car constituted incriminating evidence, the incentive and potential for the car's removal substantially increased."
We turn then to examine the circumstances surrounding the on-the-scene seizure and search of appellant's automobile, as well as his custodial status at the time. For reasons about to be stated, we must conclude that the State did not discharge its burden of proving that the automobile exception fits this case.
When Koop and the officers accompanying him arrived at the May Street garage[5] they found it, the driveway to it and what turned out to be appellant's car, along with others, on premises that were fenced.[6] As he engaged Martinez in conversation, Koop observed "several people" inside the garage; although it was about 9:45 p. m., to Koop the garage appeared to be open to the public.[7] After appellant was pointed out to *215 him by Martinez, Koop went into the garage,[8] accosted appellant, confirmed his identity and obtained keys to his automobile-all in the presence or view of his friends.
At this point, like the plurality in Cardwell v. Lewis, we might well find that the garage premises amounted to "a public place" and the encounter with appellant enough of an indication that his car contained marihuana that "the incentive and potential for the car's removal substantially increased." However, certain testimony of Officer Koop under guidance of the prosecuting attorney illuminates his own estimation of the situation:[9]
"Q: [By Mr. Hinton]: The object of your being there was to search that Chevrolet, is that correct?
A: Yes, sir.
* * * * * *
Q: [By Mr. Hinton]: If the car keys that David Montez had hadn't fit the Chevrolet or if he hadn't had any car keys would you have still got in the trunk?
A: Yes, sir.
Q: How would you have gotten in the trunk?
A: Whatever means would have been necessary.
Q: Had anything taken place that allowed you to arrest this Defendant or anybody else at that time that you were aware of before you found the marijuana [sic] in the trunk of the car?
A: There was no reason to arrest anybody at that time.[10]
Q: You couldn't go down and get a search warrant and come back and expect that car to still have the *216 marijuana [sic] in the trunk, if it did, is that correct?
A: That's right."[11]
Thus, the articulated concern of Koop was that whatever marihuana there was, if any, might somehow be removed from the trunk of the automobile rather than that the car itself would be moved from the premises. With the keys to the car in his own hand, Koop could have hardly regarded the latter event very likely. With a half a dozen other officers present and keeping everybody "cool," we fail to perceive a likelihood of the first. But be that as it may, the point is that the automobile that Koop was determined to search was then and there neither moving nor moveable.
Some thirty-five minutes earlier Koop had obtained a search warrant from a magistrate sitting in his courtroom in the city hall. Asked to locate the May Street garage other than by its address, Koop testified:
"A: It's close-on the other side of a viaduct, referred to as West Dallas. In that particular part it's sometimes referred to as Oak Cliff-close in Oak Cliff."
Keeping in mind that after leaving city hall Koop was diverted from his original mission by a telephone conversation with his informant and thereafter spent some time in collecting a number of other officers to accompany him to the garage in Oak Cliff, the drive from it back to city hall must be exceedingly short, especially at ten o'clock at night.
We must conclude that exigent circumstances have not been shown to exist. The automobile exception of Carroll, supra, is not applicable because appellant's automobile was not moving. The "moveable" subclassification of the exception was thwarted by the car keys being in Koop's hand. Whatever "incentive and potential for the car's removal" factors that influenced the plurality in Cardwell v. Lewis, supra-were chilled by the physical detention of appellant and his friends in the garage, all of whom, we glean from the testimony, were contemporaneously arrested;[12] his home, some three miles away, was about to be raided and his wife arrested.[13] Thus, even though the automobile was not in a location as private as the driveway at appellant's home, as in Coolidge v. New Hampshire, every person who was or might become aware of what was taking place at the garage was precluded from sounding an alarm or was rendered powerless to do anything about it.[14] Under these circumstances, *217 there was no exigency. Hudson v. State, supra; Coolidge v. New Hampshire, supra.
Accordingly, the judgment is reversed and the cause remanded.
TOM G. DAVIS, dissents.
Before the court en banc.
OPINION ON STATE'S MOTION FOR REHEARING
DOUGLAS, Judge.
On original submission, a majority of a panel reversed this conviction for the possession of more than four ounces of marihuana because the evidence was introduced as a result of a search of an automobile where approximately sixty pounds of marihuana was found. In addition to the amount of marihuana found in the car, some two hundred pounds was found at his home pursuant to a search warrant which contained an order for the arrest of appellant. We grant the State's motion for rehearing.
There appears to be no question about the search of appellant's home.
At the hearing on the motion to suppress the evidence obtained in the automobile, Officer Kenton Koop of the Dallas Police Department testified that he received information from a confidential informant that appellant was in possession of marihuana. The informant had given him information before this date that had proved to be correct. Officer Koop obtained a search warrant to search the residence of appellant. While enroute to the residence, he received additional information from the same informant that appellant was at a garage at 2406 May Street in Oak Cliff and that he and others there were dividing approximately one hundred pounds of marihuana. He related that he did not get a search warrant for the garage because he did not have time to do so at that time of night and that the informant told him that they would be there at the address for a short time. When Koop arrived at the garage, someone was listening to a radio in appellant's 1974 black Chevrolet, which had been described earlier by the informant. The occupant pointed out appellant, who was in the garage with other people. Officer Koop testified that the garage was open to the public. This was contradicted to some extent by witnesses called by appellant. Koop went into the garage, asked appellant for the keys and opened the trunk, where he found twenty-four bricks or kilos of marihuana which weighed about 2.2 pounds each.
Koop then proceeded to appellant's home to make the search under the warrant. Appellant's wife was there. Officers found about a pound of marihuana in the attic and about two hundred pounds in a Dodge pickup truck in the garage.
Did the officers have a right to make the search of the automobile? The officers did not have a search warrant for the garage but did have a search warrant for the residence. The search warrant contained an order to arrest appellant.
The reliability of the informant is not questioned. The facts alleged in the affidavit show that the informant was a credible, reliable person. The informant gave him the license number of the automobile, its make and description and related that the people were dividing the marihuana at the garage. The officers had sufficient probable cause to believe that the appellant possessed marihuana in the automobile.
Recently, the Supreme Court of the United States in Colorado v. Bannister, ___ U.S. ____, 101 S.Ct. 42, 66 L.Ed.2d 1 (1980), held and noted that officers who had probable cause could search an automobile where it was stopped on the scene or after the car was seized and moved to a police station, citing Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).
*218 In the Bannister case, the Colorado Springs Police Department observed a blue 1967 Pontiac GTO automobile moving along a road at a speed above the legal speed limit. The automobile disappeared. Shortly thereafter, the officer heard a police radio dispatch reporting theft of motor vehicle parts which had occurred in the area and which announced that a number of chrome lug nuts were among the items missing and provided a description of the two suspects. A few minutes after hearing the report, the officer spotted the same car that he had seen earlier and it was speeding. After the car entered a service station, the officer followed it there for the purpose of issuing a traffic citation to the driver.
As the officer approached the car, both of the occupants, including the respondent Bannister, stepped out. A conversation between the officer and the respondent ensued. Standing just outside the closed front door of the automobile, the officer observed chrome lug nuts in an open glove compartment inside between the front bucket seats as well as two lug wrenches on the floorboard of the back seat. Recognizing that the respondent and his companion met the description of those suspected of stealing the motor vehicle parts, the officer immediately arrested them. He then seized the lug nuts and wrenches. The trial court granted the motion to suppress and the Supreme Court of Colorado affirmed the decision. The state filed for petition for certiorari to the Supreme Court of the United States. The Court noted that searches outside the judicial process under the Fourth Amendment were not authorized unless there were exceptions. The Court wrote:
"... One of these exceptions, recognized at least since Carroll v. United States, 267 U.S. 132 [45 S.Ct. 280, 69 L.Ed.2d 543] (1925), exists when an automobile or other vehicle is stopped and the police have probable cause to believe it contains evidence of a crime." [Citing Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).]
The car was stopped for speeding and there was probable cause "that the contents of the automobile offend[ed] against the law."
The probable cause was noted by the Supreme Court of Colorado but, according to the United States Supreme Court, it mistakenly concluded that a warrant was required to open a car door and seize the items within and his stopping of the car and issuing a traffic citation was legitimate, and that the circumstances of this case provided not only probable cause to arrest but, under Carroll and Chambers, the probable cause to seize the incriminating items without a warrant.
The state's petition for certiorari was granted. The Supreme Court of the United States held the search was constitutionally permissible. The judgment of the Supreme Court of Colorado suppressing the evidence was set aside.
The Court noted Arkansas v. Sanders, 442 U.S. 753, 760, 99 S.Ct. 2586, 2591, 61 L.Ed.2d 235 (1979), and, at least impliedly, held that it did not apply.
There were as many exigent circumstances in the present case as there were in Bannister's case. The search was authorized. The judgment of reversal is set aside; the State's motion for rehearing is granted.
The other grounds have been considered and overruled.
The judgment is affirmed.
ROBERTS, ODOM, PHILLIPS and CLINTON, JJ., dissent.
NOTES
[1] Koop recalled that as he sat there Martinez was listening to a radio, either the car radio or a portable transistor one. Martinez testified he was lighting a cigarette with the car lighter when Koop walked up. Whatever Martinez was doing, that the driver's door was open seems undisputed.
[2] If "[i]t is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior," Camara v. Municipal Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), a more troubling paradox is that whether a locked automobile parked in a public place may be seized and searched on probable cause is made to depend on the nature of custodial status of its owner or operator-the stricter the confinement, the higher is the protection against a warrantless seizure and search of his motor vehicle.
[3] The exception was first enunciated in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) and has since been frequently explicated, as in, e. g., South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976).
[4] While Hudson and other authorities it discusses on this point dealt with physical seizure and removal of a motor vehicle to search it at another location, the same constitutional considerations apply to a search of a vehicle at the scene of its seizure. Chambers v. Maroney, 399 U.S. at 52, 90 S.Ct. at 1981.
[5] While referred to generically as a garage, Martinez, who was employed there, said it was a paint and body shop.
[6] The gates were open, permitting easy ingress and egress; however, Koop parked his unit in the street.
[7] Martinez, however, testified that it was not and that there were signs about indicating the place was closed. However, he also agreed that "the big front door of the shop" was open and lights were on; the eight or so people there were "just personal friends" drinking beer after work. The owner of the shop, Ignacio Rojas, confirmed the festive nature of the occasion and added that "everybody drives up when we're drinking beer."
[8] As he entered Koop recalled that one of the several officers who apparently had gone directly into the garage told the group that they were police officers, asked who was in charge, cautioned everybody to "be cool for a few minutes" and explained that "we were looking for marijuana [sic]." From other testimony we get the impression that the occupants were spread-eagle against a wall of the garage.
[9] In Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), writing for the Court, Mr. Justice Powell pointed out that while general principles applicable to claims of Fourth Amendment violations are well settled,
"... Courts and law enforcement officers often find it difficult to discern the proper application of these principles to individual cases, because the circumstances giving rise to suppression requests can vary almost infinitely. Moreover, an apparently small difference in the factual situation frequently is viewed as a controlling difference in determining Fourth Amendment rights."
The same problems, of course, arise under our constitutional counterpart to the Fourth Amendment, Article I, Section 9, Constitution of Texas.
[10] Koop later testified that when he approached appellant in the garage, "I had no reason to place him under arrest. I felt like I had a reasonable cause to detain him at that time until I could check out the circumstances."
We are constrained to remark on the incredible statements made by a ten year veteran of the Dallas Police Department. Officer Koop had in his possession at that very moment a search warrant for the residence of appellant, based on his own affidavit that named and charged appellant with the felony offense of possession of marihuana, which unconditionally provided, "And, you are commanded to arrest and bring before me each person described and accused in said Affidavit." That command is specifically authorized by Article 18.03, V.A. C.C.P., and "[i]n this regard an arrest warrant incorporated within a search warrant is no different than an arrest warrant issued separate and independent of a search warrant" so that "the authority to arrest under an arrest warrant incorporated in a search warrant is not limited to the premises described in the search warrant," Pecina v. State, 516 S.W.2d 401, 403 (Tex.Cr.App.1974). Indeed, without the warranted authority to arrest appellant, propriety of the intrusion by and continued presence of Koop and his fellow officers on the premises is most questionable. Compare Simpson v. State, 486 S.W.2d 807, 809 (Tex.Cr.App.1972) with Evans v. State, 530 S.W.2d 932, 938 (Tex.Cr. App.1975). However, we do not decide the point since appellant has not challenged the invasion on the place but only the search of his automobile.
[11] Earlier during cross examination Koop had conceded that he could have posted one or more of the other officers with appellant's automobile and the persons in the garage while he or yet another officer went to obtain a search warrant, but explained that he did not because:
"A: Well, my concern was for these people-were not under arrest at that time. Secondly, there was a felony being committed there on the premises. Thirdly, that I had a search warrant that I wanted to execute at the other location.
Q: So you just didn't have time to bother with getting another search warrant to search a car that was forty feet away from the building.
A: Yes, Sir. "That's correct."
[12] After his search of the trunk produced kilos of marihuana, Koop placed appellant under arrest and turned him over to other officers who transported him to the Dallas Police Department. Likewise "the other people in that place were put under arrest" and "there was a fairly complete search made of the building and everything in plain view" that resulted in seizure of some fifteen hundred dollars in currency from the beer case. Appellant's automobile was impounded.
[13] From five o'clock that afternoon the residence had been under continuous surveillance by plainclothes officers. If need be, then, they were available to follow and restrain Mrs. Montez should she make any move toward the garage premises.
[14] As Mr. Justice Stewart wrote, dissenting in Cardwell v. Lewis, supra, 417 U.S. at 599, 94 S.Ct. at 2473:
"... Where there is no reasonable likelihood that the automobile would or could be moved, the Carroll doctrine is simply inapplicable. * * *
The facts of this case make clear beyond peradventure that the `automobile exception' is not available to uphold the warrantless seizure of the respondent's car. Well before the time that the automobile was seized, the respondent-and the keys to his car-were securely within police custody. There was thus absolutely no likelihood that the respondent could have either moved the car or meddled with it during the time necessary to obtain a search warrant. And there was no realistic possibility that any one else was in a position to do so either."
|
386 A.2d 317 (1978)
STATE of Maine
v.
Steven R. CLARK.
Supreme Judicial Court of Maine.
May 3, 1978.
Charles K. Leadbetter (orally), Asst. Atty. Gen., Augusta, for plaintiff.
Bennett, Kelly & Zimmerman, P. A. by Peter H. Jacobs (orally), John N. Kelly, Peter J. DeTroy, III, Portland, for defendant.
Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ.
WERNICK, Justice.
An indictment returned September 3, 1975 in the Superior Court (Knox County) *318 charged that on or about July 14, 1975 defendant Steven R. Clark killed Jared D. Wright in manner rendering the killing an unlawful homicide punishable as murder (17 M.R.S.A. § 2651). Tried before a jury, defendant was found guilty as charged.
We deny defendant's appeal from the judgment of conviction.
In April 1975, defendant began living with Judith Wright and her two children, Jared and Cammie. On July 14, 1975 in the morning, defendant drove Judith Wright to her place of employment and then returned home to serve breakfast to the two children. While the children were eating, defendant began to clean the house. Cammie finished eating and went outdoors. Defendant noticed that Jared, twenty-three months of age, was playing with his food. Defendant instructed Jared to eat his food. Jared did nothing but look at defendant. Shortly thereafter, defendant again walked by the table and saw that Jared was still not eating. Defendant lost his temper and hit Jared on the side of the head.[1] Defendant then continued to clean the house but soon noticed that Jared was still playing with his food. Defendant thereupon hit Jared with his fist two times, and fairly hard, in the stomach.[2] Defendant then carried Jared outside and left him standing near Cammie. A little later, Cammie came in and told defendant that Jared was "sleeping on the ground." Defendant ran outside and found Jared lying limp on the ground with his eyes half closed. Defendant took Jared inside and succeeded in reviving him with a wet washcloth.
That evening, and for the next two days, Jared displayed various symptoms of illness, including a fever and periodic nausea. During the late morning of July 16 when Jared's condition noticeably worsened, defendant called Mrs. Wright at work. She in turn called the emergency room at Knox County General Hospital. Jared was then taken to the hospital. He died within a few minutes after arrival at the emergency room. The cause of death was multiple trauma, or the combined effects of internal head injuries and of intraabdominal injuries which had produced an accumulation of blood in the abdominal cavity. It was only after Jared had died that defendant provided the information that he had struck the child on the head and in the stomach.
Defendant contends on appeal that the evidence is inadequate to support defendant's conviction of felonious homicide punishable as murder and the jury was influenced to return such unsupportable verdict by a combination of prejudicial factors including pre-trial publicity and venue, the emotional nature of the case and the confusing nature of the jury charge.[3]
At the outset, we disagree with a contention which defendant makes the foundation of his argument:that the emotional nature of this case placed a greater burden on the trial Judge to make sure that justice was done and therefore mandates a closer appellate scrutiny of the issues raised by this appeal. The emotional nature of a case does not alter the obligation of the presiding Justice to provide an adequate explanation of the pertinent legal principles to the jury. The need for clarity in the jury charge is present in every case and the difficulty in charging the jury varies only with the legal complexity of the case. Accordingly, we test the adequacy of the jury charge by the ordinary standard of appellate scrutiny. Similarly, in reviewing the denial of a motion for judgment of acquittal, we must determine only whether, in *319 view of all the evidence presented at trial, the jury was warranted in believing beyond a reasonable doubt that the defendant was guilty.[4] See, e. g., State v. McFarland, Me., 369 A.2d 227 (1977). Lastly, although some consideration of the emotional nature of the case may be relevant to an evaluation of the merits of defendant's motion for change of venue, the presence of this factor does not create a special standard of appellate review or cast doubt on the judgment of the presiding Justice who denied the motion for change of venue.
Having decided that there is no special brand of appellate scrutiny required for this case, we turn to consideration of defendant's argument concerning pre-trial publicity. Pursuant to Rule 21(a) M.R.Crim.P., defendant moved on September 22, 1975 for a change of venue to a county other than Knox County, citing the allegedly prejudicial nature of the pre-trial newspaper coverage of the case in Knox County. At a hearing on this motion on October 6, 1975, defendant presented evidence in regard to the extent and nature of the pre-trial publicity and its general effect on the community. At the conclusion of the hearing the presiding Justice denied the motion for change of venue, but he stated that he would consider a further motion at a later time if actual prejudice on the part of the venire persons became apparent from the jury voir dire. At the conclusion of the voir dire in October 1975, defendant renewed his motion for change of venue. The presiding Justice again denied the motion.
As in State v. Littlefield, Me., 374 A.2d 590 (1977), we view defendant's claim of error in the denial of his motion for change of venue as directed to both alleged violation of the constitutional guarantees of due process of law and abuse of the discretion allowed the presiding Justice under State law.
In relation to the due process aspect of defendant's position we consider, first, defendant's suggestion that the nature of the pre-trial publicity was such that it must be taken, per se, to have precluded a fair and impartial jury in Knox County, and therefore no showing of actual prejudice to defendant should be required.
The pre-trial publicity in this case consisted of approximately two dozen articles from three newspapers covering the two month period from defendant's arrest on July 17, 1975 through his arraignment on September 11, 1975. With the possible exception of articles dated August 19, 1975, all of the articles "`met every reasonable standard of fair reporting'", State v. Pritchett, Me., 302 A.2d 101, 104 (1973), State v. Berube, Me., 297 A.2d 884, 886 (1972), and they were "`straight news stories rather than invidious articles which would tend to arouse ill will and vindictiveness.'" State v. Coty, Me., 229 A.2d 205, 212 (1967), quoting from Beck v. Washington, 369 U.S. 541, 556, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962).
Dealing separately with the articles of August 19, 1975, we discern that compared with the other published articles they presented a somewhat greater threat to the prospect of securing a fair and impartial jury in Knox County. The August 19th articles summarized the evidence presented by the State at the probable cause hearing, including references to a confession by the defendant and to various statements by several doctors ruling out the possibility of an accidental death and claiming that it looked as if the child was "hit with bricks or something." (As to this last statement about "bricks", the newspaper which had printed it published, on September 11, 1975, an article correcting the story, explaining as the true situation that Mrs. Wright had made a statement that in her conversation with the doctors "it hit her like a ton of bricks.")
*320 While acknowledging that the August 19th articles exceeded the ordinary scope of news coverage and could be taken as "prejudicial" to the defendant, the presiding Justice nevertheless saw fit to deny the motion for change of venue.[5]
Reviewing the presiding Justice's ruling in the framework which we are now postulating that the nature of the articles was such as per se to preclude securing an impartial jury in Knox County, without need for a showing that defendant suffered actual prejudicewe note at the outset that there was no saturation of prejudicial news coverage in Knox County. Even as to the articles published by the newspapers on August 19, 1975, in each newspaper there was only a single article which attempted to summarize the testimony presented at the probable cause hearing. These articles were before the public more than two months before the inception of the trial. In addition, the articles contained no requests or demands for action against the defendant or sensational expression of opinion as to the guilt or innocence of the defendant. The publicity was all of a pre-trial nature. No prejudicial incidents occurred during the course of trial such as in other cases have served as presumptive evidence of an unfair trial.[6] See, e. g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) (carnival atmosphere resulting from press disruption during trial and lack of jury sequestration); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (televised trial); Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) (jurors in custody of deputies who were the chief prosecution witnesses). Even the August 19th articles were largely factual and as a whole were not invidious or inflammatory in effect. See Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962). Although in some cases the nature of the pre-trial publicity itself may be so prejudicial and extraordinary as to mandate a change of venue, see Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (public exposed three times to televised spectacle of defendant personally confessing in detail to the crimes charged), we conclude that the nature of the publicity here was not so inherently and pervasively prejudicial as to require a change of venue in the absence of a showing of actual prejudice.[7]
*321 Defendant has failed to demonstrate any actual prejudice on the part of the venirepersons sufficient to require reversal as a matter of constitutional due process. Of the 116 persons in the pool of persons summoned for the jury voir dire, only 26 admitted to having formed an opinion as to defendant's guilt or innocence and all 26 were excused "for cause" by the presiding Justice. None of the 12 jurors and 2 alternatives finally selected expressed any preconceived notions in regard to defendant's guilt or innocence, and all expressed a willingness to be fair and impartial. In fact, no members of the final panel were challenged for cause by the defendant, a circumstance which is "strong evidence" that defendant was convinced that the jurors were not biased and had not formed any opinions as to guilt. Beck v. Washington, 369 U.S. 541, 557, 558, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962). The mere exposure of the jurors to the pre-trial publicity in this case is not a sufficient indication of actual prejudice or fundamental unfairness. State v. Littlefield, Me., 374 A.2d 590 (1977) (and cases cited therein); Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).
We also reject defendant's contention that the presiding Justice, in denying the motion for change of venue, exceeded the scope of permissible discretion exercisable as a matter of state law. See State v. Littlefield, Me., 374 A.2d 590 (1977). The denial of the motion for change of venue was fully consistent with the requirements of state law. See State v. Littlefield, supra; State v. Coty, Me., 229 A.2d 205 (1967); State v. Beckus, Me., 229 A.2d 316 (1967).[8]
Having decided that the presiding Justice did not err in denying the motion for change of venue, we turn now to consideration of defendant's argument that the jury charge as a whole was erroneous and prejudicial to defendant. Acknowledging that each individual statement of law in the charge to the jury may have been, within its own confines, a correct statement of the law, defendant contends that the charge as a whole was confusing because of the intertwining of various concepts and categories such as murder and manslaughter, and intent and the absence of intent.
We reject this argument. We have examined the charge in its entirety and have found it sufficiently clear, logical and precise. The presiding Justice first structured his charge around the three components of felonious homicide punishable as murder (as here applicable). He proceeded logically from the requirement of a killing to its unlawful nature (therein explaining the concepts of justifiable and excusable killings) and finally concluded with an explanation of the "intent" requirement or its objective equivalent. The presiding Justice then instructed the jury in regard to involuntary manslaughter and other lesser included offenses.[9] Although at one point during his explanation of murder and the concept of an unexcused killing, the presiding Justice injected a comment as to the State's burden in regard to proving the lesser offense of manslaughter, this digression was not prejudicial. The purpose of the digression was only to point out that an excusable killing is punishable neither as murder nor manslaughter. In light of subsequent instructions given as to the punishment categories of murder and manslaughter and various curative instructions which the presiding Justice gave, we conclude that the charge as a whole was adequate.
*322 One other issue raised by defendant, concerning instructions given to the jury after the jury had made a request for additional instructions, requires further comment.
After the Justice completed his initial charge to the jury, he conferred with counsel and then gave the jury a curative instruction in regard to involuntary manslaughter. Defense counsel indicated satisfaction with the curative instruction. The jury then retired to commence its deliberations. Two hours later, the jury returned and requested written definitions of "murder, manslaughter, assault and battery, high and aggravated, and simple assault and battery." The presiding Justice refused this request, but he indicated to the jury that he would grant a request for further oral instructions. The jury again retired and returned to the courtroom shortly thereafter with a request for further instructions "in reference to the part of the intent, part of being defined in the three different aspects as to the intent." In response, the presiding Justice instructed the jury only in regard to intention, or its objective equivalent, as each is related to the punishment category of murder.[10]
Defendant then renewed his objection that the charge was confusing, and defendant also objected that the Court should have further instructed the jury about intention in manslaughter. The Court refused, explaining that intention is not involved in manslaughter. Defendant then agreed to a proposal by the presiding Justice that earlier instructions be repeated. When the jury again requested instructions as to the elements of murder and manslaughter, the presiding Justice had the stenographer read back to the jury the full version of the original instructions in regard to murder and manslaughter and also the first curative instruction. Defendant then made a further request that since, as defendant viewed the situation, the jury's action showed that the jury was confused, the Justice should undertake anew to clarify for the jury the concepts of manslaughter and criminal negligence. The Justice refused this request. The jury then retired and, after two and a half hours of further deliberations, returned its verdict.
Defendant claims that it was error for the presiding Justice to refuse to clarify the concepts of manslaughter and criminal negligence after the jury had asked for further instructions in regard to the "three aspects of intent."
We conclude that the presiding Justice acted without error in relying on his original instructions to the jury. The Justice had twice explained to the jury that an unlawful killing was punishable as murder in the circumstances of this case only if the defendant had an actual subjective intent, desire or purpose to kill or if, alternatively, absent
". . . actual intent . . . to kill, his conduct is characterized by a high, death-producing potential and demonstrates a wanton and willful disregard by him of the obvious likelihood of causing serious bodily injury or death. Such conduct has the equivalent effect of an actual intent, desire or purpose to kill."
In his first curative instruction, which also had been twice presented to the jury, the presiding Justice had explained that
*323 "if that killing is shown and the jury is satisfied [that it] was an unintentional killing, . . . to find the defendant guilty of manslaughter you must find that he acted in a manner which evidenced a reckless disregard for the life and safety of another."
The curative instruction further explained that such "reckless disregard" requires the State to prove more than that defendant was negligent. As the Justice stated it:
"Proof of ordinary negligence, that is, that the defendant did not act as a reasonably prudent person would have acted under the same or similar circumstances, is not sufficient for you to find the defendant guilty of manslaughter. The standard of reckless disregard for the life and safety of another is a heavier burden for the State to prove than mere negligence. And, to return a verdict of guilty of manslaughter you must find beyond a reasonable doubt that the State has met this burden."
In view of these instructions, and the charge as a whole, we find that the Court adequately differentiated between the unlawful homicide which is punishable as "involuntary manslaughter", as predicated on criminal negligence, see State v. Hamilton, 149 Me. 218, 100 A.2d 234 (1953), State v. Ela, 136 Me. 303, 8 A.2d 589 (1939), and the unlawful homicide which is punishable as "murder", as resting on brutal or reckless and willful conduct which, objectively viewed, has high capability to cause death. State v. Ellis, Me., 325 A.2d 772 (1974); State v. Lafferty, Me., 309 A.2d 647, 671, 672 (1973). By the repetition of the instructions the Justice made sufficiently clear the difference between "criminal negligence" as giving rise to "involuntary manslaughter" and the "intent" to kill, actual or attributed, which would make an unlawful homicide punishable as murder. We conclude that no error resulted from the instructions to the jury.
As a final point of appeal, defendant attacks the sufficiency of the evidence to support the verdict of unlawful homicide punishable as murder. Defendant contends that as a matter of law his conduct must be characterized, at worst, as "criminal negligence", and therefore, if defendant committed an unlawful homicide, it was only such as is punishable as "involuntary manslaughter."
Under the law applicable (as relevant in the circumstances of this case) at the time of the unlawful killing, defendant could properly be found guilty of unlawful homicide punishable as "murder" if either (1) defendant caused the death of another, defendant having actual subjective intention that death should result from his conduct or (2) defendant caused the death of another by conduct which, objectively evaluated, has high capability to produce death or manifests a wanton and willful disregard of the risk of death as a result of the conduct. State v. Ellis, Me., 325 A.2d 772, 776 (1974); State v. Lafferty, Me., 309 A.2d 647, 671, 672 (1973).
Acting as an appellate court to review the sufficiency of the evidence, we are not to act as fact-finders in the first instance; it is the jury's judgment, so long as it is a rational judgment, which must govern. State v. Blier, Me., 371 A.2d 1091, 1093 (1977); State v. Bonney, Me., 351 A.2d 107, 110 (1976). Here, defendant himself admitted in his testimony at trial, that he first struck Jared, a twenty three month old child, in the head and then shortly thereafter, twice used his fist to strike the child "fairly hard" in the stomach. The jury was justified in finding that defendant's conduct was brutal conduct which, objectively evaluated in all the circumstances, had high capability to cause Jared's death.
The entry is:
Appeal denied.
Judgment affirmed.
NICHOLS, J., did not sit.
NOTES
[1] Defendant testified that the blow was harder than he had intended it to be.
[2] On the day after Jared died defendant told detective Lyndon Abbott that he had struck Jared in the stomach area three or four times; at trial, however, defendant admitted striking the child in the stomach only twice.
[3] Defendant asserts his contention as a unitary argument, warning that its essence is lost if it is sought to compartmentalize it into an analysis of separate issues. Because we have concluded that no error was made in any of the rulings by the Court below, we find it unnecessary to consider the "cumulative impact" of the Court's rulings or to group together for appellate consideration the readily separable issues raised by defendant's appeal.
[4] In regard to the possible effects on the jury of the emotional nature of the case, the presiding Justice cautioned the jury at the outset of his charge to make the determination of the facts free from the influence of any passion, prejudice or emotion of any kind. In addition, we note that defendant does not suggest that any of the evidence had any tendency to influence the jury on an improper basis. See Rule 403 M.R.Evid.; State v. Hurd, Me., 360 A.2d 525 (1976).
[5] Since the presiding Justice refused a change of venue, we interpret his statement about prejudice to defendant as signifying that the articles in the abstract had some potential for prejudice but were not so presumptively prejudicial as to require a change of venue.
[6] Defendant does suggest that the impartiality of the actual jury was tainted by the comments of a prospective juror during voir dire that no child "would be worthy of punishment like this child had." The presiding Justice refused to excuse the entire array in the absence of a showing that the remarks actually influenced the other prospective jurors. His subsequent specific inquiries established that the jurors were not so influenced. We agree that this single remark by a prospective juror did not constitute such pervasive and presumptive prejudice as, per se, to make the trial unfair.
[7] At the pre-voir dire hearing on the motion for change of venue, defendant attempted to establish the necessary degree of presumptive prejudice by introducing the results of a special telephone survey or poll conducted in Knox County at defendant's request. The results of the survey indicated that 83% of the 200 eligible voters interviewed remembered having seen, heard or read something about an incident involving the beating death of a two year old child in Union; another 4% remembered the incident when the names of defendant and the decedent were mentioned; 67% remembered having seen, heard or read something about defendant being charged with murder in connection with the death of the child; 19% had formed an opinion as to defendant's probable guilt or innocence; 16% believed that defendant was probably guilty of a crime in connection with the child's death; 17% had read something (or believed they had) about defendant being guilty of a crime in connection with the incident; and 8% had both read and heard something about defendant being guilty.
The presiding Justice concluded that the results of the poll indicated the likelihood of obtaining a fair trial for defendant in Knox County.
We take this occasion, however, to express the caveat that Superior Court Justices should proceed with extreme caution in taking cognizance of the results of surveys of the type here made. We think that such surveys should not be encouraged since in the very process of conducting them in advance of trial there may be potential for the creation of prejudice. Moreover, the empirical data revealed by the survey may divert the attention of the presiding Justice from the critical constitutional question of whether, independently of its actual effects, the pre-trial publicity was in itself of such nature as presumptively to preclude the possibility of a fair trial.
[8] In State v. Littlefield, supra, we suggested in footnote 9 that, in consequence of recent statutory innovations, considerations of expense and inconvenience should have less influence on the venue decision. The trial in this case, however, preceded our opinion in Littlefield.
[9] Defendant agreed that the presiding Justice should not instruct the jury in regard to the offense of felonious homicide punishable as "voluntary" manslaughter.
[10] The Justice instructed that:
"A killing is characterized as intentional if, first, the killer had an actual intent, desire or purpose to kill. That is, that death should result from his conduct or, second, although the killer had no actual intent, desire or purpose to kill, his conduct is characterized by a high death-producing potential and demonstrates a wanton and willful disregard of the obvious likelihood of causing serious bodily injury or death. Such conduct has theand that is the second conduct that I referred tohas the equivalent effect of an actual intent, desire or purpose to kill.
"Now, in other words, the first characterization is called a subjective intent, where there was an actual intent in the mind of the individual, an actual intent, desire or purpose to kill. The second definition or characterization of intentional is more of an objective standard, where, although there was no subjective actual intent, desire or purpose to kill, the conduct is characterized by a high potential for producing death and demonstrates a wanton and willful disregard of obvious likelihood of causing serious bodily injury or death."
|
50 So.3d 674 (2010)
Brittney M. WYRICK, Appellant,
v.
STATE of Florida, Appellee.
No. 5D10-367.
District Court of Appeal of Florida, Fifth District.
December 3, 2010.
Rehearing Denied January 6, 2011.
*675 James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
MONACO, C.J.
This appeal requires us to interpret sections 322.34(5) and 322.34(10), Florida Statutes (2009), in order to determine under the facts of this case whether the appellant, Brittney M. Wyrick, should have been charged with a third-degree felony or a first-degree misdemeanor for the crime of driving while her license was suspended. Because we conclude that she was properly charged with a felony, we affirm.
Although the appellant was initially accused of three offenses, only one of these is pertinent for purposes of this appeal. The critical count in the information against her charged Ms. Wyrick with a third-degree felony for driving without a license after her license had been revoked pursuant to section 322.264, Florida Statutes (2009), as an habitual traffic offender ("HTO"). That statute, among other things, relates that if a person whose record as maintained by the Department of Highway Safety and Motor Vehicles reflects that he or she has accumulated three convictions within a 5-year period for DUI or for driving a motor vehicle while his or her license is suspended or revoked (among other reasons), then that person is designated as an HTO. Section 322.34(5), Florida Statutes, in turn, makes it a third-degree felony for one whose license is suspended or revoked as an HTO, to drive a motor vehicle upon the highways of Florida. Thus, if a person is an HTO and is caught driving in the State, he or she is to be charged with a felony.
The rub comes because in 2008 the Legislature adopted section 322.34(10)(a)6., Florida Statutes, which states that notwithstanding any other provision of section 322.34, if the offender does not have a prior forcible felony conviction, and if the person is designated an HTO as a result of the suspension of the offender's license because of certain purely financial defaults (as well as some other enumerated reasons not germane to this case), the offender is only to be punished for a first-degree misdemeanor upon a second or subsequent conviction for the same offense.
After being charged, Ms. Wyrick filed a motion to dismiss the felony charge of driving without a license and asked that the State be compelled to amend the charge to a first degree misdemeanor. In doing so Ms. Wyrick attached her driving record which reflected that she had been convicted of DUI in 2004, as well as two *676 driving with license suspended or revoked offenses, both in 2006. The 2006 charges were, however, financial responsibility suspensions; namely, driving without insurance.
Ms. Wyrick noted that although she drove her vehicle while being labeled an habitual offender under section 322.34(10), her current offense should have been charged only as a first degree misdemeanor. She takes this position because two of the offenses for which she had previously been convicted fell within the exceptions listed in subparagraph (1)(a)4. To understand her argument, it is helpful to examine section 322.34(10) with greater particularity. That statute provides in pertinent part:
(a) Notwithstanding any other provision of this section, if a person does not have a prior forcible felony conviction ..., the penalties provided in paragraph (b) apply if a person's driver's license or driving privilege is canceled, suspended, or revoked for
1. Failing to pay child support....;
2. Failing to pay any other financial obligation as provided in s. 322.245....;
3. Failing to comply with a civil penalty....;
4. Failing to maintain vehicular responsibility....;
5. Failing to comply with attendance or other requirements for minors ....; or
6. Having been designated a habitual traffic offender under s. 322.264(1)(d) as a result of suspensions of his or her driver's license or driver privilege for any underlying violation listed in subparagraphs 1.-5. * * *
(b)2. Upon a second or subsequent conviction for the same offense of knowingly driving while his or her license is suspended, revoked, or canceled for any of the underlying violations listed in subparagraphs (a)1.-6., a person commits a misdemeanor of the first degree....
(Emphasis supplied).
Ms. Wyrick argues in this court as she did in the motion to dismiss below that because two of the suspensions that were the basis for her current classification as an habitual offender were premised on her failure to maintain auto insurance, she should only have been charged with a misdemeanor. Since under her theory she should have been charged with a misdemeanor, and since the other two counts that she faced were also misdemeanors, she moved the circuit court to transfer her case to the county court. There was no dispute at the motion hearing that Ms. Wyrick was an HTO and that she had no prior forcible felonies. Her habitual traffic offender status was based on the prior DUI and two other suspensions that fell specifically within the ambit of section 322.34(10)(a)4., Florida Statutes.
The State's position has been and remains that for Ms. Wyrick to prevail, all three prior convictions would have to fall within the listed exceptions under (10)(a) in order for the current offense to be charged as a misdemeanor rather than a felony. In other words, for the current charge to qualify as an exception to the general rule in section 322.34(5), Florida Statutes, it would have to fit all of the criteria set forth in the exception. The current charge did not come within the statute in the view of the State, however, because of the preexisting DUI conviction. Thus, the State reads (10)(a)6. to require all of the three prior convictions to be within (10)(a)1.-5. in order for the statute to apply.
The defense counters that because (10)(a)6. uses the word "suspensions," meaning more than one prior suspension, *677 it did not require that "all" three prior suspensions fall within (10)(a)1.-5. Thus, as "some" of Ms. Wyrick's prior convictions were based on financial defaults, (10)(a)6. should apply. In addition, she argues that because the language was vague, it should be interpreted in her favor, and she should have been charged only with a misdemeanor.
The trial court, considering this a case of first impression, disagreed with the defense and reasoned that Ms. Wyrick only partially attained her status as an HTO from her financial defaults. In other words, without the DUI, the two driving while license suspended or revoked convictions would not have resulted in her HTO status. The court considered the intention of the Legislature in adopting the statutes in question and concluded that the Legislature intended for Chapter 322 to be construed to discourage repeat offenders, such as habitual traffic offenders, from driving in Florida, and that for section 322.34(10)(a)6. to be of benefit to the appellant, all three priors would have to be based upon the exceptions listed in subsection (10)(a)1.-5. Finally, the trial court explained that if it reduced Ms. Wyrick's charge to a misdemeanor, this would, in effect, ignore her status as an HTO, and undermine the legislative intent in devising the punishment schedule. After the court denied her motion, Ms. Wyrick entered a plea of guilty to the charge, reserving her right to appeal the denial of her motion to dismiss.
We think the trial judge got it right. One of our primary responsibilities in construing a statute is to effectuate the intention of the Legislature in creating the statute. See State v. J.M., 824 So.2d 105, 109 (Fla.2002). Moreover, it is our obligation when doing so to consider the statutory framework as a whole, including such matters as the evil addressed by the statute in question and the interrelationship between the statutes that make up the framework, as well as the language used by the Legislature and other considerations. See Bautista v. State, 863 So.2d 1180, 1186 (Fla. 2003).
In the present case the intent we are seeking is specifically provided by the Legislature in section 322.263, Florida Statutes (2009). That statute, entitled "Legislative Intent," reads as follows:
It is declared to be the legislative intent to:
(1) Provide maximum safety for all persons who travel or otherwise use the public highways of the state.
(2) Deny the privilege of operating motor vehicles on public highways to persons who, by their conduct and record, have demonstrated their indifference for the safety and welfare of others and their disrespect for the laws of the state and the orders of the state courts and administrative agencies.
(3) Discourage repetition of criminal action by individuals against the peace and dignity of the state, its political subdivisions, and its municipalities and impose increased and added deprivation of the privilege of operating motor vehicles upon habitual offenders who have been convicted repeatedly of violations of traffic laws.
We conclude, as did the trial court, that the Legislature intended Chapter 322 to discourage repeat offenders, such as HTOs, from driving within Florida. Our construction of section 322.34(10), Florida Statutes, therefore, must be guided by this intention.
Section 322.34(5), Florida Statutes, makes it a third-degree felony for one whose driver's license has been revoked as an habitual traffic offender to drive a motor vehicle upon the highways of the State. Thus, the two elements of the offense are *678 that a defendant's license is revoked as an "habitual offender," and that the person has driven a motor vehicle upon the highways of the State. As previously noted, in order to be an habitual traffic offender pursuant to section 322.264, Florida Statutes, a person's record, as maintained by the Department of Highway Safety and Motor Vehicles must show that the person had accumulated three convictions within a 5 year period. See Arthur v. State, 818 So.2d 589 (Fla. 5th DCA 2002), review denied, 839 So.2d 697 (Fla.2003).
By adopting section 322.34(10), Florida Statutes, the Legislature made an exception to the general scheme of Chapter 322 by granting certain leniency to persons who became an HTO only because of those reasons listed in (10)(a)1.-5. To say that one could take advantage of that legislative leniency by having some but not all of the violations based on failures of financial responsibility would appear to fly in the face of the intention to discourage repeat offenders from driving on Florida's streets and highways.
Here, Ms. Wyrick was unquestionably designated an HTO, but not solely as a result of the underlying defaulted financial responsibilities. Only with the addition of the DUI did Ms. Wyrick become qualified as an HTO. As we construe paragraph (10)(a)6. to apply only if all three underlying violations utilized to designate Ms. Wyrick an HTO would have fallen within (10)(a)1.-5., and as she does not meet this statutory requirement, we agree with the trial court that she was properly charged with a third-degree felony.
Finally, we note, as did the trial court, that to adopt Ms. Wyrick's position would essentially require us to eliminate her status as an HTO, even though she has worn that badge for three years. The result that she seeks would be absurd in light of the statutes in question, because it would render section 322.34(5) ineffective in this instance. In interpreting a statute courts should avoid absurd results. See State v. Webb, 398 So.2d 820, 824 (Fla.1981).
Accordingly, we affirm the judgment and sentence in all respects.
AFFIRMED.
SAWAYA and PALMER, JJ., concur.
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
REGINALD WOODS, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-1701 (EGS)
)
UNITED STATES DEPARTMENT OF )
JUSTICE, )
)
Defendant. )
________________________________ )
MEMORANDUM OPINION
Plaintiff challenges the Department of Justice’s (“DOJ”) response to his request for
records under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Defendant, having
released responsive records, moves for summary judgment under Fed. R. Civ. P. 56, Def.’s Mot.
for Summ. J. [Dkt. # 10], and plaintiff has opposed the motion, Pl.’s Response to Def.’s Mot. for
Summ. J. (“Pl.’s Opp’n”) [Dkt. # 13]. Upon consideration of the parties’ submissions and the
entire record, the Court will grant defendant’s motion and enter judgment accordingly.
I. BACKGROUND
Plaintiff is a federal prisoner serving a 960-month prison sentence imposed by the United
States District Court for the Northern District of Alabama in November 1997 following
convictions for carjacking, four counts of bank robbery, and four counts of using a firearm
during a crime of violence. See Woods v. Rathman, No. 1:12-cv-2855, 2013 WL 1346373, at * 1
(N.D. Ala. Mar. 14, 2013). In a FOIA request dated December 28, 2009, to the “Dept. of Justice
FBI Crime Lab,” plaintiff sought the following six categories of records or information
pertaining to his criminal case: (1) the “field notes” of an FBI Special Agent; (2) the “exact
1
dates that all specimens were collected for DNA analysis;” (3) “How many times were related
DNA specimens tested [] and to whom where those results disclosed?”; (4) “surveillance photos
or videos of ‘Talladega’ robbery related to DNA results;” (5) witness statements and police
reports related to said Talladega robbery; and (6) the “[e]xact dates DNA analysis results were
disclosed and to whom were they disclosed.” Decl. of David M. Hardy [Dkt. # 10-3], Ex. A.
On January 15, 2010, the FBI informed plaintiff that it was returning his request because it
needed “sufficient information to conduct an accurate search of the Central Records System.”
Id., Ex. B. On January 24, 2010, plaintiff responded with a “Clarification of Requested
Information,” in which he stated, inter alia, that the request “is related to a FBI crime lab report
prepared on October 8, 1997 by F. Samuel Baechtel, where DNA analysis was performed on a
white-ski-mask found in an abandoned get-away-car and was used . . . as government’s exhibit
# 44 [during the criminal trial].” Id., Ex. C.
On April 25, 2011, the FBI informed plaintiff that it was releasing 55 pages it had
reviewed with portions redacted from 28 of those pages under FOIA exemptions 6 and 7(C), see
5 U.S.C. § 552(b), and the Privacy Act, 5 U.S.C. § 552a(j)(2). Id. ¶¶ 4-5 & Ex. F. The letter
also informed plaintiff about his right to appeal the decision to DOJ’s Office of Information
Policy (“OIP”). OIP affirmed the FBI’s determination on September 26, 2011. Id., Ex. I.
Plaintiff filed this action on October 17, 2012.
II. LEGAL STANDARD
Summary judgment is warranted Aif the movant shows [by affidavit or other admissible
evidence] that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.@ Fed. R. Civ. P. 56(a). A party opposing a summary judgment
motion must show that a genuine factual issue exists by A(A) citing to particular parts of
2
materials in the record . . . or (B) showing that the materials cited do not establish the absence . .
. of a genuine dispute[.]@ Fed. R. Civ. P. 56(c). Any factual assertions in the moving party=s
affidavits will be accepted as being true unless the opposing party submits his own affidavits or
other documentary evidence contradicting the assertion. Neal v. Kelly, 963 F.2d 453, 456 (D.C.
Cir. 1992). However, “the inferences to be drawn from the underlying facts . . . must be viewed
in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted).
FOIA cases are typically and appropriately decided on motions for summary judgment.
Gold Anti–Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d
123, 130 (D.D.C. 2011) (citations omitted). An agency has the burden of demonstrating that
“each document that falls within the class requested either has been produced, is unidentifiable,
or is wholly [or partially] exempt from the Act's inspection requirements.” Goland v. CIA, 607
F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation omitted).
In reviewing a summary judgment motion in the FOIA context, the court must conduct a
de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). The court may award summary
judgment solely on the basis of information provided by the department or agency in affidavits
or declarations that describe “the documents and 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.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415 U.S.
977 (1974). Agency affidavits or declarations that are “relatively detailed and non-conclusory”
are accorded “a presumption of good faith, which cannot be rebutted by purely speculative
3
claims about the existence and discoverability of other documents.” SafeCard Services v. SEC,
926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal citation and quotation omitted).
An agency from which information has been requested must undertake a search that is
“reasonably calculated to uncover all relevant documents.” Weisberg v. Dep't of Justice, 705
F.2d 1344, 1351 (D.C. Cir. 1983). Thus, when, as here, an agency’s search is questioned, the
Court must decide the adequacy of the search by applying a “reasonableness test to determine the
adequacy of search methodology.” Campbell v. Dep't of Justice, 163 F.3d 20, 27 (D.C. Cir.
1998). The agency must demonstrate that it “made a good faith effort to conduct a search for the
requested records, using methods which can be reasonably expected to produce the information
requested.” Fischer v. Dep't of Justice, 596 F. Supp. 2d 34, 42 (D.D.C. 2009) (citations omitted).
An adequate affidavit can be rebutted with evidence that the agency's search was not made in
good faith. Defenders of Wildlife v. Dep't of the Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004).
Because “the adequacy of a FOIA search is generally determined not by the fruits of the search,
but by the appropriateness of the methods used to carry out the search,” Iturralde v. Comptroller
of the Currency, 315 F. 3d 311, 315 (D.C. Cir. 2003), “the fact that a particular document was
not found does not demonstrate the inadequacy of a search.” Boyd v. Crim. Div. of U.S. Dept. of
Justice 475 F.3d 381, 391 (D.C. Cir. 2007) (citations omitted).
III. DISCUSSION
Defendant argues first that it conducted an adequate search for records, second that the
Privacy Act precludes the production of the requested records, and third that it properly invoked
exemptions 6 and 7(C) to withhold third-party information. Def.’s Mem. of P. & A. in Supp. of
Def.’s Mot. for Summ. J. [Dkt. # 10-1] at 4-14. In his opposition, plaintiff questions defendant’s
search because it failed to produce “the exact date that specimen K5 was collected,” Pl.’s Opp’n
4
at 2, asserts that “section (j)(2) of the Privacy Act ought not be considered a FOIA withholding
statute for first party requesters . . . .,” id. at 4, and contends that “a very significant public
interest would be furthered by the production of the date that specimen K5 was collected,” id. at
7.
Both parties are correct with regard to the Privacy Act. While it is true that section (j)(2)
of the Privacy Act may preclude production of the requested records, the Privacy Act does not
bar disclosure of documents that are otherwise required to be produced under the FOIA. 5
U.S.C. ' 552a(b)(2); see Greentree v. United States Customs Serv., 674 F.2d 74, 79 (D.C. Cir.
1982). Since defendant properly considered plaintiff’s request in light of the FOIA, any issue
arising under the Privacy Act is essentially moot.
1. Defendant’s Search for Responsive Records
Plaintiff has not refuted Hardy’s adequate description of the filing systems searched and
the search methods employed, which located 55 responsive pages. See Hardy Decl. ¶¶ 17-23.
Rather, plaintiff has an unsubstantiated “belie[f] that there is more evidence or files within the
Department of Justice’s system of records that was ‘withheld’ from his trial attorney that could
have exonerated the plaintiff during his jury trial.” Pl.’s Opp’n at 1. But the FOIA request
forming the basis of this action was addressed to the FBI, which is one of many DOJ
components, and “the component that first receives a request for a record and has possession of
that record is the component responsible for responding to the request.” 28 C.F.R. § 16.4(a); see
id. § 16.3 (requiring a FOIA requester to write “directly to the Department component that
maintains [] records,” or, if unknown, to “the FOIA/PA Mail Referral Unit, Justice Management
Division . . . .”). Plaintiff takes issue specifically with defendant’s failure to produce one record
or date, but an omitted record cannot alone support a finding of an inadequate search, and “FOIA
5
neither requires an agency to answer questions disguised as a FOIA request . . . or to create
documents or opinions in response to an individual's request for information. Hudgins v. I.R.S.
620 F. Supp. 19, 21 (D.D.C. 1985) (citation omitted).
Hardy states that the FBI searched by “the phonetic sounds of [plaintiff’s] last, middle
and first names” and “used plaintiff’s date of birth to facilitate the identification of requested
records.” Hardy Decl. ¶ 23. In addition, the FBI “hand scoped the files to find the specific
requested ‘FBI crime lab report prepared in [sic] October 8, 1997 [] by Samuel Baechtel, where
DNA analysis was performed on a white ski mask found in an abandoned get-away car’. ” Id.
Defendant located potentially responsive material as a result of the “scoping.” Id.
The Court is satisfied from Hardy’s declaration that defendant’s search was reasonably
calculated to locate all responsive records. In the absence of any contrary evidence, defendant is
entitled to summary judgment on the search question.
2. Defendant’s Claimed Exemptions
Defendant redacted third-party identifying information from the released pages under
FOIA exemptions 6 and 7(C). Hardy Decl. ¶¶ 28, 32-37. The information pertained to FBI
special agents and support staff involved in “the investigative activities reported in the
[responsive] documents,” id. ¶ 36, and third-party individuals “of investigative interest to the
FBI and/or other law enforcement agencies.” Id. ¶ 37. Since defendant applied both exemptions
to the same information, and it is undisputed that the information was compiled for law
enforcement purposes, the Court will only address the propriety of defendant’s invocation of
exemption 7(C). See Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011)
(finding “no need to consider [e]xemption 6 separately [where] all information that would fall
6
within the scope of [e]xemption 6 would also be immune from disclosure under [e]xemption
7(C)”).
Exemption 7(C) protects from disclosure information in law enforcement records that
“could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(7)(C). In determining whether this exemption applies to particular material, the
Court must balance the privacy interest of individuals mentioned in the records against the public
interest in disclosure. See Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C. Cir.
2007); Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993). The privacy interest at
stake belongs to the individual, not the government agency. U.S. Dep't of Justice v. Reporters
Comm. for Freedom of the Press, 489 U.S. 749, 763-65 (1989); see Nat'l Ass'n of Retired Fed.
Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989) (noting individual's significant privacy
interest “in avoiding the unlimited disclosure of his or her name and address”). And “individuals
have a strong interest in not being associated unwarrantedly with alleged criminal activity.”
Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 91-92 (D.C. Cir. 1984). Generally speaking,
an agency’s withholding of the type of third-party information at issue here has been routinely
upheld, and such information has been found to be “categorically exempt.” Nation Magazine,
Washington Bureau v. United States Customs Service, 71 F.3d 885, 896 (D.C. Cir. 1995). See
Banks v. Dep’t of Justice, 757 F. Supp. 2d 13, 18 (D.D.C. 2010) (“Exemption 7(C) ‘takes
particular note of the strong interest of individuals, whether they be suspects, witnesses, or
investigators, in not being associated unwarrantedly with alleged criminal activity.’ ”) (quoting
Dunkelberger v. U.S. Dep't of Justice, 906 F.2d 779, 781 (D.C. Cir. 1990)); Blackwell v. Fed.
Bureau of Investigation, 680 F. Supp. 2d 79, 93-94 (D.D.C. 2010) (approving the withholding of
“information likely to identify . . . FBI special agents and support personnel, non-FBI federal
7
law enforcement employees, state and local law enforcement personnel, victims, third parties
who provided information, and third parties merely mentioned in the files”).
“As a result of [e]xemption 7(C), FOIA ordinarily does not require disclosure of law
enforcement documents (or portions thereof) that contain private information.” Blackwell v.
FBI, 646 F.3d 37, 41 (D.C. Cir. 2011) (citing cases). The exception is when the requester has
shown that an overriding public interest compels disclosure, but “the only public interest relevant
for purposes of [e]xemption 7(C) is one that focuses on ‘the citizens' right to be informed about
what their government is up to.’ ” Davis v. U.S. Dep't of Justice, 968 F.2d 1276, 1282 (D.C. Cir.
1992) (quoting Reporters Comm. for Freedom of the Press, 489 U.S. at 773); see also Sussman,
494 F.3d at 1115. It is the requester's obligation to articulate a public interest sufficient to
outweigh an individual's privacy interest, and the public interest must be significant. See Nat'l
Archives and Records Admin. v. Favish, 541 U.S. 157, 172 (2004). As a general rule applicable
here, third-party identifying information is “the type . . . [that] is simply not very probative of an
agency’s behavior or performance.” Mays v. DEA, 234 F.3d 1324, 1327 (D.C. Cir. 2000).
(citation omitted).
Plaintiff asserts that “a very significant public interest would be furthered by the
production of the date that specimen K5 was collected,” and any other “favorable evidence such
as any other ‘test results’ that support the plaintiff’s actual innocence . . . .” Pl.’s Opp’n at 7, 9.
He contends that any withheld information would provide “direct proof [that] [DOJ] has been
operating with ‘[un]clean hands’ from the very inception of its indictment and charges, or that it
has manufactured a conviction against a true first-time offender . . . .” Id. at 7. Plaintiff also
contends that “the public has a right to know whether [DOJ] is withholding evidence that could
substantiate or corroborate [his] actual innocence . . . .” Id. at 9. He then proceeds to recount
8
testimony from his criminal trial. See id. at 9-18. Plaintiff does not reasonably explain how
releasing the withheld third-party information would shed any light on the FBI’s performance,
and his personal stake in obtaining information in order to attack his conviction simply “does not
count in the calculation of the public interest.” Oguaju v. United States, 288 F.3d 448, 450 (D.C.
Cir. 2002), vacated and remanded on other grounds, 541 U.S. 970 (2004), judgment reinstated,
378 F.3d 1115 (D.C. Cir. 2004); see Pugh v. FBI, 793 F. Supp. 2d 226, 233 (D.D.C. 2011)
(“That the FBI's denial of [plaintiff’s] FOIA requests may hinder his efforts to challenge his
conviction or sentence . . . is irrelevant.”).
The Court is satisfied from Hardy’s uncontested explanation of the withheld information
and its own examination of the 55 Bates-stamped pages, Hardy Decl. Ex. F, that defendant
released all reasonably segregable portions of information, and properly applied exemption 7(C)
to the withheld third-party information. Hence, defendant is entitled to summary judgment on
the claimed exemption.
CONCLUSION
For the foregoing reasons, the Court finds no genuine dispute as to a material fact with
regard to defendant’s handling of plaintiff’s FOIA request and concludes that defendant, having
satisfied its disclosure obligations, is entitled to judgment as a matter of law. A separate Order
accompanies this Memorandum Opinion.
DATE: September 12, 2013 SIGNED: EMMET G. SULLIVAN
UNITED STATES DISTRICT JUDGE
9
|
538 F.2d 344
U. S.v.Weinstein
No. 75-2584
United States Court of Appeals, Ninth Circuit
5/17/76
1
D.Nev.
AFFIRMED
|
761 S.W.2d 621 (1988)
Eldon WALLINGFORD, Appellant,
v.
KROGER COMPANY d/b/a Kroger Food Store, Appellee.
ZURICH INSURANCE COMPANY, Appellant,
v.
KROGER COMPANY d/b/a Kroger Food Store, Appellee.
Nos. 87-CA-1240-MR, 87-CA-1381-MR.
Court of Appeals of Kentucky.
August 26, 1988.
Discretionary Review Denied by Supreme Court January 11, 1989.
James G. Lemaster, Mark T. Hayden, Lexington, John I. Hanbury, Ashland, for appellants.
J. Gregory Wehrman, Covington, for appellee.
Before COMBS, HAYES and WEST, JJ.
HAYES, Judge:
In these consolidated appeals, Eldon Wallingford and Zurich Insurance Company appeal from an order and judgment entered May 20, 1987, in Mason Circuit Court granting the defendant, Kroger Company, a directed verdict in appellants' negligence action. This action was filed originally by Wallingford; Zurich Insurance Company intervened as the insurance carrier of Wallingford's employer, Coca-Cola Bottling Company, seeking indemnity for $22,451.43 in workers' compensation and medical expenses. The issues on appeal are whether the trial court erred in holding that (1) Kroger owed Wallingford *622 no duty to provide a safe working environment, and (2) Wallingford assumed the risk by attempting to make the area safe himself.
It was stipulated that at the time of the accident, Wallingford, a 50-year-old delivery truck driver for Coca-Cola Bottling Company, was acting in the course and scope of his employment when the accident occurred.
This action was commenced in January, 1985, alleging that on January 17, 1984, Wallingford was delivering Coke products to a Maysville Kroger store. Ice and snow covered the delivery ramp at the back of the store, causing him to slip and fall, and sustain back injuries. On May 6, 1987, a jury trial was held, but the trial court granted Kroger's motion for a directed verdict at the close of Wallingford's proof on Kroger's liability. CR 15.01.
Wallingford testified first, and stated that he'd delivered Coke products to the Maysville store since it was built in 1980. On the morning of the accident the weather was poor; there was ice and snow, and the wind was blowing. At around 8:00 a.m. he pulled around the back of the store, descended from his truck, and walked up an icy ramp to the back door. He pressed the button activating the store intercom system, and spoke to a female voice in the front office. Wallingford told the woman that the ramp was slick and needed to be cleared off. He also suggested that he be let in through the front door, but was refused by a male voice over the intercom, because of a company policy that all vendors use only the back entrance. Wallingford initially entered the back door without his product in order to check the condition of the shelves. He stated that usually Charles Fritz[1] worked as back door receiver and cleaned off the ramp for the vendors. Fritz was not working that day.
Again Wallingford requested, this time to the clerk replacing Fritz, Steve Sutton, that the ramp be cleared, but he got no response. Wallingford then attempted to clear it himself with a shovel or squeegee. Thinking he had cleared it sufficiently, he proceeded up the ramp with a six-wheeled cart filled with Coke products. When he got a third of the way up, he fell, sustaining back injuries. Because he did not think he had injured himself badly, he proceeded with his work and did not tell anyone at Kroger. Later, after he had left the store, his condition worsened, and he sought medical attention the following day. He did not return to work during the rest of 1984 or 1985. He later returned in 1986 to fill a newly created position requiring little physical activity.
Jim Sapp, the store manager working on that day, testified that he'd had complaints from vendors in the past that the slope of the ramp was built too steeply. The only company-wide exception to Kroger's back door policy was given to the ice deliverymen. No exceptions were permitted due to inclement weather. He testified that it was the responsibility of the back door receiver to clean off the ramp, or to order someone else to do it. Salt and a shovel were always located at the back door.
JoAnn Potts, Kroger's front end manager working on the day of the accident, testified that the only time in 15 years that she'd seen vendors let in through the front door was during a blizzard, because the trucks could not get to the docks. She did not specifically remember Wallingford ringing the buzzer that day, but stated that if she were in the office, she probably spoke with him.
Charles Fritz testified that he had heard vendors complain of the incline of the ramp. He also stated that his work included cleaning off the ramp, although he did not remember ever having had to do it. Steven Sutton testified that he, too, had heard the vendors complain of the steepness of the ramp on occasion. Although someone usually cleared it off for the vendors, or they did it themselves, he did not know whose specific responsibility it was to ensure that it was done.
Counsel for Wallingford then attempted to introduce expert testimony that the slope was built too steeply for its intended *623 purposes, but Kroger's subsequent objection was sustained. After the jury was recessed, the court refused to permit the testimony to be placed into the record on avowal but instead allowed counsel to state on the record that the expert would have testified that the ramp was in violation of ingress and egress codes and was built too steeply.
Kroger moved for a directed verdict based on Ashcraft v. Peoples Liberty Bank & Trust Co., Ky.App., 724 S.W.2d 228 (1986) and Standard Oil v. Manis, Ky., 433 S.W.2d 856, 859 (1968). The trial court not only stated that under those cases no duty existed, but that Wallingford assumed the risk when he attempted to clear off the ramp himself.
Appellants argue that Kroger owed Wallingford a duty to provide a reasonably safe entrance for three reasons: (1) his employment required that he enter the store to make deliveries; (2) his only means of entering was a steep, ice covered ramp; and, (3) the ramp was maintained regularly by Kroger employees and was located close to the store as part of the building structure.
The latest case the Court finds on the subject of duty to invitees[2] is Corbin Motor Lodge v. Combs, Ky., 740 S.W.2d 944 (1987). Therein Kentucky's highest court followed Standard Oil v. Manis, Ky., 433 S.W.2d 856 (1968), in holding that a restaurant operator had no duty to remove or warn against the danger of open and obvious icy conditions of its sidewalk. In Manis, supra, a truck driver delivering gasoline seriously injured his back from a fall on an icy platform. The Court stated the rule to be that "natural outdoor hazards which are as obvious to an invitee as to the owner of the premises do not constitute unreasonable risks to the former which the landowner has a duty to remove or warn against." 433 S.W.2d at 858.
There was also a strong dissent in Corbin:
To hold that because the hazard was as obvious to Combs as it was to the restaurant management is not a sufficient reason to deny Combs an opportunity to prove negligence. The management had at its disposal the means to remedy or warn against the hazard. Combs did not. In 4 S. Speiser, C. Krause, and A. Gans, The American Law of Torts, § 14:40, p. 53 (1987), this issue is discussed as follows:
"The rule that the obviousness of the danger relieves the owner of premises from liability is no longer universally accepted. In accordance with the rule of the Restatement of Torts that a possessor of land is subject to liability to invitees which is caused by a condition on this [sic] land, if he should realize that the condition involves an unreasonable risk of harm to the invitees and should expect that they will not discover or realize the danger, it has been held that a cause of action can be maintained by an invitee for injuries resulting from a slip and fall occasioned by natural accumulations of ice and snow, even though the condition was well known to the plaintiff. It has been held that well-known climatic conditions do not negate the possibility that the possessor of the premises should have anticipated harm to the business invitee, despite the latter's personal knowledge of the dangerous snow and ice conditions or the general obviousness of such conditions."
740 S.W.2d at 947, 948. The dissent suggested further that the case should have gone to the jury under the comparative negligence standards of Hilen v. Hays, Ky., 673 S.W.2d 713 (1984).
The rule in Manis has also been applied recently to deny liability in Ashcraft v. Peoples Liberty Bank & Trust Co., Ky. App., 724 S.W.2d 228 (1987), involving a customer slipping on an icy bank parking lot. Because there was no duty the Court held there can be no liability.
Initially, appellants are correct that the doctrine of assumption of risk was *624 abolished in Parker v. Redden, Ky., 421 S.W.2d 586 (1967). See also Hilen v. Hays, supra, at footnote 2. The trial court was in error by using the doctrine in granting the directed verdict.
We also agree that the question of comparative negligence should have been given to the jury. It is true that under Manis, supra, and its progeny, the existence of obvious, outdoor, natural hazards generally creates no duty upon the owner/occupier of the land, on the theory that the hazard is as obvious to both the owner and the invitee. However, we believe that a far different situation is presented where the invitee is compelled by his employment to use a particular path and entranceway, asks for assistance in making it safe and is refused, attempts to clear the path himself, proceeds cautiously, and is injured anyway. In Manis, supra, the gasoline deliveryman had stepped upon an icy platform when he fell. Although Manis denied liability on the theory that invitees assume all normal and obvious risks attendant to the use of the premises, there is no indication in Manis that the deliveryman had no other recourse but to use the particular walkway, and there is no indication that he took reasonable steps to ensure his own safety. Wallingford's testimony reveals that he went to great lengths to ensure a safe walkway. He knew that he would be pulling hundreds of pounds of products. Photographs placed in evidence reveal that the ramp, indeed, appears dangerously steep. Wallingford obviously had no other recourse but to proceed at his peril or risk losing his means of livelihood. Kroger's store manager, Jim Sapp, admitted that complaints had been voiced by the vendors before, and admitted that usually the back door receiver took responsibility to see that the ramp area was clear. Additionally, Kroger admits in its answer to interrogatories that either a "bag boy" or "sacker" would have removed snow and ice on January 17, 1984.
Another case softening the rigidity of the Manis rule is City of Madisonville v. Poole, Ky., 249 S.W.2d 133 (1952), wherein the plaintiff fell on a sheet of ice on the defendant city's clubhouse porch as she was about to enter the building. The Court held that it was a jury question as to whether the defendant should have taken care to remedy the unsafe condition. Manis "assumed" the soundness of the decision, but distinguished it by the fact that the hazard may not have been as equally obvious to the invitee, as the porch was unlit and was covered by a ceiling of some type.
In utilizing the general rule of Manis, courts must not apply it so as to overshadow or obliterate the established principle that an owner/occupier of land is laden with certain duties of reasonable care toward his invitees:
An invitee has a right to assume that the premises he has been invited to use are reasonably safe, but this does not relieve him of the duty to exercise ordinary care for his own safety, nor does it license him to walk blindly into dangers that are obvious, known to him, or would be anticipated by one of ordinary prudence. [Citations omitted].
Smith v. Smith, Ky., 441 S.W.2d 165 (1969).
In this case Wallingford testified that he took such ordinary care. Our ruling today does no disservice to Manis or the principles which it evokes, but only underscores the widely applied rule that all persons should exercise ordinary care for the safety of others who foreseeably may be injured by their acts or omissions. Grayson Fraternal Order of Eagles v. Claywell, Ky., 736 S.W.2d 328 (1987). With the previous case authority in mind, reference is made to the Restatement (Second) of Torts, § 343(A) comment f (1965), which carves out an exception to the general rule governing natural and obvious outdoor hazards:
There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care *625 which he owes to the invitee for his protection....
Such reason to expect harm to the visitor from known or obvious dangers may arise ... where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.
Appellants next argue that Ferguson v. J. Bacon & Sons, Ky., 406 S.W.2d 851 (1966), holds that the general rule of Manis additionally does not apply if the area itself is inherently dangerous or improperly constructed, and therefore the trial court erred in disallowing evidence that the ramp contains those attributes. In Ferguson, an employee of a dress shop slipped on an ice covered parking lot. The Court quoted an Ohio decision, Levine v. Hart Motors, Inc., 143 N.E.2d 602 (Ohio App., 1955), which stated that:
In cases where there is no act on the part of the landlord creating a greater danger then was brought about by natural causes, the dangers that are created by the elements, such as forming of ice and the falling of snow, are universally known and unless the landlord has contracted to provide against these dangers, all persons on his property must assume the burden of protecting themselves therefrom. (Emphasis ours).
Ferguson, 406 S.W.2d at 852.
This Ohio decision was the basis of the Ferguson Court's language that the store owner would not be liable to a customer who slips outside the building "if the area is properly constructed and not inherently dangerous." 406 S.W.2d at 852. The Ohio decision also explains the language in Ferguson that "[t]here was no showing in this case that the parking lot was not property constructed, nor was it shown there was any special contract concerning its use." Thus, the general "no duty" rule finds an exception where there is evidence of the owner/occupier's creation of an inherent danger. Evidence of inherent danger would then, under Ferguson, be relevant if there is evidence that Kroger itself created the danger by design, construction or otherwise. Although a conversation between counsel for Kroger and the trial court suggests that Kroger leases the building, this Court cannot glean from the record whether appellants have evidence that Kroger is responsible for the design. Counsel for Kroger admitted to the court that the building probably was built in accordance with Kroger's specifications. Upon retrial, evidence may be offered in that regard as further evidence of Kroger's negligence under Ferguson, supra. Although Kroger argues that evidence of inherent dangerousness raises a new theory that should have been raised in the complaint, upon remand the appellants will be permitted to amend their complaint to conform to this evidence. The right to amend after reversal because of defective pleadings is the same as before trial. London & Provincial Marine & Fire Ins. Co. v. Mullins, 268 Ky. 814, 105 S.W.2d 1057 (1937).
Accordingly, the order and judgment entered May 20, 1987, in Mason Circuit Court directing a verdict against the appellants is reversed and remanded for further proceedings consistent with this opinion.
REVERSING AND REMANDING.
All concur.
NOTES
[1] The record refers to him also as "Bob" Fritz.
[2] Wallingford is an invitee, defined as one who enters the premises upon business which concerns the occupier, upon his invitation express or implied. Prosser, Law of Torts § 61 (1971). Durbin v. Louisville & N.R. Co., 310 Ky. 144, 219 S.W.2d 995 (1949).
|
11 Cal.2d 707 (1938)
FLORENCE L. TEN WINKEL et al., Appellants,
v.
ANGLO CALIFORNIA SECURITIES COMPANY (a Corporation), Respondent.
S. F. No. 15774.
Supreme Court of California. In Bank.
July 29, 1938.
Tobias J. Bricca for Appellants.
Young, Hudson & Rabinowitz for Respondent.
THE COURT.
This is a suit to quiet title by plaintiff, individually, and as executrix of the last will of her deceased husband, to one of the fifteen apartments in the community apartment house, known as View Tower Apartments, located on Hyde Street in the city of San Francisco, and to an undivided one-fifteenth interest in the real property upon which the community apartment house was built. Plaintiff sought a decree against the defendant, Anglo California Securities Company, which claimed to be the owner of the title to the community apartment building in its entirety and to the realty upon which is was constructed. The defendant company based its claim of ownership upon a trustee's deed issued after a sale under a trust deed which covered the realty and the community apartment house building. The defendant filed a cross-complaint to recover the rent of the apartment collected by plaintiff subsequent to the date on which the defendant claims to have acquired title by purchase under the foreclosure sale. Judgment was rendered by the trial court in favor of the defendant, quieting its title to the property set forth in plaintiff's complaint, and giving judgment for $1235, rent already accrued on *710 said apartment, and for $65 a month rent until the surrender of possession of said apartment by the plaintiff.
The sole question presented for determination is whether plaintiff acquired her interest in the community apartment house free and clear of all encumbrances or whether such interest was acquired subject to a certain deed of trust placed upon the property as a whole on April 30, 1927, and foreclosed on December 21, 1933, upon default in the payment of the promissory note secured by said trust deed.
A summary of the various business transactions relative to the acquisition of their interest in said community apartment house by the Ten Winkels, in chronological form, is necessary in order to obtain an accurate picture of the situation.
Prior to 1926, the plaintiff, Florence L. Ten Winkel, and her husband owned an unencumbered lot, located on Southard Court, north of Greenwich Street, in San Francisco, on which stood a two-story building consisting of two flats. The upper flat was occupied by the Ten Winkels and the lower flat was occupied by their tenants. At the same time, title to an adjoining vacant lot, hereinafter referred to as the "Hyde street lot", stood in the name of Mary Thomas, encumbered by a deed of trust for $13,000 in favor of Anglo California Trust Company. It was stipulated at the trial that the name, Mary Thomas, was a fictitious name used in business transactions by one Cleve Shaffer, a realtor. Each lot had an extensive marine view except that the building on the Southard place lot partially obstructed the view from the Hyde Street lot. During 1926, Cleve Shaffer and Geneva Shaffer, his sister, commenced the promotion of a plan to build a class "A" community apartment house on the Hyde Street lot. This plan involved the acquisition of the Southard Court lot and the tearing down of the two-story building on said lot in order to protect the view of the proposed community apartment house. The proposed community apartment house was to be fifteen stories high with one apartment on each floor. This plan included the incorporation of a nonprofit, nonstock corporation, originally called, "Tower View Community, Inc.", but subsequently known as "View Tower, Inc." to hold title to said property. Each member of the corporation was to enter into a lease for one or more apartments, and all the lessees, acting through a *711 board of directors of the corporation, were to maintain and manage the apartment house. The sale price of the different apartments was to vary, and the total sale price of all the apartments was to be $320,365. As a result of the negotiations with the Shaffers, the Ten Winkels became interested in exchanging their Southard Court property for an apartment in the proposed community apartment house. On October 25, 1926, the Ten Winkels acknowledged an instrument signed by them and dated October 18, 1926, entitled "Agreement to Exchange Real Property". The pertinent portions of said agreement read as follows:
"It is agreed that F. W. Ten Winkel and wife, residents of the City and County of San Francisco, State of California, owners of the following described property situated in the City and County of San Francisco, State of California, to-wit:"
"All that certain lot, piece or parcel of land situated on the East line of Southard Court, about 107 feet north of Greenwich Terrace, designated and known as No. 1 Southard Court, size of lot being 30 feet by 56 feet, which we desire to exchange for property owned or to be acquired by Tower View (a corporation to be organized), which said property is now in the name of Mary Thomas, widow, and is situated in the City and County of San Francisco, State of California, and described as follows, to-wit:"
"All that certain second floor and its appurtenances, in that certain Class 'A' building to be erected on the lot situated on the East line of Hyde Street, 112 feet 9 inches north of Greenwich Street running thence Easterly to the Westerly line of Southard Court. Lots 25 feet by 56 feet. Said apartment to be built and constructed as per plans and specifications hereto attached and made a part hereof."
"Terms of Exchange, being as follows:"
"In lieu of a cash payment, grant, bargain and sale deed to first property hereinabove described, shall be immediately deposited in escrow with the Title Insurance Company of San Francisco, upon conditions and terms herein specified and not otherwise; * * *"
"4. It is further understood and agreed that all costs of upkeep, and expenses for maintaining and running said Tower View apartment building, shall be based and proportioned to said Ten Winkel, his heirs, successors or assigns, *712 on a valuation of Fifteen Thousand ($15,000) Dollars, and no more."
"G. A. Shaffer is authorized to act as agent in negotiating said exchange, and we agree that if the owner of the property secondly above described will exchange said property on said terms and conditions herein specified, we will, within ten days furnish a certificate of title from a reliable abstract company, and a good and sufficient grant, bargain and sale deed, with the restriction above mentioned, conveying title to the property firstly above described."
"It is also agreed that when said agent has secured an acceptance in writing upon the terms and conditions herein contained to make said exchange, and when notice in writing is given to said Ten Winkel that half the apartments in said Tower View are sold, we will deposit with said Title Insurance Company, Fifteen Hundred ($1,500) Dollars, balance of purchase price of said apartment, being the total purchase price of Fifteen Thousand ($15,000) Dollars, and will allow sixty (60) days for the furnishing of satisfactory certificate of title or title search of said property secondly described."
"Dated October 18, 1926."
"Florence L. Ten Winkel"
"F. W. Ten Winkel."
"(Duly acknowledged.)"
On the same day of its acknowledgment, October 25, 1926, this instrument, together with another instrument, entitled, "Acceptance" bearing the purported signature of Mary Thomas, but not acknowledged, was recorded in the office of the recorder of the city and county of San Francisco. Said acceptance is in the following words and figures:
"Acceptance"
"This agreement witnesseth: That Mary Thomas, or Tower View (a corporation to be organized), or agents or assigns, owner of the piece of real estate secondly herein described, hereby accepts the said proposition of exchange upon the terms and conditions herein mentioned, and agree to furnish a certificate of title to said second floor cooperative apartment, the price of which is Fifteen Thousand ($15,000) Dollars free and clear of all liens or encumbrances except those on building as a whole and then to deliver a proprietary lease and proportionate interest in the said cooperative apartment building to F. W. Ten Winkel and wife, or their assigns, *713 or agrees to pay said Ten Winkel the sum of Thirteen Thousand Five Hundred ($13,500) Dollars for said real property first above described, or redeed said property to said Ten Winkel."
"And we further agree to pay customary commission."
"Dated at 560 Sutter St. this 25 day of September, 1926."
"Mary Thomas."
"(Not acknowledged.)"
"Recorded at the request of G. A. Shaffer, Oct. 25, 1926, at 42 min. past 2 p. m."
The question of whether or not the date, September 25, 1926, was the correct date, or was a clerical error, the correct date being October 25, 1926, is a minor controversy between the parties.
On the same day, October 25, 1926, an escrow with the California Pacific Title and Trust Company was opened and an executed deed of the Southard Court lot to Mary Thomas, together with a copy of the "Exchange Agreement" was deposited by Ten Winkel. (It cannot be determined from the record whether or not the "Exchange Agreement" included the purported acceptance of Mary Thomas.) It was stipulated that this particular deed was never recorded and at the time of the trial remained in the possession of the title company.
On November 23, 1926, a deed from Mary Thomas to Cleve Shaffer to both the Hyde Street lot and the Southard Court lot was executed.
On December 23, 1926, a deed from Cleve Shaffer to View Tower, Inc., of both pieces of property, the Hyde Street property and the Southard Court property was executed. (Said corporation was not incorporated at the time of the execution of this deed.)
On March 30, 1927, Mary Thomas executed a deed of trust covering the Hyde Street lot to Western American Realty Company, as trustee, in favor of Anglo California Trust Company to secure the payment of $10,000. (This trust deed renewed an existing trust deed on this same property dated April 12, 1922, by Mary Thomas to the same trustee and in favor of the same beneficiary to secure the payment of $13,000.) Mr. and Mrs. Ten Winkel upon the request of the Anglo California Trust Company joined in the execution of this $10,000 trust deed. On April 4, 1927, this *714 deed of trust was recorded. On April 25, 1927, a reconveyance of this $10,000 trust deed was executed.
On April 30, 1927, Cleve Shaffer obtained a building loan of $175,000 from the Anglo California Securities Company to finance the building of the said community apartment house. ($150,000 was actually loaned by the trust company, and $25,000 was allowed as a consideration to the trust company for long term financing in lieu of a bond issue discount.) The method of handling the transaction took the following unusual form. Cleve Shaffer signed an installment promissory note, payable $1486.74 per month, naming Mary Thomas, as payee. This note was endorsed by Mary Thomas and delivered to Anglo California Securities Company. The note on its back contained a guarantee by Mary Thomas and G. A. Shaffer. The deed of trust, executed by Cleve Shaffer, given to secure the payment of said promissory note, named Mary Thomas as beneficiary, and the Anglo California Trust Company, as trustee. (It may be noticed that the deed from Mary Thomas to Cleve Shaffer, dated November 23, 1926, had not yet been recorded and record title to the Hyde Street property stood in the name of Mary Thomas; likewise that there had been no recordation of the deed of Ten Winkels to Mary Thomas of the Southard Court property. It was stipulated at the trial, however, that title to the "View Tower property" was at the date of the execution of the $175,000 trust deed in Cleve Shaffer.) It is to be particularly noted that the Ten Winkels did not join in the execution of this note or trust deed.
On May 9, 1927, the Ten Winkels entered into a written agreement with "Tower View Community, Inc." (never incorporated). This agreement was signed by Cleve Shaffer, as president, and contains the following provisions: "And the undersigned hereby agrees to purchase an interest in and a lease of Apartment 2 ... of the proposed building, and the undersigned agrees to pay for the same the sum of $15,000 in the following manner: As per trade agreement in escrow with the California Pacific Title Company."
On May 13, 1927, the Ten Winkels paid the $1500 balance due, and receipt for said payment was given to them by the assistant trust officer of the Anglo California Trust Company.
On May 23, 1927, the trust deed covering both the Hyde Street property and the Southard Court property, in which *715 Mary Thomas was named as beneficiary and the Anglo California Trust Company, as trustee, given to secure the payment of the $175,000 note, was recorded.
On June 1, 1927, another deed from the Ten Winkels to Mary Thomas to the Southard Court lot was executed by the Ten Winkels and on June 4, 1927, recorded.
On June 4, 1927, there was likewise recorded the deed from Mary Thomas to Cleve Shaffer of the Hyde Street and Southard Court property, dated November 23, 1926, and also the reconveyance by the trustee of the $10,000 trust deed to Mary Thomas which had been executed on April 25, 1927, was recorded.
On July 11, 1928, the certificate of the secretary of state certifying the incorporation of View Tower, Inc., was issued, and on August 8, 1928, the by- laws of View Tower, Inc., were adopted.
In November, 1928, the building was completed, and the Ten Winkels moved into apartment No. 2.
On November 10, 1928, a deed from Cleve Shaffer to View Tower, Inc., was recorded, and on November 13, 1928, the board of directors of View Tower, Inc., accepted the property subject to the deed of trust for $175,000.
On November 14, 1928, Ten Winkels signed as lessees a membership holder's lease. On the same day, November 14, 1928, a membership certificate was issued to the Ten Winkels by View Tower, Inc., signed by Cleve Shaffer, as president, and by the secretary of the corporation.
In 1930, the Ten Winkels leased the apartment to tenants.
On August 23, 1933, a notice of default in the payment of the obligation to secure which the trust deed was given was recorded.
December 21, 1933, defendant, Anglo California Securities Company, purchased the property on foreclosure for $100,000.
On January 11, 1934, a deed from the trustee to Anglo California Securities Company was recorded.
On May 26, 1934, this suit to quiet title was commenced.
On November 5, 1934, Florence L. Ten Winkel and the Anglo California Securities Company entered into a written agreement for the collection and escrowing of the rental of said apartment until the final determination of this litigation, said accrued rental to be paid over in accordance with the final judgment in this action. *716
[1] At the outset it should be stated that no question is raised as to the regularity and legality of the sale upon the foreclosure of the trust deed other than to question whether the trust deed was actually in default at the date of the notice of default. The evidence is amply sufficient, not only to support, but to compel the conclusion, that the obligation was in default on said date. Neither is any question raised with reference to the title to the Southard Court property. The sole question, therefore, for determination is whether the plaintiff acquired any interest in the Hyde Street property of such a nature that she could not be divested of said interest by the foreclosure of the $175,000 trust deed.
An analysis of the transactions between those interested in the exchange of properties prior to April 30, 1927, the date of the execution of the $175,000 trust deed, discloses two possible theories upon which the trial court could justifiably base its decision in favor of defendant. One theory is based upon the acceptance of the authenticity of the written acceptance, and the fact that it constituted a part of the "Exchange Agreement". The other theory is predicated upon an entire elimination of the written acceptance from consideration. Whichever theory the trial court adopted in reaching its decision in favor of the defendant, its conclusion was amply supported by the evidence relative to the transactions occurring before April 30, 1927, and is strongly corroborated by the conduct of the Ten Winkels subsequent to said date. Appellant claims that there is another possible construction of the effect of these transactions which would warrant a judgment in her favor. Such construction, however, in the light of the record does not appear plausible to us, and moreover this theory is completely contradicted by the evidence relative to the course of conduct of the Ten Winkels subsequent to April 30, 1927. We shall discuss all three theories.
[2] Respondent argues that the Ten Winkels proceeded with the transaction for the exchange of properties upon the basis of the written acceptance of Mary Thomas, introduced in evidence in the form of a certified copy attached to the written offer of the Ten Winkels which had been recorded. Ignoring for the moment the question of the due execution of said document by Mary Thomas, there can be no doubt of the existence of such a document by reason *717 of the fact that it was recorded in conjunction with the written offer of the Ten Winkels, and counsel for the appellant so stipulated. There is evidence in the record in the form of carbon copy receipts of the California Pacific Title and Trust Company establishing the fact that on October 25, 1926, the same day on which said offer and acceptance were recorded, Mr. Ten Winkel opened up an escrow with said title company, and deposited therein a deed from himself and wife as grantors to Mary Thomas of their Southard Court property, together with an "Exchange Agreement". If the exchange agreement consisted of the offer by the Ten Winkels and the written acceptance by Mary Thomas, then the trial court was amply justified in concluding that the Ten Winkels, by depositing their deed, together with the exchange agreement, in escrow with the California Pacific Title and Trust Company, signified their assent to the terms of said written acceptance, and consummated said deal with full knowledge that one of the terms thereof was that the owner of the Hyde Street property was to furnish a certificate of title to the second floor cooperative apartment free and clear of all liens and encumbrances except those on the building as a whole. [3] If the completed contract provided that the interest acquired by the Ten Winkels was to be subject to all liens and encumbrances on the building as a whole, the Anglo California Securities Company who loaned the promoters of the community apartment house the sum necessary for the erection of the apartment house, was justified in loaning their money upon the assumption that the entire building was covered by the trust deed given to secure the $175,000 promissory note and was justified in its contention that upon a regular and proper foreclosure of said trust deed upon default in the payments, it secured title to the community apartment house free from any claim by the Ten Winkels.
[4] The written acceptance, in that it varied the terms of the original offer, at most constituted a qualified acceptance and in effect constituted a counter-offer on the part of the original offeree, Mary Thomas. There is no contention made that there was ever any express written acceptance by the Ten Winkels of this counter-offer, but the fact that the Ten Winkels deposited their deed to the Southard Court property, together with this "Exchange Agreement" (assuming *718 that the exchange agreement included a copy of the qualified acceptance by Mary Thomas) indicates that they accepted the terms of the counter-offer.
The conclusion that the Ten Winkels had knowledge of the written acceptance of Mary Thomas and were cognizant of its terms, although perhaps not fully aware of the possible effect of the inclusion therein of the provision that the certificate of title to be furnished for the community apartment house should show title free and clear of all liens and encumbrances, except those on the building as a whole, and signified their acceptance of said terms by the deposit of said documents in escrow, is strongly fortified by their conduct in the business transactions which occurred subsequent to April 30, 1927, the date on which the $175,000 encumbrance was placed upon the property. On November 13, 1928, the board of directors of View Tower, Inc., by resolution authorized the acceptance from Cleve Shaffer of the apartment house building subject to the $175,000 encumbrance, thereby recognizing the obligation against the property. On November 14, 1928, the Ten Winkels received their membership certificate which provided that "The member above named (Florence L. Ten Winkel and F. W. Ten Winkel) hereby consents to and accepts the Articles of Incorporation and By-Laws of this corporation as obligatory upon him". In the by-laws, which had been adopted August 8, 1928, it was provided that "the property, business and affairs of the corporation shall be managed and controlled by a Board of Directors", and that "all leases shall be subject to any mortgage or deed of trust which may be of record at the time of the execution of such lease". Furthermore, on November 14, 1928, the Ten Winkels entered into a written membership holder's lease which contained this provision: "And it is expressly stipulated and agreed that this lease is subject to any mortgage or mortgages, or trust deed that may from time to time be executed by the corporations as above specified and duly recorded, or that may have been so executed or assumed by the corporation to secure the erection of said building." It is not reasonable to suppose that the Ten Winkels signed the membership holder's lease which by express terminology subjected their interest to the encumbrance already on the property and duly recorded, or accepted the membership certificate upon the condition that the by-laws of View Tower, *719 Inc., should be binding upon them, which by-laws likewise subjected their interest to said encumbrance, if they in fact owned an absolute interest in the community apartment house property free from any encumbrance thereon, and had never agreed by previous contract that they should take their interest subject to an encumbrance. It is true that these transactions occurred subsequent to the date on which the $175,000 encumbrance was placed on the property, but they are convincing corroborative circumstances of the correctness of the conclusion that the Ten Winkels knew and acquiesced in the exchange of property upon the terms included in the written acceptance. It is not incredible that the Ten Winkels were willing to enter into such an agreement, although it has turned out to be a bad bargain for them by virtue of this particular provision subjecting their interest to an encumbrance on the building as a whole. It must be borne in mind that the transaction occurred previous to the depression and if all those who had purchased leases in the community apartment house had been able to perform their obligations, doubtless the transaction would have been a financially advantageous one for the Ten Winkels. Although now, in the light of the bitter lessons learned from the depression, such an agreement seems highly imprudent, at the time it was entered into it may well have seemed to the Ten Winkels to present an excellent opportunity for financial gain.
This view of the transactions of the parties, that the Ten Winkels accepted the counter-offer of Mary Thomas, expressed in the written acceptance, as evidenced by the escrow transaction, affords a reasonable explanation for the action of the defendant company in requiring the Ten Winkels to join in the execution of the trust deed executed by Mary Thomas, dated March 30, 1927, for $10,000, given to renew the loan which had previously been for $13,000, and its failure to require the Ten Winkels to join in the execution of the promissory note for $175,000 and the trust deed given to secure its payment. The latter encumbrance was on the "building as a whole" and was given "to secure the erection of said building", and if the Ten Winkels had acquired an interest in the Hyde Street property, by virtue of the agreement between the parties, subject to such encumbrance, their signatures would not be necessary to subject their interest to that encumbrance. It would, however, have *720 been necessary to subject their interest to the $10,000 trust deed which was not on the building as a whole but was given to renew a prior encumbrance in no way related to the erection of any building on the property.
There are two objections to the theory of an acceptance by the Ten Winkels of the counter-offer contained in the written "acceptance" of Mary Thomas. The first objection is that it cannot be ascertained with certainty that the documents deposited in escrow by Mr. Ten Winkel actually included the written acceptance. The written offer of the Ten Winkels was entitled, "Agreement to Exchange Real Property", and the receipt of the title company admitted the receipt of the deed from the Ten Winkels, and an "Exchange Agreement". It is possible, therefore, that the receipt only referred to the written offer, and that the Ten Winkels did not in fact have notice of the written acceptance.
[5] The other objection, and we think it is a valid one, is that the written acceptance was improperly admitted in evidence over the objection of counsel for the plaintiff, and cannot, therefore, form a basis for affirming the judgment on appeal. Upon the offer in evidence of the written acceptance in the form of a certified copy of the records of the recorder's office, showing both the written offer and immediately following it, the written acceptance, counsel for plaintiff objected to its admission upon the ground that no proper foundation had been laid. During the discussion which followed, counsel for the plaintiff stated that he was willing to stipulate that the document formed part of the records of the office of the recorder, but that it had not been acknowledged, and he could not stipulate to the signature of Mary Thomas. We think this was a sufficient objection to the evidence upon the ground that no proof of the due execution of the document had been offered by the counsel for the defense. It was not acknowledged and was, therefore, not entitled to recordation. The fact that although not entitled to be recorded it was in fact recorded in conjunction with another document which was entitled to be recorded, cannot give said document any greater sanctity than it is entitled to in its own right, and cannot grant it immunity from the requirement, applicable to all unrecorded instruments, that their due execution must be established as a proper foundation for their introduction in evidence. [6] Neither was *721 it rendered admissible in the absence of proof of its due execution by virtue of the provisions of section 1850 of the Code of Civil Procedure to the effect that, "Where the declaration, act, or omission forms a part of a transaction, which is itself the fact in dispute, or evidence of that fact, such declaration, act or omission is evidence as part of the transaction." Until its due execution by Mary Thomas had been established, there was no proof that this written acceptance was any part of the transaction for the exchange of the properties. [7] In addition to the objection to the admission of this instrument in evidence, a motion to strike was made, which through inadvertence was not acted upon by the trial court. In the absence of the slightest attempt to prove the due execution of said document, the objection to its admission should have been sustained, and having been improperly admitted, the motion to strike should have been subsequently granted.
[8] We have deemed it advisable to give consideration to the written acceptance by reason of the fact that both parties in their briefs have discussed at considerable length its authenticity and possible effect. However, we are of the opinion that the judgment of the trial court was predicated, not upon a consideration of the written acceptance and the conclusion that the Ten Winkels had accepted said counteroffer, but upon the fact that plaintiff utterly failed in the trial court to sustain the burden upon her of establishing by competent proof a consummated contract whereby she and her husband acquired an absolute interest in the Hyde Street property prior to April 30, 1927, the date of the execution of the $175,000 trust deed. Plaintiff repudiated any knowledge of said written acceptance and testified upon the stand that she did not remember ever having seen the document other than in her attorney's office after her suit to quiet title was commenced. However, if the written acceptance be eliminated from consideration, we are confronted with the situation where we are left with only the written offer. The existence of an acceptance is necessary and essential to a completed contract. The burden was upon the plaintiff in order to recover to establish such a completed contract that by its terms she had acquired an interest in said Hyde Street property prior to the execution of said $175,000 trust deed. The first evidence of a definite contract *722 is to be found in the membership holder's lease entered into between the Ten Winkels and View Tower, Inc., on November 14, 1928, in which she acquired her interest subject to the prior encumbrance upon the property. There is an absence of evidence of any contract coming into being prior to April 30, 1927, whereby the Ten Winkels acquired an interest in the Hyde Street property.
A perusal of the findings of the trial court indicates that its decision was based upon a conclusion that the Ten Winkels acquired no interest by virtue of a consummated contract prior to April 30, 1927, for the findings expressly state with reference to the undivided one-fifteenth interest in the realty claimed by appellant, that, "It is not true that plaintiffs or either of said plaintiffs ever have been or now are the owners" of any interest in said real property. The findings with reference to the apartment are to the effect that "It is not true that Florence L. Ten Winkel, individually or as executrix of the last will and testament of F. W. Ten Winkel, deceased, was at any time subsequent to December 21, 1933 (the date of the sale under foreclosure) the owner or in possession of the following described property," (describing the apartment). The membership holder's lease provided merely for the owning of a lease by the Ten Winkels of the designated apartment, the title to the realty and to the community apartment house being held by View Tower, Inc. These findings would indicate therefore that the Ten Winkels acquired their interest by virtue of their membership holder's lease subsequent to April 30, 1927, since the trial court found that they never did become the owners of any interest in the realty. If the Ten Winkels acquired said interest upon the execution of said membership holder's lease, this interest was of course subject to the $175,000 trust deed, a prior encumbrance upon the property, and was wiped out upon the sale under the foreclosure of the $175,000 trust deed. However, it is sufficient simply to say that the record fails to show that the proposition for the exchange of the Southard Court property by the Ten Winkels for an interest in the Hyde Street property ever progressed to the state of a consummated contract prior to April 30, 1927. The burden was upon the plaintiff to establish this fact, and having failed to do so, the court was compelled to find in favor of the defendant. *723
[9] It is plaintiff's claim, as we understand it, that the contract was a unilateral contract which consisted of the original offer of the Ten Winkels, duly acknowledged and recorded, and the acceptance by Mary Thomas of the consideration offered with the proposal (the deed by the Ten Winkels to their Southard Court property). Section 1584 of the Civil Code provides that, "acceptance of the consideration offered with a proposal is an acceptance of the proposal". The written offer, together with an acceptance of the benefit therefore, according to plaintiff, constituted the contract. It may be conceded that such an inference could possibly be drawn. But such inference is absolutely contradicted by the subsequent conduct of the original offerers, that is to say, by the acceptance of the membership certificate by the Ten Winkels and their execution of the membership holder's lease subjecting their interest to the encumbrance on the building as a whole. However, it suffices to say, that the trial court did not accept this theory of the transactions of the parties. In our opinion, as we have previously indicated, the trial court was amply warranted in reaching the opposite conclusion.
We have not included in our discussion any reference to the written contract between the Ten Winkels and Tower View Community, Inc., of May 9, 1927, to exchange their property as "per trade agreement in escrow with the California Pacific Title Company". Tower View Community, Inc., was not incorporated at that time, or ever, and we are of the opinion that said agreement neither adds to nor detracts from any of the rights of either party. Neither have we discussed the question of constructive notice because it is not materially involved herein. The respondent freely admitted not only constructive notice of the written offer of the Ten Winkels but actual notice of it.
It follows from what we have hereinbefore said that the interest in the Hyde Street property acquired by appellant was subject to the $175,000 trust deed, and being so subject, appellant's interest in said community apartment house was foreclosed by the sale under the foreclosure of said trust deed.
The motion of respondent to take additional evidence is denied. The judgment of the trial court is hereby affirmed.
|
555 So.2d 1282 (1990)
INTERGRAPH CORPORATION, Appellant/Cross-Appellee,
v.
John E. STEARMAN and John E. Stearman, P.A., Appellees/Cross-Appellants.
John E. STEARMAN and John E. Stearman, P.A., Appellants,
v.
William A. HESSINGER, Appellee.
Nos. 88-01826, 88-01843 & 88-02294.
District Court of Appeal of Florida, Second District.
January 5, 1990.
Rehearing Denied February 2, 1990.
*1283 William F. McGowan, Jr., and Sylvia H. Walbolt of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellant/cross-appellee Intergraph Corp.
G. Donovan Conwell, Jr. of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellees/cross-appellants and appellants John E. Stearman and John E. Stearman, P.A.
No appearance, for appellee William A. Hessinger.
PER CURIAM.
By these consolidated appeals and a cross-appeal, we are asked to review a final judgment against Intergraph Corporation awarding compensatory and punitive damages to John E. Stearman and John E. Stearman, P.A., in a suit brought by them for misrepresentation and breach of warranties with respect to the capabilities of a computer system sold by Intergraph to John E. Stearman.
We find that the award of compensatory damages to Stearman P.A. in the amount of $34,000 for breach of express warranties cannot stand because there was a complete absence of privity between Stearman P.A. and the seller of the computer system, Intergraph. Privity is required in order to recover damages from the seller of a product for breach of express or implied warranties. Brown v. Hall, 221 So.2d 454 (Fla. 2d DCA 1969). See also Affiliates for Evaluation & Therapy, Inc. v. Viasyn Corp., 500 So.2d 688 (Fla. 3d DCA 1987), approved, Kramer v. Piper Aircraft Corp., 520 So.2d 37 (Fla. 1988).
Accordingly, we reverse that part of the final judgment awarding compensatory damages to John E. Stearman, P.A., in the amount of $34,000 for breach of express warranties. We affirm as to all other issues raised by these appeals and the cross-appeal.
Reversed in part and affirmed in part.
DANAHY, A.C.J., and SCHOONOVER and PARKER, JJ., concur.
|
608 S.E.2d 600 (2005)
279 Ga. 63
RANSOM
v.
HOLMAN et al.
No. S04A1857.
Supreme Court of Georgia.
February 7, 2005.
Reconsideration Denied March 7, 2005.
*601 Rayfield Ransom, Atlanta, for Appellant.
William H. Mills, Blakely, for Appellee.
SEARS, Presiding Justice.
Appellant Rayfield Ransom appeals the trial court's decision to order an equitable partitioning of property owned by appellant and appellee Matthew Holman as tenants-in common. Having reviewed the record and finding no error in the trial court's rulings, we affirm.
Appellant filed a statutory partitioning proceeding, naming appellee and his grandfather, Grady Holman, as defendants. Appellant asserted that he owns a two-fifths interest in the subject property, and that appellee owns a three-fifths interest. Appellee responded, asserting that he owns a four-fifths interest in the property, while appellant owns only a one-fifth interest. Appellee also filed a counterclaim seeking an equitable division, an accounting and contribution, asserting that since 1980, he alone has paid all taxes and maintenance costs relative to the property. Finally, appellee argued that since Grady Holman owns no interest in the property, he was not a proper party and should be dismissed.
Following a hearing, the trial court found that dividing the property into fractional parts would decrease the value of each part and the whole. The court also found that an accounting was necessary in order to settle the parties' claims. Therefore, the court ordered an equitable partitioning and appointed a receiver to take charge of the property, sell it and provide an accounting, with the proceeds being divided upon court approval. The court reserved ruling on the parties' dispute concerning their respective interests in the property until entry of the final decree. The court also granted appellee's motion to dismiss Grady Holman from the case.
1. "Equity has jurisdiction in cases of partition whenever the remedy at law is insufficient or peculiar circumstances render the proceeding more equitable and just."[1] The need for an accounting between tenants-in-common will, standing alone, bestow jurisdiction upon a court of equity to decide a partitioning action, even if no other peculiar circumstances exist that warrant an equitable proceeding.[2] This particular case *602 involves a claim for an accounting that, by itself, warrants the exercise of equitable jurisdiction, as well as a finding by the trial court that the property is configured such that its physical division will create a decreased value. Accordingly, this case involves the sort of circumstances that justify the assumption of equitable jurisdiction over a partitioning action, and the trial court did not abuse its discretion in so ordering.
2. The trial court did not, as appellant claims, err by failing to address his claim that one or more of the appellee's deeds are invalid.[3] That allegation concerns the parties' respective interests in the property, a disputed issue specifically reserved by the trial court for later determination.
3. The trial court did not err by dismissing Grady Holman from the action, as it is indisputable that he holds no interest in the property to be partitioned.
Judgment affirmed.
All the Justices concur.
NOTES
[1] OCGA § 44-6-140.
[2] Coker Properties., L.P. v. Brooks, 278 Ga. 638, 604 S.E.2d 766 (2004); Mills v. Williams, 208 Ga. 425, 67 S.E.2d 212 (1951).
[3] Appellant raised this issue in an amended complaint filed after appellee brought his counterclaim.
|
171 F.Supp. 94 (1959)
Bevie F. BIGGERS et al., Plaintiffs,
v.
The BANKERS BOND COMPANY, INC., et al., Defendants.
No. 3646.
United States District Court W. D. Kentucky, Louisville Division.
February 4, 1959.
*95 Hubert T. Willis, James T. Carey, Louisville, Ky., H. W. Strasburger, Royal H. Brin, Jr., Dallas, Tex., for plaintiffs.
Henry J. Stites, A. Scott Hamilton, Louisville, Ky., Berkowitz, Lefkovits & Paden, A. Berkowitz, Charles Najjar, Birmingham, Ala., for defendants.
SWINFORD, District Judge.
On January 7, 1959, after a pre-trial conference at which all phases of this case were under consideration and after extended arguments, the court entered, among other things, the following order:
"The motion of the defendants in 3646 to be permitted to amend the counterclaim to the complaint is overruled."
"The Court heard arguments as to the validity of West Buechel bonds in the amount of Two Million Dollars and made a ruling that the bonds were not issued in conformity with the law and Kentucky Statutes and were therefore invalid."
On January 17, 1959, the defendants, Charles D. Dunne and J. E. Dunne II, filed a Notice of Appeal seeking a review of the above cited order.
The order is not a final order within the meaning of 28 U.S.C.A. § 1291. It is only a part of an order in which the court made rulings to simplify the issues, eliminate from the controversy all questions of law and to clarify the questions of fact on which proof is to be offered and which questions of fact are ultimately to be submitted to the jury for its determination.
It has long been an express policy that piecemeal appeals are improper and delay the ultimate decision in legal proceedings. Baltimore Contractors v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233.
The defendants are evidently attempting to prosecute an appeal under 28 U.S. C.A. § 1292(b). This section of the Code was enacted as an amendment to Sec. 1292 by an Act of Congress of September 2, 1958. It is my judgment that this is not a case for its application. Since it has been on the statute books for only a comparatively short time there is little authority to guide the trial courts. However, since the section does not expressly modify the long recognized construction of Sec. 1291 and the accepted and sensible policy of allowing appeals only from final judgments, subject to well defined and enumerated statutory exceptions, the new provision should be used sparingly and only in exceptional cases where an immediate appeal may avoid protracted or expensive litigation. Milbert v. Bison Laboratories, 3 Cir., 260 F.2d 431; Kroch v. Texas Co., D.C., 167 F.Supp. 947; Bobolakis v. Compania Panamena Maritima San Gerassimo, D.C.S.N.Y., 168 F.Supp. 236.
My interpretation of the Act is that its provisions are jurisdictional and that no appeal from an interlocutory order, such as the one involved here, can be prosecuted unless the order from which the appeal is sought to be taken expressly states that such order involves a controlling question of law as to which there is substantial ground for difference *96 of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. The opinion in Milbert v. Bison Laboratories, supra, quotes at length from the report of the Committee on the Judiciary of the House of Representatives on the bill. The report contains the following language.
"To begin with, before an appeal can be had, the district court must certify in writing that the order involves a controlling question of law and that an immediate appeal may materially advance the ultimate determination of the case."
And in the report made on the bill by the Committee on the Judiciary of the Senate it is said:
"It is discretionary in the first instance with the district judge for he must state in writing as a part of his order that it is his opinion that the order involves a controlling question of law concerning which there is substantial doubt and he must further state that an immediate appeal from the order may materially advance the ultimate termination of the litigation."
It was obviously the will of the Congress in enacting this legislation that the Court of Appeals cannot exercise its discretion in permitting the appeal until such an order from the district court. A careful reading of the Act can lead to no other conclusion.
Examples of the "exceptional cases" referred to in Milbert v. Bison Laboratories, supra, are the long and involved anti-trust cases or cases of a similar nature. The case at bar is not an exceptional case in that sense nor one that can be distinguished from numerous other cases. Neither is it a case that will involve a long trial. Counsel advised the court at the time it was assigned for trial at a pre-trial conference that the trial of the case would not require more than two or three days or a week at the most. To permit the prosecution of an appeal in a case of this nature would, from a practical standpoint, set a precedent for appeals from interlocutory orders in nearly all cases.
It is safe to say that Congress did not intend to so seriously modify the practical effect of Sec. 1291. Judge Maris in Milbert v. Bison Laboratories, supra, stated that the Senate report mentioned anti-trust actions as the type of cases intended as subject to such appeal and that there was nothing in the language of the statute to imply that Congress intended to establish a kind of "certiorari" policy for the Courts of Appeal whereby so-called "important cases" would receive special appellate treatment.
An order striking the notice of appeal from the record and denying the right to prosecute an appeal and directing the clerk to withhold sending the record to the Court of Appeals is this day entered.
|
810 A.2d 526 (2002)
147 Md. App. 672
Jacqueline LEADROOT,
v.
Phillip C. LEADROOT.
No. 2380, Sept. Term, 2001.
Court of Special Appeals of Maryland.
November 6, 2002.
*527 William M. Ferris (Krause & Ferris, on the brief), Annapolis, for appellant.
M. Evelyn Spurgin (Samuel J. Brown and Hillman, Brown & Darrow, P.A., on the brief), Annapolis, for appellee.
Argued before DAVIS, KENNEY and KRAUSER, JJ.
KRAUSER, Judge.
Appellant, Jacqueline E. Leadroot, appeals from an order of the Circuit Court for Anne Arundel County, claiming that the circuit court's order constitutes an untimely and therefore improper "revision" of the parties' Qualified Domestic Relations Order (QDRO). Her former husband, appellee Philip C. Leadroot, disagrees. He asserts that what appellant calls a revision was only a "clarification" of their QDRO; therefore, he claims, it was neither untimely nor improper. But, while appellee requests that we affirm the circuit court's "clarification" of the parties' QDRO, he asks that we reverse the court's denial of his request for "credit for taxes [he] paid on the pension arrearage."
After considering the parties' conflicting claims, we conclude that the circuit court's order did "revise" the QDRO, as appellant contends. And because there was no evidence of fraud, mistake, or irregularity, we further conclude that the circuit court's belated revision of that QDRO was improper and should be reversed. On the other hand, we believe that the circuit court did not err in requiring appellee to pay appellant the pension benefits, withheld by him since his retirement, without crediting him for taxes paid on those benefits.
BACKGROUND
On February 4, 1974, appellee, as a member of the Uniform Secret Service, began contributing to the District of Columbia Police and Firemen's Retirement Relief Fund (D.C. Retirement System). Nineteen months later, on October 25, 1975, the parties married. During their nineteen-year marriage, the couple had three children.
In 1978, appellee was transferred to Chicago to work for the Immigration and Naturalization Service. To pay for the move to Chicago, appellee redeemed the monthly retirement contributions he had *528 made between 1974 and 1978, or as he put it, "cashed in" his retirement for those years. Five years later, in 1983, he was hired as a criminal investigator.[1] His new position enabled him to participate in the Civil Service Retirement System.
In 1991, the parties separated. On April 21, 1993, the Circuit Court for Anne Arundel County granted them a judgment of absolute divorce, and that judgment incorporated a Qualified Domestic Relations Order ("1993 QDRO"). The 1993 QDRO awarded appellant "one-half (½) of the marital property portion of each of Defendant's monthly [pension benefit] payments." It then declared
the marital portion shall be a fraction of the Defendant's full monthly benefit, the numerator of which shall be the number of months of Defendant's participation in the Plan from the date of the parties' marriage (October 25, 1975) through and including November 18, 1991 and the denominator of which shall be the total number of months of Defendant's participation in the Plan.
The period of time comprising the numerator ends on November 18, 1991, the termination date agreed upon by the parties.
In 1995, appellant filed the QDRO with the Office of Personnel Management (OPM), the federal government's human resources agency, to ensure that she would receive her portion of the pension when it was distributed. Four years later, unknown to appellant, appellee transferred his retirement funds back into the D.C. Retirement System and on October 5, 1999, appellee repurchased, with his own funds, the four years of government service[2] he had redeemed during the marriage. For the sum of $3,637.87, he "bought back" his months of government service, from February 4, 1974 to February 11, 1978. By doing this, he significantly increased the total amount of annual pension benefits he would receive from the D.C. Retirement System.[3] The next month, appellee retired and began collecting his pension.
When appellant learned appellee was retiring, she contacted the OPM to check on the payment of the pension's benefits. It was then that she learned appellee had transferred his pension to the D.C. Retirement System. When she contacted the D.C. Retirement System, she was informed *529 that the 1993 QDRO was not acceptable in its present form. To be accepted by that system, she was advised, the QDRO had to be separate from the parties' judgment of divorce.
To resolve that problem, appellant filed a "Motion for Entry of Judgment and Qualified Domestic Relations Order," requesting that the circuit court issue a separate QDRO. In that motion, she also requested, among other things, an award of the retirement benefits appellee had withheld since his retirement. On February 6, 2001, the parties filed a "Joint Motion for Entry of Judgment and Qualified Domestic Relations Order," seeking the issuance of a separate QDRO.
Ultimately, the circuit court issued a separate QDRO (2001 QDRO) but reserved ruling on the pension arrearage until a hearing could be held. The new 2001 QDRO was not substantively different from the original 1993 QDRO with respect to the computation. The 2001 QDRO states:
The amount to be paid to the Alternate Payee shall be one-half (½) of the marital property portion of each of the Employee's [Mr. Leadroot's] monthly payments. The marital property portion shall be a fraction of the Employee's full monthly benefit, the numerator of which shall be the number of months of the Employee's qualifying participation between October 25, 1975, and November 18, 1991, inclusive, and the denominator of which shall be the total number of months of the Employee's qualifying participation.
(emphasis added).
It did add the word "qualifying" to describe appellee's participation in the pension plan, but neither party claims that the addition of that word changed the meaning of that paragraph. In fact both sides concede in their briefs that no substantive change in the QDRO occurred as a result of the re-issuance of the QDRO in 2001 as a separate document.[4] Moreover, appellee did not request, at that time, any change in the language of the QDRO to reflect his repurchase of the four years that he had "cashed in" when he and appellant moved to Chicago.
Six months later, however, appellee filed a motion to modify the QDRO claiming that "the original divorce decree and QDRO had an error as to the marital portion of the retirement benefits which are owing and due" to appellant. He explained that because the parties had "received a complete payout" of his benefits for "the time period from October 25, 1974 through 1978," and because he had, after the divorce, bought back those months, with his own funds, so that he could retire early, that time period should not be included in the calculation of the marital portion of his retirement benefits. The circuit court agreed.
After a hearing, the circuit court issued a Memorandum Opinion and Order holding that the redeemed months would not be included in the calculation of the marital portion of appellee's pension benefits because "there was a mutual mistake by the parties in their calculations concerning the pension." It then found that "the marital percentage of the pension" was 53 percent and that appellant's portion was 26.5 percent. The exclusion of that time period resulted in a 4.82 percent reduction in appellant's share of her former husband's *530 pension benefits, as she would otherwise have received 31.32 percent, and not 26.5 percent, of those benefits. The circuit court further found that appellee owed appellant pension payments for the period from December 1999 through May 2001. The circuit court calculated the pension arrearage based on a percentage of the gross monthly retirement payment rather than the net amount as appellee requested. It explained that it did not have sufficient information to grant appellee's request that the amount of monies owed appellant be reduced by the amount of income tax appellee had paid on those monies. It further observed that appellee could "amend his tax returns to recoup any overpayments" of federal and state taxes.
Challenging the circuit court's authority to modify a QDRO eight years after its issuance, appellant filed a "Motion to Alter or Amend Memorandum Opinion and Order". In another motion, appellee asked the court to reconsider its decision not to "reduce monies owed by [him to appellant] by any federal or state income tax payments," claiming that he had since learned, contrary to what the circuit court had stated in its opinion, that he could not amend his returns to reflect these overpayments.[5] Both motions were denied and cross-appeals followed.
I
On appeal, appellant restates the argument she made below. She asserts that by excluding the redeemed months from the computation of the marital portion of appellee's pension benefits, the circuit court "revised" the parties' QDRO. That revision, according to appellant, violated Maryland Rule 2-535, which provides in part:
(a) Generally.On motion of any party filed within 30 days after entry of judgment, the court may exercise revisory power and control over the judgment and, if the action was tried before the court, may take any action that it could have taken under Rule 2-534.
(b) Fraud, Mistake, Irregularity.On motion of any party filed at any time, the court may exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity.
Because the "revision" occurred more that thirty days after entry of judgment and because, according to appellant, it was not supported by a finding of fraud, mistake, or irregularity, it was the product of judicial error. Appellee does not disagree if in fact the circuit court's order "revised" the parties' QDRO. But he insists that it did not. According to appellee, that order "clarified" but did not "revise" the parties' QDRO. This, however, was not how he framed the issue below.
In the circuit court, appellee moved not to "clarify" but to "alter or amend" the parties' QDRO, claiming that the "Divorce Decree and the Qualified Domestic Relations Order both have an error as to the marital portion of the retirement benefits which are owing and due" to appellant. The error he maintained there was that the QDRO "has the wrong beginning date." The numerator of the fraction used to compute the marital property portion of appellee's pension benefits, he explained, should not include the months redeemed by him during the marriage and later repurchased, with non-marital funds, after the divorce. He therefore asked the circuit court to amend the QDRO so that the numerator would not include those *531 months. And that is what the circuit court did.
Declaring that "there was a mutual mistake by the parties in their calculations concerning the pension," the circuit court found:
[T]he months redeemed by the parties must not be considered as part of the numerator in the fraction but, rather, the formula should be the number of months of the employee's qualifying participation between February 11, 1978 and November 18, 1991, a total of 165 months, as the numerator, and the denominator being the total number of months of the employee's qualifying participation, that is, 309 months, which include the redeemed months.
Explaining why it was including the redeemed months in the denominator while removing those months from the numerator, the circuit court stated that, "[a]lthough it appears to be somewhat contradictory, it should be remembered that after the divorce, [appellee] did repurchase the redeemed months" and "that this time must be part of the [appellee's] qualifying participation." And it added that to rule otherwise would grant appellant a "wind fall."
Regardless of what appellee chooses to call it, the circuit court did in fact revise the fraction used to compute the marital portion of appellee's pension benefits. It did so to correct what it believed to be "a mutual mistake by the parties." A clarification does not modify; it illuminates. And the circuit court, here, was engaged in more than simply illuminating the fraction at issue; it significantly altered that fraction so that it conformed with what the circuit court believed to be the parties' expectations.
Using the almost identical formula approved by this Court in Bangs v. Bangs, 59 Md.App. 350, 475 A.2d 1214 (1984), the QDRO stated that "the numerator ... shall be the number of months of the Employee's qualifying participation between October 25, 1975, and November 18, 1991, inclusive, and the denominator ... shall be the total number of months of the employee's qualifying participation." In other words, the numerator was to include all of the months between the date of the parties' marriage and the termination date agreed on by the parties. No distinction was made between redeemed and unredeemed months in computing the marital portion of appellee's pension benefits in 1993, when the QDRO was first issued, or in 2001, when it was re-issued as a separate order, after appellee repurchased his four years of service. Nor can we do so now without revising the parties' QDRO. To now qualify a term, which was left unqualified both in 1993 and in 2001, plainly constitutes a "revision."
Moreover, even if the circuit court is correct that "when the divorce decree was entered in 1993," appellant had no "expectation that she would have been entitled to the months that had been redeemed during the marriage," that is irrelevant. What is relevant is that the parties agreed upon a formula that did not exclude such months if and when they were repurchased. Furthermore, the decision to repurchase the redeemed months was entirely under appellee's control. He presumably knew the terms of his retirement plan and that, at a time of his choosing, he could for a modest amount, $3,637.87, repurchase the four years of service that he and his wife had redeemed. The time he chose was after the date of the parties' divorce. And he did so knowing that the language of the QDRO did not exclude the redeemed months from the numerator. Moreover, when the circuit court subtracted the redeemed months from the numerator but left them in the denominator, *532 it effectively ruled that the same term"qualifying participation" meant something different in the denominator than it did in the numerator, an interpretation that defies a basic canon of contract interpretation: that the same terms are to be given the same meaning in the same document. See 17A C.J.S., Contracts § 322 (1999).
Nor can we accept the circuit court's conclusion that to include the redeemed months in the numerator would result in an unjustifiable "windfall" to appellant, who had neither anticipated their inclusion nor participated in their repurchase. Appellee repurchased four years of service. For the exiguous sum of $3,637.87, he shall receive annually ten percent more in pension benefits for the rest of his life. Given the large return for such a small investment, we cannot but conclude that the repurchased benefits were really the product of his four years of government service, three of which were during the parties' marriage, and not the small sum he paid to re-initiate those benefits. We agree with appellant's assertion that, "clearly, the service time, as opposed to the amount of the contribution, is by far the most important factor in determining the value of the benefits." In that light, it is hard to view their inclusion in the numerator as a windfall to appellant.
Nor does the fact that appellee made the repurchase with his own funds or that the increase in benefits occurred after the parties' divorce affect our conclusion. Not only was the sum he paid for those benefits small but he could have avoided assuming the entire burden of the repurchase by simply contacting appellant and suggesting to her that it would be in their mutual interest to jointly repurchase the months of service. This he did not do, presumably in the hope of not having to share the increase in pension benefits with her. Moreover, this Court has repeatedly held that there is nothing inappropriate about a former spouse "reap[ing] the benefit of a post-divorce increase in the value of [a] pension." Musick v. Musick, 144 Md. App. 494, 503, 798 A.2d 1213 (2002) (citing Bangs, 59 Md.App. at 367, 475 A.2d 1214). Indeed, even if the inclusion of the redeemed months in the formula for computing appellant's share of appellee's pension would result in a "windfall" to appellant, that would not alter the result we reach today, as that windfall is the product of a formula freely negotiated and agreed to by the parties.
And finally we note that to affirm the circuit court's exclusion of the redeemed months in its calculation of the marital property portion of appellee's pension benefits may encourage others in similar situations to redeem part of their pension benefits during their marriage, in anticipation of repurchasing them after divorce and thereby placing them beyond the reach of their former spouses. This would be particularly unfortunate in instances where, as here, the pension benefits were largely earned during the marriage and then repurchased after the divorce for a nominal sum.
Having determined that the circuit court's order did in fact revise the parties' QDRO, we now turn to the question whether Maryland Rule 2-535 would permit such a revision. As previously noted, a motion to revise a judgment must be "filed within 30 days after entry of judgment." Md. Rule 2-535(a)(2002). That deadline has of course long since passed. Nonetheless, subsection (b) of that Maryland Rule provides that "at any time, the court may exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity."
But fraud, mistake or irregularity must be established by clear and convincing *533 evidence. Tandra S. v. Tyrone W., 336 Md. 303, 314, 648 A.2d 439 (1994). And they "are to be narrowly defined and strictly applied." Id. at 315, 648 A.2d 439 (citing Platt v. Platt, 302 Md. 9, 13, 485 A.2d 250 (1984)). "The rationale behind strictly limiting a court's revisory power is that in today's highly litigious society, there must be some point in time when a judgment becomes final." Id. at 314, 648 A.2d 439.
We recently stressed how strictly that rule was to be applied in Thacker v. Hale, 146 Md.App. 203, 806 A.2d 751 (2002). In that case, the circuit court entered a final judgment granting the parties an absolute divorce. The judgment included a monetary award, which permitted Ms. Thacker to accelerate the balance of the award if her former spouse missed a payment. Twelve years later, after payment deadlines had repeatedly been ignored, Ms. Thacker moved to accelerate the unpaid balance of the award. The circuit court, however, found that such a provision was not permitted by the Family Law Article and declared that it constituted an irregularity under Rule 2-535(b). We disagreed.
Rejecting the circuit court's finding of "irregularity," we held that the circuit court lacked the revisory power under Rule 2-535(b) to strike the acceleration provision. Id. at 226-27, 806 A.2d 751. In doing so, we overruled McClayton v. McClayton, 68 Md.App. 615, 515 A.2d 231 (1986), to the extent that it "stood for the proposition that the erroneous inclusion of an impermissible term in the monetary award provisions of the divorce judgment is an `irregularity'." Thacker, 146 Md. App. at 219, 806 A.2d 751. An irregularity, we pointed out, "usually means irregularity of process or procedure, and not an error, which in the legal parlance generally connotes departure from the truth or accuracy of which a defendant had notice and could have challenged." Id. at 219, 806 A.2d 751.
We also rejected the contention that it was a "mistake" under Rule 2-535(b). Id. at 230, 806 A.2d 751. A "mistake" under Rule 2-535(b) is "limited to a jurisdictional error, i.e. where the court has no power to enter the judgment." Tandra S., 336 Md. at 317, 648 A.2d 439. "The typical kind of mistake occurs when a judgment has been entered in the absence of valid service of process; hence, the court never obtains personal jurisdiction over a party." Id. at 317, 648 A.2d 439.
Nonetheless, in this case, the circuit court found that "there was a mutual mistake by the parties in their calculations concerning the pension." That is obviously not the kind of mistake contemplated by Rule 2-535(b); it has virtually nothing to with jurisdiction. Neither party has even questioned whether the circuit court had personal and subject matter jurisdiction here, which of course it did. See Md.Code Ann., (1999 Repl.Vol.) § 8-205 of the Fam. Law Article ("(a) ... court may transfer ownership of an interest in a pension ... (b) The court shall determine ... the terms of the transfer of the interest in the pension...."). The "mutual mistake" the circuit court found had to do with what it believed was a misunderstanding between the parties as to which months to include in calculating the marital property portion of appellee's pension benefits; in short, it was at most a contractual not a jurisdictional mistake. We therefore hold that the circuit court erred in revising the 2001 QDRO because it lacked the authority to do so under Rule 2-535(b).
Cross-Appeal
Appellee contends that the circuit court erred when it failed to give him credit for taxes paid on the pension arrearage. Because the D.C. Retirement System would *534 not accept the 1993 QDRO, appellee collected the entire monthly retirement benefit from December 1999 until May 2001, without forwarding any portion of those payments to appellant. He did, however, pay taxes each month on the entire benefit received.
Nonetheless, the circuit court ordered him to pay the pension benefit arrearage to appellant based upon a percentage of the gross, not net, monthly benefit. Because he cannot now recoup the taxes he paid, he claims that it is unfair to require him to pay appellant a percentage of each month's gross benefit. In response, appellant argues that "there was and is no evidence from which the trial judge could ascertain whether she would have paid as much in income taxes as did [appellee], had her court-ordered share of the pension benefits been paid directly to her prior to June 2001."
"On appeal, we must uphold the evidentiary conclusions of the trial court unless clearly erroneous." Strauss v. Strauss, 101 Md.App. 490, 508, 647 A.2d 818 (1994)(citing Md. Rule 8-131(c)). Here, the circuit court found that it could not "determine federal and state income tax on monies not received by the Plaintiff without more information as to the Plaintiff's finances, which has not been provided." It also noted that appellee could "amend his tax returns to recoup any overpayments."
Now appellee contends, as he previously did below, that he cannot recoup those payments by amending his tax returns. But it is clear to us that the circuit court's decision to base the calculation of the arrearage on the gross and not net amount of each monthly pension payment was the result of appellee's failure to provide any factual basis for it to do otherwise. Its observation that he could recoup the taxes paid on the gross amount of each payment was only thatan observation. When the circuit court was informed by appellee that he could not recoup the taxes paid, it did not alter its decision. In choosing not to do so, it did not err.
JUDGMENT AFFIRMED IN PART AND VACATED IN PART; CASE REMANDED TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLEE.
NOTES
[1] The record does not provide any further information concerning this new employment.
[2] Section 5-704 of the District of Columbia Annotated Code provides:
(a) A member's service for the purposes of this subchapter shall mean all police or fire service and such military and government service as is authorized by such sections prior to the date of separation upon which title to annuity is based.
* * *
(e) (1) A member shall be allowed credit for government service performed prior to appointment in any of the departments mentioned in paragraph (1) of § 5-701, if such member deposits a sum equal to the entire amount, including interest (if any), refunded to him for such period of government service.
D.C.Code Ann. § 5-704 (2001).
[3] Section 5-712 of the District of Columbia Annotated Code provides:
[A]ny other member (other than a member who is an officer or member of the Metropolitan Police force or the Fire Department of the District of Columbia who first becomes such a member after the end of such 90-day period) who completes 20 years of police or fire service may ... voluntarily retire from the service and shall be entitled to an annuity computed at the rate of 2½% of his average pay for each year of service;
D.C.Code Ann. § 5-712 (2001). In short, the formula to calculate an employee's pension benefits is 2½% X Years of Service X Average Pay. Id.
[4] Appellee explained, in his brief, that a new QDRO was necessary because the District of Columbia Government required a separate order, but "[t]he substance of the order, however, was unchanged." In her reply brief, appellant agreed and further stated that "Appellee has conceded, as, indeed, the fact compelled him to do, that the entry of the February, 2001, QDRO did not change the substance of the 1993 Judgment."
[5] In making that request, appellee stated, "[t]hat in follow-up checking, it appears that an amended tax return cannot be filed because the taxes can only be deducted in the year in which the payments are made."
|
Order Michigan Supreme Court
Lansing, Michigan
September 27, 2016 Robert P. Young, Jr.,
Chief Justice
151660(27) Stephen J. Markman
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
PEOPLE OF THE STATE OF MICHIGAN, Joan L. Larsen,
Plaintiff-Appellee, Justices
v SC: 151660
COA: 325545
Mason CC: 02-017992-FH
QUINCY DONTAY ROBERTS,
Defendant-Appellant.
_________________________________________/
On order of the Court, the motion for reconsideration of this Court’s June 22, 2016
order is considered, and it is DENIED, because it does not appear that the order was
entered erroneously.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 27, 2016
p0919
Clerk
|
458 F.Supp. 771 (1978)
In the Matter of PACIFIC FAR EAST LINE, INC., a Delaware Corporation, Debtor.
OFFICIAL CREDITOR COMMITTEE, Appellant,
v.
Joseph M. ALIOTO, Appellee.
SSI CONTAINER CORPORATION, a California Corporation, SSI Container Corparation International B.V., a Netherlands Corporation, Appellant,
v.
Joseph M. ALIOTO, Appellee.
Nos. C-78-1401-WAI, C-78-1402-WAI.
United States District Court, N. D. California.
October 16, 1978.
*772 *773 Joseph M. Alioto, pro se.
Vernon D. Stokes, The Bd. of Trade of San Francisco, San Francisco, Cal., Bernard Shapiro, Frank C. Christl, Robert Jay Moore, Gendel, Raskoff, Shapiro & Quittner, Los Angeles, Cal., for appellants.
MEMORANDUM OF DECISION
INGRAM, District Judge.
This is an appeal taken pursuant to Bankruptcy Rule 801 from an award of attorney's fees to special counsel as a Chapter XI administrative expense, directing forthwith payment thereof in advance of the payment of other costs of administration. Appellee special counsel sought and was granted in the bankruptcy court an award of fees as the result of the settlement of a case in which the debtor was plaintiff, and in which special counsel had represented the debtor both before and after the commencement of bankruptcy proceedings. The settlement was approved by the same referee whose award of fees is here in issue, and is the subject of other appeals which remain at this time unresolved.
The debtor is Pacific Far East Line, a common carrier by sea which will be hereinafter called P.F.E.L. In 1974, represented by counsel other than appellee, P.F.E.L. commenced an action in this court against the Northrop Corporation alleging breach of warranty in connection with a contract between P.F.E.L. and Northrop Corporation whereby the latter was to manufacture and sell to P.F.E.L. certain barges. Appellee was substituted in as counsel for P.F.E.L. in December, 1974, and undertook the representation in accordance with the terms of a contingent fee contract which provided for the payment of a fee to appellee in a sum equal to fifteen percentum of any net recovery realized by P.F.E.L. Shortly after appellee's entry into the case, the complaint was amended to include a claim for commercial bribery under the Robinson Patman Act (15 U.S.C. § 13(c)). After appropriate motion Northrop Corporation was granted summary judgment on that claim. An interlocutory appeal was taken from that order and remained pending at the time that the case was settled.
On January 31, 1978, P.F.E.L. filed its petition for arrangement proceedings under Chapter XI of the Bankruptcy Act and continued to operate its business as a common carrier by sea as a debtor in possession. On April 10, 1978, the bankruptcy court appointed appellee as special counsel for the debtor in possession for the purpose of continuing the Northrop action. The order of appointment specified that the appellee's fee would be paid on a general retainer basis subject to the approval of the bankruptcy court. The settlement in question was then negotiated.
By the terms of the settlement, P.F.E.L. received a total sum of $17,500,000. Of this sum, $10,000,000 was in settlement of the claims asserted in the Northrop litigation, and $7,500,000 was payable to P.F.E.L. as a loan from Northrop Corporation. By the terms of the settlement, Northrop Corporation actually paid $7,500,000 of the settlement fund directly to the trustee holding title to the barges which were the subject *774 matter of the litigation. That fund was distributed by the trustee to retire outstanding bonds on the barges which had been insured by the Federal Maritime Administration (MARAD), to satisfy a prepayment call premium claimed in connection with the bonds, to satisfy the equitable ownership of a leasing bank in the barges, and to reserve $340,000 for legal fees to be paid to appellee by the bank receiving payment for its equitable interest in the barges. Northrop also abandoned certain counterclaims which it had previously asserted. Furthermore, in consideration for the redeemed bond, MARAD released a $1,900,000 P.F.E.L. bond previously placed upon two P.F.E.L. passenger liners, and released liens on the same two ships amounting to $3,000,000.
Following the compromise proceedings before the bankruptcy court, the compromise was approved and appellee's fee was set at $1,500,000 and authorized for immediate payment. $1,160,000 was immediately paid to appellee and the remaining $340,000 is now held in the registry of this court pending outcome of this appeal.
Confirmation of a Chapter XI arrangement plan failed to succeed, and on August 4, 1978, P.F.E.L. was adjudicated a conventional bankrupt.
The issues presented for decision are whether the attorney's fee awarded to appellee for his pre-bankruptcy services constitute an unfair priority over other expenses of administration of the bankrupt estate, and whether the fee awarded was excessive.
I find that the fee does not constitute an unfair priority of expenses of administration and is not excessive.
The findings of the bankruptcy referee will not be rejected unless they are clearly erroneous. Bankruptcy Rule 801. Where the conclusions of law made by the referee are challenged, the court must make an independent determination of the applicable law, In re Piro, 331 F.Supp. 171, 172 (S.D.Cal.1971), and has broad discretion in reviewing the evidence to evaluate the reasonableness of the compensation awarded. York International Building, Inc. v. Chaney, 527 F.2d 1061 (9th Cir. 1975).
Appellants contend that the fee allowed by the referee cannot be properly characterized as an administrative expense, and if so classified should not be entitled to preferential payment inasmuch as no subpriorities are allowable within the general category of administrative expense. In re Columbia Ribbon Co., 117 F.2d 999, 1001 (3rd Cir. 1941). Appellants point out that most of the work being compensated was performed by appellee prior to the initiation of the Chapter XI proceedings, and only the negotiations leading to the settlement were conducted by appellee in his capacity as special counsel for the debtor. They advert to the general rule that services performed for the benefit of the debtor prior to the institution of Chapter XI proceedings are not normally compensable as administrative expenses. The referee found that the fee was properly classified as an administrative expense and was subject to immediate payment because of the unique situation of special counsel conducting ongoing complex litigation for the benefit of the estate as compared with the general services normally rendered by bankruptcy attorneys to debtors. He was influenced to some extent by policy factors favoring the encouragement of special counsel whose aptitudes lie outside the bankruptcy field. The determination of the referee is correct.
In the case of In re Barceloux, 74 F.2d 288, 294 (9th Cir. 1934), the court allowed a fee based upon the reasonable value of services rendered in a sum equal to 20 percent of the fund created by the attorneys where there was no fee contract at all. The court noted:
". . . in bankruptcy very often futile quests for assets have to be made. Many times, however much ingenuity and time attorneys may expend, they may not be able to get anything for the estate by their efforts. It is then a question, as in salvage at sea, no cure, no pay. `When the efforts of attorneys cause a material increase in the bankruptcy estate, or, as here, create it, they should be well rewarded; *775 otherwise there will not be any incentive to attorneys to put forth their best efforts in cases which appear unpromising.'"
Numerous cases[1] have allowed attorney's fees based on contingent fee contracts where the bulk of the work performed by the attorney was prior to the bankruptcy proceeding. Most of these cases grounded their view upon the equitable power of the court, recognizing that the attorneys had a valid charging lien under state law.
Appellants have attempted to distinguish these cases with the argument that California law does not recognize attorney's liens, citing Desser, Rau and Hoffman v. Goggin, 240 F.2d 84 (9th Cir. 1957). In Desser, the court, in deciding the validity of plaintiff's claim to certain funds of the debtor held by plaintiff law firm for the account of the debtor, did observe in passing that California law does not recognize the attorney's charging lien, but based its holding on other grounds. In that case, the court's primary consideration was that plaintiff had not created the fund by its professional effort and was a mere stakeholder. Therefore, the court correctly found that plaintiff had no protectable interest in the fund, and in fact no interest other than the desire to be paid therefrom. However, in Isrin v. Superior Court of Los Angeles County, 63 Cal.2d 153, 45 Cal.Rptr. 320, 323-4, 403 P.2d 728 (1965), it was held that an equitable security interest in the proceeds of litigation will be imposed in California if the parties have manifested an intention that the attorney shall look to the judgment as security for his fee, even though the word "lien" has not been used. Therefore, because appellee under his contingent fee contract was entitled to look to the judgment for his compensation, he retained an effective equitable lien on the proceeds of the settlement once the funds came into existence. Although the equitable lien attached after the bankruptcy proceedings were in progress, it had taken effect on the date service commenced. Hanna Paint Manufacturing Co. v. Rodey, Dickason, Sloan, Akin and Robb, 298 F.2d 371, 373 (10th Cir. 1962).
Inasmuch as appellee is entitled to an equitable line, the court properly segregated funds from the settlement for the payment of attorney's fees. In the Matter of Land Investors, Inc., 544 F.2d 925, 928 (7th Cir. 1976).
The fees awarded to appellee are not excessive as a matter of law. Reasonableness of fees awarded in bankruptcy are generally determined in light of the benefit conferred on the estate, In re Mullendore, supra; 3A Collier on Bankruptcy, ¶ 62.32, p. 1622 (14th Ed. 1975), and the spirit of economy pervasive throughout the Bankruptcy Act. Cle-ware Industries, Inc. v. Sokolsky, 493 F.2d 863, 868 (6th Cir. 1974). The record reveals that the referee in awarding appellee his fee considered the complexities of the Northrop case which involved issues in admiralty, anti-trust, and contract; the volume of pleadings, motions, and discovery; the length of time invested by the attorneys; and the benefit accrued to the debtor. He also considered the standing and ability of counsel and the public interest in attracting special counsel to work with the bankruptcy court. The referee weighed the benefits conferred upon the debtor in the context of the then ongoing Chapter XI proceedings. Debts were paid from the proceeds of the settlement, the satisfaction of which were necessary for a continuation of the business of the debtor, and a substantial fund was created from the settlement to meet operating business expenses. The referee's use of the terms of the contingent fee contract as a guideline in the fixing of the fee was not improper since he did not regard himself as bound by the percentage of the compensation therein contained.
While an award of attorney's fees in a bankruptcy proceeding should generally be governed by a spirit of economy, in evaluating the value of work performed by *776 special counsel, the court must also consider the equally compelling consideration of allowing fees commensurate with the value of the work performed by special counsel. This consideration is essential to insure that special counsel will not be discouraged and desist from undertaking highly-skilled labors in behalf of clients who have become debtors in bankruptcy. In this case, the referee correctly recognized and balanced the competing factors which he was required to consider in the fixing of appellee's fee.
Trustee for the debtor following bankruptcy has raised the additional issue that an increased degree of contribution toward the awarded attorney's fee should have been required from the benefitted creditors as a term of the settlement. In view of the prior discussion regarding the benefit received by the debtor in possession and in light of the fact that a degree of contribution was provided for in the settlement, terms of the settlement are not inequitable in that respect.
In affirming the award of the referee, the court cautions that the effect of this decision depends upon the result reached in the pending appeals from the referee's order approving the Northrop settlement, which appeals have yet to be heard and determined.
NOTES
[1] In re Mullendore, 527 F.2d 1031 (10th Cir. 1975); In the Matter of Land Investors, Inc., 544 F.2d 925 (7th Cir. 1976); United States v. Transocean Airlines, Inc., 356 F.2d 702 (5th Cir. 1966); Sherman v. Buckley, 119 F.2d 280 (2nd Cir. 1941), cert. denied, 314 U.S. 657, 62 S.Ct. 110, 86 L.Ed. 527 (1941); In re Prudence Co., Inc., 96 F.2d 157 (2nd Cir. 1938).
|
25 F.3d 1512
TURNER ENTERTAINMENT CO., Plaintiff-Appellee,v.DEGETO FILM GmbH; Norddeutscher Rundfunk; HessischerRundfunk; Radio Bremen; Saarlandischer Rundfunk; SenderFreies Berlin; Suddeutscher Rundfunk; Sudwestfunk andWestdeutscher Rundfunk, Defendants-Appellants.
No. 93-9181.
United States Court of Appeals,Eleventh Circuit.
June 29, 1994.
Joseph R. Bankoff, King & Spalding, Atlanta, GA, for appellants.
John J. Dalton, Troutman Sanders, Atlanta, GA, for appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before ANDERSON and BIRCH, Circuit Judges, and ATKINS*, Senior District Judge.
ANDERSON, Circuit Judge:
1
This is an appeal of (1) the district court's grant of a preliminary injunction to plaintiff-appellee Turner Entertainment Co. ("Turner"), preventing defendants-appellants from broadcasting certain licensed works over the ASTRA satellites, and (2) the district court's denial of appellants' motion to dismiss or stay the American litigation in light of parallel proceedings under way in Germany. In the intervening period between the grant of the preliminary injunction and argument on this appeal, a judgment on the merits was rendered in the action in Germany. The German court found that the appellants should be able to broadcast via ASTRA for an increased fee to be determined at a later date. In light of this foreign judgment, we must decide whether to defer to the German court's judgment and dismiss or stay this action, or to ignore the German decision and continue essentially parallel proceedings. We hold that the preliminary injunction should be vacated, and that a stay of the American litigation is warranted.
I. FACTS AND PROCEEDINGS BELOW
2
This case involves a dispute over the interpretation of a License Agreement (the "Agreement") between the parties. The Agreement licensed certain entertainment properties to the appellants for television broadcast to the German population. Rapid changes in geopolitics and television technology since the inception of the Agreement led to the instant dispute over the limits of the contract.
A. The Parties
3
Defendant Degeto Film GmbH ("Degeto") is the exclusive agent for the other defendants. The remaining defendants are German public broadcasters; each serves one of the German political states (the "Lander"). Together the broadcasters, along with three other companies not a party to the American litigation, form a cooperative known as the Arbeitsgemeinschaft der offentlich rechtlichen Rundfunkanstalten der Bundesrepublik Deutschland ("ARD"). The defendants-appellants are collectively referred to in this opinion as ARD. ARD is supported by mandatory royalty fees and is obligated by German law to provide programming to the entire German population.
4
Although Degeto signed the Agreement with MGM/UA in 1984, Turner acquired the rights, through a series of transactions in the 1980's, to a substantial majority of the MGM/UA licensed properties covered by the Agreement. Thus, Turner purchased the rights and obligations under the Agreement as it pertains to those properties, and now stands in the shoes originally filled by MGM/UA.
B. The Agreement
5
ARD paid at least $60 million for an exclusive license to telecast the licensed works, under German copyright, to the German-speaking public, only in the German language. The licensed works include many old MGM movies, television series and cartoons. The Agreement expressly allows ARD to telecast the licensed works for reception within the licensed territory "by all means and methods now or hereafter known including but not limited to ... DBS [direct broadcasting satellite] and/or communication satellite for purposes of so-called home television reception," so long as the works are broadcast in German. The licensed territory comprises virtually all of German-speaking Europe--the German Democratic Republic, the Federal Republic of Germany, German-speaking Switzerland, Austria, South Tyrol (a region in Italy), Liechtenstein and Luxembourg.
6
The Agreement states that the telecasts can originate in any place in the universe, but only for reception within the territory. Because the reception area, or "footprint," of satellite broadcasts does not easily conform to the political and cultural boundaries that comprise the licensed territory, the parties included an exception to the strict definition in the contract of the licensed territory. Thus, the contract states that "[t]he telecast can originate any place in the universe for reception only in the Territory as defined ... below (inclusive of legitimate overspill as set forth in Paragraph 2(f) below)." The meaning of the term "overspill" generally, its applicability to ARD and/or ASTRA1 broadcasts, and the result that should obtain based on such determinations, has been a hotly contested issue in the litigation. Despite the importance of the term to the contract, no clear explanation of the meaning and scope of overspill exists in the contract. Paragraph 2(f) contains only a contextual definition of overspill and states in relevant part:
7
Licensees acknowledge that broadcasts by satellite or otherwise in any language originating outside of the Territory might be received by television sets inside the Territory and that such reception shall not be deemed a breach hereof by MGM/UA. Further, notwithstanding the foregoing, if the overspill into the Territory is a result of compliance by MGM/UA's licensees with international conventions or treaties, including but not limited to the 1977 Geneva Convention, binding upon that licensee's territory, the licensee shall not be deemed to be in breach of its agreement with MGM/UA. In the event of illegitimate overspill into the Territory, Degeto shall notify MGM/UA and MGM/UA shall notify the entity whose signal is encroaching into the Territory to cease and desist from such encroaching activity.... MGM/UA shall provide in its own future standard license agreements that MGM/UA's licensees are prohibited from directing their signal into the Territory and from allowing their signal unintentionally to encroach into the Territory (except as to legitimate overspill as set forth above)....
8
Nothing more exists in the Agreement to define overspill.
9
In 1986 Degeto and MGM/UA amended the Agreement. The 1986 amendment, among other things, gave ARD the right to telecast certain licensed properties in English. English telecasts could not be broadcast, however, by DBS satellite, which at that time was the standard method for satellite broadcasting. The 1986 amendment also provided that "[t]he place of jurisdiction and applicable law with respect to disputes arising out of this Agreement shall only be (a) Frankfurt, Germany and/or (b) Los Angeles, California or such other city in the USA in which MGM/UA's parent company maintains its primary place of business." Thus, the seeds of the instant parallel litigation were planted in the Agreement, which provided for concurrent jurisdiction in Frankfurt, and, as a result of Turner's acquisition of the contract rights, Atlanta.2
10
C. Technological and Geopolitical Changes Since the Agreement's Inception
11
ARD began broadcasting licensed works from Germany, in German, via the ASTRA 1B satellite in April of 1991. ARD maintains that it chose the ASTRA 1B satellite as a means of telecasting programming because (1) a substantial part of the former East German households, absorbed into the Federal Republic of Germany since the Agreement was drafted, can only receive television programming via satellite, apparently because of its poor communications infrastructure;3 and (2) there were no other satellites that Defendants could effectively use to reach the German-speaking television audience, which ARD is obligated to do by German law, because satellite dishes designed to receive the ASTRA signal are more common in Germany.
12
The ASTRA 1B is an FSS satellite, which means that it operates in the "fixed satellite service." Although the footprint of a DBS satellite could be as large as that of the ASTRA 1B, there are significant differences between the two satellites such that television reception of ASTRA 1B covers a much larger area. Relatively new technological developments have increased the sensitivity of common home satellite dish antennae and receivers, enabling FSS satellite signals to be received by anyone with a satellite dish in the satellite's service area. In contrast, DBS satellites require expensive decoding equipment that prohibit the common viewer from receiving its signals. Thus, the FSS satellite has revolutionized European television by allowing broadcasters to easily send their signal directly to viewers who own relatively inexpensive satellite reception dishes. Apparently, the home satellite dish is a more popular mode of television reception in Europe, compared to cable television, than in the U.S. The ASTRA 1B has a footprint over five times the size of the licensed territory; the footprint encompasses most of Europe. ASTRA 1B, therefore, is a prime vehicle for reaching a large European television audience. The Agreement's drafters failed to anticipate that such an easy method of reaching a pan-European audience would become a standard mode of broadcasting during the life of the Agreement.
13
D. The Dispute--Proceedings in Germany and Atlanta
14
In March 1993, Turner learned that ARD intended to broadcast its major program, "Das Erste," a program which apparently incorporates the use of licensed works, over ASTRA 1B in August 1993. Turner stated its opinion that transmitting licensed works via ASTRA violates the Agreement. After a flurry of communication between the parties, in which Turner attempted to prevent broadcasts via ASTRA and ARD refused Turner's requests, actions were filed by the parties within a week of each other in Germany and the United States. The German and American lawsuits proceeded concurrently.
15
1. The German proceedings.
16
The appellants filed a declaratory judgment action against Turner in Germany, on April 29, 1993, seeking judicial support for their interpretation that the Agreement permitted the use of ASTRA 1B. The German action was filed in a German court of first consideration, the Landgericht Frankfurt am Main.
17
One of the key issues in the litigation concerned the term "overspill," namely, whether (1) overspill applied to the reception of ARD broadcasts outside the licensed territory, (2) whether overspill applied to FSS satellites so that the ASTRA footprint created overspill, and (3) if overspill did apply to the use of ASTRA, whether the overspill of ASTRA's signal was legitimate. The appellants maintained that the oversized footprint of ASTRA 1B comports with the Agreement because overspill as defined in the Agreement applies reciprocally to licensee and licensor,4 and that the overspill of ASTRA 1B is legitimate because (1) the broadcasts are in German and the licensed territory encompasses all viable markets for German television, rendering the overspill of German-language programming harmless, and (2) ARD receives no profit from the broadcasts.
18
The appellants made an alternative argument in the German court that the term overspill as used in the Agreement contemplated neither the new technology of FSS satellites nor the necessity of using them in order to obey the legal mandate that ARD reach the entire German population, and therefore that a gap exists in the contract. Appellants invited the German court to fill the gap in the contract, using the German doctrine of supplemental interpretation, by allowing ARD to broadcast Turner-licensed works via ASTRA, or alternatively to allow the broadcasts on ASTRA subject to the payment of an increased fee.
19
Turner argued that the Agreement's proviso allowing overspill did not apply reciprocally to licensee and licensor.5 Therefore, according to Turner's interpretation of the Agreement, Turner and its licensees outside Germany can overspill into the licensed territory, but ARD is strictly limited to broadcasting within the territory, and cannot overspill outside the licensed territory. Turner also made an alternative argument to the German court that a gap in the contract existed concerning the present state of affairs in European television; however, contrary to the appellants' proposal, Turner invited the German court to fill the gap by disallowing the use of ASTRA 1B.
20
The German court heard argument on the merits of the declaratory judgment action in Germany, and rendered a judgment on the merits on November 25, 1993. The German court held that because of its extensive range, ARD had no absolute right under the Agreement to broadcast via ASTRA. App. to Supp. Brief of Appellants, Tab 4, 23-24. However, the court found that the parties had not contemplated the current circumstances involving the new technology and the fact that ARD was compelled as a practical matter to broadcast outside the licensed territory in order to fulfill its legal obligation to bring its telecasts to the German public. Id. at 24-27. Given this gap in the operation of the contract, the German court determined that it was bound to apply the doctrine of good faith dealing to the situation. Id. at 25. The court attempted a supplemental interpretation of the contract to determine a result that parties bargaining in good faith would have negotiated.
21
The German court determined that Turner should permit ARD to use the satellite in order to properly fulfill its legal obligations. Id. at 29. However, the court determined that ARD would have to pay an increased fee for the privilege, to be determined by that court at a later date. Id. at 30. The German court relied on several factors in making this decision. The court noted that Turner had not envisioned concretely any additional licensing of German-language programming outside the licensed territory. Id. at 29. Also, the court noted that the licensed territory covers such a large proportion of the German-speaking public that, in its opinion, no significant economic interest of Turner was obliterated by ASTRA. Id. More importantly, the court emphasized (1) the wide distribution of ASTRA reception equipment in the license territory, making ASTRA the best method for reaching a wide audience, and (2) the statutory mandate for ARD to reach the German public; and determined that the just result was the payment of increased fees in exchange for the privilege of broadcasting via ASTRA. Id. Both parties have appealed the German decision, and Turner obtained a delay in the fee hearings pending the German appeal.
22
2. The Atlanta Proceedings.
23
Turner filed the instant breach of contract action approximately one week after the German action was filed, on May 6, 1993, in Fulton County Superior Court. Appellants removed, based on diversity, to the United States District Court for the Northern District of Georgia. Turner sought a preliminary and permanent injunction and damages caused by Defendants' alleged breach. The appellants countered with a motion to dismiss or stay the American proceedings in deference to the parallel proceedings in Germany.
24
At the time of the June 29, 1993, hearing on the motion for preliminary injunction and the motion to dismiss or stay, no discovery had taken place in the American litigation; the parties filed affidavits supporting their arguments. The district court denied from the bench the motion to dismiss or stay the proceedings. On September 10, 1993, the district court, finding that Turner had a substantial likelihood of success on the merits of its case, granted Turner's motion for a preliminary injunction restraining ARD from telecasting Turner-owned licensed works from the ASTRA satellites. On September 29, 1993, however, the district court granted a stay of the preliminary injunction until October 28, 1993, conditioned on the posting of bond in the amount of $2 million by the appellants. Appellants filed an emergency motion to expedite this appeal and an emergency motion to stay the injunction pending appeal. On October 19, 1993, this court stayed the injunction pending appeal. Appellants challenge the preliminary injunction and the denial of their motion to dismiss or stay the domestic litigation. The stay of the preliminary injunction remains in effect by order of this court.
II. DISCUSSION
25
A. Whether to Dismiss or Stay the Domestic Litigation: International Abstention
26
ARD appeals the district court's denial of its Motion to Dismiss or Stay the American Litigation in deference to the parallel German proceedings.6 In the period since the district court denied the appellants' Motion to Dismiss or Stay the American Litigation, the German court has rendered a decision on the merits of the dispute, although it has not determined the fee to be paid by ARD to Turner. The existence of the German judgment adds new considerations to the decision whether to continue the American litigation. The issue is whether a federal court, which properly has jurisdiction over an action, should exercise its jurisdiction where parallel proceedings are ongoing in a foreign nation and a judgment has been reached on the merits in the litigation abroad.7
27
Federal courts have a "virtually unflagging obligation" to exercise the jurisdiction conferred upon them. Colorado River Water Conser. Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976). Nevertheless, in some private international disputes the prudent and just action for a federal court is to abstain from the exercise of jurisdiction. Therefore, federal courts have begun to fashion principles that guide courts' actions in cases of concurrent jurisdiction in a federal court and the court of a foreign nation. This circuit has never considered the question of "international abstention." In other federal courts, at least two distinct but very similar approaches to international abstention have developed. Both have lifted criteria for analysis from case law concerning concurrent jurisdiction between federal and state courts.
28
One approach has taken the criteria enunciated in Colorado River and applied them to the international context. See Ingersoll, 833 F.2d at 685; Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 926-27 (D.C.Cir.1984). These cases have at times injected the special concerns of "international comity"8 into the abstention analysis. See Ingersoll, 833 F.2d at 685. Another line of international abstention cases, developed in the Southern District of New York, applies a similar set of principles, with a clearer emphasis on the concerns of international comity implicated by the exercise of jurisdiction. See Continental Time Corp. v. Swiss Credit Bank, 543 F.Supp. 408, 410 (S.D.N.Y.1982); Ronar, Inc. v. Wallace, 649 F.Supp. 310, 318 (S.D.N.Y.1986); Caspian Investments, Ltd. v. Vicom Holdings, Ltd., 770 F.Supp. 880, 883-84 (S.D.N.Y.1991). These two sets of principles overlap to a large extent, and we find both lines of cases helpful to our analysis. Taking the two approaches together, courts have sought to fashion principles that will promote three readily identifiable goals in the area of concurrent international jurisdiction: (1) a proper level of respect for the acts of our fellow sovereign nations--a rather vague concept referred to in American jurisprudence as international comity; (2) fairness to litigants; and (3) efficient use of scarce judicial resources.9
1. International Comity
29
The ramifications of international comity, in the abstention context, are suggested in the leading Supreme Court case, Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (1895):
30
"Comity," in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws.
31
. . . . .
32
"The comity thus extended to other nations ... is the voluntary act of the nation by which it is offered, and is inadmissible when contrary to its policy, or prejudicial to its interests. But it contributes so largely to promote justice between individuals, and to produce a friendly intercourse between the sovereignties to which they belong, that courts of justice have continually acted upon it as part of the voluntary law of nations."
33
159 U.S. at 163-64, 165, 16 S.Ct. at 143-44 (quoting Bank v. Earle, 38 U.S. (13 Pet.) 519, 589, 10 L.Ed. 274 (1839). The Supreme Court continued:
34
When an action is brought in a court of this country, by a citizen of a foreign country against one of our own citizens, ... and the foreign judgment appears to have been rendered by a competent court, having jurisdiction of the cause and of the parties, and upon due allegations and proofs, and opportunity to defend against them, and its proceedings are according to the course of a civilized jurisprudence, and are stated in a clear and formal record, the judgment is prima facie evidence, at least, of the truth of the matter adjudged; and it should be held conclusive upon the merits tried in the foreign court, unless some special ground is shown for impeaching the judgment, as by showing that it was affected by fraud or prejudice, or that by the principles of international law, and by the comity of our own country, it should not be given full credit and effect.
35
159 U.S. at 205-06, 16 S.Ct. at 159-60.
36
In the context of international abstention case law, the meaning of international comity10 is derived from the above-quoted Supreme Court case on the recognition of judgments rendered in a foreign nation.11 General comity concerns include: (1) whether the judgment was rendered via fraud, see Hilton, 159 U.S. at 206, 16 S.Ct. at 159; (2) whether the judgment was rendered by a competent court utilizing proceedings consistent with civilized jurisprudence, see id.; and (3) whether the foreign judgment is prejudicial, in the sense of violating American public policy because it is repugnant to fundamental principles of what is decent and just. See id.; Tahan v. Hodgson, 662 F.2d 862, 864 (D.C.Cir.1981); Restatement (Second) Conflict of Laws Sec. 117, comment c.
37
Turner does not argue that the decision was rendered by fraud, or that the German court is not a competent court which follows civilized procedures. Germany's legal system clearly follows procedures that ensure that litigants will receive treatment that satisfies American notions of due process. Turner's sole argument is that the German court's decision is contrary to federal or Georgia public policy because it abrogates Turner's freedom of contract.12
38
Turner has proffered a strained interpretation of the German court opinion in an attempt to portray the decision as something akin to a "forced judicial sale" of Turner's property. Turner argues that the Agreement clearly limited ARD's right to telecast to the licensed territory, defined in Paragraph 4 of the Agreement, and that the German court decision would force an unwilling Turner to enter into additional contractual provisions widening the defined territory at a royalty fee to be fixed by the court, all of which Turner argues is directly inconsistent with Paragraph 4 of the Agreement which defines the licensed territory. For the reasons that follow, we reject Turner's characterization of the German opinion, and we reject Turner's argument that the German decision violates American or Georgian public policy.
39
Turner's argument is along the following lines. Although conceding that Georgia law and the general common law of contracts provide for "gap filling" similar to the "supplemental interpretation" employed by the German court, Turner insists that such "gap filling" is impermissible when the result is a provision inconsistent with the provisions of the contract as written.13 Turner relies upon Higginbottom v. Thiele Kaolin Co., 304 S.E.2d at 365, for this proposition.
40
We conclude, however, that the result of the German court decision is not inconsistent with the Agreement. The Agreement expressly gives ARD a right to telecast "by all means and methods now or hereafter known including but not limited to ... DBS and/or communication satellite for purposes of so-called home television reception." Significantly, the grant also expressly provides that the "telecast can originate any place in the universe for reception only in the Territory as defined in paragraph 4 below (inclusive of legitimate overspill as set forth in p 2(f) below)." Thus, to deny ARD the right to utilize the ASTRA satellite would conflict with the provisions of the Agreement. On the other hand, the German court reasonably concluded that the parties did not contemplate an overspill of the magnitude which results from recent technology, including the ASTRA satellites. Thus, the German court employed its "supplemental interpretation" and filled the gap in the contract in accordance with its determination of good faith dealings by the parties as to unforeseen eventualities. Because we conclude that the utilization of this "gap filling" methodology under these circumstances is consistent with the contract law of both Georgia and the general common law, we reject Turner's argument that the German court decision is in violation of Georgia public policy or in violation of fundamental notions of decency and fairness.
41
Also relevant to considerations of international comity are the relative strengths of the American and German interests. See Ingersoll, 833 F.2d at 685; Ronar, 649 F.Supp. at 318. In the instant case, the contract was written in English, with an American as one party to the contract, and includes a choice of law and forum selection provision designating this federal court and the applicable law (although the choice of law and forum is concurrent with Germany's). However, the central question in the case--whether the Agreement does or should permit ARD to broadcast via ASTRA--requires a thorough knowledge of European broadcasting technology and markets, and requires reference to European law. Most of the witnesses and experts in the litigation would be European. Furthermore, although an American entity is a party to the contract, there also are German parties and the choice of law and forum provisions also designate the German court and law. More importantly, the Agreement calls for performance of the contract, for the most part, in Germany, and the German interest and connection to the case is much more significant than the American.
42
Although Turner attempts to present the case as a garden variety contract action, there are complicated issues surrounding the case that require extensive knowledge of the European television market. Given exclusive jurisdiction over the matter, the federal forum would without doubt be capable of rendering a just result. However, the German court would seem to be the most sensible venue to determine a just result in this case. There appears to be no clear federal interest in trying this case. Certainly much is at stake in this litigation for both parties. However, the public interest in the litigation is more conspicuous in Germany, because the German parties include the German state broadcasters, and the salient issues in the case are of great moment to the state of television in Germany and the rest of Europe. There is no comparable federal interest in maintaining jurisdiction over the litigation.
43
While courts regularly permit parallel proceedings in an American court and a foreign court, see, e.g., Black & Decker Corp. v. Sanyei America Corp., 650 F.Supp. 406, 408 (N.D.Ill.1986), once a judgment on the merits is reached in one of the cases, as in the German forum in this case, failure to defer to the judgment would have serious implications for the concerns of international comity. For example, the prospect of "dueling courts," conflicting judgments, and attempts to enforce conflicting judgments raise major concerns of international comity.
44
In sum, international comity concerns favor deference to the German proceedings in the instant case.
2. Fairness
45
With respect to the goal of fairness, relevant considerations include: (1) the order in which the suits were filed, see Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246-47; (2) the more convenient forum, id.; see also Ronar, 649 F.Supp. at 318; and (3) the possibility of prejudice to parties resulting from abstention. Ronar, at 318.
46
The instant lawsuits were filed almost simultaneously. The record reflects that the German action was filed one week prior to the American litigation, and the record does not show that the American suit was a reaction to the German suit. We note that none of the cases regarding concurrent international jurisdiction give priority solely on the basis of first-filing in a case where the suits were filed so closely together. See Ingersoll, 833 F.2d at 682 (American suit stayed in favor of Belgian action filed over a year earlier); Continental Time Corp. v. Swiss Credit Bank, 543 F.Supp. at 410 (American litigation dismissed in deference to Swiss action filed six months earlier); Caspian Investments, Ltd. v. Vicom Holdings, Ltd., 770 F.Supp. at 882 (litigation dismissed in deference to Irish action filed over six months earlier). Whatever weight is to be accorded this one-week priority, of course, points toward the German forum. The other factors point even more strongly in that direction.
47
With respect to convenience of the forum, the weightier German interest, discussed above, indicates that the German court provides a more convenient forum for the litigation, as does the fact that most of the witnesses and experts in the litigation would be European, and the fact that the Agreement calls for performance of the contract, for the most part, in Germany. The significantly greater German interest in the litigation, discussed above, also supports the more general notion that concerns of fairness favor the German forum.
48
Before accepting or relinquishing jurisdiction a federal court must be satisfied that its decision will not result in prejudice to the party opposing the stay. See Caspian Investments, Ltd., 770 F.Supp. at 884. Ensuring the ability of the parties to fully and fairly litigate their claims in some tribunal surely is a paramount goal of international abstention principles. See Hilton v. Guyot, 159 U.S. 113, 205, 16 S.Ct. 139, 159, 40 L.Ed. 95 (1895) ("It must, however, always be kept in mind that it is the paramount duty of the court before which any suit is brought to see to it that the parties have had a fair and impartial trial, before a final decision is rendered against either party.") In the instant case, we see nothing that has occurred in the German proceedings to indicate that staying the litigation will foreclose any chance for Turner to obtain a fair and just result. For example, nothing has occurred in the German proceedings to date to dispel the expectation that Turner will have ample opportunity to fairly present to the German trial court at the next stage of the proceedings its evidence regarding the value of the ASTRA broadcasts in the areas outside the licensed territory defined in Paragraph 4 of the Agreement.
49
In sum, we conclude that fairness in this case indicates deference to the German proceedings.
3. Judicial Resources
50
Finally, courts have considered the efficient use of scarce judicial resources. Criteria relevant to efficiency include (1) the inconvenience of the federal forum, see Colorado River, 424 U.S. at 818, 96 S.Ct. at 1247; Ingersoll, 833 F.2d at 685; (2) the desirability of avoiding piecemeal litigation, Colorado River, supra, Ingersoll, supra; (3) whether the actions have parties and issues in common, see Ronar v. Wallace, 649 F.Supp. at 318; and (4) whether the alternative forum is likely to render a prompt disposition, see id. We have already discussed the convenience of the federal forum. The desire to avoid piecemeal litigation is also relevant to the convenience of the forum. If both proceedings continued, the courts' calendars would have to be synchronized and the litigation would have to move back and forth across the Atlantic. We have already noted that the actions involve substantially the same parties and issues. Finally, the German court would seem as likely as the American forum to render a prompt disposition. Although the appeal of the German decision will not be heard until 1995, the German litigation has moved much farther along than the American action. There has been no discovery in the American litigation, while a trial on the merits has already occurred in Germany. Overall, we readily conclude that concerns regarding judicial efficiency militate strongly in favor of staying or dismissing the instant action in favor of the German litigation.
4. Conclusion on International Abstention
51
In summary, we conclude that the relevant concerns of international comity, fairness and efficiency point overwhelmingly, at this stage of the litigation, to deference to the German forum which has already rendered a judgment on the merits.
52
We also conclude that at this stage of the litigation, the appropriate resolution is a stay rather than a dismissal of the American action. The German court has yet to rule on appeal or to determine the manner or amount of the fee that the appellants shall pay to Turner. After the German litigation is complete, Turner may seek a hearing to determine whether the final results have altered any issues addressed herein. If not, the action should be dismissed. Either party also may add an action for enforcement of the foreign judgment at an appropriate time.
B. The Preliminary Injunction
53
The same concerns of international comity, fairness and efficiency, discussed fully above, indicate that it would be inappropriate to enjoin defendants-appellants from telecasting the licensed works or interfere with the ongoing legal proceedings in Germany. Thus, for the same reasons that we have decided to stay the instant suit, we conclude that the preliminary injunction entered by the district court must be vacated.14
III. CONCLUSION
54
For the foregoing reasons, we vacate the judgment of the district court and remand the case to the district court with instructions to vacate its preliminary injunction and stay the litigation.
55
VACATED and REMANDED.
*
Honorable C. Clyde Atkins, Senior U.S. District Judge for the Southern District of Florida, sitting by designation
1
The ASTRA satellites, which include ASTRA 1B and ASTRA 1C, are part of a new generation of satellites that reflect improved broadcasting technology, as discussed below
2
Turner's primary place of business is Atlanta, Georgia
3
The former East Germany was included in the licensed territory from the inception of the Agreement. It is unclear from the record what degree of influence, if any, reunification had on ARD's increased efforts to reach the former East German population
4
In other words, the appellants argued that the Agreement not only provided for legitimate overspill of signals from Turner or its licensees into the licensed territory, but also allowed for ARD's signal to overspill into areas outside the licensed territory
5
We note, however, that Turner conceded in the American litigation, contrary to its position in Germany, that the Agreement's provision for legitimate overspill applies reciprocally to ARD and Turner (including Turner's licensees)
6
All of the parties to the American litigation are parties in the German litigation. Although some of the parties in the German litigation are absent from this action, the central issue is the same in both cases: whether the Agreement permits ARD to broadcast Turner-licensed works via the ASTRA satellite
7
This issue is one of federal law. Ingersoll Milling Machine Co. v. Granger, 833 F.2d 680, 685 n. 1 (7th Cir.1987)
8
International comity is discussed below; see n. 10 and accompanying text
9
Some courts have added to the consideration of these criteria a general rule that federal courts should assume jurisdiction in parallel proceedings until a judgment is reached in one court. See Laker Airways, 731 F.2d at 926-27, citing Princess Lida of Thurn & Taxis v. Thompson, 305 U.S. 456, 466, 59 S.Ct. 275, 280, 83 L.Ed. 285 (1939) (concerning concurrent jurisdiction in federal and state courts)
10
Scholarship on the meaning and proper force of the principles known as international comity is rather sparse and indefinite. One commentator noted, in highlighting the vague meaning of international comity, that comity has been defined in various places as "the basis of international law, a rule of international law, a synonym for private international law, a rule of choice of law, courtesy, politeness, convenience or goodwill between sovereigns, a moral necessity, expediency, reciprocity or 'consideration of high international politics concerned with maintaining amicable and workable relationships between nations.' " Joel R. Paul, Comity in International Law, 32 HVILJ 1, 3-4 and notes 4-14 (1991), quoting Harold Maier, Interest Balancing and Extraterritorial Jurisdiction, 31 Am.J.Comp.L. 579, 589 (1983). Although international comity is a rather nebulous set of principles that may be applicable whenever a court's decision will have ramifications beyond its territorial jurisdiction and into that of another nation, our use of the term is informed and guided by the international abstention case law
11
We note that the criteria set out below have been developed for the purpose of considering actions brought to enforce foreign judgments. Although this appeal does not contain an enforcement action, the same criteria are readily applicable in the present context because a judgment has been rendered in the parallel proceeding
12
As noted, supra, n. 7, the abstention question is a matter of federal law. Thus, in determining whether the German decision is contrary to the policy of freedom of contract, we look to general common law on contracts. However, actions to recognize and enforce foreign judgments in diversity cases are matters of state law. See Ingersoll, 833 F.2d at 686-89 (holding that Belgian judgment should be enforced because it was not contrary to Illinois contract law); Restatement (Second) Conflict of Laws Sec. 117, comment c. Thus, the foreign judgment must not abridge state policy if a prevailing party is to obtain enforcement of a foreign judgment in a domestic court. Because the question before us is so similar to an enforcement action, we also examine the German decision in light of Georgia law on contracts. If the German decision were contrary to Georgia policy, we assume, arguendo, that it would be unenforceable
13
Indeed, before the German court, Turner invited the court to use supplemental interpretation to fill any gaps that existed in the contract. It is clear that the doctrine of good faith and the use of supplemental interpretation to reach a result consistent with the result that would be reached by parties bargaining in good faith is a common feature of American contract law. See, e.g., Market Street Associates Ltd. Partnership v. Frey, 941 F.2d 588, 595 (7th Cir.1991) ("The concept of the duty of good faith ... is a stab at approximating the terms that parties would have negotiated had they foreseen the circumstances that have given rise to their dispute.") This is exactly what the German court did in employing supplemental interpretation as a device to implement the German doctrine of good faith
Of course, Turner was not the original party to the Agreement; the Agreement was one of the obligations Turner assumed when it purchased portions of the MGM library. Given the fact that Turner, unlike MGM/UA, is itself a broadcasting company with the capability to broadcast licensed works via ASTRA, Turner may very well wish that the Agreement had never been consummated. However, Turner assumed the obligation to honor the contract in good faith upon purchasing the works covered by the Agreement.
On the obligations that accompany contracts, the Market Street court stated that "[t]he parties to a contract are embarked on a cooperative venture, and a minimum of cooperativeness in the event unforeseen problems arise at the performance stage is required even if not an explicit duty of the contract." 941 F.2d at 595. A court's purpose is to uphold the "overriding purpose of contract law, which is to give the parties what they would have stipulated for expressly if at the time of making the contract they had complete knowledge of the future and the costs of negotiation and adding provisions to the contract had been zero." Id. at 596. We see nothing within the German doctrine of good faith or the supplemental interpretation device that strays from this purpose.
Furthermore, Georgia has long recognized the duty of good faith among contracting parties, and the necessity to supplement implied terms on rare occasions. See, e.g., Kleiner v. First Nat. Bank of Atlanta, 581 F.Supp. 955, 960 n. 5 (N.D.Ga.1984) ("Under Georgia law, good faith is an element of every contract."); Higginbottom v. Thiele Kaolin Co., 251 Ga. 148, 304 S.E.2d 365, 366 (1983) (Courts "will imply promises or duties when justice, good faith, or fairness so demand.").
14
Because the German judgment on the merits occurred after the district court acted, thus substantially changing the relevant circumstances, we need not consider whether the district court erred in granting a preliminary injunction in light of the facts then before it and the posture of the litigation at that time
|
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 6 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIMALABEN V. PATEL, No. 17-55414
Plaintiff-Appellant, D.C. No.
2:15-cv-04205-FMO-PLA
v.
SINGAPORE AIRLINES LIMITED, a
MEMORANDUM*
foreign corporation,
Defendant-Appellee,
and
DOES, 1-100, inclusive,
Defendants.
Appeal from the United States District Court
for the Central District of California
Fernando M. Olguin, District Judge, Presiding
Submitted December 3, 2018**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: D.W. NELSON and WARDLAW, Circuit Judges, and PRATT,*** District
Judge.
Vimalaben Patel appeals from the district court’s order granting summary
judgment in favor of Singapore Airlines Ltd. (“SIA”), on her state-law claim
alleging negligence in her treatment in connection with a flight to India. Patel, an
elderly woman, purchased round-trip airfare from SIA to travel from the United
States to India. Prior to the departure, Patel lost her U.S. passport, so she brought
her Indian passport, which bore a notation that the passport had been cancelled, to
the airport instead. Patel presented her cancelled Indian passport at SIA’s check-in
counter, and SIA allowed her to board the flight. Upon Patel’s arrival in India,
India’s Bureau of Immigration denied Patel entry into the country because of her
invalid passport. Patel was required to immediately board another long flight back
to the United States. Patel alleged that, as a result of this incident, she suffered
severe back pain, emotional trauma, and headaches.
We review de novo a district court’s determination of subject-matter
jurisdiction and grant of summary judgment. Gingery v. City of Glendale, 831
F.3d 1222, 1226 (9th Cir. 2016); Ah Quin v. Cty. of Kauai Dep’t of Transp., 733
F.3d 267, 270 (9th Cir. 2013). We also review a district court’s interpretation of a
***
The Honorable Robert W. Pratt, United States District Judge for the
Southern District of Iowa, sitting by designation.
2
treaty de novo. Hosaka v. United Airlines, Inc., 305 F.3d 989, 993 (9th Cir. 2002).
We affirm the district court’s grant of summary judgment in favor of SIA.
We decline to address the parties’ arguments with respect to whether the
Montreal Convention completely preempts state-law claims because we are
satisfied the district court had subject-matter jurisdiction over the action under 28
U.S.C. § 1332. Complete diversity of citizenship exists because Patel is a citizen
of California and SIA is a corporation organized and existing under the laws of
Singapore with its principal place of business in Singapore. See 28 U.S.C.
§ 1332(a). Further, in her state-court complaint, Patel sought damages in the
amount of one million dollars, which exceeds the amount-in-controversy
requirement. See id.
We thus proceed to the question of whether Patel’s state-law claim for
negligence “satisf[ies] the conditions for liability under the Convention.” El Al
Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 176 (1999). It is well-settled that
“[t]he treaty precludes passengers from bringing actions under local law when they
cannot establish air carrier liability under the treaty.” Id. at 175. Patel seeks
damages for injuries she sustained on board one of SIA’s flights. Her round-trip
international flight with SIA unquestionably constitutes “international carriage” as
that term is defined in Article 1(2) of the Montreal Convention. Therefore, her
“action for damages . . . can only be brought subject to the conditions and such
3
limits of liability as are set out in [the] Convention.” Montreal Convention art. 29;
see also Tseng, 525 U.S. at 161; Narayanan v. British Airways, 747 F.3d 1125,
1127 (9th Cir. 2014). Thus, in order for Patel to make a claim for negligence under
California law, she must first prove SIA is liable under the Convention.
Patel asserts the Convention is not applicable because SIA cannot prove she
was on board the aircraft or embarking or disembarking it when the alleged
incident occurred. But, as the district court noted, this argument conflates the
issues of applicability and liability. While the Convention’s applicability rests on
whether a passenger suffered “a personal injury . . . ‘on board [an] aircraft or in the
course of any of the operations of embarking or disembarking,’” Tseng, 525 U.S. at
161 (quoting Warsaw Convention art. 17), a carrier’s liability depends on whether
“the passenger proves that an ‘accident’ was the cause of her injury,” Air France v.
Saks, 470 U.S. 392, 396 (1985). There is no dispute Patel’s alleged injuries
occurred while on board SIA’s aircraft. Thus, the Montreal Convention applies,
and the inquiry now turns to whether SIA is liable for Patel’s injuries.
Article 17 of the Convention provides a “carrier is liable for damage
sustained in case of death or bodily injury of a passenger upon condition only that
the accident which caused the death or injury took place on board the aircraft or in
the course of any of the operations of embarking or disembarking.” Montreal
Convention art. 17(1). Thus, a plaintiff seeking to hold an air carrier liable for
4
injuries she sustains must prove: (1) “there has been an accident,” (2) the
“accident” caused the plaintiff’s injury, and (3) “the accident took place on board
the aircraft or in the course of operations of embarking or disembarking.” E.
Airlines, Inc. v. Floyd, 499 U.S. 530, 535–36 (1991).
An “accident” for purposes of Article 17 is defined as “an unexpected or
unusual event or happening that is external to the passenger.” Phifer v. Icelandair,
652 F.3d 1222, 1223 (9th Cir. 2011) (quoting Saks, 470 U.S. at 405). The
Supreme Court has advised that “[t]his definition should be flexibly applied after
assessment of all the circumstances surrounding a passenger’s injuries.” Saks, 470
U.S. at 405. However, the Court has cautioned that “when the injury indisputably
results from the passenger’s own internal reaction to the usual, normal, and
expected operation of the aircraft, it has not been caused by an accident.” Id. at
406. Whether the air carrier was negligent is not relevant because we must
examine “the nature of the event which caused the injury rather than the care taken
by the airline to avert the injury.” Id. at 407.
Here, the “accident” that Patel claims to have occurred was SIA allowing her
to board its plane after she presented her cancelled Indian passport. The Court has
held, “it is the cause of the injury . . . rather than the occurrence of the injury
alone” that determines whether there has been an “accident.” Id. at 399. And what
caused Patel’s injury in this case is her knowing failure to travel with a valid
5
passport, not SIA’s decision to allow her to fly without one. Thus, Patel cannot
demonstrate SIA created an “accident”—“external” to her—that caused her alleged
injuries; therefore, SIA cannot be held liable.
Accordingly, we affirm the district court’s decision concluding Patel failed
to establish that SIA is liable for her alleged injuries under Article 17 of the
Montreal Convention.
AFFIRMED.
6
|
912 N.E.2d 437 (2009)
Austin C. WEATHERSPOON, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 45A03-0809-CR-466.
Court of Appeals of Indiana.
September 2, 2009.
Thomas W. Vanes, Crown Point, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
*438 OPINION
VAIDIK, Judge.
Case Summary
Austin C. Weatherspoon appeals his conviction for Class B felony robbery, contending that the jury was improperly instructed. Specifically, Indiana Jury Rule 20(a)(8) provides that jurors, including alternates, are permitted to discuss the evidence among themselves in the jury room during recesses from trial when all are present, as long as they reserve judgment about the outcome of the case until deliberations commence. Under Indiana law, alternates are not allowed to deliberate with the jury. Weatherspoon argues that discussions are the equivalent of deliberations and therefore he was denied his constitutional and statutory right to a jury of twelve when the alternates were instructed that they were permitted to discuss the evidence during recesses from trial. Because Jury Rule 20(a)(8) makes a clear distinction between discussions and deliberations and because there is no evidence that the alternates participated in the deliberations, we affirm Weatherspoon's conviction.
Facts and Procedural History
In January 2007, the State charged Weatherspoon with Class B felony robbery. A jury trial was held in July 2008. Before trial started, defense counsel objected to the following preliminary instruction, Instruction No. 6:
You have been selected as jurors and alternates and you are bound by your oath to try this case fairly and honestly.
You are permitted to discuss the evidence and testimony of the witnesses among yourselves in the jury room during recesses from the trial. But only when all of you are present. You should not form or express any conclusion or judgment about the outcome or verdict in the case until the Court submits the case to you for your deliberations.
You must not talk about this case with anyone else. Do not talk to any of the parties, their lawyers or any of the witnesses. If anyone tries to talk about the case in your presence, you should tell the bailiff immediately and privately. If there is any publicity about this trial, you should not read, listen to or watch it.
You should focus your attention on the court proceedings and the evidence, and reach a verdict based on what you hear and see in this court.
Appellant's App. p. 79. Defense counsel argued:
The new jury rules permit jurors to discuss the evidence while the trial is in progress, to discuss it among themselves, express opinions and reach conclusions, to some extent.
They are obviously not allowed to reach a verdict until the case is submitted to them or to decide the case finally.
However, the constitutional law in the State of Indiana prohibits alternate jurors from participating in the jury's deliberation and in fact reversible error has been predicated on that and yet at the same time, these alternates are being told that they can discuss the evidence with the other jurors up until the time of deliberations.
So, it is my belief that the case law in the State of Indiana, both under statute and constitution prohibits the alternate jurors from deliberating with the other jurors at any time from this point forward. They should be present, be required to be present to listen to the deliberations of the twelve jurors who are sworn, in case their services are needed, but they themselves can not participate either during the trial or during deliberations.
*439 Id. at 28-29. The trial court acknowledged that under Indiana law, alternate jurors cannot participate in deliberations. However, the court clarified that defense counsel was arguing that discussing evidence while the trial was in progress was the equivalent of deliberations: "[Y]our theory is that deliberations take place prior to the time they are sent back ... prior to the close of evidence[?] ... That any discussion is deliberation[?]" Id. at 29. Defense counsel responded, "Yes." Id. at 29, 30. The trial court, who noted an "inconsistency," concluded that because this issue had not been addressed by the appellate court, the alternates "[we]re going to be able to enter into those discussions during the time the case [wa]s going on." Id. at 30. In light of this ruling, defense counsel asked for a continuing objection to Instruction No. 6.
On the morning of trial, defense counsel filed a motion in limine raising the same issue. That is, defense counsel argued that it was "facetious" to say that alternate jurors could discuss the evidence with the other jurors while the trial was in progress but that the alternate jurors could not participate in deliberations. Id. at 55. The trial court reiterated its earlier ruling that "the alternates could discuss during the process of the trial but not during deliberations. This motion is denied, recognizing that there is confusion and conflict in the rules and the Constitution and hopefully somebody will work it out one day." Id. at 57-58.
Weatherspoon was convicted as charged. The trial court sentenced him to eleven yearssix years in the Department of Correction and five years in Lake County Community Corrections. Weatherspoon now appeals.
Discussion and Decision
Weatherspoon raises one issue on appeal. He contends that the United States and Indiana Constitutions and state statute limit criminal juries to twelve people and that Indiana Jury Rule 20, which allows alternate jurors to discuss evidence in the jury room during recesses from trial, "resulted in a jury of more than twelve." Appellant's Br. p. 4. That is, he asserts that the "pre-deliberation participating of the alternates violated his statutory and constitutional right to a twelve-person jury." Id. at 5.
The Sixth Amendment to the United States Constitution provides, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." Likewise, Article 1, Section 13 of the Indiana Constitution provides "In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury ...." Although neither constitution mentions a specific number of jurors, Indiana Code § 35-37-1-1(b) provides that if a defendant is charged with murder or a Class A, B, or C felony, "the jury shall consist of twelve (12) qualified jurors unless the defendant and prosecuting attorney agree to a lesser number." See also Ind. Jury Rule 16(a).
Jury Rule 20, which is the foundation for the trial court's Instruction No. 6, currently provides:
(a) The court shall instruct the jury before opening statements by reading the appropriate instructions which shall include at least the following:
* * * * *
(8) that jurors, including alternates, are permitted to discuss the evidence among themselves in the jury room during recesses from trial when all are present, as long as they reserve judgment about the outcome of the case until deliberations commence. The court shall admonish jurors not to discuss the *440 case with anyone other than fellow jurors during the trial.
(Emphasis added). Jury Rule 20 went into effect on January 1, 2003. Subsection (a)(8), however, was not originally included in Jury Rule 20. A 2002 report based on Arizona Rule of Civil Procedure 39(f) concluded that allowing jurors to discuss evidence before deliberations had no substantial negative impact on the jury's ability to remain impartial and open-minded. Randall T. Shepard, Jury Trials Aren't What They Used to Be, 38 Ind. L.Rev. 859, 865 (2005). Initially, because of the Arizona report, Indiana amended Jury Rule 20 on September 30, 2004, to provide that "jurors [but not alternates] are permitted to discuss the evidence among themselves in the jury room when all are present, as long as they reserve judgment about the outcome of the case until deliberations commence." Ind. Jury Rule 20(a)(8) (2005); Shepard, 38 Ind. L.Rev. at 865. Jury Rule 20(a)(8) went into effect on January 1, 2005. J.R. 20(a)(8) (2005); Shepard, 38 Ind. L.Rev. at 865. According to Chief Justice Shepard, Jury Rule 20(a)(8)
is an important step in the process of reforming this state's jury system. Besides helping jurors to clarify confusing issues of evidence when they occur, and helping jurors to follow the dynamics of trial, allowing jurors to discuss evidence during the trial treats them as they are: intelligent, responsible adults. Because so much of the public's perception of jury service is built upon anecdotal evidence related by those who have served on juries, treating jurors as capable adults is important not only for promoting a better legal result, but in helping to eliminate the public's conception of jury service as tedious, belittling, and pointless.
Allowing jurors to discuss the evidence before deliberations begin is an important step in reforming the Hoosier jury....
Shepard, 38 Ind. L.Rev. at 865.
Subsequently, Jury Rule 20(a)(8) was again amended on September 10, 2007, effective January 1, 2008, to provide that alternates are also permitted to discuss the evidence in the jury room during recesses from trial when all are present. See J.R. 20(a)(8) (2007) (pre-amended version not specifically mentioning alternates); J.R. 20(a)(8) (2008) (amended version specifically mentioning alternates).[1] This amendment to Jury Rule 20(a)(8) has not yet been addressed by our appellate courts. We do so now.
Although alternates' participation in the discussions occur before deliberations commence, Weatherspoon argues that it is the "functional equivalent of expressing an opinion regarding the ultimate outcome," which is expressly forbidden by Jury Rule 20(a)(8). Appellant's Br. p. 7. In other words, Weatherspoon claims that alternates discussing the case is the same as alternates deliberating the case, and alternates in Indiana are not permitted to deliberate. That is, while an alternate juror may retire with the jury for deliberations, the alternate may not participate in the deliberations unless and until he or she replaces a juror.[2]Miller v. State, 702 N.E.2d 1053, 1073 (Ind.1998), reh'g denied. *441 If an alternate juror participates in deliberations, a new trial may be granted. See Griffin v. State, 754 N.E.2d 899, 903 (Ind. 2001), aff'd on reh'g, 763 N.E.2d 450 (Ind. 2002); see also Henri v. Curto, 908 N.E.2d 196, 203 (Ind.2009).
Notwithstanding this line of authority, the Indiana Supreme Court adopted and amended the Jury Rules, including the recent amendment to Jury Rule 20(a)(8), which provides that alternate jurors are permitted to discuss the evidence among themselves in the jury room during recesses from trial when all are present, as long as they reserve judgment about the outcome of the case until deliberations commence. We acknowledge Weatherspoon's argument that during discussions, alternate jurors talk about issues of credibility, highlight and discount certain evidence, and narrow and broaden the issues, all of which may affect the final judgment or verdict, yet these discussions are the very discussions that alternate jurors may not have during deliberations. Nevertheless, our Supreme Court has unambiguously made a distinction between discussions and deliberations. We are not at liberty to rewrite the rules promulgated by our Supreme Court.
As for Weatherspoon's constitutional challenge to Jury Rule 20(a)(8), we simply note that, as Weatherspoon himself acknowledges, there is authority from this Court which provides that "there is no constitutional limit to the maximum number of jurors." See Taylor v. State, 687 N.E.2d 606, 610 (Ind.Ct.App.1997) (emphasis added), trans. denied. As for Weatherspoon's statutory entitlement to a jury of twelve, he received just that. See id. Moreover, since our Supreme Court has created a distinction between discussions and deliberations and there is no evidence that any of the alternates deliberated, this argument also fails. We therefore affirm the trial court.
Affirmed.
NAJAM, J., and FRIEDLANDER, J., concur.
NOTES
[1] Although Jury Rule 20(a)(8) was adopted after a favorable report had studied Arizona Rule of Civil Procedure 39(f), we note that the Arizona rule has not been amended to include alternates in the discussion. Moreover, we note that the Arizona Rule is a civil rule, not a criminal rule. Compare Ariz. R. Civ. P. 39(f) with Ariz. R.Crim. P. 18.5(h).
[2] Here, Instruction No. 22 provided that the alternates were not to participate in the deliberations and voting of the jury. Appellant's App. p. 106.
|
539 So.2d 245 (1989)
Stephen S. MacWILLIE and Phyllis F. MacWillie
v.
SOUTHEAST ALABAMA GAS DISTRICT.
87-880.
Supreme Court of Alabama.
January 13, 1989.
Daniel F. Carmichael, Jr., Enterprise, for appellants.
Joel W. Ramsey of Ramsey, Baxley & McDougle, Dothan, Earl V. Johnson of Sikes, Johnson, Stokes & Taylor, Andalusia, for appellee.
BEATTY, Justice.
Stephen and Phyllis MacWillie appeal from a summary judgment for the defendant, Southeast Alabama Gas District ("Gas District"), in the MacWillies' trespass action. The MacWillies claim that the *246 Gas District trespassed when it mistakenly installed and subsequently maintained a natural gas transmission pipeline on their property. The Gas District argues that summary judgment was proper because it had acquired an easement by prescription across the MacWillies' land and because the MacWillies' trespass action was barred by the statute of limitations. We reverse and remand.
In 1955, the Gas District obtained a right-of-way in Enterprise, Alabama, across the land of J.E. Morgan. The right-of-way was granted by the Probate Court of Coffee County in a condemnation action filed by the Gas District. Damages of $2,500 were assessed against the Gas District.
Pursuant to the ruling of the probate court, the Gas District installed a pipeline across Morgan's property in 1955, and immediately put the pipeline into operation. Morgan and his wife executed a right-of-way easement in favor of the Gas District on September 4, 1956, and the easement was recorded in the Coffee County Probate Court.
In 1978, Morgan filed a subdivision plat of his property in the Coffee County Probate Court. The MacWillies purchased Lot 10, Block G, of this subdivision on June 25, 1985. After they purchased the lot, they discovered that the gas pipeline was installed approximately 11 feet outside the eastern boundary of the Gas District's easement for a distance of around 130 yards, and that the portion of the pipeline installed outside the boundary of the easement ran on their lot.
On December 20, 1985, the MacWillies filed this action against the Gas District. The complaint asked the court to establish the correct boundary line between the MacWillies and the Gas District, and to award compensatory and punitive damages for the alleged trespass by the Gas District. In November 1987, the Gas District voluntarily capped the portion of its pipeline that crossed the MacWillies' property and relaid it within the easement described in the 1956 instrument from the Morgans.
Also in November 1987, the Gas District moved for summary judgment in the trespass action. The Gas District argued that there had been no trespass because it had acquired an easement by prescription across the plaintiffs' land. In its motion for summary judgment, the Gas District claimed that its gas line "has been in place for more than twenty years preceding the filing of the Plaintiffs' complaint and the Defendant has been in open, notorious, and hostile possession of its easement throughout that period of time with notice to the Plaintiffs and their predecessors in title." Accompanying this motion for summary judgment were affidavits of two Southeast Alabama Gas District employees. These affidavits contained statements by the employees that the pipeline had been in place and in operation since 1956, and that the pipeline had been marked in accordance with state and federal regulations regarding such markings since its installation.
The MacWillies responded to the motion for summary judgment, and now argue on appeal, that the Gas District failed to prove that it had acquired an easement by prescription. They maintain that there was no evidence that the presence of the pipeline on the land for over twenty years was open, notorious, and adverse. The pipeline, the MacWillies claim, was concealed underground since 1955, and there was no proof, they assert, that either they or their predecessors in interest ever had actual or constructive knowledge that the pipeline was not installed within the easement. The Gas District responds that there was sufficient evidence to prove that it had obtained an easement by prescription. Also, the defendant argues that the MacWillies' trespass action is barred by the statute of limitations.
In Bull v. Salsman, 435 So.2d 27, 29 (Ala.1983), we discussed the elements of proving an easement by prescription:
"[T]o establish an easement by prescription, the claimant must use the premises over which the easement is claimed for a period of twenty years or more, adversely to the owner of the premises, under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner. The presumption *247 is that the use is permissive, and the claimant has the burden of proving that the use was adverse to the owner."
See Cotton v. May, 293 Ala. 212, 301 So.2d 168 (1974); Belcher v. Belcher, 284 Ala. 254, 224 So.2d 613 (1969); West v. West, 252 Ala. 296, 40 So.2d 873 (1949). At issue in the present case is whether the Gas District has proved that the MacWillies or the prior owners had actual or presumptive knowledge that the gas pipeline had been installed on their land and that the use of the property was adverse. The Gas District argues that the gas pipeline was marked according to federal and state regulations, and that these markings are sufficient evidence from which to infer that the owners of the land knew or should have known that the gas pipeline crossed their property.
The MacWillies contend that the Gas District proffered no evidence of actual or presumptive knowledge of the pipeline by them or the prior owners. They argue that because the pipeline was concealed underground, any inference of actual or presumptive knowledge is speculative. The MacWillies argue furthermore that the Gas District failed to produce any evidence that the use was adverse, rather than permissive. They maintain that summary judgment for the Gas District was reversible error because the Gas District did not overcome the presumption that the use was permissive.
Summary judgment for a defendant is proper only if there is no genuine issue of material fact, and the defendant is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). In Mann v. City of Tallasee, 510 So.2d 222, 225 (Ala.1987), we stated that "summary judgment should be granted only when, after viewing the evidence in a light most favorable to the non-moving party, it appears that there is no genuine issue of material fact, and the non-moving party cannot prevail as a matter of law," quoting Hale v. City of Tuscaloosa, 449 So.2d 1243, 1245 (Ala.1984). In this case, there is a factual dispute as to whether the MacWillies or the prior owners had actual or presumptive knowledge of the misplacement of the pipeline, and whether the use by the Gas District was permissive or adverse. That the pipeline was marked according to federal and state regulations does not establish conclusively that the prior owners knew or should have known that the pipeline was located outside the easement and that the use was adverse. The MacWillies opposed the motion for summary judgment by claiming that neither they nor the prior owners knew that the pipeline had been installed in the wrong place. This factual dispute precludes summary judgment in favor of the defendant on the issue of its acquisition of the easement by prescription.
The Gas District argues in its brief that the MacWillies' trespass action is barred by the statute of limitations. The limitations defense, however, is not properly before this Court because the defendant never pleaded it below. We have held: "The statute of limitations is an affirmative defense and must be so pleaded." Baker v. Ball, 446 So.2d 39, 40 (Ala.1984) (citing Rule 8(c), A.R.Civ.P.). This Court discussed the requirement of pleading the defense in McMahan v. Old Southern Life Ins. Co., 512 So.2d 94, 96 (Ala.1987):
"The statute of limitations defense is an affirmative defense that must be raised in the trial court by pleading or by motion before it will be considered on appeal, Cammorata v. Woodruff, 445 So. 2d 867 (Ala.1983); Rule 8(c) and Rule 12(b)(6), A.R.Civ.P., and, where a party fails to plead an affirmative defense, the defense is generally waived. Robinson v. Morse, 352 So.2d 1355 (Ala.1977)."
The Gas District failed to allege anywhere in its answer, its motion to dismiss, or its motion for summary judgment that the MacWillies' trespass action was barred by the statute of limitations. Since the statute of limitations defense appears nowhere in the record below, it is not before this Court on appeal.
The Gas District pleaded laches in its answer, but pleading this equitable defense is not a substitute for raising the defense of the statute of limitations.
*248 "Laches is an equitable principle and is a defense only to suits in equity. City of Anniston v. Dempsey, 253 Ala. 597, 45 So.2d 773; Hamilton v. Watson, 215 Ala. 550, 112 So. 115; Courson v. Tollison, 226 Ala. 530, 147 So. 635; Oxford v. Estes, 229 Ala. 606, 158 So. 534; Meeks v. Meeks, 245 Ala. 559, 18 So.2d 260; or to those proceedings at law which are controlled by equitable principles such as mandamus. City of Anniston v. Dempsey, supra. It is a creature of equity and is not controlled by statute. Moss v. Davitt, 255 Ala. 513, 52 So.2d 515."
Ballenger v. Liberty National Life Ins. Co., 266 Ala. 407, 410, 96 So.2d 728, 731 (1957). The MacWillies' trespass action is an action at law, and laches is not a defense. Summary judgment on the basis of laches, therefore, would be inappropriate.
Because the statute of limitations defense is not before us in this appeal, and the MacWillies' trespass action is not barred by laches, and, furthermore, because the MacWillies presented evidence that the Gas District had not acquired an easement by prescription across their land, the judgment of the trial court is due to be, and it hereby is, reversed, and the cause is remanded for further proceedings.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur.
|
Filed 5/24/13 P. v. Garzon CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B240633
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA093699)
v.
WILLIAM WESLEY GARZON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Steven
D. Blades, Judge. Affirmed in part and reversed in part with directions.
______
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Seth P.
McCutcheon, Deputy Attorneys General, for Plaintiff and Respondent.
______
An amended information, filed on March 12, 2012, charged William Wesley
Garzon with five counts: (1) murder (Pen. Code, § 187, subd. (a)); (2) driving under the
influence of any alcoholic beverage or drug (Veh. Code, § 23152, subd. (a)); (3) driving
with a blood alcohol percentage of .08 percent or higher (Veh. Code, § 23512, subd. (b));
(4) driving with knowledge of a suspended license (Veh. Code, § 14601.5, subd. (a));
and (5) gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)).
The amended information specially alleged that Garzon had prior convictions for driving
under the influence of alcohol and driving with a blood alcohol percentage of .08 percent
or higher (Veh. Code, § 23512, subds. (a) & (b)), once in 2008 and again in 2010,
and a prior conviction for driving with knowledge of a suspended license (Veh. Code,
§ 14601.5, subd. (a)). After trial, the jury found Garzon guilty on counts 2 through 5 and
found true the special allegations regarding his prior convictions. The jury was unable to
reach a verdict on count 1, and the trial court dismissed that count without prejudice.
The court sentenced Garzon to a state prison term of 16 years 348 days to life, consisting
of 15 years to life for gross vehicular manslaughter while intoxicated, with prior
convictions under Vehicle Code section 23512, plus a consecutive one-year term for
driving with knowledge of a suspended license and 348 days for a probation violation.
The court imposed one-year prison terms for the convictions for driving under the
influence of any alcoholic beverage or drug and driving with a blood alcohol percentage
of .08 percent or higher but stayed execution of those sentences pursuant to Penal Code
section 654 (section 654).
On appeal, Garzon does not challenge his convictions but argues that the trial
court erred by failing to stay pursuant to section 654 execution of sentence of the
one-year term imposed for driving with knowledge of a suspended license. We disagree.
A defendant may be convicted of, but not punished for, more than one crime
arising out of the same course of conduct. (Pen. Code, §§ 954, 654.) Under section 654,
subdivision (a), “[a]n act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for the longest
potential term of imprisonment, but in no case shall the act or omission be punished
2
under more than one provision.” “Section 654 [thus] prohibits punishment for two
offenses arising from the same act or from a series of acts constituting an indivisible
course of conduct. [Citations.] „Whether a course of criminal conduct is divisible and
therefore gives rise to more than one act within the meaning of section 654 depends on
the intent and objective of the actor. If all of the offenses were incident to one objective,
the defendant may be punished for any one of such offenses but not for more than one.‟
[Citations.] On the other hand, if the defendant entertained multiple criminal objectives
that were independent and not incidental to each other, he or she „may be punished
for each statutory violation committed in pursuit of each objective‟ even though the
violations were otherwise part of an indivisible course of conduct. [Citation.] „“The
principal inquiry in each case is whether the defendant‟s criminal intent and objective
were single or multiple.” [Citation.] “A defendant‟s criminal objective is „determined
from all the circumstances . . . .‟”‟ [Citation.]” (People v. Sok (2010) 181 Cal.App.4th
88, 99, fn. omitted.) “The defendant‟s intent and objective are factual questions for the
trial court; there must be evidence to support a finding the defendant formed a separate
intent and objective for each offense for which he was sentenced. [Citation.]” (People v.
Adams (1982) 137 Cal.App.3d 346, 355.)
In sentencing Garzon, the trial court found that he had multiple criminal objectives
in driving with knowledge of a suspended license and in committing gross vehicular
manslaughter while intoxicated. The court stated, “I‟ll just indicate for the record my
reasoning for not staying [execution of sentence on count 4] pursuant to section 654,
[while] [defense counsel] may be correct that it is a crime that should be stayed, I
disagree because I think there was evidence in this case that the defendant drove from the
alcohol rehab class to pick up [the victim], and he was in violation of 14601[.5] when he
did that. Then he changed places at the 7-Eleven and drove [the victim], a mile and a half
later was in the collision. So I think those crimes are really separate.” The evidence
supports the court‟s finding. According to the evidence, Garzon drove from his drug
and alcohol program to the victim‟s home to pick her up to go out on the evening
of March 17, 2011. Then, after Garzon and the victim were at a bar drinking, the
3
victim drove them in the early hours of March 18, 2011, to a 7-Eleven. Upon leaving the
7-Eleven, Garzon drove the victim to take her home, but crashed his vehicle several
minutes later in route to her house, while his blood alcohol percentage was somewhere
between .14 percent and .18 percent. The reasonable inference from this evidence is that
Garzon drove with knowledge of a suspended license so that he could travel from his
drug and alcohol program to pick up the victim for the evening and then committed gross
vehicular manslaughter while intoxicated when he crashed his vehicle early the next
morning, causing the victim‟s death, while driving with a blood alcohol percentage well
above the legal limit. The crimes, therefore, involved multiple criminal objectives, and,
as a result, the court was not required to stay execution of sentence on count 4 for driving
with knowledge of a suspended license.
Garzon also contends, and the People agree, that the trial court erred by
imposing a 15-percent limitation on the award of his conduct credits on the theory that
gross vehicular manslaughter while intoxicated is a violent felony under Penal Code
section 667.5, subdivision (c), because he received a life term. (See Pen. Code,
§§ 2933.1, subd. (a) [“any person who is convicted of a felony offense listed in
subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime
credit”], 667.5, subd. (c)(7) [violent felony includes “[a]ny felony punishable by death
or imprisonment in the state prison for life”].) Although Garzon received a life term for
the offense of gross vehicular manslaughter while intoxicated, the life term resulted
from his prior convictions for violating Vehicle Code section 23512. (See Pen. Code,
§ 191.5, subd. (d).) The offense of gross vehicular manslaughter while intoxicated is
not a crime listed in Penal Code section 667.5, subdivision (c), as a violent felony.
(In re Pope (2010) 50 Cal.4th 777, 780 [gross vehicular manslaughter while intoxicated
“is not a qualifying violent felony for the purpose of the credit restrictions imposed by
section 2933.1(a)”].) Thus, the 15-percent limitation on conduct credits does not apply.
Because the court incorporated its award of conduct credits into the sentence for
Garzon‟s probation violation, we remand the matter for the court to recalculate conduct
4
credits, and resentence Garzon for the probation violation, without the 15-percent
limitation.
DISPOSITION
The judgment is reversed to the extent that the trial court imposed a 15-percent
limitation in calculating Garzon‟s conduct credits. The matter is remanded for the
court to recalculate Garzon‟s conduct credits without the 15-percent limitation and
accordingly adjust the sentence imposed for his probation violation. In all other
respects, the judgment is affirmed. The court is directed to prepare an amended abstract
of judgment and forward it to the Department of Corrections and Rehabilitation.1
NOT TO BE PUBLISHED.
ROTHSCHILD, J.
We concur:
MALLANO, P. J.
CHANEY, J.
1
The amended abstract of judgment also shall reflect the one-year sentences for
counts 2 and 3 imposed and stayed pursuant to section 654, the one-year sentence
imposed for count 4 and the sentence imposed on remand for the probation violation.
The current abstract of judgment does not reference counts 2 through 4 or the probation
violation.
5
|
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-1726
_____________
CHERYL A. SLATER,
Appellant
v.
SUSQUEHANNA COUNTY; SUSQUEHANNA COUNTY CORRECTIONAL
FACILITY; SUSQUEHANNA COUNTY PRISON BOARD; DONALD STEWART;
WILLIAM BRENNAN; TEAMSTERS LOCAL 229; and JACK MCGRAIL
_____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(No. 3:07-cv-02304)
District Judge: Honorable A. Richard Caputo
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 17, 2011
Before: FUENTES and CHAGARES, Circuit Judges and POGUE, Judge.1
(Filed: January 9, 2012)
____________
OPINION
____________
CHAGARES, Circuit Judge.
1
Honorable Donald C. Pogue, Chief Judge, United States Court of International Trade,
sitting by designation.
Cheryl Slater appeals the District Court’s entry of judgment in favor of seven
municipal and union officers and entities on her claims of employment discrimination
and retaliation. For the reasons that follow, we will affirm.
I.
We write solely for the parties’ benefit and recite only the facts essential to our
disposition.
Slater has worked as a correctional officer at the Susquehanna County
Correctional Facility since 1994. The prison is a subdivision of Susquehanna County and
is superintended by the Susquehanna Prison Board. William Brennan and Donald
Stewart were wardens at the prison during Slater’s employment. Teamsters Local Union
229 is the bargaining representative for correctional officers employed by Susquehanna
County. Jack McGrail is the union’s business representative.
Two sets of factual circumstances underlie Slater’s claims. First, in early 2004,
Slater refused to attest to her receipt and understanding of the prison’s Policy and
Procedure Manual. She believed that prison rules were not properly enforced and
therefore refused to provide a signature acknowledging her understanding of the manual.
As a consequence, William Brennan, the prison warden at the time, suspended her for
three days and referred her to a psychiatrist for evaluation. She eventually signed under
protest and wrote a letter to the Prison Board to inform them of the incident and express
her disapproval of the lax enforcement of prison rules. Later that year, she was
interviewed by an investigator about the death of an inmate in the prison. Brennan was
present for at least part of the interview. Slater alleges that Brennan’s presence at the
2
interview was related to her letter to the Prison Board, but offers no evidence to support
the inference. Second, Slater testified that a group of other correctional officers at the
prison — self-titled the “secret sisters” because they gave gifts to each other to boost
morale — harassed her by posting postcards of middle-aged women in bathing suits near
her work area. She also testified that the group manufactured false accusations about her.
Three episodes preceded Slater’s termination on December 1, 2006.2 In October
2006, Slater permitted an out-of-state police officer to enter the prison intake area without
first disarming him or checking his identification. This was a violation of prison security
policy, and Slater received a five-day suspension for her actions. The following month,
she twice violated policies directed to prisoners’ medical care by permitting an inmate to
change the bandage of another inmate with a contagious infectious disease and by
improperly disposing of contaminated medical gloves.
Slater initiated this action in the District Court for the Middle District of
Pennsylvania on December 21, 2007. Against all defendants, the complaint asserted
federal claims of (1) retaliation for exercising First Amendment speech rights, brought
pursuant to 42 U.S.C. § 1983; (2) conspiracy to retaliate for exercising First Amendment
speech rights, brought pursuant to 42 U.S.C. § 1985(3); (3) age-based discrimination,
retaliation, and creation of a hostile work environment under the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C. § 623(a)(1), (c)(3); and (4) gender-based
discrimination, retaliation, and creation of a hostile work environment under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), (c)(3). The complaint also
2
Slater was 57 years old when the prison terminated her employment.
3
alleged state law claims of conspiracy, intentional infliction of emotional distress,
wrongful discharge, and discrimination under the Pennsylvania Human Relations Act.
In three memoranda and orders issued in July 2008, March 2009, and February
2011, the District Court granted the defendants’ motions to dismiss and motions for
summary judgment on all claims. Slater filed this timely appeal.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. We
have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the District Court’s orders granting a motion to dismiss, Grier v. Klem, 591 F.3d
672, 676 (3d Cir. 2010), and summary judgment, Gonzalez v. AMR, 549 F.3d 219, 223
(3d Cir. 2008). In so doing, we apply the standard that the District Court was obliged to
apply. On review of the grant of a motion to dismiss, “we accept as true all well-pled
factual allegations . . . and all reasonable inferences that can be drawn from them.”
Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237, 242 (3d Cir. 2008). Summary
judgment is appropriate only where there “is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). On
summary judgment, a court “must view the facts in the light most favorable to the non-
moving party, and draw all reasonable inferences therefrom in that party’s favor.” N.J.
Transit Corp. v. Harsco Corp., 497 F.3d 323, 326 (3d Cir. 2007).
III.
Slater appeals the District Court’s dismissal or entry of summary judgment on the
§ 1983 claim for retaliation for engaging in protected speech, the § 1985 claim for
4
conspiracy to retaliate, the discriminatory discharge claim under the ADEA, and the
gender- and age-based hostile work environment claims under Title VII and the ADEA.
A.
Slater first contests the entry of judgment for the defendants on her claim, brought
pursuant to 42 U.S.C. § 1983, that she endured retaliation for engaging in speech
protected by the First Amendment. She maintains that because she wrote to the Prison
Board on a matter of public concern, the defendants willfully conspired to send her to a
psychiatrist, impose a suspension on her, manufacture false accusations about her, and
arrange for termination of her employment.
“[T]he First Amendment protects a public employee’s right, in certain
circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v.
Ceballos, 547 U.S. 410, 417 (2006). To state a claim of retaliation for engaging in
protected expression, a public employee must show that her expressive activity is covered
by the First Amendment and that it substantially influenced the alleged retaliatory action.
Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005). The District Court granted
judgment for the defendants on Slater’s claim because her letter to the Prison Board was
not protected by the First Amendment.
A public employee’s speech is protected by the First Amendment when she speaks
as a citizen about a matter of public concern. Borough of Duryea v. Guarnieri, 564 U.S.
—, 131 S. Ct. 2488, 2493 (2011) (citing Connick v. Myers, 461 U.S. 138, 147 (1983)).
Slater contends that the criticism of the lax enforcement of prison rules contained within
her letter to the Prison Board was a matter of public concern. The argument is dubious
5
insofar as the letter only alleges, non-specifically, that many of the rules in the Policy and
Procedure Manual went unenforced. Appendix (“App.”) 681. But even if Slater’s
conclusory critiques of the prison’s general noncompliance with its rules addresses a
matter of public concern, there is no dispute that the letter was written in Slater’s capacity
as an employee, not as a citizen. The letter — sent privately “in response” to Slater’s
suspension and in order to “set the record straight” — is concerned with a particular
personnel action. Id. It does not advance values safeguarded by the First Amendment by
promoting public discourse or expressing an informed opinion in a public forum, but
rather involves a matter of “personal interest.” Connick, 461 U.S. at 144-45. Slater’s
speech, therefore, is not protected by the First Amendment, and the District Court
correctly entered judgment for the defendants on her § 1983 claim.
B.
Slater next contends that the District Court erred in dismissing her claim of
conspiracy to retaliate for engaging in protected speech, brought under 42 U.S.C. §
1985(3). To state a claim under § 1985(3), a plaintiff must allege “(1) a conspiracy; (2)
for the purpose of depriving . . . any person or class of persons of the equal protection of
the laws, or of equal privileges and immunities under the laws; and (3) an act in
furtherance of the conspiracy; (4) whereby a person is either injured in his person or
property or deprived of any right or privilege of a citizen of the United States.” United
Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29 (1983). The second
component of the test requires the plaintiff to allege that the conspiracy was motivated by
racial, gender, or other class-based discriminatory animus. Farber v. City of Paterson,
6
440 F.3d 131, 135 (3d Cir. 2006); see also Novotny v. Great Am. Fed. Sav. & Loan
Ass’n, 584 F.2d 1235, 1242-44 (3d Cir. 1978), overruled on other grounds, 442 U.S. 366
(1979) (holding that conspiracies motivated by gender-based animus are actionable under
§ 1985). The District Court dismissed Slater’s § 1985 claim on the basis that she failed to
allege that the defendants conspired to retaliate against her because of her gender. This
conclusion is sound. The complaint alleges that the defendants wished to retaliate against
Slater because of her whistle-blowing activities, not because of her membership in a class
protected by the statute. Dismissal of the § 1985 claim was proper.
C.
Slater next contests the District Court’s entry of summary judgment in favor of the
defendants on her claim that she was terminated because of her age. The ADEA makes it
unlawful for an employer to “discharge any individual . . . because of such individual’s
age” and for a union to “cause or attempt to cause an employer to discriminate against an
individual” because of her age. 29 U.S.C. § 623(a)(1), (c)(3). As Slater lacks direct
evidence of intentional age discrimination, we evaluate her ADEA claim under the
burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009). This
framework places upon the plaintiff the initial burden of establishing a prima facie case
of discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the
defendant to articulate a legitimate, non-discriminatory reason for the adverse
7
employment action. Id. To prevail, the plaintiff must prove, by a preponderance of the
evidence, that the defendant’s legitimate reason was in fact pretext for discrimination. Id.
Slater established a prima facie case of age discrimination by demonstrating that
she was over 40, was qualified to serve as a correctional officer, suffered an adverse
employment action, and was replaced by an employee sufficiently young enough to
support an inference of age-based discriminatory animus. See Smith, 589 F.3d at 689
(setting forth the elements of a prima facie case of age discrimination under the ADEA).3
The defendants satisfied their burden by proffering evidence that Slater was terminated
for permitting an armed individual into the prison intake area and by twice violating
prison policies governing the medical care of prisoners.
Slater’s claim falters for lack of evidence that these legitimate, nondiscriminatory
reasons were pretext for age discrimination. To defeat summary judgment, Slater was
required either to adduce evidence of discrimination or discredit the reasons proffered for
her termination. Fasold v. Justice, 409 F.3d 178, 185 (3d Cir. 2005). She introduced no
evidence that she was fired because of her age. Rather, she endeavored to cast doubt
upon the justifications for her discharge by denying that she was responsible for the entry
of an armed police officer into the prison and by insisting that she properly disposed of
the contaminated medical gloves. But to discredit the basis for her discharge, she “cannot
3
Slater stated in an affidavit submitted in opposition to summary judgment that she was
replaced by a 38-year-old employee. App. 725. The District Court did not acknowledge
the statement, but we assume that it satisfied the fourth component of a prima facie case
of age discrimination. See Smith, 589 F.3d at 689. On appeal, Slater argues only that she
established a prima facie case of age discrimination; she does not dispute the District
Court’s conclusion that she failed to establish pretext.
8
simply show that the employer’s decision was wrong or mistaken.” Fuentes v. Perskie,
32 F.3d 759, 765 (3d Cir. 1994). Rather, she must “demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could rationally
find them unworthy of credence . . . and hence infer that the employer did not act for [the
asserted] non-discriminatory reasons.” Id. (citations omitted). In light of profuse
testimony by her coworkers and supervisors that she did, in fact, permit an armed trooper
to enter the prison and improperly dispose of used medical gloves, Slater failed to
surmount this “difficult burden.” Id. A reasonable jury could not conclude, from Slater’s
testimony alone, that the defendants’ legitimate reasons were implausible, inconsistent,
incoherent, contradictory, or otherwise a pretext for discharging her because of her age.
D.
Finally, Slater contends that the District Court erred in concluding that she was not
subjected to a hostile work environment because of her gender and age. Title VII makes
it unlawful for an employer “to discriminate against any individual with respect to [her] .
. . terms, conditions, or privileges of employment, because of such individual’s . . . sex”
and for a union to “to cause or attempt to cause an employer to discriminate against an
individual” because of her gender. 42 U.S.C. § 2000e-2(a)(1), (c)(3). Hostile work
environment claims based on allegations of sexual harassment fall within the ambit of
Title VII’s proscriptions on workplace discrimination. Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993). “[W]hen the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the
9
conditions of the victim’s employment and create an abusive working environment, Title
VII is violated.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)
(quoting Harris, 510 U.S. at 21) (quotation marks omitted). We assume, without
deciding, that the ADEA makes available a hostile work environment claim for age-based
discrimination, analyzed under the same standards as a Title VII hostile work
environment claim. See Brennan v. Metropolitan Opera Ass’n, Inc., 192 F.3d 310, 318
(2d Cir. 1999); Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834 (6th Cir. 1996).
The District Court concluded that the paucity of evidence of workplace
intimidation or ridicule foreclosed trial on the claims. We agree. There is insufficient
evidence of gender- or age-based harassment severe or pervasive enough to create an
abusive working environment. What Slater has proffered is not the stuff of hostile work
environment claims. The District Court’s grant of summary judgment was proper.4
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
4
The District Court granted summary judgment to the union on the basis that Slater did
not file a grievance with the union and proceed to arbitration in compliance with the
procedures set forth in the collective bargaining agreement. It granted summary
judgment to McGrail on the basis that Title VII does not impose liability on individuals.
Because Slater’s hostile work environment claim fails on the merits, we need not address
these alternative, non-jurisdictional bases for summary judgment.
10
|
08-1479-ag
Chen v. Holder
BIA
Hladylowycz, IJ
A72-484-380
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 29 th day of March, two thousand ten.
PRESENT:
ROSEMARY S. POOLER,
ROBERT D. SACK,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
ZHI YONG CHEN, ALSO KNOWN AS CHEN
HAN LIN,
Petitioner,
v. 08-1479-ag
NAC
ERIC H. HOLDER JR., UNITED STATES
ATTORNEY GENERAL, 1
Respondent.
______________________________________
FOR PETITIONER: Waisim M. Cheung, New York, New
York.
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Eric H. Holder, Jr. is automatically substituted
for former Attorney General Michael B. Mukasey as respondent in
this case.
FOR RESPONDENT: Gregory G. Katsas, Assistant
Attorney General, Civil Division,
Carl H. McIntyre, Jr., Assistant
Director, Francis W. Fraser, Senior
Litigation Counsel, Office of
Immigration Litigation, United
States Department of Justice, Civil
Division, Washington D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner, Zhi Yong Chen, a native and citizen of the
People’s Republic of China, seeks review of a March 4, 2008
order of the BIA dismissing his appeal of the March 18, 2004
decision of Immigration Judge (“IJ”) Roxanne Hladylowycz
denying petitioner’s applications for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Zhi Yong Chen, No. A 72 484 380 (B.I.A. Mar.
4, 2008), aff’g No. A 72 484 380 (Immig. Ct. N.Y. City Mar.
18, 2004). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
When the BIA does not adopt the decision of the IJ to
any extent, this Court reviews only the decision of the BIA.
See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
2
This Court reviews the agency’s factual findings, including
adverse credibility determinations, under the substantial
evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also
Manzur v. U.S. Dep't of Homeland Sec., 494 F.3d 281, 289 (2d
Cir. 2007). We review de novo questions of law and the
application of law to undisputed fact. See, e.g., Salimatou
Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
To the extent that Chen continues to assert that he may
be eligible for relief based on his wife’s forced abortion,
this Court has squarely rejected the notion that aliens are
per se eligible for relief based on the forced sterilization
of their spouse. Shi Liang Lin v. U.S. Dep’t of Justice,
494 F.3d 296, 309 (2d Cir. 2007). Before this Court, Chen
argues primarily that he established eligibility for relief
based on his resistance to China’s family planning policy
when he had a confrontation with the officials who came to
take his wife to be forcibly aborted. This argument is
unexhausted. The IJ explicitly found that Chen failed to
establish eligibility for relief based on any resistance to
China’s family planning policy where he did not assert that
anything happened to him as a result of his alleged
altercation with family planning officials. Because Chen
3
failed to challenge that finding before the BIA, we decline
to consider it in the first instance. See Lin Zhong v. U.S.
Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007)
(holding that petitioners must raise to the BIA the specific
issues they later raise in this Court). 2
Because Chen was unable to show the objective
likelihood of persecution needed to make out an asylum
claim, Shi Liang Lin, 494 F.3d at 309, he was necessarily
unable to meet the higher standard required to succeed on
his claims for withholding of removal and CAT relief where
they are based on the same factual predicate. See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
2
To the extent Chen asserts that his case should be
remanded to allow the agency to consider his other resistance
claim in light of this Court’s ruling in Shi Liang Lin, we
decline to do so. A claim based on resistance to a coercive
family planning policy existed as a basis for relief when Chen
filed his application for relief, 8 U.S.C. § 1101(a)(42), and
nothing in our decision in Shi Liang Lin impacts such
claims. As noted, the IJ rejected Chen’s claim based on his
alleged resistance. He cannot now avoid the consequences of his
failure to exhaust that claim before the BIA.
4
|
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-77,503-01
EX PARTE MARTINIANO R. FLORES, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W219-80171-06 IN THE 416TH DISTRICT COURT
FROM COLLIN COUNTY
Per curiam.
O R D E R
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of three counts of
aggravated sexual assault of a child, and four counts of indecency with a child. He was sentenced
to twenty years' imprisonment for each of the aggravated sexual assault counts, five years'
imprisonment for two of the indecency counts, and ten years' imprisonment for the other two
indecency counts. The Fifth Court of Appeals affirmed his conviction. Flores v. State, No. 05-06-01297-CR (Tex. App. - Dallas, June 10, 2008, no pet.).
Applicant alleges that the trial court abused its discretion in various respects, and that he
received ineffective assistance of trial and appellate counsel. After obtaining affidavits from trial
and appellate counsel, the trial court made findings of fact and conclusions of law and recommended
that we deny relief. On April 16, 2012, this Court received the habeas application from Collin
County.
On May 2, 2012, this Court received a letter from Applicant in which he states that he was
not provided with copies of the affidavits submitted by trial and appellate counsel in response to his
habeas allegations. Applicant apparently did receive a copy of the State's response and the trial
court's findings and order. However, Applicant alleges that he needs copies of the affidavits of
counsel so that he can contest the affidavits and file a response.
We now remand this application to the trial court for further findings of fact and conclusions
of law. The trial court shall determine whether the Collin County District Clerk mailed or delivered
to Applicant the affidavits submitted by his trial and appellate counsel in response to his habeas
allegations. If the trial court finds that the District Clerk did not, it shall order the clerk to do so and
give Applicant the opportunity to respond to the affidavits. If Applicant files a response, the trial
court shall make further findings and conclusions on Applicant's original claims.
This application will be held in abeyance until the trial court has resolved the fact issues. The
issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the
order granting the continuance shall be sent to this Court. A supplemental transcript containing all
affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or
deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall
be returned to this Court within 120 days of the date of this order. Any extensions of time shall be
obtained from this Court.
Filed: June 6, 2012
Publish
|
722 F.Supp. 1507 (1989)
Paul J. DONOHOE, Plaintiff,
v.
The Honorable Charles L. BURD, Defendant.
No. C-1-86-1156.
United States District Court, S.D. Ohio, W.D.
August 30, 1989.
*1508 *1509 Robert F. Laufman, Cincinnati, Ohio, for plaintiff.
Douglas C. Prince, Cincinnati, Ohio, Andrew J. Ruzicho, Columbus, Ohio, for defendant.
ORDER
HERMAN J. WEBER, District Judge.
This matter is before the Court upon its merits after a trial to the Court. Plaintiff claims damages for malicious prosecution and abuse of process under Ohio law. This Court has diversity jurisdiction. On the basis of the evidence, testimony and arguments presented by the parties, the Court makes the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
In 1981, plaintiff Paul J. Donohoe ("Donohoe"), who is presently a resident of Florida, was a citizen of West Virginia employed as a bank officer with First National Bank of Huntington in West Virginia; prior to that, plaintiff served in the United States Air Force for 21 years attaining the rank of Colonel. Defendant Charles Burd ("Burd") is and was a citizen of Ohio engaged in the private practice of law in Lawrence County, Ohio.
In the early fall of 1981, Burd was retained as legal counsel for Markin Tool and Mfg. Corp. ("Markin Tool"), an Ohio corporation owned by Steven D. Markin ("Markin"). Burd's time and advice were sought regarding the obtaining of financing for Markin Tool. It was during the course of searching for new financing that Burd and Markin were introduced to Donohoe who, with Zafar Iqbal ("Iqbal"), expressed an interest in investing in Markin Tool.
*1510 Markin Tool machined parts for the gas and oil industry and like many others, in 1981, was suffering a serious cash problem. The Company needed funds to pay for a computer controlled lathe which had been delivered in August, 1981 and was being used for production. This machine was responsible for 60% of the Company's production. In October, 1981, the seller of the lathe demanded payment and by November, 1981, the seller was threatening to repossess the machine. The loss of this machine would have been disastrous to the Company, therefore, immediate funding was necessary to pay for the machine.
Burd had contacted a number of banks but none were willing to loan money to Markin Tool. In October, 1981, Burd contacted Marshall Reynolds ("Reynolds"), a West Virginia financier, who indicated an interest in investing in the Company. Reynolds sent Iqbal and Donohoe to evaluate the Company and later suggested that he (Reynolds), Iqbal, Donohoe and Burd invest in the Company. Reynolds later withdrew and the investors were to be Iqbal, Donohoe, Burd and Markin.
In November, 1981, Burd was elected Judge of the Lawrence County Municipal Court, a part-time judicial position which he continues to serve.
On November 17, 1981, these investors met and elected the officers of the corporation: MarkinPresident, Iqbal Vice President, Donohoe Treasurer, and Burd Secretary. At this meeting, Markin agreed to sell to Markin Tool 75 shares of his stock at $10.00 per share for a total of $750.00. It was intended that the investors would then buy these shares from the Company providing it with operating cash. Donohoe and Iqbal each executed subscriptions for 25 shares of stock in Markin Tool for $1,000 per share. Donohoe and Iqbal each borrowed $25,000 from the First Bank of Ceredo to purchase their shares in Markin Tool. No subscription was executed by Burd.
Also during this November 17, 1981 meeting, Donohoe requested that Burd accompany Markin to the First Bank of Ceredo in West Virginia and submit to the Bank personal guaranties and financial statements which were required by the Bank to process a loan to Markin Tool.
The Ceredo Bank agreed to loan Markin Tool $136,000 of the $151,400 needed to pay for the lathe if all the investors, including Burd and Donohoe, personally guaranteed the loan. Both Markin and Donohoe were involved in negotiating this loan, and it was agreed and understood between Donohoe and Burd that Burd had not committed himself to purchase shares in Markin Tool and that any personal guaranty and financial statement submitted by Burd to the First Bank of Ceredo would be contingent upon Burd becoming an equity owner in Markin Tool. Burd failed to make this contingency clear to the bank.
On or about November 20, 1981, Burd and Markin drove together to the Ceredo Bank in West Virginia; Donohoe was out of town on other business. Burd and Markin met with Larry Stark ("Stark"), Vice President of Loans for the bank. Burd and Markin presented their financial statements which were date-stamped November 20, 1981 and Burd and Markin signed blank personal loan guaranties dated November 20, 1981 in favor of the Ceredo Bank.
On November 20, 1981, the First Bank of Ceredo issued loan proceeds on behalf of Markin Tool pursuant to a Time Note payable on demand for $136,000 signed by Markin as President of Markin Tool; Markin also signed, in the same capacity, a Security Agreement. Markin then received a check dated November 20, 1981 payable to the Tooling and Machine Sales of Virginia, Inc. in the amount of $151,400; the difference between the Note and the check was made up by withdrawal from the Markin Tool account. Burd and Markin then left the bank and returned to Ohio together.
This loan process was expedited so that the lathe seller would not repossess the lathe. At the November 20, 1981 closing, Stark explained to Burd and Markin the effect of their guaranties and explained that because of the emergency, a Time Note would be used which would be rolled over into an installment note by the parties *1511 at a later time. Stark testified that it was his usual practice to turn over the check when the Time Note was signed.
William McGuire, a representative of the lathe seller, signed a receipt which indicated that the lathe was paid in full on November 20, 1981. McGuire's signature also appears on the reverse side of the check which was deposited on the next banking day, Monday, November 23, 1981.
On Saturday, November 21, 1981 during a meeting of the Markin Tool officers, Burd expressed his refusal to agree to a SBA loan and indicated that he wanted to stabilize the debt. Burd also expressed concern about his guaranty, but testified that he did not object to the loan from the Ceredo Bank. Donohoe had gone to Washington, was not present at the closing of the loan on November 20, 1981 and did not return until November 30, 1981.
On December 2, 1981, Markin, as President of Markin Tool, executed a promissory note in the amount of $136,000 and a new security agreement to replace the documents signed on November 20, 1981. No new funds were disbursed at this time as this was a continuation of the original November 20, 1981 loan transaction. The Security Agreement signed by Markin indicated that Burd remained a guarantor of this loan. Neither Donohoe nor Markin removed Burd's guaranty from the bank as the bank assumed and relied upon the fact that Burd remained a guarantor.
On or about this same period of time, Burd personally contacted the bank loan officer of the Ceredo Bank and advised the bank of his decision not to become an equity owner of Markin Tool.
In late December or January, 1982, Burd notified the other investors that he was not going to invest in the Company. Donohoe then borrowed another $25,000 and on January 19, 1982, Donohoe subscribed to the 25 shares previously intended for Burd.
On December 3, 1981, Burd submitted a bill for professional services rendered to Markin Tool and on January 20, 1982, Burd and Markin Tool entered into a retainer agreement for Burd's legal services. Burd and Markin Tool had previously agreed that any fee for legal services would be waived if Burd became a shareholder.
Burd's fees for services previously performed in 1981 in seeking financing before Donohoe became involved totaled $15,000. No breakdown of the fee was given. Markin Tool paid Burd $5,000 and Donohoe and Markin signed a promissory note on behalf of Markin Tool agreeing to pay Burd $10,000 for his previous services. Donohoe personally guaranteed this note.
In a letter dated January 21, 1982, Stark wrote on behalf of the First Bank of Ceredo to Burd regarding his personal guaranty on the loan; this letter explained that Burd's personal guaranty would not be returned as it was considered collateral for the November 20, 1981 loan from the bank to Markin Tool.
Upon learning of the bank's use of his guaranty, Burd prepared and presented to Donohoe, Markin and Iqbal a hold-harmless agreement which was designed to protect Burd from any liability to the bank. This agreement was signed on February 17, 1982 by all shareholders, including Donohoe, individually and as representatives of Markin Tool.
On June 17, 1983, Donohoe purchased the 25% ownership interest of Iqbal making Donohoe a 75% owner in Markin Tool. Later, in early 1984, Donohoe became the sole owner of Markin Tool when he acquired the remaining shares owned by Markin.
During the period of 1982 through 1985, the Ceredo Bank continued to keep Burd informed as to the status of the loan. In February, 1983, Markin Tool began to fall behind in payments. From that time through the summer of 1985, the loan from the Ceredo Bank was in arrears and letters from the bank to Donohoe, Markin, Iqbal and Burd regarding the delinquent status of the loan were circulated.
On February 25, 1983, Burd met with Philip Pitkin, Executive Vice President for the Ceredo Bank, and on March 7, 1983, Burd had two telephone conversations with Pitkin. These were the only meeting and telephone calls between Burd and Pitkin. On both occasions, Burd claimed he had a *1512 hold-harmless agreement and wanted to be released as a guarantor. Pitkin made it clear at that point that the loan was based on his guaranty, that the bank was not a party to the hold-harmless agreement, and that it was holding Burd liable. Burd did nothing further regarding his guaranty until he prepared a second hold-harmless agreement in August, 1984 which Donohoe signed individually and as President of Markin Tool. The major difference between the two hold-harmless agreements was the addition in the second agreement of the phrase referring to the loan as "said loan being signed on 11/20/81."
In February, 1982, the investors borrowed $340,000 to buy two additional lathes which Donohoe personally guaranteed. By 1983, Markin Tool was experiencing financial difficulties and began to fall behind on the loan payments. At this point, Donohoe had guaranteed almost $500,000 of Markin Tool loans, and during 1982 to 1985, in addition to his $150,000 investment, Donohoe loaned approximately $302,000 of his own money to Markin Tool to keep the Company afloat and signed additional guaranties in an attempt to save the Company.
Burd represented Markin Tool during all this time until mid-July, 1985, during which time Donohoe, the majority shareholder, and Burd, the Company's lawyer, had frequent meetings and telephone conversations. At no time did Burd complain of any impropriety on the part of Donohoe.
In July, 1985, the Ceredo Bank sued all four guarantors. On July 10, 1985, Burd was served with Summons and a Complaint filed by the First Bank of Ceredo in the Circuit Court of Wayne County, West Virginia requesting judgment on his personal guaranty for the loan made to Markin Tool on November 20, 1981.
Upon receipt of this Summons and Complaint, Burd resigned his legal representation of Markin Tool and retained counsel to defend him in the suit filed by the First Bank of Ceredo. Through counsel, Burd settled the claim against him for $17,500 and was dismissed with prejudice from the suit on October 21, 1985. The Ceredo Bank retained the security interest in the lathe and continued its lawsuit against the other guarantors.
Burd demanded Donohoe hold him harmless under their hold-harmless agreements but Donohoe was financially unable to pay the $17,500, or otherwise satisfy the bank. Donohoe at all times admitted he owed this obligation to Burd.
On October 30, 1985, Donohoe executed a voluntary petition seeking protection for Markin Tool in Chapter 11 of the Bankruptcy Code, which was filed in the United States Bankruptcy Court for the Southern District of Ohio on November 6, 1985.
On October 31, 1985, Burd, unaware of Donohoe's intention to place Markin Tool in bankruptcy, filed a civil suit in the Lawrence County Court of Common Pleas against Donohoe and Markin Tool to enforce the hold-harmless agreements of February 17, 1982 and August 6, 1984 as well as a claim for emotional distress; the suit was amended November 6, 1985 to include a claim on account for past due attorney's fees. Burd made no claim that his guaranty had been improperly obtained or used by Donohoe. Rather, Burd alleged that although Donohoe had assured him that he would be held harmless, Donohoe told the Ceredo Bank not to release Burd, which was not the fact. This claim was listed on Markin Tool's bankruptcy petition as a $118,000 unsecured claim without priority. Burd's civil suit against Markin Tool and Donohoe was stayed and remained unprosecuted as a result of the bankruptcy.
Just prior to these events in October, in September of 1985, Donohoe was charged with violations of Ohio Rev.Code § 2913.11 for passing bad checks, a fourth degree felony. Donohoe was arrested, appeared before Burd, waived preliminary hearing, bound over to the grand jury, and released on his own recognizance.
Donohoe was subsequently indicted on these charges and paid the dishonored checks. The charges were then dismissed on December 11, 1985.
In mid-December, 1985, subsequent to the dismissal of the bad check charges *1513 against Donohoe, Burd had an informal luncheon with the Lawrence County Prosecutor, Richard Meyers, concerning matters of court procedures within the Lawrence County Municipal Court and Donohoe's name was mentioned with reference to the bad check charges and the fact that when confronted with a criminal prosecution Donohoe would pay off his debts. Prosecutor Meyers justified to Burd the dismissal of the criminal charges for the reason that Donohoe had paid the dishonored checks.
Upon learning this, Burd described his experiences with Donohoe, Markin Tool and the First Bank of Ceredo. Burd said that Donohoe "ripped me off" and that Donohoe should have been "burnt." Burd inquired about the possibility of filing criminal charges on this matter and the prosecutor advised Burd that Donohoe's actions might constitute a violation of the Ohio Criminal Code and agreed to investigate the matter to determine whether a criminal violation had been committed. Prosecutor Meyers asked Burd to write up everything he knew about the situation and to give him a statement.
Based upon the statement provided by Burd and upon his investigation, the prosecutor advised Burd that Donohoe's activities constituted a violation of Ohio Rev. Code § 2913.02. The prosecutor then suggested to Burd that a criminal complaint be sworn against Donohoe.
Burd's statement to the prosecutor claimed that his guaranty to the Ceredo Bank was contingent on his becoming a stockholder in Markin Tool; that on November 20, 1981, Stark and Pitkin at the Ceredo Bank "assured me that unless I decided to become a shareholder, I would have no personal liability on this and that they would release me from guaranty." At trial, the bank officers denied that Burd's guaranty was contingent, rather they emphasized that they placed a great deal of reliance on Burd's guaranty and stated the loan would not have been made had Burd not signed a guaranty.
Burd claimed in his statement to the prosecutor that he was undecided whether to become a shareholder when he signed his guaranty. The evidence preponderates, however, that Burd was still considering whether to invest in the Company on November 20, 1981 when he signed his guaranty at the bank. It was not until later that Burd communicated his decision to reject the investment to the other investors.
Burd claimed in his statement that he informed the First Bank of Ceredo of his decision to reject the investment and asked the bank to release his guaranty as promised. The Ceredo Bank, however, had released the entire proceeds of the loan on November 20, 1981 in reliance upon Burd's guaranty and the bank advised Burd that the money had been paid out and he was committed. Burd claims that he wrote a letter withdrawing his guaranty within seven to 10 days after November 20, 1981, however, he had no copy of this alleged letter and the bank files contained no such letter. These bank files otherwise appear complete.
In his statement to the prosecutor, Burd said:
Not only did Donohoe deceive me into signing the guaranty with the express promise that I would not be liable unless I became a shareholder, but he also promised that if I did, it was only six months obligation and the credit could not be extended. Thus, his extending the credit and payoff on this loan over a period of several years which was well beyond the expressed or implied use of my guaranty.
Even if this is true, it is clear that it was Markin who signed the papers in this regard. At the time Burd signed the guaranty, he was an attorney earning $100,000 a year and was representing Markin Tool in obtaining loans with several banks; he was experienced, he knew that his guaranty created obligations between him and the bank and not between him and Donohoe. He knew at the time the hold-harmless agreements were signed by Donohoe in 1982 and 1984, long before he made his statement to the prosecutor, that Donohoe could not obtain the release of his guaranty from the bank. That is why he drafted *1514 hold-harmless agreements. Burd knew the period of the loan and that it was in default at the time the second hold-harmless agreement was signed.
Burd failed to provide the prosecutor with a copy of his civil complaint filed to collect the same debt. Burd failed to disclose to the prosecutor that he made no allegation of any improprieties in his civil complaint of which he now accused Donohoe in his statement.
The only witnesses interviewed by the prosecutor and the only witnesses who testified at the preliminary hearing were Burd and Markin; their testimony is inconsistent with the testimony of the other trial witnesses and with the trial exhibits.
The substantial weight of the evidence preponderates that Burd decided to reject the investment sometime early in January, 1982. Burd served as corporate secretary from his election on November 17, 1981 until he was replaced on January 28, 1982 by Doretha Johnson. The SBA loan application, which is date-stamped December 31, 1981 and January 5, 1981 (presumed to be 1982), is signed by Burd as the corporate secretary and shows Donohoe as a 25% owner of the Company; the revised SBA application signed by Doretha Johnson (post-January 28, 1982) shows Donohoe as a 50% owner of the Company. Donohoe's Statement of Personal History, dated December 21, 1981, shows that he only held a 25% ownership of the Company. Donohoe's subscription to purchase the shares reserved for Burd is dated January 19, 1982. The earliest document indicating any intention by Burd to reject the investment is his bill for legal services to Markin Tool dated December 3, 1981.
Burd's reaction to the Stark letter confirming his status as a guarantor dated January 21, 1982 was simply to obtain the hold-harmless agreement from the other investors. At the time of the first hold-harmless agreement, Burd knew the terms of the loan with the Ceredo Bank. Burd knew he was bound to the bank on his guaranty at this time long before his statement to the prosecutor and his execution of a criminal complaint against Donohoe charging a violation of Ohio Rev.Code § 2913.02, a third degree felony for grand theft dated January 17, 1986, alleging that Donohoe exceeded the "express and implied" conditions of his guaranty.
Prosecutor Meyers testified that ordinarily a criminal complaint is signed by police officer, however, in this case, Burd personally signed the complaint, his clerk of courts prepared the arrest warrant, he requested that "we filed (sic) criminal charges" and the prosecutor concurred. Burd was present in Prosecutor Meyer's law office when Markin gave his taped statement on January 16, 1986, one day after Burd's statement dated January 15, 1986. On the day of the preliminary hearing, Donohoe saw Markin going into Burd's law office. Burd sat at counsel table with the prosecutor at this hearing and it was Burd, not the prosecutor, who notified Markin to appear before the grand jury.
After execution of the criminal complaint against Donohoe, Donohoe was arrested on January 20, 1986, held in jail for two nights, he retained a lawyer, and was released on bond within 48 hours of his arrest.
Donohoe did not see the statements given by Burd or Markin until the fourth day at his attorney's office.
On February 27, 1986, a preliminary hearing on the criminal charges filed against Donohoe was held before the Ironton Municipal Court. Burd testified at this hearing and stated:
So they had come (sic) guaranty forms there and they (Stark and the bank) asked us to sign those. Mr. Marcum (sic) signed it and I explained to them that I was not a stockholder in the company and I didn't want to be obligated to pay the debt unless I did become a stockholder in the company. They said they understood that because I had already had a meeting with Paul Donohoe about that and that was understood and apparently he had discussed this with them. So they asked me as a convenience to sign it then and they would not hold me liable for anything if I decided not to become a stockholder.
*1515 The evidence preponderates to the contrary. Stark and Pitkin both testified that the loan was contingent on Burd's guaranty, and the bank looked to Burd as a guarantor. This is later confirmed by the fact that when Burd definitely decided to reject the investment and knew he could not gain the release of his guaranty, he entered into the hold-harmless agreements with the other investors.
Criminal charges against Donohoe were presented to the Grand Jury of Lawrence County, Ohio who heard testimony of Burd, Markin, Iqbal, Pitkin and Stark. An indictment was returned charging Donohoe with a violation of Ohio Rev.Code § 2913.02, a third degree felony for grand theft.
After Donohoe was arrested, Burd told Prosecutor Meyers that he did not want to see Donohoe go to jail, but that he just wanted his $17,500. Burd's only interest and reason for initiating the criminal proceeding against Donohoe was to enforce the hold-harmless agreements he had with Donohoe as it was made clear that Burd wanted to be made whole and if he was paid all charges would be dismissed against Donohoe.
Donohoe was advised by his lawyer that Burd's version of the facts could lead to a conviction and a prison term.
As Donohoe was unable to raise the $17,500, his daughter mortgaged her home and sent a certified check in the amount of $17,500 to Donohoe's attorney, Jim Collier, Jr. On June 26, 1986, Collier personally delivered the check to Burd at the courthouse and the criminal charge against Donohoe was immediately dismissed with prejudice.
In this same summer, Donohoe filed for personal bankruptcy; the Markin Tool and Manufacturing Corp. no longer exists.
Donohoe has always acknowledged his obligation to Burd on the hold-harmless agreements. Donohoe did attempt to obtain Burd's release from the guaranty. Donohoe's efforts are confirmed by Pitkin's letter to Donohoe, which was copied to Burd, returning the hold-harmless agreement.
Donohoe was arrested at Markin Tool in the presence of his employees, was handcuffed and taken to the Ironton jail. At the jail he was fingerprinted, searched, his clothes were taken, and he was put into prison garb.
Donohoe remained in jail for two days without information as to why he had been arrested. His only information was the Complaint which had been signed by Burd and which alleged that he had committed grand theft on December 2, 1981. His attorney visited him the second day and told Donohoe that he was still trying to find out from the prosecutor exactly what the charges were and that they could not set bail until they knew the charges. Donohoe spent two nights in jail and during this time, he was unable to learn the true nature of the charge, and when or if bail would be set.
Donohoe was put in a jail cell with eight to 10 other prisoners. His bed consisted of a flat metal piece of steel with no mattress and he was supplied with a blanket but no pillow. He was unable to sleep the first night and had only little sleep the second night.
His wife visited him the second day but he was only able to communicate with her through a small hole in a solid steel door. He was angered that his wife was subjected to the demeaning ordeal of visiting him in jail. He was frustrated by his helplessness and inability to do anything about it.
As to his damages, Donohoe claims as follows:
Prior to his arrest, Donohoe had been involved in civic affairs and organizations, enjoying a full social life. Since his arrest, he testified that he has engaged in no civic activities and has had no social life.
Following his experience, he claims to have altered his life style dramatically. When he worked at Markin Tool, his wife brought food to him because he feared to go into town to eat. He also insisted that his wife never travel alone when she came into Ohio to visit him at the Company; any time she came to Ohio, she was to call before leaving and upon arrival; when in *1516 Ohio, Donohoe would report to his wife before leaving one location and again upon arrival at his destination. When at Markin Tool, he would pull his car into the plant so no one would know that he was there and when visiting his attorney, he made arrangements to go in the back door.
After Donohoe moved to Florida, he gave his home address and telephone number to only two members of his family, but not his mother, and his children had to write to him through a post-office box number.
While the trial proceedings were conducted, Donohoe was afraid to stay in Cincinnati and instead stayed in a Kentucky hotel and asked his witness, Dr. Sprehe, to stay at a Kentucky hotel.
Donohoe attributes this behavior to his fear of Burd's power and influence in Ohio and to his fear that he would again be arrested and jailed for no reason.
A number of events have caused Donohoe to relive the events of this arrest and jailing. A visit by a police car to Donohoe's apartment complex in Florida caused him to obtain names of attorneys because he feared Burd might "get to him" in Florida; a fake "arrest" by the Cancer Society caused him to panic and break out in a sweat. Donohoe also suffers from recurrent dreams related to Burd and his felony theft arrest.
Dr. Sprehe, Donohoe's treating psychiatrist, has diagnosed Donohoe as suffering from chronic Post-Traumatic Stress Disorder (PSTD) with accompanying major depression. Dr. Sprehe attributed the PSTD to Donohoe's felony theft arrest, and explained that Donohoe has been obsessed by the terror and outrage of that situation.
Significantly, Dr. Sprehe testified that Donohoe failed to include in his history Donohoe's experience in military service in Vietnam and Korea which included exposure to murders and hangings; Dr. Sprehe opined that Donohoe's symptoms resemble those which result from war neurosis and that PSTD syndrome is common in those with war service.
Dr. Sprehe stated that he has diagnosed this PSTD syndrome in approximately 200 patients of the thousands he has treated, and of those 200, only one patient suffered PSTD as a result of a humiliating experience with the police and an erroneous arrest.
Dr. Sprehe also explained that he did not see or treat Donohoe regularly; Dr. Sprehe first saw Donohoe five days after this lawsuit was filed and then three more times over the next 13 months. It is Dr. Sprehe's expert opinion that if treatment had continued regularly, Donohoe's condition would have improved instead of worsened, and he testified that he believed Donohoe did not want and was not receptive to receiving necessary treatment.
Dr. Sprehe acknowledged that Donohoe's depression could be attributed to the distress involved in the failing of the business and his $400,000 debt, and to the stress and anxiety related to his lawsuit against Burd; but it is Dr. Sprehe's opinion that these events were not traumatic and not the reasons for the syndrome.
Dr. Sprehe maintained, however, that Donohoe can still be cured of these symptoms and estimated that treatment would require two years of weekly one-hour sessions at $125 an hour. Dr. Sprehe testified that without the recommended treatment, the symptoms would continue and affect Donohoe's ability to work and relate to other people. Dr. Sprehe also testified that suicide was a possibility if treatment was not continued.
Donohoe had legal expenses of $5,250 for his criminal defense and psychiatric expenses of $855 to the date of trial.
CONCLUSIONS OF LAW
A. Plaintiff's Claims Generally
Malicious prosecution and abuse of process are state torts involving a misuse of the legal process.
Malicious prosecution is the filing of either a criminal or civil proceeding against another without probable cause and with malice. To establish the tort of malicious prosecution, a plaintiff must prove the following elements: 1) the malicious institution *1517 of a prior proceeding against the plaintiff by the defendant; 2) the lack of probable cause for the filing of that prior suit; 3) the termination of that prior proceeding in the plaintiff's favor; 4) the seizure of the plaintiff's person or property during the course of the prior proceeding; and 5) injury or damages suffered by plaintiff as a result. Crawford v. Euclid National Bank, 19 Ohio St.3d 135, 483 N.E.2d 1168 (1985).
Probable cause exists when a defendant had a reasonable ground of belief, supported by trustworthy information and circumstances known to the defendant which would be sufficiently strong to cause a reasonably careful person, under similar circumstances, to believe that the prior proceedings and method of presenting the action were reasonable and lawful. Melanowski v. Judy, 102 Ohio St. 153, 156, 131 N.E. 360 (1921), citing Ash v. Marlow, 20 Ohio 119 (1951); see also Epling v. Pacific Intermountain Express Co., 55 Ohio App.2d 59, 379 N.E.2d 239 (1977).
A person has probable cause to believe and act if a reasonable person would have so believed and acted. Id.
The return of an indictment by the grand jury is evidence of probable cause; when an indictment has been returned by the grand jury, the plaintiff has the burden of producing substantial evidence to establish lack of probable cause. Adamson v. The May Co., 8 Ohio App.3d 266, 268, 456 N.E.2d 1212 (1982); Epling, 55 Ohio App.2d at 62, 379 N.E.2d 239; see also Hruska v. Severance Speciality, Inc., 498 F.2d 796, 802 (6th Cir.1974). Plaintiff must produce evidence to the effect that the return of the indictment resulted from perjured testimony or that the grand jury proceedings were otherwise significantly irregular. Adamson, 8 Ohio App.3d at 268-69, 456 N.E.2d 1212. In determining lack of probable cause, the defendant's conduct should be analyzed in view of his situation and the facts and circumstances which he knew or was reasonably chargeable with knowing at the time he made the original complaint. Melanowski, 102 Ohio St. at 156, 131 N.E. 360.
If the defendant had probable cause to believe that plaintiff committed the crime as charged in the complaint, the signing of that complaint by the defendant is lawful, even though it may later be discovered that the plaintiff did not commit the crime or that the resulting proceedings were unjust and improper. Id.
Abuse of process is a state tort defined as the employment of legal process for some purpose other than that which it was intended by law to effect. Clermont Environmental Reclamation Co. v. Hancock, 16 Ohio App.3d 9, 474 N.E.2d 357 (1984). See Jennings v. Shuman, 567 F.2d 1213, 1218 (3d Cir.1977). In other words, abuse of process is the use of legal process for an ulterior purpose; the invalidity or validity of the issuance of process is immaterial; it is the ulterior or improper purpose for which the process is used which is the basis for the cause of action.
To establish the tort of abuse of process, a plaintiff must prove the following elements: 1) the defendant used legal process for an ulterior purpose; 2) the defendant intentionally or willfully committed some further act in the use of the process which was not proper in the regular conduct of the initiated proceeding and 3) the plaintiff was directly injured or damaged by the wrongful use of process for the ulterior purpose. Clermont Environmental Reclamation, 16 Ohio App.3d at 11, 474 N.E.2d 357.
Abuse of process does not lie for the wrongful bringing of an action, but does lie for the perversion or "abuse" of the process after the issuance. Id.
The significant distinction between these two causes of action is the point at which malice becomes involved in the prior proceeding. See Jennings, 567 F.2d at 1218. If a defendant maliciously caused process to issue without probable cause, the plaintiff will have a claim sounding of malicious prosecution. If a defendant had probable cause to have process issued and later misuses that process, the plaintiff will have a claim sounding of abuse of process.
*1518 A claim for abuse of process may also arise when a defendant misuses any process which was illegitimately issued. Abuse of process occurs when one perverts the original process for some purpose outside the scope of its legal limits. Thus, malicious prosecution lies when one has malice in initiating a suit and malice is present before process issues; abuse of process lies when one misuses the process and injects malice after the process issues.
A second point of distinction between these two causes of action lies in the justification and the use of process. See Jennings, 567 F.2d at 1218-19. The issuance and use of process can be either legitimate or illegitimate. In establishing a cause of action for abuse of process, whether the initial institution of the prior proceedings was legitimate or illegitimate is not relevant. When process is used legitimately or justifiably and that process is later put to an improper use, an element of a claim for abuse of process has been established. If process is issued illegitimately or unjustifiably but is properly used within the limits of that initial writ, an element of a claim for malicious prosecution is established but not an element of a claim for abuse of process, as the use to which the writ was put is the purpose for which that process was intended. On the other hand, if the initial process is unjustified and that process is later used in an improper fashion, an element of both malicious prosecution and abuse of process has been established.
B. Plaintiff's Claim for Malicious Prosecution
1. The first element malicious institution of a prior proceeding against plaintiff by defendant.
Defendant admits filing a criminal complaint charging plaintiff with grand theft. As to the "malicious" element, the Ohio Supreme Court in Melanowski, held:
In actions for malicious prosecution, while malice is an essential element, the want of probable cause is the real gist of the action. If want of probable cause be proven, the legal inference may be drawn that the proceedings were actuated by malice.
Melanowski, 102 Ohio St. at 155, 131 N.E. 360; see also Skarbinski v. Henry H. Krause Co., 378 F.2d 656 (6th Cir.1967).
Malice is an attitude or state of mind that makes a person knowingly do an act for an improper or wrongful purpose. It includes a wrongful act, intentionally done and without probable cause. It also includes an intent to annoy or injure another, although ill will or personal hostility are not required. Skarbinski, 378 F.2d at 658.
Malice may, but need not be, inferred from the absence or lack of probable cause, but a bare showing of malice will not, in turn, permit an inference of lack of probable cause. The existence of malice is determined from all the facts and circumstances in the evidence. Melanowski, 102 Ohio St. at 155-156, 131 N.E. 360; Detling v. Chockley, 70 Ohio St.2d 134, 436 N.E.2d 208 (1982).
More than four years elapsed between the use of Burd's guaranty and Burd's complaint to the prosecutor alleging its improper use by Donohoe. At the time of his complaint, Burd knew of Markin Tool's bankruptcy and knew that Donohoe got money to pay off bad checks when faced with criminal prosecution. Burd also knew that Donohoe had strong reasons to file for personal bankruptcy. Burd knew that the bankruptcy of Donohoe and Markin Tool would cause him to lose all chances of recouping his unsecured claim for $180,000. Burd knew his only chance to recoup was to resort to the criminal prosecution of Donohoe which he instituted to collect a dischargeable debt from Donohoe which Donohoe was unable to pay.
Burd's signing of the criminal complaint against Donohoe for the purpose of collecting an otherwise uncollectable personal debt satisfies the first element of plaintiff's claim for malicious prosecution the malicious institution of a prior proceeding against plaintiff by defendant.
*1519 2. The second element lack of probable cause for the filing of the prior suit.
Evidence that plaintiff was bound over to the grand jury and was indicted by the grand jury creates a rebuttable presumption of probable cause. The return of an indictment does not, however, conclusively establish probable cause. Epling, 55 Ohio App.2d at 62, 379 N.E.2d 239; see also Adamson, 8 Ohio App.3d at 269, 456 N.E.2d 1212. In Adamson, the Court held:
A contrary rule would change the elements of this action and exclude recovery in any case where there has been a bind-over order or an indictment, regardless of its fanciful or unfounded source. The ability to rebut probable cause presumed from an indictment is particularly significant, since the grand jury's evidence is usually secret and beyond the plaintiff's reach. If the probable cause presumption were not rebuttable, a truly malicious accusor could lie at the preliminary hearing or the grand jury sessions and thereby obtain a bind-over order or an indictment which screened him from civil liability for his malicious prosecution.
Adamson, 8 Ohio App.3d at 269, 456 N.E.2d 1212.
Burd's complaint to the prosecutor and subsequent testimony was to the effect that Donohoe, with the requisite criminal intent and culpability, used Burd's guaranty beyond the authority given to Donohoe by Burd. The undisputed evidence establishes that it was Burd, himself, who gave his guaranty to the Ceredo Bank on the same day the loan was closed on November 20, 1981. When Burd signed his guaranty, the money was paid out on the loan. The evidence preponderates that at this point, Burd's guaranty was required by the bank to secure the loan and Burd knew he was committed as a guarantor; that the transaction on December 2, 1981 was not a second loan as no other funds were paid out on December 2, 1981; but that the December 2, 1981 transaction was a completion of the paperwork of the November 20, 1981 loan.
On December 2, 1981, Burd was still considering his status as an investor. The earliest time by which anyone could possibly know that Burd was not going to be an investor was his bill for legal services dated December 3, 1981, after the bank used his personal guaranty to pay out the loan proceeds on November 20, 1981. Burd's use of the hold-harmless agreements with the other investors makes it clear that he knew the bank would not release his guaranty as the bank was not a party to the hold-harmless agreements, and he knew the bank would look to him as a guarantor until the money disbursed on November 20, 1981 was re-paid; the bank, not Donohoe, considered that Burd was a guarantor on this loan and the bank, not Donohoe, was the only party with the authority to release Burd from his personal guaranty. Burd knew and understood this. The fact that Burd drafted two hold-harmless agreements substantiates the extent of his knowledge and understanding of the situation.
At the time Burd signed the complaint and made the statement, Burd had been a practicing attorney for 10 years and a Judge for four years. As a judge, Burd was frequently required to make probable cause determinations under Ohio Rev.Code § 2913.02 and actually made probable cause determinations on cases prosecuted by Prosecutor Meyers and his assistants.
A private person giving information to a public official or prosecutor of which that official is ignorant, in the malicious prosecution context, does not cause the initiation of the proceedings if it is left to the official's uncontrolled discretion to initiate the prosecution. Archer v. Cachat, 165 Ohio St. 286, 135 N.E.2d 404 (1956). If, however, the information is known by the private person to be false, an intelligent exercise of the prosecutor's discretion becomes impossible. The private person is responsible for the initiation of criminal proceedings if his expressed direction, request or pressure of any kind was the determining factor in the prosecutor's decision to commence the prosecution or the information furnished by him upon which the prosecutor *1520 acted was known to the private person to be false. Id.
In addition, the attorney giving the advice must have been impartial and disinterested in order for the advice to serve as a defense and there must be good faith in seeking the advice. Conant v. Johnson, 1 Ohio App.2d 133, 136, 204 N.E.2d 100 (1964), citing Ash, 20 Ohio 119. The advice of counsel cannot be used as a subterfuge to shield a defendant from liability for the institution of an entirely groundless suit and cannot be a defense if the defendant obtained the advice for the mere purpose of protection.
Advice of a lawyer is a complete defense to an action for malicious prosecution if the defendant made a full, fair and complete disclosure to the lawyer of all the material facts of which the defendant had knowledge, necessary to obtain accurate legal advice, and tending to prove or disprove the criminal charge, and if the criminal case was filed thereafter in reliance and in good faith on the advice of that lawyer. Killilea v. Sears, Roebuck & Co., 27 Ohio App.3d 163, 168, 499 N.E.2d 1291 (1985); Reenan v. Klein, 3 Ohio App.3d 142, 444 N.E.2d 63 (1981); Bacon v. Patera, 772 F.2d 259 (6th Cir.1985).
Burd failed to disclose accurately all of the facts to the prosecuting attorney, particularly that his purpose was to collect a personal debt from Donohoe. Thus, he is not entitled to the defense that he acted in reliance on the advice of the prosecuting attorney. Rather, the evidence preponderates that Burd instituted the criminal proceeding without probable cause. The second element of plaintiff's claim for malicious prosecution the lack of probable cause for the filing of the prior suit is satisfied.
3. The third element termination of the prior proceeding in plaintiff's favor.
The general rule is that settlement and compromise defeats a malicious prosecution action. When the settlement and compromise involves a payment of money by a plaintiff to the defendant, however, the trier of fact must determine whether the payment was a full compromise and settlement and voluntarily made as such. See Curls v. Lenox Garage Co., 68 Ohio App. 285, 40 N.E.2d 213 (1941). This exception articulates sound reasoning as a person who uses the threat of the criminal process to extort money should not be able to use the fact that the extortion was successful to defeat a claim for malicious prosecution.
The reasoning behind the general rule, however, that settlement and compromise defeats an action for malicious prosecution, is especially significant. It is important to recognize the primacy of the third element of malicious prosecution termination of the prior proceeding in plaintiff's favor.
It is important to understand that restitution is a legitimate and purposeful end of the criminal justice system. If a party, such as this plaintiff, decides, with advice of competent counsel acting in his best interest, that it is more beneficial or less troublesome to forego what he perceives to be an impropriety and to pay restitution rather than to rely on the judicial process to decide the issue, then that is that plaintiff's choice and right. He cannot, however, then proceed as if the error or proceedings had been finally determined in his favor.
By the settlement this plaintiff has deprived the judicial branch of government of the opportunity to examine and resolve issues or errors in his case. This settlement has denied the judicial system, from the municipal court, common pleas court, state court of appeals, state supreme court, federal court, federal court of appeals to the United States Supreme Court, the opportunity to justly determine the prior proceedings and to decide and resolve any improprieties. Here, the parties, by settlement, not the courts, fixed the nature and terms of the determination of the prior proceedings.
Donohoe had 21 years of experience in the United States Air Force, retired as a Colonel, had wartime experiences, and witnessed murders and hangings. He lived *1521 in Korea and Vietnam. As a civilian, he was a successful banker and businessman. He had been arrested before this incident and had entered into a settlement and compromise which resulted in the dismissal of the criminal charges pending against him after he paid off his bad checks.
While Donohoe had been arrested by a deputy named Burd and spent 48 hours in jail waiting for bond to be set, he knew the nature of the charge against him and was represented by a competent lawyer. Donohoe entered into the settlement and paid the $17,500 on the advice of his lawyer. The charges were dismissed. Donohoe was aware of all his legal rights at the time he entered into the settlement and the charges were dismissed. The Court concludes that the payment of $17,500 to Burd by Donohoe's daughter on her father's behalf and the resultant dismissal of the charges was a voluntary compromise and, therefore, finds that the prior criminal proceedings were not terminated in favor of plaintiff. Under the particular facts of this case, this Court concludes that plaintiff has not met his burden of proof on the third element of his malicous prosecution claim that the prior suit was terminated in his favor. Therefore, plaintiff's cause of action for malicious prosecution is dismissed on its merits.
C. Plaintiff's Claim of Abuse of Process
1. The first element use of the legal process by defendant for an ulterior purpose.
It is a well recognized principle that the use of criminal process in the court system in an effort to collect a civil debt will support an action for abuse of process. Restatement of Torts Second § 682; 27 A.L.R.3d 1202, Use of Criminal Process to Collect Debt as Abuse of Process, Section 3.
A criminal prosecution is intended to bring a person who has committed a crime to justice and not to aid in the collection of a civil debt; therefore, an arrest with the objective of forcing payment of money is a perversion of the objective intended by the law. See, 27 A.L.R.3d 1202, § 3; see also 1 Am.Jur.2d, Abuse of Process, §§ 14-15.
Burd, as an attorney, should be especially aware of the Code of Ethics which governs his profession and the significant concerns of the legal system as set out in EC 7-21:
The civil adjudicative process is primarily designed for the settlement of disputes between parties, while the criminal process is designed for the protection of society as a whole. Threatening to use, or using, the criminal process to coerce adjustment of private civil claims or controversies is a subversion of that process; further, the person against whom the criminal process is so misused may be deterred from asserting his legal rights and thus the usefulness of the civil process in settling private disputes is impaired. As in all cases of abuse of judicial process, the improper use of criminal process tends to diminish public confidence in our legal system.
Burd personally guaranteed a bank loan which cost him $17,500 on default. Thereafter, Burd sued Donohoe and Markin Tool on two hold-harmless agreements. When he demanded payment from Donohoe, Donohoe did not deny owing the money but could not pay. When Donohoe notified the creditors of Markin Tool and filed Chapter 11 bankruptcy, Burd was one of the creditors listed and Burd's civil suit against Donohoe was stayed. Burd then filed criminal charges against Donohoe to collect the $17,500 debt that was otherwise uncollectible. Significantly, Burd did not file criminal charges against Markin who actually used and benefited from Burd's guaranty and who also signed as a co-guarantor on the loan and as a party to Burd's hold-harmless agreements. Plaintiff has proven the first element of his claim for abuse of process that defendant used the legal process for an ulterior purpose.
2. The second element intentional further improper acts by defendant in the use of the process.
After the process was issued, Burd made it clear to the prosecutor and to Donohoe *1522 and his attorney that he did not want to see Donohoe go to jail, but that Burd only wanted to recover the $17,500 debt from him. Thereafter, with the knowledge that Donohoe had paid to dismiss previous criminal charges, and with the belief that Donohoe would do the same, Burd refused to accept time payments and insisted on full payment in exchange for dismissal of the charges. Significantly, Burd did not take this course of action against Markin or Iqbal. Further, he failed to inform the prosecutor of the nature of the civil suit he had filed against Donohoe which was stayed due to Donohoe's bankruptcy proceedings. Plaintiff has proven the second element of his claim for abuse of process that defendant intentionally and willfully committed further improper acts after the criminal proceedings were instituted.
D. Damages
Plaintiff is entitled to the amount of money which will reasonably compensate him for the actual damages he sustained as a proximate result of the abuse of process; in determining these compensatory damages, the Court may consider plaintiff's mental and/or physical suffering, if any, loss of earnings and expense, medical expense, embarrassment, humiliation, and loss of personal property or freedom. Plaintiff may only recover those damages which naturally resulted from the defendant's wrongful acts and this Court cannot consider remote, indefinite or speculative injuries or damages.
Based upon the foregoing, this Court finds that plaintiff is entitled to $5,250 for his expenses in defending himself against the felony theft charge and finds that plaintiff suffered nominal compensatory damages from the abuse of process in the amount of $1,000.00. The Court rejects the opinion of Dr. Sprehe because plaintiff failed to supply significant relevant history to this medical expert and did not contact the doctor until after this suit was filed. Further, Donohoe has not followed the doctor's advice of getting regular treatment and only saw the doctor three times over the 13 month period following his initial visit.
The Court finds that the injury and damage claimed by plaintiff to be a direct and proximate result of defendant's wrongful acts have been exaggerated and do not extend to the degree necessary for future psychiatric care. The Court finds that a reasonable person could and would have recovered from the trauma of these events upon his release from jail and that, under these particular circumstances, plaintiff's emotional instability cannot, with any amount of certainty or probability, be attributable to the defendant's wrongful acts. Plaintiff had been arrested previously and, while the nature of the one known arrest is distinguishable from the grand theft arrest, plaintiff's experience in that regard must be considered. Further, the Court also considers plaintiff's experience during his military service in Vietnam and Korea to be significant with regard to his emotional state. It is more probable than not that his claimed emotional stress injuries resulted from his financial problems, loss of business and war experiences rather than any act of Burd.
The Court concludes that the total amount of actual compensatory damages to which Donohoe is entitled to recover from Burd is $6,250.00.
As to the issue of punitive damages, the Ohio Supreme Court has stated in the syllabus in Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174 (1987) that actual malice is necessary for an award of punitive damages:
Actual malice, necessary for an award of punitive damages, is (1) that state of mind under which a person's conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm. (emphasis in original).
Id. at syllabus paragraph 1.
Further, the syllabus in Davis v. Tunison, 168 Ohio St. 471, 155 N.E.2d 904 (1959) states that:
*1523 Actual malice may be inferred from conduct and surrounding circumstances, such as malicious prosecution of one wantonly, recklessly and without justification, but there must be evidence from which such malice can reasonably be inferred to justify punitive in addition to compensatory damages.
Id. at syllabus paragraph 2.
The Ohio Appellate Court in Curls specifically addressed the propriety and reasoning behind punitive damages in actions for malicious prosecution:
The [trier of fact] might well believe, under the evidence, that there was insufficient investigation and that the arrest was to accomplish a private end, not connected with the public good. If the [trier of fact] so believed, it would be sufficient to indicate malice in the prosecution and, therefore, punitive damages would be recoverable.
Curls, 68 Ohio App. at 288, 40 N.E.2d 213.
Based upon the foregoing Findings of Fact and Conclusions of Law, the Court finds that the facts in this case justify an award of punitive damages under the applicable Ohio law. While punitive damages are generally justified when one commits malicious prosecution, such should not always be the case when one commits abuse of process. In this case, however, defendant's abuse of the legal process involved a conscious disregard for the rights and safety of the plaintiff when defendant was aware that his acts had a great probability of causing substantial harm to plaintiff. For one who is a sworn officer of the courts as an attorney to abuse the criminal process for the purpose of collecting a private debt is especially shocking and outrageous.
Punitive damages are an exception to the general rule of compensation for injury, and may be awarded as punishment and to discourage the commission of similar acts. The amount of punitive damages must be fair and reasonable under all the facts and circumstances of the case and cannot be excessive or actuated by passion or prejudice.
Accordingly, upon consideration of the facts and circumstances of this case, the Court finds that justice requires that punitive damages in the amount of $18,000.00 be assessed against defendant Burd.
E. Conclusion
Based upon the foregoing, judgment is hereby entered in favor of plaintiff Paul J. Donohoe and against the defendant Charles L. Burd and plaintiff is awarded $6,250.00 plus reasonable attorneys fees for actual compensatory damages, and $18,000.00 punitive damages for a total amount of $24,250.00 plus interest from the date of judgment, reasonable attorneys fees and costs. The Clerk of Courts is DIRECTED to enter final judgment herein accordingly.
IT IS SO ORDERED.
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 95-6772
FRANKIE L. BATTLE,
Plaintiff - Appellant,
versus
VIVIAN REYNOLDS, individually and in her offi-
cial capacity as jailhouse chief supervisor
officer of Marion County jailhouse in the city
of Marion County within the state of South
Carolina; HOWARD GELESPY; KENNY DAVIS; THOMAS
S. PAYNE, III; DOCTOR DERWELL; DOCTOR BECK;
DOCTOR BLANTON; SAMUEL J. FRIEDMAN; J. NURSE;
MARION COUNTY, individually and in their
official capacity as a municipal corporation
organized under and pursuant to the laws of
the state of South Carolina; MARION COUNTY,
Jailhouse Supervisors in offices or commis-
sioner, individually and in their official
capacity as the local governing entity policy
maker of South Carolina and in their super-
visory roles for the county of Marion, South
Carolina,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Henry M. Herlong, Jr., District
Judge. (CA-94-2254-20-AJ)
Submitted: February 7, 1996 Decided: February 21, 1996
Before MURNAGHAN and WILLIAMS, Circuit Judges, and PHILLIPS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Frankie L. Battle, Appellant Pro Se. L. Hunter Limbaugh, WILLCOX,
MCLEOD, BUYCK, BAKER & WILLIAMS, P.A., Florence, South Carolina,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals the district court's order dismissing his
claim of negligence and allowing Appellant to amend his complaint
in this 42 U.S.C. § 1983 (1988) action. We dismiss the appeal for
lack of jurisdiction because the order is not appealable. This
court may exercise jurisdiction only over final orders, 28 U.S.C.
§ 1291 (1988), and certain interlocutory and collateral orders. 28
U.S.C. § 1292 (1988); Fed. R. Civ. P. 54(b); Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541 (1949). The order here appealed is
neither a final order nor an appealable interlocutory or collateral
order.
We dismiss the appeal as interlocutory. 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.
DISMISSED
2
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294 S.W.3d 449 (2009)
Bill WILDER, Appellant,
v.
Savannah WILDER, Appellee.
No. 2008-CA-002289-MR.
Court of Appeals of Kentucky.
August 28, 2009.
*450 Gerald L. Greene, Pineville, KY, for appellant.
Shelli Desha Dunn Yoakum, Middlesboro, KY, for appellee.
Before LAMBERT and STUMBO, Judges; HENRY,[1] Senior Judge.
OPINION
LAMBERT, Judge.
This is an appeal from an order to distribute marital funds entered by the Bell Circuit Court seven months after that court entered the parties' final divorce decree. Appellant Bill Wilder claims the trial court did not have jurisdiction to enter an order dividing the parties' marital property more than ten days after the entry of the final decree. Appellee Savannah Wilder defends the order, arguing the trial court was within its authority to grant her relief under Rule 60.02 of the Kentucky Rules of Civil Procedure ("CR"). Upon careful review, we agree with Appellee and thus, affirm.
This contested divorce case began in May 2007 when Savannah Wilder filed for divorce after more than ten years of marriage. Two volumes of legal pleadings as well as depositions followed the initial petition for divorce. On April 30, 2008, the trial court entered its final findings of fact, conclusions of law, and decree of dissolution of marriage. In that decree, the trial court attempted to equitably divide the parties' property as well as determine child custody, child support, and maintenance between the parties. As well as could be accomplished, the trial court divided the parties' tangible property equally.
According to the record, the parties filed a joint 2007 year tax return and received a refund which they split evenly. Several months after the final divorce decree was entered in April 2008, Appellant received a stimulus payment from the U.S. government in the amount of $1,800. See 26 U.S.C. § 6428(b) & (e) (2008). According to the Internal Revenue Service's ("IRS") website, stimulus payments received in 2008 were based on information contained on each citizen's 2007 tax return. Stimulus payments were made for each member of a family who met the following qualifications: (1) each family member filed or was listed as a dependent on the family's tax return; (2) the family had at least $3,000 in qualifying income in 2007; and (3) each family member had a valid social security number. In this case, the Wilder family met the above qualifications. As joint filers, Appellant and Appellee were allocated $1,200. Also, with two children, the Wilders were allocated an additional $300 for each qualifying child, for a total of $1,800.
On October 30, 2008, Appellee filed a motion with the trial court to compel Appellant to share the stimulus funds received by him as these funds were based *451 on information and income set forth on the parties' 2007 joint tax return and were intended to be used by the family for the purpose of stimulating the economy. As further support for her motion, Appellee argued that it was not possible to have divided or anticipated these stimulus funds at the time of the final divorce decree as the payment had yet to be distributed or received at that time.
After hearing arguments of counsel, the trial court entered an order distributing marital funds on November 26, 2008. In that order, the trial court ordered Appellant to meet Appellee at Commercial Bank in Pineville, Kentucky, within ten days of entry of the order so that the stimulus check could be signed by each party, cashed, and distributed equally between them. From this order, Bill Wilder now appeals to this Court.
On appeal, Appellant makes two arguments. First, Appellant argues the trial court had no jurisdiction to divide the parties' marital property more than ten days after entry of the parties' final divorce decree. Second, Appellant claims that even if the trial court had jurisdiction to divide the stimulus funds received by him, the trial court erred in sharing any portion of these funds with Appellee. For the reasons set forth herein, we find both of Appellant's arguments to be without merit and thus, affirm the trial court's order to distribute the parties' marital funds.
In his first argument, Appellant claims the trial court had no jurisdiction to divide their marital property seven months after the final divorce decree was entered. Appellant cites CR 52.02, which allows the trial court to amend its findings not later than ten days after entry of judgment, and CR 60.01, which permits relief only upon discovery of a clerical mistake in the judgment. Appellant further cites an unpublished case wherein this Court vacated a CR 60.02 order by the Bell Circuit Court that attempted to correct the court's error in neglecting a claim for maintenance in the original divorce decree. Jones v. Jones, 2005 WL 387121 (Ky.App.2005).
Appellee counters that her motion for relief from judgment was properly made under CR 60.02 and that the trial court was well within its discretion to grant her relief under that rule. Upon careful review, we agree with Appellee that the trial court did not abuse its discretion in granting her CR 60.02 relief.
Actions under CR 60.02 are addressed to the "sound discretion of the court and the exercise of that discretion will not be disturbed on appeal except for abuse." Richardson v. Brunner, 327 S.W.2d 572, 574 (Ky.1959). In U.S. Bank, NA v. Hasty, 232 S.W.3d 536 (Ky.App. 2007), this Court explained the nature of CR 60.02 proceedings as follows:
CR 60.02 "is designed to provide relief where the reasons for the relief are of an extraordinary nature." A very substantial showing is required to merit relief under its provisions. Moreover, one of the chief factors guiding the granting of CR 60.02 relief is the moving party's ability to present his claim prior to the entry of the order sought to be set aside.
Id. at 541-42 (internal citations omitted).
In Kurtsinger v. Board of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454 (Ky.2002), our Supreme Court explained that CR 60.02 "is designed to allow trial courts a measure of flexibility to achieve just results and thereby `provides the trial court with extensive power to correct a judgment.'" Id. at 456 (quoting Fortney et al. v. Mahan, et al., 302 S.W.2d 842, 843 (Ky.1957)). In this case, Appellee was unable to present her claim prior to the entry of her final divorce decree because *452 the stimulus payment had yet to be distributed by the IRS at that time. Moreover, it is safe to say that the making of such a payment by the U.S. government was not a routine or customary practice that ought to have been anticipated by either party.
Appellant neither presents evidence nor does he argue that the making of this payment by the U.S. government was foreseeable or fairly discoverable at the time of the parties' final divorce decree. In any event, even if it was, the record reflects that the parties divided and shared the tax refund received from the parties' 2007 tax return without court intervention. Thus, it was not unreasonable for the trial court or Appellee to believe that the same would be done with any future refunds or payments stemming from this joint return. Upon careful review of the evidence and the record, we find no abuse of discretion in the trial court's reopening of the parties' divorce decree for the entry of an order dividing and distributing the parties' stimulus payment received from the federal government after the entry of this decree.
The unpublished case of Jones v. Jones, supra, has no application to this case for two reasons. First, the trial court in Jones granted relief under CR 60.02 on its own initiative, which is not contemplated under this rule. Id. at 1. Second, that case was based on an error made by the trial court that could have been corrected within ten days of entry of judgment under CR 52.02. Id. Neither of those two circumstances existed in this case and thus, Appellant's citation to this unpublished case is not persuasive.
Appellant next argues that even if the trial court was within its authority to enter a CR 60.02 order in this case, the court erred in finding that the stimulus payment was marital property and in sharing any portion of the funds with Appellee. Citing both Kentucky Revised Statutes (KRS) 403.190 and Shively v. Shively, 233 S.W.3d 738 (Ky.App.2007), Appellant contends that since Appellee was not working outside of the home during 2007, she is not entitled to any funds that may have stemmed from the parties' joint 2007 year tax return. In other words, since all of the income on the parties' joint return was produced by Appellant, he should keep the entirety of the stimulus payment. Having no basis in law or equity, we reject Appellant's arguments as being completely without merit.
"On appellate review of a trial court's ruling regarding the classification of marital property, we review de novo because the trial court's classification of property as marital or non-marital is based on its application of KRS 403.190; thus, it is a question of law." Heskett v. Heskett, 245 S.W.3d 222, 226 (Ky.App.2008). However, the trial court's distribution of marital property is reviewed under an abuse of discretion standard. Herron v. Herron, 573 S.W.2d 342, 344 (Ky.1978). In dividing marital property, the trial court must consider several factors including the contribution of each spouse to the acquisition and maintenance of the marital property. KRS 403.190.
In this case, Appellant does not dispute the fact that the stimulus check received by him after entry of the final divorce decree was based on information contained in and income reported on the parties' joint 2007 tax return. Moreover, he further does not dispute that this check was made payable to both parties. While the check was physically sent to Appellant after entry of the parties' final divorce decree, in view of these unique circumstances, we hold that the funds were nonetheless generated from the marital estate and thus, they were fairly classified as marital property by the trial court. In any *453 event, even if the funds were not marital property we hold that these funds were nevertheless the joint property of both parties. See KRS 403.190(1) (trial court shall assign "each spouse's property to him").
As for the distribution of this property, marital or non-marital, we find absolutely no abuse of discretion in the trial court's equal division of this property between the parties. In the very case Appellant cites as support for his argument that Appellee should be denied any portion of the stimulus payment, this Court noted:
that the "contribution of a spouse as a homemaker" does not necessarily cease when the other spouse leaves, especially when minor children remain with the homemaker-spouse. Although she may no longer be providing services directly to her spouse, she may be assisting him by caring for his children, thus continuing to enhance to some degree his ability to earn a living.
Shively, 233 S.W.3d at 740 (quoting Stallings v. Stallings, 606 S.W.2d 163, 164 (Ky. 1980)).
Further, the stimulus payment was assigned to each member of the family, not just the "income earner" as Appellant contends. This was of course evident by the fact that the stimulus check was made payable to both parties and could not be cashed without both of their signatures. Accordingly, we find no error in the trial court's distribution of the stimulus check funds equally to each party.
For these reasons, we affirm the Bell Circuit Court's November 26, 2008, order distributing marital funds.
ALL CONCUR.
NOTES
[1] Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
|
11 Cal.App.2d 287 (1936)
AXEL SKOGLUND, Respondent,
v.
MOORE DRY-DOCK COMPANY (a Corporation), Appellant.
Civ. No. 9643.
California Court of Appeals. First Appellate District, Division One.
January 20, 1936.
Bronson, Bronson & Slaven, John H. Painter and Kirke La Shelle, Jr., for Appellant.
Alvin Gerlack for Respondent.
The Court.
This is an appeal by the defendant from a judgment entered upon the verdict of a jury awarding plaintiff the sum of $4,000 for personal injuries suffered on the premises of defendant.
A number of points are urged in support of the appeal, namely, that the judgment is not sustained by the evidence but is contrary thereto; that the trial court erred in denying defendant's motions for nonsuit, directed verdict and judgment notwithstanding the verdict, and that the court committed error prejudicial to the defendant in permitting plaintiff to repudiate a stipulation of fact.
The position of appellant on these several points, except the one last mentioned, is based upon the argument that the evidence shows beyond dispute that the plaintiff, in entering and being upon the premises of defendant was a licensee, to whom it owed no duty except to abstain from wilfully or wantonly injuring him; and that even if he should be regarded as an invitee, to whom it would owe the duty of ordinary care for his safety while on that portion of its premises where he had a right to be, the evidence shows that such care was in fact exercised by it, and also shows that the plaintiff himself was guilty of lack of ordinary care for his own safety which proximately contributed to his injury. *290
[1] A general verdict for the plaintiff imports a finding in his favor on all the averments of the complaint material to his recovery (Price v. Bekins Van & S. Co., 179 Cal. 326 [176 P. 452]), so it is apparent that we have here present implied findings that the plaintiff's injuries, if he be regarded as a licensee, were wilfully or wantonly caused by defendant; or, if as an invitee, that they were the result of defendant's lack of ordinary care, with no contributory negligence on plaintiff's part.
[2] In the determination of a motion for nonsuit it is the court's duty to resolve in plaintiff's favor all conflicts of evidence and to give him the benefit of all legitimate inferences therefrom. That being done, if it can then be said that there is in the case no evidence of sufficient substantiality to support a judgment in plaintiff's favor the nonsuit must be granted, otherwise denied. The same rule with respect to the effect to be given the evidence applies in favor of the party against whom they are made in a motion for a directed verdict and a motion for judgment non obstante veredicto (Estate of Caspar, 172 Cal. 147 [155 P. 631]). We will set forth the material evidence as affected by this general rule.
The plaintiff, a man about 52 years of age, is a marine fireman and had followed that occupation for some thirty years, during which time he had on a number of occasions been with his ship in dock and shipyards and knew the general character of operations carried on there. He was so employed as a member of the crew of the steamer "Vanguard", which on Saturday, December 24, 1932, entered the shipyard of the defendant situated on the north side of Oakland estuary, going there for repairs estimated to require about a week's stay. At about 5 o'clock in the evening of said day the crew, including plaintiff, were paid off, and the plaintiff was ordered by the chief engineer to report for duty at 8 o'clock the following Tuesday morning, the two intervening days being holidays. On leaving he mentioned to his chief that he would return on board Monday evening, to which suggestion or request the latter assented. The plaintiff then left the ship and went to San Francisco and there to a lodging house which he frequented during periods of unemployment, leaving on board in his berth his clothes, trunk and belongings. Defendant's shipyard covers an area of forty acres, is surrounded on three sides by a fence, the fourth side being the *291 waterfront, and contains wharves, docks, drydocks, buildings, shops, heavy machinery and appliances, piles of material, etc., such as are characteristic of a shipyard. The "Vanguard" was berthed on the west side of wharf No. 6, and on leaving it on said Saturday evening the plaintiff walked to the exit or entrance gate situated at the northwest corner of the yard. We may here say parenthetically that the appellant strenuously insists that the vessel was berthed on the west side of wharf No. 5; but in the view we take of the case it makes no difference. Referring plaintiff's testimony to a diagram of the shipyard used on the trial and forming part of the record on appeal, the plaintiff on his way from the ship to the gate passed between two buildings--one the yard offices and the other the paint shop, which brought him into an alley running east and west at a point thereon which for the purpose of this opinion we will designate as A; he there turned west and proceeded until he reached a way running northerly and southerly between the plate shop and the storeroom and (without describing further points on the route) he reached the exit and proceeded to San Francisco, where he spent Sunday and Monday, returning in the evening of the latter day and arriving at the shipyard gate at about 7:45. The sky was overcast. At the entrance he was challenged by the gateman, but on stating that he belonged to the "Vanguard" he was allowed to pass in. To get to his ship he attempted to retrace his steps taken on his walk to the exit on Saturday evening, but when he arrived at the point which we have designated A on the alley running easterly and westerly, instead of turning south and going between the yard offices and the paint shop he continued along said alley. Reaching its end he took a course southeasterly, which brought him to the head of wharf No. 7. He proceeded down this wharf, and when perhaps halfway down he discovered, apparently for the first time, that he had missed his way. At this time he had walked a distance of about 500 feet from point A. He immediately turned and attempted to retrace his steps. In doing so he did not proceed far enough to reach the alley we have spoken of, but at a point en route he veered east, then southeast, which brought him into a dark area. He was now proceeding in the general direction of his vessel but across lots, so to speak, and between him and his vessel there lay drydock No. 4, into which, stubbing his foot against a loose plank, lying near the *292 edge of the wharf, he was unfortunately precipitated, thereby receiving the severe injuries to recover damages for which he brought the present action.
[3] It is apparent from the foregoing that the plaintiff, either by reason of forgetfulness, carelessness or the insufficient lighting of the direct route from the shipyard entrance to his vessel, inadvertently left that route and wandered into dangerous territory. It is conceded by the appellant that if in going from the gate to his ship plaintiff was an invitee, it was its duty to provide him with a reasonably safe route between those points. It claims that it did so, and introduced evidence to that effect. However, one of the particulars of the charge of negligence against the defendant was that this route was insufficiently lighted; and one of the implied findings of the jury is that the charge of negligence in this respect was sustained. If the record contains evidence which supports this charge, even though reasonable men might differ as to its effect, this implied finding of the jury must stand.
The plaintiff himself gave testimony on this subject. Having testified to the presence of a light immediately south of the general offices near the entrance to the shipyard sufficient to illumine an area in its vicinity, he then testified respecting what has been designated in the record by defendant's counsel as the second leg of the course taken by plaintiff to reach his vessel, and over which he had to walk whether the ship was berthed at wharf No. 5, as contended by defendant, or at wharf No. 6, as insisted by plaintiff. We give the following passage from his testimony on this point:
"Q. (By defendant's counsel): Now there is a light on the northeast corner of the plate shop shown right up here. Do you see that light there (referring to diagram)? A. Yes. Q. That was lighted that night, wasn't it? A. No, no light there. Q. You are sure that light was not lit? A. Yes. Q. You looked up and saw there was no light there, didn't you? A. No but I could see no light there. Q. Now, what would you say as to there being a light right up directly over the southeast end of the plate shop there? That was lighted that night wasn't it? A. No sir, that wasn't lighted. Q. You are positive of that? A. Yes sir. Q. Did you go down this alley way between the storeroom and the power house and yard offices? Did you take that track down there? ... A. Yes. Q. You came past the plate shop and past this light *293 which you say was out? A. Yes. Q. And did you take this track down here? A. Yes. Q. And that was in darkness? A. Yes. Q. That same kind of darkness you described this morning when Mr. Gerlack was examining you? A. Well, you could see the outlines of the buildings."
And speaking again of the route taken by him from the shipyard entrance to point A he said: "I could see a little bit in front of me ... it was not so dark but I could see some"; and in this connection he also stated that the nearest light to point A was near the entrance gate and general office, which, according to the diagram introduced in evidence, was distant about 600 feet with buildings intervening.
Another witness, Bradley, a fellow employee of the plaintiff on board the "Vanguard", and who returned to the ship after dark on the same night that the plaintiff met with his mishap but reached it in safety, testified as to the route to be taken: "It was pretty dark."
There was, on the other hand, very positive and persuasive testimony introduced by defendant that the route to the vessel, whether it lay at wharf No. 6 or 5, was well lighted; but the rule is too well settled that the jury are the judges of the credibility of the witnesses and of the weight to be given their testimony for this court to say that the jury ought to have reached a different conclusion; and we think it apparent from the recital of plaintiff's testimony just given that it is sufficient to support the implied finding of the jury that the defendant did not observe ordinary care in furnishing to plaintiff in his capacity of invitee a safe route from the entrance to its shipyard to the vessel.
[4] We come to appellant's contention that even if it be conceded that the plaintiff in proceeding from the shipyard entrance to his vessel was an invitee, yet when he wandered from the direct route to his ship into another part of the yard he lost his character of invitee and became merely a licensee, to whom as such no duty was owed but to refrain from wilfully or wantonly injuring him; that the very character of a shipyard, with its wharves, and drydocks, and scattered buildings, heavy machinery, piles of material and the more or less disorderly condition of the premises arising from the nature of the activities there carried on, renders it a dangerous place for a person to be wandering around during the night, and that the qualities of wilfulness or wantonness cannot be attributed *294 to an injury suffered by such a person through tripping over a loose board lying on the ground adjacent to a dock.
This might be conceded to be true if the plaintiff's presence in this area was not due to the negligence of the defendant; but the implied finding of the jury that the plaintiff's presence there arose from the lack of sufficient illumination of his route to his ship, being, as we have seen, sustained by the evidence, this negligence on the part of defendant must be held to be the efficient and proximate cause of plaintiff's injuries, and not the act of accidentally stumbling over the board. Such stumbling with its resultant injury was a peril directly resulting from such negligence, and cannot be regarded as an intervening, independent cause of the injury, although the nearest and most direct in point of time (Cahill v. E. B. etc. Stone Co., 167 Cal. 126 [138 P. 712]). The elements of wilfulness and wantonness do not therefore enter into the case.
[5] The appellant also points out that if plaintiff's route to his vessel was insufficiently illuminated, this fact was as obvious to the plaintiff as to the defendant, and argues that he was therefore negligent in proceeding, and that such negligence bars his recovery; and it makes a similar contention regarding plaintiff's efforts in the darkness to find his ship when he found that he had strayed from his course.
But to reverse the judgment on that ground this court must hold that the plaintiff in acting as he did was negligent as a matter of law. This, obviously, we cannot do, for we think reasonable men might differ on the question whether a man of the age, condition and experience of the plaintiff should have proceeded as he did or, as suggested by appellant, ought to have returned to the gate-keeper and sought assistance or additional illumination.
[6] This still leaves for consideration the question whether the plaintiff was merely a licensee ab initio. It is argued by the appellant that in coming aboard the "Vanguard" on Monday night when he was only required to be at work at 8 o'clock on Tuesday morning he was doing so purely for his own purposes and convenience; that he ceased to be a member of the crew when he was paid off on Saturday afternoon, and that the order received by him from the chief engineer to resume work Tuesday morning was a reemployment, *295 to take effect at that time; that consequently if for his own convenience or pleasure he returned earlier he was until his duties recommenced but a licensee, to whom the defendant owed no duty of ordinary care.
It is conceded that if a member of the crew at this time he was as to the defendant an invitee (Bailey v. Texas Co., 47 Fed.2d 153). The contention of appellant as last set forth is, we think, based upon a very narrow and forced view of the situation. The chief engineer, plaintiff's immediate superior, was a witness in the case; and he testified that the plaintiff, though paid off on Saturday evening, was not laid off; that it was the same situation as of a man working on shore who would be paid his wages on Saturday and told to come back on Monday or Tuesday. It is not disputed that he was a member of the crew at the time he was paid off. If such payment terminated his employment he was immediately reemployed, and by accepting the employment he became obligated immediately to report for duty the following Tuesday, and thereby, we think, immediately resumed his former status. His clothes and belongings were on board in his berth and there remained. We think also that even if it could be held that he was not actually a member of the crew until he reported for duty, and the permission given him to come on board on Monday night be deemed a privilege accorded to him, it was one so obviously reasonable and in the interest of the employer that the owner of a shipyard who invites or solicits him to bring his vessel to his establishment for repairs should not be heard to say that a person standing in the relation to such owner as is here shown with regard to the plaintiff is not, in passing between his ship and the yard entrance, an invitee but a mere licensee.
[7] This leaves for consideration the final point made by the appellant, namely, that the court committed error prejudicial to it in permitting plaintiff to repudiate a stipulation of fact.
On this point the record shows that prior to the trial the deposition of Andrew Proebstel, the chief engineer already referred to, was taken on behalf of the plaintiff. The latter's attorney of record was not able to be present but sent a representative who, however, was not an attorney of record in the case. During the taking of the deposition defendant's attorney requested of said representative a stipulation to the *296 effect that the "Vanguard" from December 24 to 27, 1932, was berthed on the west side of wharf No. 5, to which request assent was given. During the trial plaintiff's counsel in presenting his case offered said deposition in evidence. He himself read into evidence that part of it covering the direct examination, and the attorney of record for the defendant read into evidence that part covering the cross-examination, which latter part contained the report of the making of the stipulation in the manner stated. Upon such reading of the stipulation plaintiff's counsel made no objection, but a little later put a question to one of his witnesses designed to show that the "Vanguard" at the time in question was berthed at wharf No. 6 and not at No. 5. The defendant objected to this evidence upon the ground that it was contrary to the stipulation, and, upon counsel for plaintiff stating that it was preliminary, he was allowed to introduce the testimony. The defendant then moved to strike it out on the same ground. The motion was denied.
From the foregoing recital of facts it is seen that the stipulation was not in writing filed with the clerk of the court, nor, if regarded as orally made in the presence of the court, was it entered in the minutes, as required by section 283 of the Code of Civil Procedure.
This section of the code was construed by the Supreme Court in Smith v. Whittier, 95 Cal. 279, 288 [30 P. 529], where it is said: "This section does not require a construction that in no circumstances shall an agreement which the attorney may make in behalf of his client be binding unless entered in the minutes of the court or filed with the clerk. ... If under the terms of a mutual stipulation which was only verbal one party has received the advantage for which he entered into it, or the other party has at his instance given up some right or lost some advantage so that it would be inequitable for him to insist that the stipulation was invalid, he will not be permitted to repudiate the obligation of his own agreement upon the ground that it had not been entered in the minutes of the court."
In the case at bar there appear to be no such circumstances. In the first place it was entered into by an unauthorized person under circumstances from which it may be inferred he knew nothing about the fact stipulated to and was relying upon the representation of the opposite party. The defendant *297 was given ample opportunity to introduce evidence on the point covered by the stipulation after the plaintiff denied its validity, which he did, and this evidence was amply sufficient to prove the fact in question had the jury accepted it. No prejudice was shown, unless the necessity cast upon the defendant to prove the fact covered by the purported stipulation may be so regarded--which we do not think is the case. We think it clear that there was no error in admitting evidence at variance with the purported stipulation. And we have already adverted to the fact that the evidence in the case sustains the implied finding of the jury that the route to the ship's berth was insufficiently lighted, which finding applies as well to wharf No. 5 as to No. 6.
This disposes of the points urged by appellant. It results from what we have said that the judgment should be affirmed, and it is so ordered.
|
Court of Appeals
of the State of Georgia
ATLANTA, November 03, 2017
The Court of Appeals hereby passes the following order
A18D0143. IN THE INTEREST OF E. S. M. et al., CHILDREN (FATHER) .
Upon consideration of the Application for Discretionary Appeal, it is ordered that it be
hereby GRANTED. The Appellant may file a Notice of Appeal within 10 days of the date of
this order. The Clerk of Juvenile Court is directed to include a copy of this order in the record
transmitted to the Court of Appeals.
LC NUMBERS:
1600378 1600379 1600377
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta, November 03, 2017.
I certify that the above is a true extract from the minutes
of the Court of Appeals of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk.
|
Order entered December 10, 2015
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-01480-CV
IN RE MICHELIN NORTH AMERICA, INC., Relator
Original Proceeding from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-14-07255
ORDER NUNC PRO TUNC
Before Justices Lang, Fillmore and Brown
Before the Court is Michelin North America, Inc.’s December 4, 2015 Emergency
Motion for Stay. We GRANT the motion and ORDER STAYED the trial court’s November
19, 2015 Amended Order on Plaintiff’s Motion to Compel MNA to Respond to Discovery and
Identification of Withheld MNA Document to the extent it requires Michelin to produce “the
oldest version of all Aspect Specifications” and expands the scope of production in the case to
include:
1. All Michelin P255/70R16 LTX M/S tires including the three (3)
common green tires made at the Dothan, Alabama plant from the date production
started (1998) until the date it allegedly stopped in 2003.
2. All Michelin P-Metric 235, 245, 255 and 265 LTX M/S tires
manufactured, within six ( 6) months before and one ( 1) year after the incident
made the basis of this lawsuit.
We further ORDER STAYED the portion of the trial court’s Order Re: November 3, 2015
Hearing to the extent it requires Michelin to produce a corporate representative to testify about
Michelin’s financial condition, wealth, assets and financial statements and about the aspect
specifications ordered produced by the trial court.
The Court requests a response to the petition for writ of mandamus. Real party in interest
and respondent shall file their responses, if any, on or before December 18, 2015.
/s/ DOUGLAS S. LANG
JUSTICE
|
26 B.R. 1 (1981)
In re H. COHEN CATERERS, INC., Debtor.
Bankruptcy No. 38101752.
United States Bankruptcy Court, W.D. Kentucky.
December 21, 1981.
John W. Ames, Louisville, Ky., for debtor.
Robert A. Cox, Lexington, Ky., for Dept. of Revenue.
ORDER
MERRITT S. DIETZ, Jr., Bankruptcy Judge.
On September 3, 1981, we temporarily restrained the Kentucky Department of Revenue from criminally prosecuting Harold Cohen and his company, Cohen Caterers, Inc., for failure to pay over $20,000 in withholding and sales taxes. Cohen Caterers, Inc. has been in Chapter 11 Court since last July.
After notice and a hearing, we dissolved the injunction on October 9, thereby permitting the taxing authority to place before the Franklin County grand jury its felony charge of tax evasion. Cohen has moved for reconsideration of that order.
We are disinclined to disturb the earlier order. Accordingly, the motion to reconsider is hereby OVERRULED, and the earlier order remains in effect. In so ruling, we expressly hold that the contemplated criminal prosecution of Cohen Caterers and its principal officer Harold Cohen comes within the exception of 11 U.S.C. § 362(b)(1), and therefore that the automatic stay does not operate to bar criminal prosecution for the nonpayment of taxes due the Commonwealth of Kentucky.
Counsel for Cohen Caterers frames his legal argument within the body of case law having to do with "bad check" prosecutions. To the extent that those cases represent "quasi-criminal" proceedingsthat is, proceedings technically criminal in nature but instituted for the principal purpose of coercing the payment of amounts due to the complainantthey may be readily distinguished.
This case cannot be regarded as a civil tax collection matter pursued through criminal remedies, because the Kentucky Department of Revenue has announced its intention to carry forward the criminal prosecution regardless of the payment or nonpayment of taxes due. In fact, the Department has gone so far as to state through its counsel that it will not accept any payments from Cohen Caterers for the tax period in question.
*2 While this Court is bound to furnish safe haven to the Chapter 11 debtor against the demands of his creditors, we are not empowered to encumber or prevent an otherwise valid criminal prosecution under state law.
There is no sovereign authority more fundamental than that of levying and collecting taxes and enforcing compliance by state citizens with the appropriate demands of the taxing authority. Collection of state revenues creates the economic base of the state's ability to adequately provide for the health, welfare and safety of its inhabitants. This Court is not prepared to employ Section 362 of the Bankruptcy Code as a cloak of judicial immunity for permitting debtors to avoid criminal prosecution for the nonpayment of state taxes. To do so would violate the most basic principles of federalism as we understand them.
Turning as we must to the Sixth Circuit Court of Appeals for guidance in cases in which state and federal laws come into apparent conflict in the bankruptcy context, we note the recent decision of Mansfield Tire and Rubber Co. v. State of Ohio, 660 F.2d 1108 (1981), in which the Court held that the Section 362 automatic stay did not insulate a corporate debtor from the administration of workers' compensation claims by the state of Ohio. The state adjudication of workers' compensation claims was held in that case to be a valid exercise of the police or regulatory power of the state government, and we find the reasoning of Mansfield Tire and Rubber controlling in this case.
In order to complete this record in anticipation of appeal, we expressly incorporate herein as findings of fact and conclusions of law the excellent brief on behalf of the Commonwealth of Kentucky Department of Revenue.
This is a final order.
|
United States Court of Appeals
for the eighth circuit
___________
No. 96-2529
___________
Belinda Flanery, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Shirley S. Chater, *
Commissioner of the Social *
Security Administration, *
*
Appellee. *
___________
Submitted: January 13, 1997
Filed: April 25, 1997
___________
Before RICHARD S. ARNOLD, Chief Circuit Judge, BEAM, Circuit Judge, and
ALSOP,1 District Judge.
___________
BEAM, Circuit Judge.
Belinda Flanery appeals the denial of Supplemental Security Income
(SSI) benefits. Because we find the Commissioner’s decision is not
supported by substantial evidence in the record as a whole, we reverse and
remand for an award of benefits.
1
The Honorable Donald D. Alsop, United States District Judge
for the District of Minnesota, sitting by designation.
I. BACKGROUND
Flanery is a twenty-six-year-old woman with a seizure disorder and
borderline intellectual functioning. She suffers from both grand mal
2 3
seizures and psychomotor seizures. She has a ninth-grade education and
has never been employed. Flanery applied for SSI benefits in 1992,
alleging disability since 1983 due to epilepsy and mental problems. Her
application was denied initially and on reconsideration. She then
requested a hearing before an administrative law judge (ALJ).
At the hearing, Flanery testified that on most days she has several
nervous spells or “fits.” Whenever one of these “spells” occurs, her hands
draw up, her eyes roll, and she cannot comprehend what is happening around
her. These episodes last for about a minute following which she has no
recollection of them and has to rest for half an hour. Her daily
activities, on good days, include preparing meals for her three children
and light housework. She said these activities sometimes provoke a
“spell.” She is so tired after housecleaning that she suffers severe
headaches and sometimes seizures. As a result, she stated that she “lays
around” most of the time. She is unable to drive.
2
A grand mal seizure is characterized by a loss of
consciousness with generalized tonic-clonic seizures. Dorland’s
Illustrated Medical Dictionary 567 (28th ed. 1994). A tonic-
clonic seizure is a spasm consisting of a convulsive twitching of
the muscles. Id. at 1719.
3
Psychomotor seizures are characterized by variable degrees
of impairment of consciousness and performance of a series of
coordinated acts which are out of place, bizarre, and serve no
useful purpose, for which the victim is amnesic. Dorland’s
Illustrated Medical Dictionary at 567.
-2-
Flanery’s husband also testified at the hearing. He stated that he
witnessed eight “spells” in a one-hour period the previous day. His
description of the spells was similar to that of his wife. He estimated
that the spells generally occur five or six times a day, more often when
she is active. The record contains statements of other people who have
witnessed one or more of Flanery’s “seizures,” “convulsions,” “blackouts,”
or “spells.” These witnesses described Flanery trembling, staring into
space, jerking her head, and being unable to remember the episode. In
addition, the record shows that Dr. Russell L. Dixon, a psychologist, also
witnessed Flanery having both a grand mal seizure and a shorter jacksonian
seizure,4 during which she stared ahead blankly, ground her teeth, rotated
her head and jerked slightly several times.
The medical evidence shows that Flanery suffers from both grand mal
seizures and psychomotor or focal seizures. She was first treated for a
seizure disorder when she was thirteen years old. She was treated with an
anti-convulsant medication that apparently controlled her grand mal
seizures. In 1991, Flanery’s treating physician, Dr. Gary R. Goza, noted
that Flanery continued to suffer from “spells” involving a sudden loss of
memory and comprehension. The frequency of the spells varied--she
sometimes would not have any for a few days and sometimes had several in
a day. Dr. Goza’s diagnosis was “seizure disorder, generalized
4
Jacksonian epilepsy is characterized by focal motor
seizures with unilateral clonic movements (alternate contraction
and relaxation of muscles) that start in one group of muscles and
spread systematically to adjacent groups. Dorland’s Illustrated
Medical Dictionary at 567. A focal motor seizure is a simple
partial seizure consisting of a spasm of a muscle group. Id. at
1503.
-3-
seizures appear to be well-controlled,” although at that time he questioned
whether Flanery might still be having partial seizures.5
An EEG later in 1991 showed abnormal brain function. Dr. Goza noted
a pattern of brain activity which is “sometimes seen in patients with
generalized seizure disorders.” In a September 1992 letter to the state
disability office, Dr. Goza stated that Flanery suffers from “episodes of
transient inability to respond, partial complex seizures, and occasional
grand mal seizures.” In a February 1993 letter, Dr. Goza stated that
Flanery suffers from partial complex seizures that last about fifteen
seconds and occur several times a week. In December 1993, Dr. Goza’s notes
again indicate that Flanery “otherwise continues to have episodes almost
every day where she feels her eyes are fluttering and she is unable to
respond appropriately for a short time but doesn’t lose consciousness.”
A neurologist, Dr. Peggy J. Brown, examined Flanery in 1994. Dr.
Brown reported that Flanery’s “seizure disorder sounds like it is
consistent with complex partial seizures with secondary generalization.”
Dr. Brown also noted that the results of Flanery’s August 1994 EEG were
consistent with complex partial epilepsy and noted that Flanery’s seizures
were “not completely
5
There are two types of partial seizures: 1) a complex
partial seizure is associated with a disease of the temporal lobe
and characterized by varying degrees of impairment of
consciousness; the patient performs automatisms and is later
amnesic for them; 2) a simple partial seizure is the most
localized type of partial seizure; symptoms are varied and
include motor symptoms as in a focal motor seizure. Dorland’s
Illustrated Medical Dictionary at 1503.
-4-
controlled on Tegretol or Dilantin.”6 In December 1994, Dr. Brown again
characterized Flanery’s seizures as “poorly controlled.”
A vocational expert testified at the hearing. He was asked whether
there were jobs in the national economy that a person of Flanery’s age and
work experience, with seizures controlled by medication, could perform if
she were limited to “unskilled work which consists of nothing more than
simple repetitive tasks done under simple direct concrete supervision” with
interpersonal contact limited to “no more complex than that necessary to
carry out the simple and direct concrete instructions” and where the work
“can be performed without working at heights, around dangerous machinery,
which does not require driving of a vehicle nor the carrying of a firearm.”
He responded that such jobs, for example those of house cleaners or child
care workers, exist in the national economy. The vocational expert was
then asked, by Flanery’s counsel, whether jobs existed for a person of
Flanery’s age and experience who had infrequent grand mal seizures and four
to five petit mal seizures7 a day that required her to rest for up to
thirty minutes after each seizure. The vocational expert stated that there
were no such jobs in the national economy.
The ALJ found that although Flanery suffers from a severe seizure
disorder and borderline intellectual functioning, she does not have a
disorder that meets or equals the listing of
6
Tegretol and Dilantin are anti-convulsant and anti-
epileptic medications. Physician’s Desk Reference 603 & 1837
(49th ed. 1995).
7
A petit mal seizure, also known as an absence seizure,
consists of a momentary break in consciousness of thought or
activity, often accompanied by automatisms or clonic movements,
especially of the eyelids. Dorland’s Illustrated Medical
Dictionary at 1502.
-5-
presumptively disabling impairments. In making that finding, he noted that
“the medical record shows that the claimant’s seizure disorder is under
good control with Dilantin” and that “the medical findings that are present
are not consistent with the disabling level of seizures alleged by the
claimant.” He discounted Flanery’s testimony regarding daily seizures as
inconsistent with her daily activities and found her “subjective
allegations are not borne out by the overall record and are found not to
be fully credible.” The ALJ also discounted Flanery’s husband’s account
of the seizures as based on an uncritical acceptance of Flanery’s
complaints and motivated by a desire to help her obtain benefits. The ALJ
thus found that Flanery has the residual functional capacity to perform a
wide range of medium work, such as that of a child care worker or a house
cleaner. The Appeals Council affirmed the decision, as did the district
court.
On appeal, Flanery contends that the ALJ’s decision is not supported
by substantial evidence. She argues that her impairment meets or equals
the presumptively disabling condition listed in Section 11.03 of the
Appendix 1 to Subpart P of 20 C.F.R. Part 404 (“the Listings”) which
describes disability by reason of epilepsy with minor motor seizures.8
8
Flanery also suffers from epilepsy with grand mal seizures
as described in Section 11.02 of the Listings. However, the
record supports the ALJ’s finding that Flanery’s grand mal
seizures are controlled by medication and Flanery does not
dispute that finding. Accordingly, her impairment does not meet
or equal the disability listed in Section 11.02.
-6-
II. DISCUSSION
Our task on appeal is to determine whether the Commissioner’s
decision is supported by substantial evidence in the record as a whole.
Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995). In our review of the
record, we thus consider evidence that detracts from the decision as well
as evidence that supports it. Id. Substantial evidence is less than a
preponderance, but enough that a reasonable mind might find it adequate to
support the conclusion. Oberst v. Shalala, 2 F.3d 249, 250 (8th Cir.
1993).
Under the Commissioner’s regulations, the disability determination
involves step-by-step analysis of any current work activity, the severity
of the claimant’s impairments, the claimant’s residual functional capacity
and age, education and work experience. 20 C.F.R. § 404.1520(a); Braswell
v. Heckler, 733 F.2d 531, 532 (8th Cir. 1984). If the claimant suffers
from an impairment that is listed in the Listings or is equal to such a
listed impairment, the claimant will be determined disabled without
considering age, education, or work experience. Braswell, 733 F.2d at 533.
To be considered presumptively disabled under Section 11.03 of the
Listings, a claimant must have seizures that are documented by an EEG and
by detailed description of a typical seizure pattern with all associated
phenomena. 20 C.F.R. Pt. 404, App. 1, Subpt. P § 11.03 (1996). These
seizures must occur more frequently than once a week in spite of at least
three months of prescribed treatment. Id. The seizures must be
accompanied by an alteration
-7-
of awareness or loss of consciousness and transient postictal9
manifestations of unconventional behavior or significant interference with
activity during the day. Id.
Flanery’s condition meets all of these requirements. Her seizures
are documented by abnormal EEG results. Flanery and her husband testified
that her seizures occur more often than once a week. The Flanerys
testified that the seizures involve alteration of awareness and
significantly interfere with daily activities. This testimony is further
supported by the statements of other seizure witnesses and by the report
of a doctor who witnessed a seizure. None of that testimony is
contradicted in the record.
Furthermore, the medical evidence uniformly demonstrates that Flanery
has seizures that are consistent with partial complex epilepsy. The ALJ
placed inordinate emphasis on an isolated statement by Dr. Goza in 1991
that Flanery’s seizures were controlled by medication. Read in context,
that statement refers only to her grand mal seizures and not to her
“spells” or petit mal seizures. The statement is immediately followed by
a sentence regarding the continued occurrence of the “spells.” Although
initially hesitant to label the spells as seizures, Dr. Goza later
diagnosed the episodes as partial complex seizures following Flanery’s
abnormal EEG.
In addition, the ALJ improperly discounted medical diagnoses as
having been based only on Flanery’s own recitation of events. A patient’s
report of complaints, or history, is an essential diagnostic tool. See,
e.g., Brand v. Secretary of the Dep’t of
9
Postictal means occurring after a seizure or sudden attack.
Dorland’s Illustrated Medical Dictionary at 1340.
-8-
Health, Educ. and Welfare, 623 F.2d 523, 526 (8th Cir. 1980) (“[a]ny
medical diagnosis must necessarily rely upon the patient’s history and
subjective complaints”). There is nothing in this record to suggest that
Flanery’s medical professionals should have doubted Flanery’s word. Her
claimed symptoms are consistent with objective tests (the EEG), the nature
of her disorder, and eyewitness testimony.
Moreover, we find that Flanery’s account of her daily activities is
not inconsistent with a disabling seizure disorder. She testified that,
although she can sometimes care for her own needs and those of her three
children, her days are often interrupted by seizures and by her need to
rest afterward. These episodes may not be totally disruptive in a home
environment, but could hardly be accommodated in the workplace. In short,
the record overwhelmingly supports a finding of disability.10
Because we find Flanery disabled on this record, we must consider the
remedy. We find that the record supports an award of benefits. Even if
Flanery’s condition did not meet the Listings, the evidence shows that
there would be no jobs in the national economy that Flanery could perform.
If the record contains substantial evidence supporting a finding of
disability, a
10
We note that this action could also be reversed on the
ground that the hypothetical posed to the vocational expert did
not contain all of Flanery’s impairments that are supported by
the record. See, e.g., Stout v. Shalala, 988 F.2d 853, 855 (8th
Cir. 1993) (the ALJ’s hypothetical must include those impairments
that are substantially supported by the record). Flanery’s
partial complex seizures are supported by the record and she was
entitled to have the vocational expert consider them along with
her other impairments. In light of our disposition, and because
Flanery’s counsel elicited evidence of the effect of the partial
complex seizures on her employment prospects, we need not further
discuss the issue.
-9-
reviewing court may reverse and remand to the district court for entry of
an order granting benefits to the claimant. Andler v. Chater, 100 F.3d
1389, 1394 (8th Cir. 1996). Under the circumstances, we find further
hearings would merely delay benefits; accordingly, an order granting
benefits is appropriate. Id.
III. CONCLUSION
For the reasons stated above, we reverse and instruct the district
court to remand to the Commissioner for an award of benefits.
ALSOP, District Judge, dissenting.
Because I do not agree with the majority that the substantial
evidence in the record shows that Flanery meets all of the requirements
under Section 11.03 of the Listings, I respectfully dissent. As the
majority notes, Listing 11.03 lays down the requirements for Epilepsy-Minor
Motor seizures. It provides:
Epilepsy-Minor motor seizures (petit mal, psychomotor, or
focal), documented by EEG and by detailed description of a
typical seizure pattern, including all associated phenomena;
occurring more frequently than once weekly in spite of at least
3 months of prescribed treatment. With alteration of awareness
or loss of consciousness and transient postictal manifestations
of unconventional behavior or significant interference with
activity during the day.
As the majority points out there is evidence of seizures documented by
abnormal EEG results, however, the substantial evidence on the record does
not show that Flanery has experienced these seizures with the frequency
required in the listing. The majority found that
-10-
the testimony of Flanery and her husband showed that she had seizures
occurring more than once weekly. The ALJ discredited the testimony of
Flanery’s husband finding it was based upon an uncritical acceptance of
Flanery’s complaints and motivated in part by the desire to see her obtain
benefits. Tr. 22. He discounted Flanery’s subjective complaints, finding
they were inconsistent with the medical findings and Flanery’s functional
limitations. Id. Questions of credibility are for the trier of fact and the
Court usually defers to such a finding if the ALJ explicitly discredits a
claimant’s testimony and gives good reason for doing so. See Dixon v.
Sullivan, 905 F.2d 237, 238 (8th Cir. 1990). Here the ALJ did both.
The majority found the testimony of Flanery and her husband was
supported by statements from other witnesses and a doctor who witnessed a
seizure. While these statements show that Flanery experienced seizures,
none show that the seizures occurred more frequently than one weekly.
I cannot agree with the majority that the medical evidence shows that
Flanery meets the 11.03 Listing. The majority relies upon a statement made
by Dr. Goza in 1991 to establish that Flanery has partial seizures. I
disagree that Dr. Goza’s 1991 statement supports such a finding. Even if
his statement that Flanery’s “seizures appear to be well controlled”, Tr.
180, is understood as the majority proposes to refer only to Flanery’s
grand mal seizures, the statement does not indicate that Flanery was
experiencing uncontrolled frequent petit mal seizures. Dr. Goza indicated
that he had “some question whether she still may be having partial
seizures”. Id. A statement Dr. Goza made in 1993 reiterated his doubts
about whether Flanery was experiencing partial seizures. Tr. 246. In that
statement he observed that it
-11-
was difficult to be certain whether episodes Flanery claimed to be having
almost daily, in which “her eyes are fluttering and she is unable to
respond appropriately for a short time but doesn’t lose consciousness,” are
partial seizures. Id.
The only other medical evidence offered to show that Flanery meets
the 11.03 Listing is a statement made in August 1994 by a neurologist, Dr.
Brown, who after talking with Flanery and reviewing her history stated that
her seizures had been poorly controlled on the drug she was taking. Tr.
252. The ALJ found that the neurologist’s statement was based upon
Flanery’s subjective complaints and discredited it. As the ALJ had found
the testimony of frequent uncontrolled seizures from Flanery and her
husband was not credible, the ALJ could properly conclude in the absence
of medical evidence that a report based upon such testimony was unreliable.
The evidence of Flanery’s daily activities also shows she does not
meet the listing requirement. The record shows that she takes care of a
house and three children, and does the cooking, laundry, and other
household chores. She has no restrictions on daily activities from her
physician, other than her use of an automobile, heavy machinery, and
firearms.
The substantial evidence in the record does not show that Flanery
meets the listing requirements of 11.03 and therefore I would affirm the
district court’s affirmance of the denial of SSI benefits by the
Commissioner based upon substantial evidence in the record as a whole.
-12-
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-13-
|
220 B.R. 568 (1998)
In re WBZE, INC., Debtor.
WBZE, INC., Plaintiff,
v.
ARAB NETWORK OF AMERICA, et al., Defendants.
Civ. No. PJM 97-3567.
United States District Court, D. Maryland.
May 19, 1998.
*569 Stanley R. Jacobs, Rockville, MD, for plaintiff.
Edward Lee Rogers, Rogers & More, Washington, D.C., Alfred Lawrence Toombs, Greenbelt, MD, for defendants.
OPINION
MESSITTE, District Judge.
This matter is before the Court on the objections of Defendant ANA Radio Network, Inc. to the Proposed Findings of Fact and Conclusions of Law submitted by the Bankruptcy Court. Since this is a non-core matter, the Court exercises de novo review. 28 U.S.C. § 157(c)(1); Bankr.Proc.Rule 9033(d). The Court has reviewed the transcript of the trial, the exhibits submitted by the parties, the Proposed Findings of Fact and Conclusions of Law, and ANA Radio's objections to same. The Court has also heard oral argument on the objections.
Upon consideration of the entire record, the Court adopts some but not all of the proposed findings of fact and reaches in a few important respects, conclusions of law different from that of Bankruptcy Court.
The Court will enter judgment in favor of WBZE against ANA Radio in the sum of $19,136.49.
I.
At all relevant times in these proceedings, WBZE, Inc. owned radio broadcast facilities in Indian Head, Maryland.
WBZE had a Time Brokerage Agreement (TBA) with Arab Network of America, Inc., a Pennsylvania corporation, that ran from September 29, 1989 to September 28, 1992. As the term of the TBA ended, WBZE entered into a second TBA with a related but separate entity, ANA Radio Network, Inc., a Virginia corporation. The term of the second TBA was to run from October 1, 1993 through October 1, 1996.
Eventually WBZE sued both Arab Network and ANA Radio for breach of the two TBAs for failure to pay monies allegedly due. A default judgment in the amount of $163,521.66 *570 plus $120 costs was entered against Arab Network.[1] As for ANA Radio, following trial the Bankruptcy Court held that it was not liable for Arab Network's obligations under the 1989 TBA, but that it was liable for breach of the 1993 TBA. ANA Radio's central objection to the Bankruptcy Court's Proposed Findings of Fact and Conclusions of Law is to the proposal that it pay the remaining monthly fees under the 1993 TBA, $389,997.00.[2]
II.
WBZE presents a swirl of facts relating to the two defendant corporations, among other things: That the TBAs were purportedly designed to provide control of the radio broadcast facility by individuals not U.S. citizens; that the same individual, Mohammed Al-Bedrawi, was President of both Arab Network and Arab Radio; that Al-Bedrawi reportedly sold ANA Radio to ANA Holdings, Inc., a group headed by King Fahd's relatives, a fact WBZE did not become aware of until shortly before trial; and that Al-Bedrawi and others engaged in extensive misappropriation. None of this, in the Court's view, is relevant for purposes of this proceeding.
Except as follows, the Court adopts the findings of fact and conclusions of law proposed by the Bankruptcy Court.
III.
The 1993 TBA provided for two "Events of Default" relative to the performance of a TBA between a radio station and a broadcaster:
1) The "discontinuance of all operations or all business of WBZE or ANA Radio by law or otherwise for any reason whatsoever" (§ 11.1(f)); and
2) The "admission by ANA Radio and WBZE, in writing, that they cannot meet its obligations under [1993 TBA]" (§ 11.1(g)).
There is no question that during the period covered by the second TBA, WBZE was beset with serious financial difficulties owing at least in part to the failure of Arab Network to pay rent and other operating expenses during the existence of the first TBA. As a result, WBZE's broadcast equipment began to deteriorate noticeably. Not surprisingly, WBZE began to press ANA Radio during this time for payment of the monies due from Arab Network.
WBZE's efforts came to a head in early January 1996. On January 3, WBZE attorney Robert Kostecka faxed a letter to Mohamed Hakki at ANA Radio in which he called attention to Arab Network's failure to pay certain amounts past due and suggesting that "unless the present situation is resolved, WBZE Radio could be forced to terminate its Time Brokerage Agreement with ANA Radio Network Inc. and to go off the air." Kostecka referred to Arab Network as "the predecessor in interest to ANA Radio Network Inc."
The next day, January 4, Kostecka faxed Hakki another letter, advising that "if the situation outlined in my correspondence to you dated January 3, 1996 . . . is not immediately resolved, WBZE will be forced to go off the air as of 5:00 p.m. January 5, 1996."
ANA Radio did "not go gentle into that good night."[3]
On January 5, its attorney Gordon A. Coffee telecopied Kostecka, advising that as of that afternoon ANA Radio had broadcast the following message on the hour for several hours:
*571 WNTL has notified us that due to circumstances beyond our control broadcast services may cease at 5:00 pm EST today, Friday, January 5, 1996. Should an interruption in our broadcast occur we assure you that we will resume broadcast as soon as possible. The interruption shall affect the Washington, D.C. area only. We apologize in advance should this incident occur and state again that this is due to circumstances beyond the control of ANA Radio Network, Inc.
Coffee acknowledged that ANA Radio had discontinued this message upon receiving word from Kostecka that WBZE "will honor its contractual obligations until 5:00 p.m. on Tuesday, January 9." But Coffee also cautioned that, "(g)iven WBZE's stated intent to go off the air at that time, we are planning to run the above message, as modified to reflect the new termination time, hourly on Tuesday."
WBZE's counsel then fired off what is politely known in the trade as a "cover your assessment" letter, declaring that WBZE now deemed ANA Radio to be in default of the second TBA by reason of its failure to make certain payments and give certain notifications under the TBA. WBZE's letter clearly stated that "effective immediately, your client will no longer be permitted access to WBZE's facilities after the times set forth in the agreement."
Then, on January 6, 1996, a new attorney weighed in for WBZE, Stanley R. Jacobs, Esquire. Jacobs' fax of that date to counsel for ANA Radio read:
"Please be advised that I am the new attorney for WBZE, Inc.
Without prejudice to the position of either party, my client withdraws the notice of termination to afford some additional time to see if the matter can be resolved. Please contact me at your convenience to discuss this matter."
Counsel for ANA Radio responded by fax dated January 9, 1996. He advised Jacobs that the purported withdrawal of the notice of termination was rejected "in light of your client's repeated statements that they would be going off the air (first on Friday, last at 5:00 p.m. and then today at 5:00 p.m.) and your failure to assure our client, ANA Radio Network, Inc., of the station's ability and willingness to perform under the agreement." Counsel for ANA Radio indicated that his client had already sought to obtain an alternative studio and transmitter in light of WBZE's actions. The letter concluded by saying "(a)ccordingly we consider the agreement to be terminated as of cut-off time, 5:00 p.m., Tuesday January 9, 1996, previously noticed to us on behalf of your client."
ANA Radio, as it happens, had moved out of the WBZE premises on Sunday, January 8, taking its equipment with it and according to WBZE leaving the studio in disarray.[4]
The second TBA with ANA Radio was not due to expire for another 9 months, but ANA Radio paid no fees to WBZE thereafter. WBZE eventually filed for Chapter 11 bankruptcy and this suit followed. The Bankruptcy Court now proposes that ANA Radio be held liable for the nine months of unpaid rent.
IV.
Generally speaking, a valid contract must be performed by the parties according to its terms. Shell Oil Co. v. Parker, 265 Md. 631, 291 A.2d 64 (1972). A party seeking to recover on a contract must ordinarily perform its part of the contract. Fishman Const. Co. v. Hansen, 238 Md. 418, 209 A.2d 605 (1965). Thus, a party that breaches a contract, that is who fails without legal excuse to perform any promise forming the whole or part of the contract, cannot recover for a breach of the contract by the other party. See U.S. to Use of Baltimore Brick Co. v. John A. Johnson & Sons, 65 F.Supp. 514, aff'd 153 F.2d 534, cert. denied, 328 U.S. 865, 66 S.Ct. 1372, 90 L.Ed. 1636 (1946). A breach may be anticipatory in nature if, prior to the time of performance, one definitely and specifically refuses to do something *572 which it is obligated to do. See C.W. Blomquist & Co. v. Capital Area Realty Investors, 270 Md. 486, 311 A.2d 787 (1973). The refusal to perform, i.e. the repudiation of, the contract must be positive and unconditional. Id.; see also Friedman v. Katzner, 139 Md. 195, 114 A. 884 (1921).
But there is more. Corbin points out that:
If one party to a contract, either wilfully or by mistake, demands of the other a performance to which he has no right under the contract and states definitely that, unless his demand is complied with, he will not render his promised performance, an anticipatory breach has been committed. Such a repudiation is conditional in character, it is true; but the condition is a performance to which the repudiator has no right.
Corbin on Contracts, § 973, p. 910 (1951). See also Humphrey v. Placid Oil Co., 142 F.Supp. 246, 252 (E.D.Tex.1956), aff'd 244 F.2d 184 (5th Cir.1957).
Here "either willfully or by mistake," WBZE was making unjustified demands on ANA Radio. It was insisting that the latter pay debts and remove I.R.S. and AFCAP liens that were unquestionably the responsibility of Arab Network, not ANA Radio. While it very well might have been in ANA Radio's interest to discuss payment of those debts, in no sense did ANA Radio have a legal obligation to do so. The Court categorically rejects the suggestion that WBZE did not understand ANA Radio to be an entity separate and distinct from Arab Network. President Gureckis of WBZE was specifically advised, prior to the signing of the second TBA, that ANA Radio, a separate entity, was stepping in for Arab Network as signatory to the TBA. The essence of corporate status is limited liability, even where one corporation is wholly owned by another. WBZE is bound by that fundamental reality.
When WBZE's counsel sent the January 4, 1996 ultimatum to ANA Radio, it crossed the line: Pay the Arab Network debt, WBZE said, or "WBZE will be forced to go off the air as of 5:00 p.m., January 5, 1996." There can be no question that this written statement, in conjunction with WBZE's admission in writing on January 3 that it could not perform under the contract, constituted an act of default under § 11.1(f) and (g) of the second TBA.
But WBZE argues that "there was clearly time available to continue negotiations and with the Defendant's cooperation, problems could have been solved." True or not, ANA Radio had no obligation to continue to negotiate to pay debts it did not legally owe. Under § 12.1(b)(1) of the 1993 TBA, ANA Radio had every right to terminate the contract after WBZE's anticipatory breach.[5]
But WBZE also argues that the letter dated January 6 from Stanley R. Jacobs, "without prejudice to the position of either party, (withdrew) the notice of termination to afford some additional time to see if the matter can be resolved."
It is a correct proposition of the law that an anticipatory repudiation may be nullified "by a retraction of the statement if notification of the retraction comes to the attention of the injured party before he materially changes his position in reliance on the repudiation or indicates to the other party that he considers the repudiation to be final." Restatement of Contracts (Second), § 256(1).
But by the time Jacobs' letter arrived, ANA Radio had already advised its listeners for several hours that its programming might temporarily go off the air. Once again the message:
WNTL has notified us that due to circumstances beyond our control broadcast services may cease at 5:00 p.m. EST today, Friday, January 5, 1996. Should an interruption *573 in our broadcast occur we assure you that we will resume broadcast as soon as possible. The interruption shall affect the Washington, D.C. area only. We apologize in advance should this incident occur and state again that this is due to circumstances beyond the control of ANA Radio Network, Inc.
Under the circumstances, this was an entirely reasonable response to what appeared to be an imminent loss of audience, an attempt to hold on to that audience should operations be interrupted. However reassuring ANA Radio may have intended the message to be, it could only have been understood by its advertisers and listeners to mean that the program was in deep trouble. That broadcast alone, in the Court's view, constituted a material change in position in response to WBZE's anticipatory breach, more so than any steps ANA Radio may have taken to obtain an alternative studio and transmitter, although those in themselves were also material. In sum, to the extent that WBZE's letter of January 6 represented an effort to nullify the repudiation[6], it came too late. ANA Radio had no obligation to pursue further discussions with WBZE; it was entitled to carry through with its stated intention to cease operations as of January 9, 1996.
Under the circumstances, ANA Radio cannot be held liable for the monthly fees for the nine months after WBZE's anticipatory breach, i.e. for $389,997.00.
V.
As set forth earlier, however, the Court finds ANA Radio is liable for a total of $19,136.49 in costs and expenses incurred before WBZE's anticipatory breach.
A separate Order implementing this Opinion will be entered.
ORDER
Upon consideration of the entire record of these proceedings, it is this 19th day of May 1998
ORDERED that judgment is hereby entered in favor of Plaintiff WBZE, Inc. and against Defendant Arab Network of America, Inc. in the amount of $163,521.66, plus $120 costs; and it is further
ORDERED that judgment is hereby entered in favor of Plaintiff WBZE, Inc. and against Defendant ANA Radio Network, Inc. in the sum of $19,136.49.
NOTES
[1] No objection has been filed to the Bankruptcy Court's proposed entry of judgment against Arab network in this amount and the Court will accordingly enter judgment on the default at this time.
[2] ANA Radio also disputes the proposal that it pay WBZE $19,136.49 for incidental costs and expenses under the second TBA. Although ANA Radio believes it should not be held liable for such costs or fees beyond the date it left the station, it does little more than assert without more that the costs and fees should be prorated and adjusted. Not only is there no basis for the suggested proration; it appears that all the items comprising the $19,136.49 had accrued as of the time of ANA's departure from the station. Accordingly, the Court adopts the Bankruptcy Court's proposed conclusion that ANA Radio pay the $19,136.49.
[3] Dylan Thomas, Do Not Go Gentle Into That Good Night
[4] A separate cause of action for malicious destruction of property is apparently still pending between the parties.
[5] The Court disagrees with the Bankruptcy Court that WBZE's letters to ANA Radio were "merely posturing and did not rise to the level of an anticipatory breach of the contract," or that they contained only threats of nonperformance, not a "positive, unequivocal and unconditional refusal to perform." Gatoil (U.S.A.) Inc. v. Washington Metropolitan Area Transit Auth., 801 F.2d 451 (D.C.Cir.1986); Friedman v. Katzner, 139 Md. 195, 114 A. 884 (1921). WBZE had no right to condition to its performance on performance by ANA Radio of a condition it was not contractually obliged to perform.
[6] It is doubtful that the letter of January 6 was truly an attempt to nullify the repudiation. Couched as it was "without prejudice to the position of either party . . . to afford some additional time," there was nothing in the letter to assure ANA Radio that at any moment over the next days or weeks, WBZE might not declare anew its intention to go out of business within 24 or 48 hours and oust ANA Radio from its facilities.
|
165 F.3d 1020
UNITED STATES of America, Plaintiff-Appellee,v.Masontae HICKMAN; Markus D. Chopane; Jyi R. McCray; EdwinT. Limbrick; Edmond Gasaway, Defendants-Appellants.
No. 97-40237.
United States Court of Appeals,Fifth Circuit.
Jan. 20, 1999.
John B. Stevens, Jr., Paul E. Naman, Keith Fredrick Giblin, Beaumont, TX, for Plaintiff-Appellee.
Frank Warren Henderson, Amy R. Blalock, Tyler, TX, for Defendant-Appellant.
Appeals from the United States District Court for the Eastern District of Texas; Thad Heartfield, Judge.
ON PETITIONS FOR REHEARING EN BANC AS TO APPELLANTS MARKUS D. CHOPANE AND EDWIN T. LIMBRICK
(Opinion September 1, 1998, 5 Cir., 1998, 151 F.3d 446)
Before KING, Chief Judge, and POLITZ, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.
BY THE COURT:
1
A member of the court in active service having requested a poll on the petitions for rehearing en banc filed by Markus D. Chopane and Edwin T. Limbrick, and a majority of the judges in active service having voted in favor of granting the rehearings en banc; and, a majority of judges in active service having determined, on the court's own motion, to rehear the appeals of Masontae Hickman, Jyi R. McCray and Edmond Gasaway en banc,
2
IT IS ORDERED that these causes shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.
3
IT IS FURTHER ORDERED that under 5th Cir. R. 42.1, the mandate issued in the appeals of Masontae Hickman, Jyi R. McCray and Edmond Gasaway are recalled to prevent injustice.
|
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
LIND, KRAUSS, and PENLAND
Appellate Military Judges
UNITED STATES, Appellant
v.
Staff Sergeant TAHIR L. MUWWAKKIL
United States Army, Appellee
ARMY MISC 20140536
Headquarters, 10th Regional Support Group
Wendy P. Daknis, Military Judge
Lieutenant Colonel May L. Nicholson, Staff Judge Advocate
For Appellant: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Kenneth W. Borgnino, JA (on brief).
For Appellee: Colonel Kevin Boyle, JA; Captain Nicholas J. Larson, JA (on brief).
26 August 2014
--------------------------------------------------------------------------
OPINION OF THE COURT AND ACTION ON APPEAL
BY THE UNITED STATES FILED PURSUANT TO
ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
-------------------------------------------------------------------------
KRAUSS, Judge:
Appellee is charged with rape and assault consummated by a battery in
violation of Articles 120 and 128, Uniform Code of Military Justice [hereinafter
UCMJ], 10 U.S.C. §§ 920, 928 (2012). The United States filed a timely appeal with
this court pursuant to Article 62, UCMJ, contending that the military judge abused
her discretion by striking the alleged victim’s testimony in its entirety in light of a
Jencks Act violation, thus excluding evidence that is substantial proof of a fact
material in the proceeding. The United States does not dispute the fact that a Jencks
Act violation occurred, but rather only appeals the military judge’s resort to the
drastic remedy of striking the relevant witness’s testimony in its entirety. We hold
the judge did not abuse her discretion in striking the testimony at issue.
MUWWAKKIL—ARMY MISC 20140536
BACKGROUND
Appellant is accused of raping and assaulting GP. GP testified at an Article
32, UCMJ, hearing convened to investigate the preferred charges. The government
recorded her testimony in its entirety. Two recording devices were used. One
malfunctioned during the hearing but, because the second functioned properly, the
testimony was nevertheless recorded.
Present for GP’s testimony at the hearing were the Investigating Officer, trial
counsel, appellee’s trial defense counsel, that counsel’s senior defense counsel
observing, a trial defense paralegal, and the paralegal recording the hearing. The
defense paralegal took about 20 pages of notes during GP’s testimony. The
investigating officer prepared and completed his report based on his notes and
recollection of the hearing, including GP’s testimony.
After the hearing, the responsible paralegal summarized GP’s testimony based
upon this recording. He placed the device upon which the testimony was recorded in
the drawer of his colleague’s desk. Testimony established that though the paralegal
should have backed up this recording by copying it to a disc, in accordance with
what was understood to be standard operating procedure in the office, he never did.
The recording of GP’s testimony on that device was subsequently deleted. The
direct, cross, and investigating officer examination of GP amounted to about 2 hours
and 15 minutes of recorded testimony. Of that, only about 52 minutes comprising
her direct testimony was preserved from the other recording device before it
malfunctioned. None of the cross-examination by defense counsel or examination by
the investigating officer was preserved. No verbatim transcript of her testimony was
ever prepared.
After GP’s testimony on direct examination was complete at trial, appellee
moved to strike the entirety of her testimony due to a violation of the Jencks Act and
Rule for Courts-Martial [hereinafter R.C.M.] 914. After receiving evidence and
hearing argument on the matter, the judge granted appellee’s motion. The military
judge concluded that neither the summarized transcript, the defense paralegal’s
notes, nor the investigating officer’s notes comprised substantially verbatim
transcripts of GP’s testimony. She therefore concluded that striking GP’s testimony
was a necessary and appropriate remedy under the circumstances.
The government, acting within its discretion under Article 62(a)(1)(B),
UCMJ, and R.C.M. 908(a), appealed the military judge’s decision essentially
complaining that the judge abused her discretion by striking the victim’s testimony
because: (1) there was no showing of gross negligence on the part of the
government; (2) the Jencks Act violation does not prejudice appellee; and
(3) striking GP’s testimony is unduly extreme under the circumstances of this case.
2
MUWWAKKIL—ARMY MISC 20140536
Military Judge’s Findings and Conclusions
The military judge made no written findings of fact and conclusions of law
but rather announced them on the record; of these, the following are essential to the
consideration and resolution of the matter at hand:
The summarized transcript of GP’s Article 32 testimony “is not a substantially
verbatim” transcript of that testimony;
There was no “positive control over the paralegals in the military justice
section to ensure that they understood the importance of the audio and that it was in
fact evidence that needed to be preserved”;
The government failed to maintain “accountability internally within the
military justice shop”;
The government did not purposely delete the recording “to deprive the
accused or the defense of this audio . . . [and] the evidence is that they did want to
maintain it; they just failed to by not following proper procedures”;
The loss of the recording was certainly negligent and may amount to gross
negligence;
“[I]mpeaching [GP] is the defense’s most important strategy”;
“[The Investigating Officer] indicated that GP’s testimony has been
inconsistent with previous statements”;
“In order to properly impeach [GP], the defense needs to have access to [that
recording]”;
Neither the defense paralegal’s notes nor those of the investigating officer
are adequate substitutes because neither are sufficiently verbatim;
There is no substitute available for that recording in this case;
[I]t’s not up to the military judge to determine whether or
not that statement is useful. It’s not my job to look
through it and ensure that every single inconsistency is
made. My job is to ensure that the defense counsel has the
tools he needs for adequate cross-examination in
accordance with the law which is the Jencks Act and
R.C.M. 914 which codifies that in the military justice
system[; and]
3
MUWWAKKIL—ARMY MISC 20140536
“[T]he defense counsel does not have what he needs to adequately prepare
for cross-examination of [GP]. It is based on the government’s actions which
involve negligence. I don’t believe it can be remedied in any way other than to
strike the testimony of [GP].”
The government subsequently moved the military judge to reconsider
requesting, among other things, that she order the production of the defense
paralegal’s notes for review. The judge denied the government’s request for
reconsideration and, accepting the defense counsel’s proffer 1, found that the defense
paralegal’s notes were not available.
LAW AND DISCUSSION
Standard of Review
The parties analogize the present situation with that of a judge’s ruling on a
motion to suppress evidence and agree that the standard of review is abuse of
discretion as applied under Article 62. The analogy is apt. A judge’s ruling on a
Jencks Act violation, effectively excluding evidence, is likewise reviewed for abuse
of discretion. United States v. Cardenas-Mendoza, 579 F.3d 1024, 1031 (9th Cir.
2009); United States v. DeFranco, 30 F.3d 664, 667 (6th Cir. 1994); United States v.
Wables, 731 F.2d 440, 447-48 (7th Cir. 1984); see also United States v. Albo,
22 U.S.C.M.A. 30, 33, 46 C.M.R. 30, 33 (1972). Accordingly, and especially under
Article 62, our standard of review is necessarily deferential:
“In reviewing a military judge’s ruling on a motion to
[strike under the Jencks Act and R.C.M. 914], we review
factfinding under the clearly-erroneous standard and
conclusions of law under the de novo standard.” United
States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995). “Thus
on a mixed question of law and fact . . . a military judge
abuses his discretion if his findings of fact are clearly
erroneous or his conclusions of law are incorrect.” Id.
The abuse of discretion standard calls “for more than a
mere difference of opinion. The challenged action must
be ‘arbitrary, fanciful, clearly unreasonable, or clearly
erroneous.’” United States v. White, 69 M.J. 236, 239
(C.A.A.F. 2010) (quoting United States v. Lloyd, 69 M.J.
95, 99 (C.A.A.F. 2010)).
1
In its initial submission to the military judge on the matter, the defense also
provided a detailed explanation for the lack of any such notes.
4
MUWWAKKIL—ARMY MISC 20140536
When reviewing matters under Article 62(b), UCMJ,
[a service] court may act only with respect to matters of
law. United States v. Gore, 60 M.J. 178, 185 (C.A.A.F.
2004). “When a court is limited to reviewing matters of
law, the question is not whether a reviewing court might
disagree with the trial court’s findings, but whether those
findings are ‘fairly supported by the record.’” Id.
(quoting United States v. Burris, 21 M.J. 140, 144
(C.M.A. 1985)). When reviewing a ruling on a motion to
[strike under the Jencks Act and R.C.M. 914], “we
consider the evidence in the light most favorable to the
prevailing party.” United States v. Cowgill, 68 M.J. 388,
390 (C.A.A.F. 2010) (quoting United States v. Reister,
44 M.J. 409, 413 (C.A.A.F. 1996)).
United States v. Baker, 70 M.J. 283, 287-88 (C.A.A.F. 2011). 2
Jencks Act and R.C.M. 914
The Jencks Act, 18 U.S.C. § 3500, and its incorporation within the military
justice system under R.C.M. 914, require the government to preserve and produce
prior verbatim statements of witnesses upon demand by the defense. Article 32
recordings of witness testimony are included as statements under the Jencks Act.
United States v. Marsh, 21 M.J. 445, 451 (C.M.A. 1986); United States v. Lewis, 38
M.J. 501, 508 (A.C.M.R. 1993).
Where the government’s loss of such statements is due to bad faith or gross
negligence, striking the testimony of the witness whose statement is lost is
mandated. See Marsh, 21 M.J. at 452 (citing United States v. Jackson, 450 A.2d
419, 427 (D.C. 1982)). When the government, as here, carelessly fails to maintain
and produce a statement under its Jencks Act obligations, the judge is required to
consider and balance the totality of relevant circumstances and resolve whether and
what fashion of remedy is appropriate. See id. at 451-52 (relying on Jackson,
450 A.2d 419 and United States v. Bryant, 439 F.2d 642, 651-52 (D.C. Cir. 1971)),
abrogated on other grounds by Arizona v. Youngblood, 488 U.S. 51 (1988)); United
States v. Bosier, 12 M.J. 1010, 1013-14 (A.C.M.R. 1982); United States v. Ali,
12 M.J. 1018, 1020 (A.C.M.R. 1982); see also United States v. Jarrie, 5 M.J. 193,
195 (C.M.A. 1978) (addressing the limits of the so-called “good faith” exception and
appropriate action in the absence of good faith); United States v. Carrasco, 537 F.2d
372, 376-78 (9th Cir. 1976). Those circumstances include, among others, the degree
2
We have no authority to find facts under Article 62, UCMJ, and are confined to the
trial judge’s findings of fact and reasonable interpretation and characterization of
the same. Baker, 70 M.J. at 289-90.
5
MUWWAKKIL—ARMY MISC 20140536
of negligence on the part of the government, the extent to which the defense might
adequately rely on substitutes for the lost statement, and the importance of the lost
statement to the presentation of the defense. See, e.g., Marsh, 21 M.J. at 451-52;
Bosier, 12 M.J. at 1014 (citing Bryant, 439 F.2d at 653). 3 However, it is not for the
judge to determine how useful the lost statement might be in cross-examination; that
judgment is for the defense counsel. See United States v. Dixon, 8 M.J. 149, 152 n.7
(C.M.A. 1979).
By resolving the question of remedy in the manner described, a trial judge
acts well within her discretion. See Marsh, 21 M.J. at 452 (citing United States v.
Perry, 471 F.2d 1057, 1068 n.47 (D.C. Cir. 1972) (“As the Supreme Court noted in a
slightly different context in Palermo v. United States, 360 U.S. 343, 353 (1959),
administration of the Jencks Act must rest ‘within the good sense and experience of
the district judge . . . and subject to the appropriately limited review of appellate
courts.’”)); see also United States v. Boyd, 14 M.J. 703, 705 (N.M.C.M.R. 1982)
(“[I]mplementation of the Act must be entrusted to the good sense and experience of
the trial judge subject to appropriately limited review of appellate courts.” (quoting
United States v. Augenblick, 393 U.S. 348, 355 (1969) (internal quotation marks
omitted))). And the judge in this case did just that.
The government concedes simple negligence for the loss of the recording, but
contends that any finding of gross negligence is clearly erroneous. However, as the
government correctly points out, the judge never did make a clear finding of gross
negligence. In any event, the judge’s finding that the government’s loss of the
required statement was due to its negligence is amply supported by evidence in the
record and necessarily triggers the totality of circumstances test described above to
determine an appropriate remedy for the Jencks Act violation. 4
There is no evidence that the government destroyed the statement in “good
faith” or was otherwise blameless in its destruction. See, e.g., Carrasco, 537 F.2d at
376; Lewis, 38 M.J. at 508 (citing Jarrie, 5 M.J. at 195). Beyond that, the
government simply disagrees with the judge’s exercise of her discretion as to the
proper remedy. Any disagreement any of us might have with the judge’s exercise of
3
In cases where a trial judge erroneously fails to strike affected testimony, appellate
courts further consider the strength of the evidence of appellant’s guilt otherwise to
determine whether the error was harmless. See, e.g., Carrasco, 537 F.2d at 378
(citing Killian v. United States, 368 U.S. 231, 240-44 (1961)); Bosier, 12 M.J. at
1014.
4
Even in cases where the government acted in good faith or was otherwise
blameless, the judge should apply the balancing test described above. See generally
Marsh, 21 M.J. at 451-52. See also Carrasco, 537 F.2d at 376-78; Bosier, 12 M.J. at
1014.
6
MUWWAKKIL—ARMY MISC 20140536
discretion under these circumstances is no basis for relief under Article 62. See
Baker, 70 M.J. at 288 (“[T]he question is not whether a reviewing court might
disagree with the trial court’s findings, but whether those findings are ‘fairly
supported by the record.’”) (citation omitted). Indeed the law demands that we
respect and defend the reasoned exercise of a trial judge’s discretion in cases such as
these and so we do here.
CONCLUSION
Because the military judge’s findings are fairly supported by the record and
her decision to strike GP’s testimony was well within her discretion and
responsibility to administer the Jencks Act and R.C.M. 914, we hold that the judge
did not abuse her discretion.
Accordingly, the appeal of the United States pursuant to Article 62, UCMJ, is
DENIED.
Senior Judge LIND and Judge PENLAND concur.
FOR
FORTHE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES,JR.
JR.
Clerk of Court
Clerk of Court
7
|
259 F.2d 532
William MEYERS, Standard Brands Incorporated, Brillo Manufacturing Co., Inc., Atlantic Gummed Paper Corp., Warshaw Manufacturing, Inc., and Abraham & Straus Division of Federated Department Stores, Inc., Plaintiffs-Appellees,v.JAY STREET CONNECTING RAILROAD, and Moses Spatt, Milton E. Spatt, Joseph S. Wohl, and Herbert S. Struller, individually and as officers and directors thereof, Defendants-Appellants.
No. 395.
Docket 25309.
United States Court of Appeals Second Circuit.
Argued September 29, 1958.
Decided October 7, 1958.
Rehearing Denied October 27, 1958.
Richard S. Buell, New York City (McLanahan, Merritt & Ingraham, New York City, on the brief), for plaintiffs-appellees William Meyers, Atlantic Gummed Paper Corp., and Warshaw Mfg., Inc.
James E. Sapp, Jr., New York City, for plaintiff-appellee Standard Brands Inc.
Morris Gottlieb, New York City, for plaintiff-appellee Brillo Mfg. Co., Inc.
Jacob Imberman, New York City (Proskauer, Rose, Goetz & Mendelsohn, New York City, on the brief), for plaintiff-appellee Abraham & Straus Division of Federated Department Stores, Inc.
J. Bertram Wegman, New York City (Wegman, Epstein & Burke, New York City, on the brief), for defendants-appellants.
Before CLARK, Chief Judge, and LUMBARD and MOORE, Circuit Judges.
LUMBARD, Circuit Judge.
1
The question for decision is whether there is sufficient basis for the district court's issuance of a preliminary injunction enjoining the Railroad and the four individual defendants from ceasing operations on the ground that the Interstate Commerce Commission has not permitted abandonment. We think the preliminary injunction was properly issued and we affirm the order of the District Court for the Eastern District of New York.
2
On August 20, 1958, Judge Abruzzo, after a hearing which commenced August 13, issued an injunction, preliminary to a trial of the action set for October 6, 1958, which enjoined defendants from
3
"directly or indirectly abandoning or ceasing operations of the defendant, Jay Street Connecting Railroad, or refusing to receive, deliver or transport carload freight. * * *"
4
The order is conditioned upon the giving of $50,000 security by the plaintiffs to safeguard against interim losses should the defendants ultimately prevail.
5
The plaintiffs here all either ship freight on the Railroad, or own buildings presently served by it. The individual defendants are all officers, stockholders or directors of the corporate defendant, the Jay Street Connecting Railroad.1
6
The Railroad's main track of 3,102 feet is entirely located within a small area of Brooklyn adjacent to the East River and extending for a few blocks under and on either side of the ramp of the Manhattan Bridge. The Railroad delivers to and receives freight cars from its customers in this area solely by means of numerous spur tracks and team tracks which total in length respectively 6,313 feet and 3,352 feet. There is no public terminal where freight can be received or discharged, and freight is handled only by the carload. The other terminal points of the Railroad lie in the Bronx and in Hudson County, New Jersey, where the Railroad interchanges with the major eastern trunk line railroads. The Railroad transports cars between these shore line interchange points and its Brooklyn tracks by means of a car-float propelled by a tug. Since 1941 the Railroad has operated under a certificate of convenience and necessity issued by the Interstate Commerce Commission.
7
During the last several years the financial condition of the Railroad has seriously deteriorated. The district court found that the Railroad has lost money for five years and is now losing money, that its current liquid assets are "approximately $400," and that "the present operation of the Railroad is being done on borrowed money." There is uncontested evidence in the record of large and increasing monthly losses. There is further undisputed testimony that the Railroad has recently managed to continue operations only by withholding from the trunk line roads their share of the freight charges which it had collected, and by advances from its stockholders. In June 1958 the Railroad applied to the Commission for a certificate of convenience and necessity authorizing abandonment of its operations, and hearings were set for August. Finally, after the district court proceedings referred to above, hearings were commenced before a Commission examiner on September 2 and concluded on September 10. The parties now await the examiner's report.
8
On August 5 the Railroad was notified by some of the trunk line roads with which it connects that no more credit would be extended to it. At about the same time the Railroad's tugboat met with an accident and was ruled unfit for use by the Coast Guard, thus necessitating the rental of another tug. On August 6 the Railroad notified its patrons that because of a lack of funds to meet operating expenses and in order to prevent the accumulation of cars it was issuing "an embargo on all freight, with no exceptions, from, to or via the Jay Street Terminal, The Jay Street Connecting Railroad, Brooklyn, New York, including all private side tracks, team tracks and other facilities, which embargo will become effective midnight, August 8, 1958." At the same time the Railroad notified its employees that their services would not be needed after August 8. The plaintiffs construed the embargo as a threat by the Railroad to abandon operations and they immediately sought a temporary restraining order forbidding such abandonment. On August 8 the district court issued a temporary restraining order. After the commencement of the hearing on August 13, it extended the order and on August 20 it issued the preliminary injunction here in issue.
9
The statutory bases for the injunction are paragraphs (18) and (20) of § 1 of the Interstate Commerce Act, 49 U.S.C. A. § 1(18), (20). Paragraph (18) provides that "no carrier by railroad subject to this chapter shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the commission a certificate that the present orfuture public convenience and necessity permit of such abandonment." Paragraph (20) provides that "any * * * abandonment contrary to the provisions of * * * paragraph (18) * * * of this section may be enjoined by any court of competent jurisdiction at the suit of * * * any party in interest * * *."
10
It is conceded by both sides that the Jay Street Connecting Railroad is a "carrier by railroad subject to this chapter" within the meaning of paragraph (18) except as the Railroad or any part of it is affected by paragraph (22) of 49 U.S.C.A. § 1. Paragraph (22) provides: "The authority of the commission conferred by paragraphs (18) to (21), both inclusive, shall not extend to the * * * abandonment of spur, industrial, team, switching, or side tracks, located * * * wholly within one State. * * *"
11
Defendants urge three reasons for reversing the preliminary injunction. First, they argue that their August 6 embargo notice did not constitute a threat of abandonment within the meaning of paragraph (18). Second, they assert that paragraph (22) exempts such a significant portion of the Railroad from ICC jurisdiction as to leave the plaintiffs with no cause of action even if the embargo would have been an abandonment. Finally, they argue that whatever the legality of the proposed embargo, the district court's injunction is improper because the Railroad does not possess the funds to operate. We find no merit in these arguments.
12
The basis for defendants' first argument is their assertion that the August 6 embargo was intended only as a temporary cessation of service, to last until funds with which to resume operations were somehow found. They urge that a cessation of service must be permanent in order to constitute an abandonment within the meaning of paragraphs (18) and (20) of 49 U.S.C. § 1, and in support of this proposition they cite language in Zirn v. Hanover Bank, 2 Cir., 1954, 215 F.2d 63, 69, and in Wheeling & L. E. R. Co. v. Pittsburgh & W. V. R. Co., 6 Cir., 1929, 33 F.2d 390, 392. It is true that these cases define abandonment as a permanent cessation of service. It is also true that the August 6 notice of embargo did not expressly recite an intention never to resume operations. That embargo was, however, an expression of an intention indefinitely to cease all service. We think the purpose of paragraphs (18) and (20) permits of no distinction between discontinuing service permanently and suspending it indefinitely. So far as these plaintiffs are concerned there is no way of knowing when they can expect service to resume and they can make no business plans on the possibility that service may be resumed.
13
We come next to the effect of paragraph (22) of 49 U.S.C.A. § 1. There is no doubt that a substantial part of the defendant Railroad's track consists of "spur, industrial, team, switching, or side tracks," the abandonment of which, at least separately, would not fall within the authority of the ICC. The Railroad, however, also contains track the abandonment of which is clearly within the authority of the ICC. This is so on two accounts. First, defendants concede in their brief that the Railroad contains a "main line" in addition to its spurs and sidings. In addition, the Railroad is an interstate operation, with an interchange point in New Jersey, and paragraph (22) restricts the authority of the ICC only insofar as intrastate side lines are concerned.
14
Were the defendants' threat to abandon limited to a part of the track it would have been necessary for the district court to determine whether that part was exempt from ICC authority under paragraph (22). It was unnecessary, however, to go into such questions in this case. The notice of embargo of August 6 was a proposal to abandon the entire operation of the Jay Street Connecting Railroad. This total abandonment would have included the abandonment of track within the jurisdiction of the ICC. It was therefore proper under paragraph (20) to enjoin the proposed abandonment of the entire line.
15
Defendants seek to excuse their threat of total abandonment by arguing that were they only to abandon all the spurs and side tracks which they claim they may properly abandon under paragraph (22), no shipper would have access to their lines. The effect would then, they say, be the same as that of the total abandonment which the district court enjoined. Of course it is open to the defendants to develop in the district court the facts regarding any abandonment which may be permissible under paragraph (22) and it would then be the duty of the district court to make findings with respect to such proposed abandonment. All that defendants have as yet proposed is an abandonment of their entire operation, and we hold that an injunction prohibiting that is proper.
16
Once we have concluded that the proposed abandonment of the entire Railroad would be improper under paragraph (18) of 49 U.S.C.A. § 1, it is clear that the plaintiffs here are parties in interest entitled to an injunction under paragraph (20) of that section. Plaintiffs are the Railroad's customers. Its cessation of service disrupts their business operations. Their interest in the matter could hardly be more acute.
17
Defendants' final point is that Judge Abruzzo's injunction is improper because the corporation has not the funds or credit to comply. Were it in fact impossible for the individual defendants to avoid contempt proceedings without sacrificing their personal funds this point would be a serious one. As it is, however, defendants can attempt to escape personal liability by petitioning for reorganization of the railroad under § 77 of the Bankruptcy Act, 11 U.S.C.A. § 205. They have not sought this relief. Unless they do so, and relief is denied to them, it is our opinion that the hardships imposed by the injunction do not outweigh the strong purpose of the Interstate Commerce Act to prohibit the abandonment of railway service without the approval of the ICC.
18
It is to be hoped that in view of the financial situation allegedly faced by the Railroad the examiner and the Commission will expedite their determination of the application to abandon.
19
The order is affirmed.
Notes:
1
Defendant Moses Spatt is a director, a vice-president, and owns fifty percent of the stock. The remaining fifty percent of the stock is owned by defendant Wohl, who is also secretary-treasurer and a director. Defendant Milton Spatt is executive vice-president and defendant Struller is comptroller
20
On Petition for Rehearing.
21
PER CURIAM.
22
The petition for rehearing is denied. The original opinion stated that "it is open to the defendants to develop in the district court the facts regarding any abandonment which may be permissible under paragraph (22) and it would then be the duty of the district court to make findings with respect to such proposed abandonment." The district court was confronted only with a proposal for total abandonment. Until it has had an opportunity to pass upon such other and different proposals which plaintiffs may wish to advance, there is no occasion for appellate consideration of the matter.
|
41 Cal.2d 23 (1953)
ARTHUR A. JONES, Appellant,
v.
LOUISE B. MARTIN et al., Defendants; ISABELLE WELLINS, as Administratrix etc. et al., Respondents.
L. A. No. 22608.
Supreme Court of California. In Bank.
May 12, 1953.
Arthur A. Jones, in pro. per., for Appellant.
Belli, Ashe & Pinney, as Amici Curiae on behalf of Appellant.
Macbeth & Ford, Vincent J. Blumberg, Patrick H. Ford and David Sokol for Respondents. *25
CARTER, J.
Plaintiff appeals from a judgment for defendants, except Mrs. Martin, in an action to recover attorney's fees. Defendants in the original complaint were Mrs. Martin, a labor union--an unincorporated association, and some of the members thereof. By amended complaint, Wellins, an attorney at law, was added as a defendant. Later he died and Isabelle Wellins, as the administratrix of his estate, was substituted.
According to the findings (the case was tried by the court without a jury) plaintiff, an attorney at law, was employed by Mrs. Martin by written contract to represent her in prosecuting a claim against the union for personal injuries arising out of an assault and battery, under which contract he was to receive a contingent fee of 50 per cent of all sums recovered on the claim by action, compromise or otherwise. It was also agreed that plaintiff was to have full charge of the collection of the claim; that a discharge of plaintiff would not affect his right or interest in the claim and a recovery thereon; that the agreement operates as an assignment and transfer pro tanto to plaintiff of the claim and right to recover and anything collected thereon. Plaintiff commenced an action on the claim but before it was tried, and on April 1, 1949, defendant, Mrs. Martin, without just cause, discharged plaintiff as her attorney and had defendant Wellins substituted in his place. The action was tried by Wellins and judgment obtained on November 8, 1950, in favor of Mrs. Martin for $24,126.29. While that action was pending and before judgment, plaintiff commenced the instant action on September 25, 1950, in which Wellins was not a party defendant. The complaint was entitled one for money due, and alleged that a judgment had been obtained (apparently, however, it had not yet been entered at that time); that plaintiff was entitled to one- half the judgment under the contract; that the judgment debtors were willing to pay and are indebted to plaintiff and should be enjoined from paying to Mrs. Martin; and that plaintiff, by reason of his contract, had a lien on the judgment for one-half thereof. The amended complaint filed in May, 1951, made Wellins a party and charged him with having received and paid out in part, the $20,000 which was received in settlement of the judgment, knowing of plaintiff's claim and lien, and that he held the $20,000 as constructive trustee for plaintiff. Wellins knew of the pendency of this action on or about November 15, 1950, and of plaintiff's contract at all times since April 8, 1949. The union also knew of the contract *26 at all times since April 18, 1949, and there had been served upon them a written notice of lien on April 27, 1949. On August 16, 1950, plaintiff orally agreed with David Sokol, the union's attorney, that Sokol would notify plaintiff when the union had paid the judgment or a compromise of the action and plaintiff would then attempt to attach the money. The action was settled for $20,000 on April 16, 1951, by check to Mrs. Martin and Wellins. On April 17, 1951, Wellins deposited the check to his account and paid $4,000 to the union's workmen's compensation insurance carrier and $8,000 to himself as attorney's fees. On April 20, 1951, he paid the balance of $8,000 to Mrs. Martin and she left the state. Sokol telephoned plaintiff's office on April 16, 1951, to notify him of the settlement but was unable to contact him. He did notify him on April 17, 1951, at which time plaintiff made no protest or objection to the payment of the settlement amount, or claim that it violated his rights and did not assert any claim of lien.
On September 25, 1950, plaintiff filed in the instant action an affidavit for attachment which stated that the union and Mrs. Martin were indebted to him for $12,063.15, on contract and the payment has not been secured by a lien or mortgage on personal property. The sheriff was instructed to levy on the judgment. On April 21, 1951, plaintiff again executed an affidavit for attachment, stating that defendants in the instant action were indebted to him on contract for $10,000 and that its payment is not secured by any lien upon personal property. The attachment was levied on Wellins' bank account and was not discharged until Wellins' death on June 15, 1951. On April 23, 1951, Wellins told plaintiff of the disbursement of the settlement money as above described. Wellins died on June 15, 1951, and his administratrix was substituted in his place.
Finally it was concluded that plaintiff had waived his claim for an attorney fee lien and defendants ceased to be constructive trustees of the fund upon the waiver; that plaintiff had filed no claim against the estate of Wellins pursuant to 707 of the Probate Code and hence his action was premature.
It was also concluded that plaintiff have judgment for $8,000 against Mrs. Martin but that plaintiff waived his attorney lien as to the other defendants and is estopped to assert any lien; that plaintiff take nothing as to those defendants. Judgment was accordingly entered. *27
Plaintiff contends that even if he lost his "attorney's lien" he did not lose his cause of action against the union or Wellins, such cause of action being based upon payment by the debtor, the union, to the assignor Mrs. Martin, after notice to the debtor of the pro tanto assignment by Mrs. Martin to plaintiff of whatever was recovered on her claim for damages against the union; that Wellins, and later his administratrix, held the money received from the union as constructive trustee because he had received it with knowledge of plaintiff's claim under his attorney's fee contract; that there was no estoppel or waiver of either his lien, his cause of action, or right to assert a constructive trust; that because there was a constructive trust it was not necessary to file a claim against Wellins' estate under section 707 of the Probate Code.
There is no question that the union and Wellins were fully advised of plaintiff's contract with Mrs. Martin and any rights he had thereunder and the court so found. No question is raised as to the validity of the "assignment" features of that contract or that a lien could have been thereby created. The contract was not unconscionable and plaintiff was discharged without cause. [1] An attorney employed under a contingent fee agreement who is wrongfully discharged by his client, is generally entitled to the same amount of compensation and under the same contingency as if he had completed the services contemplated. (Salopek v. Schoemann, 20 Cal.2d 150 [124 P.2d 21]; Zurich G. A. & L. Ins. Co., Ltd. v. Kinsler, 12 Cal.2d 98 [81 P.2d 913]; Denio v. City of Huntington Beach, 22 Cal.2d 580 [140 P.2d 392, 149 A.L.R. 320]; see cases collected 6 Cal.Jur.2d, Attorneys at Law, 197.) [2] And "A contingent fee agreement vests the attorney with an equitable interest in that part of the client's cause of action which is agreed upon as the contingent fee. This proposition may be given practical effect by the imposition of a constructive trust for the protection of the attorney's equitable interest, by acknowledging the existence of an express trust created by the contingent fee agreement in favor of the attorney, or by ruling that neither the client nor the opposite party, if the latter has knowledge of the attorney's rights under the contingent fee agreement, can so compromise the litigated subject matter as to defeat the attorney's rights. ... [3] However, an attorney under a contingent fee agreement has no special or charging lien, unless it has been specifically contracted for." (6 Cal.Jur.2d, Attorneys at Law, 192.) [4] It is also true that a debtor will not be discharged *28 from his obligations by performance rendered to the assignor after notice of the assignment. (McCarthy v. Mt. Tecarte L. & W. Co., 110 Cal. 687 [43 P. 391]; Greenlee v. Los Angeles Trust etc. Bank, 171 Cal. 371 [153 P. 383]; H. D. Roosen Co. v. Pacific Radio Pub. Co., 123 Cal.App. 525 [11 P.2d 873]; Graham Paper Co. v. Pembroke, 124 Cal. 117 [56 P. 627, 71 Am.St.Rep. 26, 44 L.R.A. 632]; Nelson v. Fernando Nelson & Sons, 5 Cal.2d 511 [55 P.2d 859], Rest. Contracts, 170.)
It would appear, therefore, under the foregoing rules that neither the union nor Wellins could pay the money recovered to Mrs. Martin and be relieved of the obligation under the assignment, or "equitable interest," "lien" or constructive trust unless plaintiff waived or was estopped to assert such rights, as was found by the court.
[5a] In regard to the union it is clear that plaintiff waived or is estopped to assert any "lien" or "equitable interest." We have the two attachment affidavits in which it was asserted under oath by plaintiff that he had no lien--that the payment of his claim for attorney's fees was not secured by any "lien." That may well be interpreted to include any equitable interest. There is also the oral agreement of August 16, 1950, between Sokol, the union's attorney, and plaintiff, found by the court, that "Sokol would notify said plaintiff ... when his clients, the said ... [Union] had paid any judgment or compromise of said action ... and that said plaintiff ... would then try to attach the money by proceeding in this then pending action ..." from which it is implicit that plaintiff was not only not insisting on his right to a lien-equitable interest but was also waiving any objection he had to the payment to his assignor instead of to him. [6] The waiver of or estoppel to assert a lien or an equitable interest in property does not necessarily mean that the obligation secured by the lien or giving rise to the interest is lost, as it may exist without the security or other assurance that it will be discharged. [5b] But here the court was justified in concluding that not only the lien and equitable interest were lost, but also the obligation, because, implicit in the oral agreement is an authorization by plaintiff (assignee) that the union (debtor) could pay the assignor (Mrs. Martin) rather than him. Subsequent to the agreement, and on April 16, 1951, Sokol paid to Mrs. Martin and Wellins the $20,000 settlement, after trying unsuccessfully, but without fault on his part, to notify plaintiff thereof. He notified him on April *29 17, 1951, and the court found that "At said time of said notice said plaintiff made no protest or objection to said payment, made no claim that it violated any of his rights, and made no assertion of any right to a lien on the fund before said payment."
Plaintiff makes numerous claims with respect to the foregoing, such as asserted negligence and fraud on Sokol's part, no justified reliance on the oral agreement, and further that his action (the instant one) commenced in September, 1950, after the oral agreement, charging the union with responsibility, prevented reliance on the agreement by the union. The whole course of events and conduct of plaintiff subsequent to the commencement of his action, and thereafter, showed that he was not relying upon a claim against the union. These events, supported by adequate evidence, are summarized by the trial court in its memorandum opinion as follows: "The minute order for judgment in the Schneiderman case [the personal injury action] was made on August 15, 1950. On the next day Mr. Sokol, attorney for the Union defendants, wrote plaintiff saying 'It is very urgent that you get in touch with me and I shall appreciate hearing from you.' (Exhibit B.) Mr. Sokol previously had been notified in writing of plaintiff's claim of an attorney's lien. Shortly after receipt of this letter plaintiff called at Mr. Sokol's home and was told that the latter was at a loss to know what his, plaintiff's, rights were against Sokol's clients, that he knew of no right to a lien against them and that he would like to know what plaintiff wanted him to do. Thereupon plaintiff said that all he would ask of Mr. Sokol was to notify him when the defendants had paid the judgment and that he would try to attach. This is all he asked Mr. Sokol to do. When the judgment was entered, Mr. Sokol promptly notified plaintiff of that fact. Thereupon an appeal was taken, followed ultimately by a compromise in April, 1951. The ... Union sent its $20,000 check to Mr. Sokol who received it on April 16, 1951. He called plaintiff that same day and before contacting Mr. Wellins concerning receipt of the check. Being unable to reach plaintiff, he told Mr. Alperin, his office associate, that if Mr. Jones should call, to tell him of the fact of the receipt of the money to close the settlement of the judgment. But Mr. Wellins was pressing him for a consummation of the compromise and so on that same day the $20,000 was paid to him by Mr. Sokol. On the 17th Sokol reached plaintiff by telephone and plaintiff said that his secretary had not been in *30 the office on the 16th. He also said that he would attempt to attach or restrain the payment of the money by Wellins. Mr. Sokol heard no more from Mr. Jones until on the 25th of April. In the meantime the alias writ of attachment was issued on the 23d, based upon plaintiff's affidavit of the 21st. Although this writ was not levied on any property of the union defendants, Mr. Sokol was curious and on the 25th called on Mr. Jones, asking him why he was keeping his, Sokol's clients in the case, asserting that no attorney's lien could run against them,--a position he still maintains and in apparent good faith. Plaintiff said he did not know, but he thought he might have something. The significance of this conversation of the 25th,--after the money had been paid over to Wellins,--is that it shows plaintiff had little confidence in his lien and was relying upon other remedies, such as injunction and attachment. Later, when Mr. Sokol reproached him for inserting in the amended complaint herein an allegation that he, Sokol, had promised to deposit the money in court, Mr. Jones replied that he had to put something in there. In fact, plaintiff never made any such request and Mr. Sokol made no such promise. He fully performed his promise to plaintiff both in letter and in spirit. It is apparent from the foregoing that the court accepts on all points of conflict the testimony of Mr. Sokol rather than that of Mr. Jones, whose credibility has been destroyed in divers ways and respects. The charges of unethical conduct which were hurled at Mr. Sokol by Mr. Jones from the witness stand are untrue."
"Plaintiff's conduct justifiably led Mr. Sokol to believe that he did not and would not stand upon his claim of a lien. The union defendants have changed their position to their prejudice in reliance upon plaintiff's conduct and he is estopped now to insist upon the lien against them. ..."
Plaintiff's main argument on this point (waiver of lien) seems to center around the alleged incredibility of the union's witness Sokol. That was a question for the trial court which was resolved against plaintiff and it was justified in drawing reasonable inferences which established a waiver or estoppel rather than those to the contrary.
It is urged that estoppel or waiver cannot apply because there was no misleading conduct or statements by plaintiff as to present facts--only future promises were made. As seen from the oral agreement and other conduct of plaintiff, there was a present intent to abandon the claim against the union. *31
[7] Plaintiff claims that the estoppel or waiver was not properly pleaded because it was alleged in the union's answer that the agreement was made when the substitution of attorneys was filed rather than in August, 1951, as found by the court. It was alleged in the answer that at the time of the substitution plaintiff told Sokol there was nothing he could do "until any money recovered by the plaintiff ... was paid by these defendants and that plaintiff would appreciate it if David Sokol would advise plaintiff when the matter came to trial and when judgment was entered"; that thereafter at various times Sokol communicated with plaintiff, and after entry of the judgment in the personal injury action plaintiff again said that all he expected of Sokol was to advise plaintiff when payment was made, and there was nothing else Sokol could do, and plaintiff could do nothing as to the payment until payment had been made. The court found the oral agreement as above mentioned and that the allegations of the answer were true except that it is not true that plaintiff's request to Sokol to keep plaintiff posted was made at the time of substitution, or that plaintiff said Sokol could do nothing until payment, or that Sokol's discussion concerning what action plaintiff wanted from Sokol was shortly after the entry of the judgment or by telephone. But it is true that "plaintiff in said discussion did state that all he wanted said Sokol to do in plaintiff's behalf was to advise plaintiff when payment had been made to defendant Louise Martin or her attorney, Marvin Wellins; and it is not true that plaintiff advised said Sokol that there was nothing else that said Sokol could do, but it is true that plaintiff did advise said Sokol, shortly after August 15, 1950, that there was nothing else said Sokol should do as far as plaintiff's rights were concerned; and it is not true that plaintiff at said time stated to said Sokol that under the law plaintiff could take no action whatsoever until said Sokol or the defendants he represented had paid over the moneys pursuant to the judgment to said Louise Martin." We do not believe that plaintiff was prejudiced. He was advised of the situation he had to meet and the seeming variances as to times was not vital. Indeed, plaintiff admitted the conversation in regard to the agreement:
"Q. By Mr. Sokol: Didn't you tell me in my home when I asked you what I could do, that the only thing--you told me 'Sokol, when you pay the money, let me know and then I will attach it.' Did you or did you not tell me that, in my *32 home? A. That was part of the conversation, but not all of it. You are leaving out other parts that are very important."
[8] In regard to Wellins it appears that recovery against his administratrix was properly denied because of plaintiff's failure to file a claim against the estate. Section 707 of the Probate Code provides that all claims arising upon contract must be filed or presented within the time required or they are barred. Likewise a claim must be presented or filed where, as here, an action against decedent involving the claim is pending at the time of his death and no recovery may be had unless there is proof of the filing or presentment of a claim. (Prob. Code, 709.) Here plaintiff did not present or file any claim.
He endeavors to escape the claim requirement by asserting that none is required where he is, as here, asserting a constructive trust against Wellins, decedent. (See 11A Cal.Jur. 706-707, 711-712.) The theory is that by reason of the trust the beneficiary has an interest in specific property included in the assets of the estate--a claim that such interest belongs to him, not to the estate, as distinguished from a debt or obligation arising out of contract.
That argument will not aid plaintiff because he has waived or is estopped from asserting any equitable interest in any property of Wellins' estate by the following: In his original complaint he did not even include Wellins as a named party, and while he mentioned a lien he asserted that he was entitled to half the recovery under his contingent fee contract, and that the whole is due and owing, and that defendants are indebted to plaintiff under said contract. In his amended complaint filed on May 24, 1951, when he named Wellins as a defendant, he does allege that Wellins held the $20,000 proceeds of the settlement as constructive trustee, and he also alleged that Wellins was indebted to him in the sum of $10,000. In his first affidavit for attachment on the original complaint, he asserted that defendants (union and members) were indebted to him on a contract for the direct payment of money and it was not secured by any lien. The same statements were made in his second affidavit for attachment which was filed on April 23, 1951, and an attachment was issued and levied on Wellins' bank account and not released until after Wellins died on June 15, 1951. We think, from the foregoing, it is clear that plaintiff had lost any claim to an interest in any property of Wellins' estate, and when the latter died, plaintiff's only claim was for money arising from *33 contract, and hence required the presentment or filing of a claim. In Steiner v. Rowley, 35 Cal.2d 713 [221 P.2d 9], the complaint had counts on contract and tort involving the same transaction. Plaintiff attached and it was held that he was estopped to rely upon the action in tort. Similarly, here plaintiff attached the bank account of Wellins indicating reliance upon a contract debt rather than a claim to specific property as the beneficiary of a constructive trust.
The judgment is affirmed.
Shenk, J., Edmonds, J., Schauer, J., and Spence, J., concurred.
|
101 N.J. Super. 244 (1968)
244 A.2d 131
LESTER HANDELSMAN, APPELLANT,
v.
DIVISION OF NEW JERSEY REAL ESTATE COMMISSION, RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued May 20, 1968.
Decided June 6, 1968.
*246 Before Judges GOLDMANN, KILKENNY and CARTON.
Mr. Leonard Adler argued the cause for appellant.
Mr. E. Robert Levy, Deputy Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).
The opinion of the court was delivered by CARTON, J.A.D.
Lester Handelsman appeals from an order of the Division of New Jersey Real Estate Commission revoking his real estate broker's license and directing that no license be issued to him for a period of five years. The Commission concluded that his conviction in the United States District Court for New Jersey of causing false statements to be made to the Federal Housing Administration, to which he had pleaded nolo contendere, was within the purview of N.J.S.A. 45:15-19.1 necessitating revocation of his license.
N.J.S.A. 45:15-19.1 provides:
*247 "When, during the term of any license issued by the commission, the licensee shall be convicted in a court of competent jurisdiction in the State of New Jersey or any State (including Federal courts) of forgery, embezzlement, obtaining money under false pretenses, extortion, criminal conspiracy to defraud, or other like offense or offenses and a duly certified or exemplified copy of the record in such proceedings shall be filed with the commission, the commission shall revoke forthwith the license by it theretofore issued to the licensee so convicted."
The companion section, N.J.S.A. 45:15-12.1, in pertinent part, provides:
"No license shall be issued by the Commission to any person known by it to have been, within five years theretofore, convicted of forgery, embezzlement, obtaining money under false pretenses, extortion, criminal conspiracy to defraud or other like offense or offenses * * *."
The Commission made the additional determination that appellant's activities demonstrated conduct showing unworthiness and dishonesty, in violation of N.J.S.A. 45:15-17(e), as well as evidencing conduct constituting fraud or dishonest dealing, in violation of N.J.S.A. 45:15-17(1).
The facts are not in dispute. On December 19, 1965 a federal grand jury indicated appellant on a six-count indictment charging him with causing certain false statements to be made and uttered to the Federal Housing Administration and Veteran's Home Administration in connection with applications for various mortgage loans and mortgage insurance, in violation of 18 U.S.C.A. §§ 1010, 1001 and 2. On June 23, 1967 he entered a plea of nolo contendere to the second count of that indictment charging him with willfully and knowingly causing to be made to F.H.A. false statements in a commitment for insurance for the purpose of obtaining a mortgage loan upon premises in Teaneck, New Jersey. He was sentenced to prison for one year but the sentence was suspended. He was also fined $3,000 and placed on probation for two years. The Commission conducted a hearing on September 13, 1967, on the basis of which the order appealed from was issued.
*248 The first point urged by appellant is that the Legislature invalidly delegated law-making powers to the Commission in that there are no adequate standards giving meaning or guidelines to the phrase "other like offense or offenses" as it appears in the statute. On the contrary, we are satisfied that the statute is valid and does not vest legislative or law-making powers in the Commission.
The presence of general terms in the statute does not of itself render it invalid. The test is whether "measured by common understanding it fairly and adequately conveys its meaning to all concerned." Laba v. Newark Board of Education, 23 N.J. 364, 384 (1957). It is sufficiently explicit if it informs "those subject to action thereunder as to the conduct which will render them liable to its penalties." Abelson's Inc. v. New Jersey State Board of Optometrists, 5 N.J. 412, 424 (1950).
The design of the statute was "to create and maintain a commission to scrutinize in general and with care the character, competency, and integrity of license applicants and license holders to the end that in the interest of the public welfare, incompetent, unworthy and unscrupulous persons would be excluded from the real estate brokerage business." Division of N.J. Real Estate Comm'n v. Ponsi, 39 N.J. Super. 526, 532-33 (App. Div. 1956). As the legislative report which accompanied the statute indicates, one of the main purposes of its enactment was the prevention or curtailment of fraudulent practices among brokers and their agents. That business is one in which great trust must be placed in the broker, and those who have a demonstrated history of fraudulent dealings are considered not desirable persons to be engaged in such business. See Ponsi, supra. Compare In re Comm'r of Banking and Insurance v. Parkwood Co., 98 N.J. Super. 263, 268 (App. Div. 1967).
The statute under consideration uses the term "like offense or offenses" in connection with a list of specified offenses: forgery, embezzlement, obtaining money under false pretenses, extortion and criminal conspiracy to defraud. The *249 lack of any greater particularity does not render it invalid. The term "other like offense or offenses" is given specificity by reference to the crimes which the Legislature has thus grouped together. The designated offenses, although unlike in some respects, have the same common characteristic of obtaining money or property from another by means of cheating, fraud or fraudulent device. It is clear that the basis upon which the Legislature grouped these offenses together is this common element. It is a thread which runs through the fabric of each of the crimes thus enumerated. It is equally clear that the Legislature intended to include in this group any other offense in which this common element appears.
In the sections in question the only power granted to the Commission is that of finding or determining whether a conviction in a court of law for an offense described in an indictment or information is the same as the enumerated offenses already defined by statute, or whether the offense upon which the conviction is based is a like offense. The power so conferred is not a power to define or determine what the proscribed conduct should be. It is simply a power to compare a specified offense with the offenses enumerated in the statute and to determine whether a common element exists between them. The standard is the element common to the named offenses. In no fair sense can it be said, as appellant contends, that "the Commission has been delegated the legislative power to declare what shall constitute a crime."
Attributing this meaning to the sections of the statute requiring revocation and denial of license for five years after conviction, it cannot be said that the legislative plan is unclear, that there are no proper standards, or that there has been any illegal delegation of power. There has been no denial of due process because all brokers may readily determine exactly what conduct may result in revocation.
We find no merit in appellant's contention that his false application for F.H.A. insurance of the mortgage loan was not a like offense to the crimes enumerated in N.J.S.A. *250 45:15-19.1. The Commission found as facts that Lester Handelsman had been a holder of a broker's license for a great number of years, was active in the real estate brokerage business and was well-versed in the financing of properties, especially the restrictions concerning the procurement of F.H.A. loans. The Commission's findings refer to the charge of count two of the indictment that the statements were false and made with the intent that the mortgage loan would be insured by F.H.A. It concluded that appellant's activities possessed the elements of obtaining money from another by means of a false device and that the conviction was for a "like offense" within the meaning of the statute. As the Commission points out, while appellant did not directly receive any of the proceeds from the mortgage loan, he did, as a result of his actions, benefit by serving his self interest and receiving a commission for the consummation of the transaction.
It is clear to us that the findings of the Commission were fully justified.
Nor is there any relevancy to appellant's argument that the offense of which he was convicted is not a crime in New Jersey. N.J.S.A. 45:15-19.1 does not stipulate that specific offenses committed in other jurisdictions must be offenses in New Jersey. It requires that if the licensee shall be convicted in any court of competent jurisdiction, whether state or federal, of any of the offenses enumerated or any offense containing the elements or characteristics common to such offenses, he shall lose his license.
Appellant next argues that "a suspended sentence suspends the effect of a conviction in a collateral license revocation proceeding." In effect, he would equate the suspension of the prison term with a pardon. This argument is fallacious.
His conviction was founded on a plea of nolo contendere to the charge in the indictment. As the court said in Kravis v. Hock, 136 N.J.L. 161 (E. & A. 1947), with reference to a similar situation:
*251 "* * * [I]t is immaterial whether that conviction is a result of a plea of guilty, or nolle contendere. The word `conviction' encompasses the sentence after a plea of nolle contendere, not the plea standing alone." (at p. 167)
The basis of the license revocation was the licensee's unworthiness to act as a broker, as evidenced by his record of conviction. His conviction stands and it is that conviction which effects the revocation of the license for five years. Moreover, only the prison sentence was suspended. He was still required to pay a $3,000 fine and was placed on probation for two years.
Appellant's final contention is that the Commission improperly considered the counts in the indictment which were dismissed and that he was therefore not afforded the hearing thereon to which he was entitled under N.J.S.A. 45:15-18. This argument is based upon the Commission's further finding that plaintiff also violated N.J.S.A. 45:15-17(e) and (1). Since the determination that appellant's conviction is a like offense within the meaning of N.J.S.A. 45:15-12.1 (and N.J.S.A. 45:15-19.1) mandated revocation of his license, consideration of these additional charges and the conclusion that there had been additional violations is unnecessary.
Affirmed.
|
605 So.2d 671 (1992)
Lemrell HARDEMAN, JR., Plaintiff-Appellant,
v.
C.J. BLACHE, Administrator Department of Employment Security of Louisiana and Southern Gulf Trucking, Defendant-Appellees.
No. 23968-CA.
Court of Appeal of Louisiana, Second Circuit.
September 23, 1992.
Northwest Louisiana Legal Services, Inc. by Pamela P. Mitchell, Shreveport, for plaintiff-appellant.
*672 Frank T. Scott, Jr., Louisiana Office of Employment and Training, Baton Rouge, for the State of La.
Hal V. Lyons, Shreveport, for Southern Gulf Trucking.
Before SEXTON, LINDSAY and BROWN, JJ.
LINDSAY, Judge.
The claimant, Lemrell Hardeman, Jr., appeals a district court judgment affirming his disqualification from receiving unemployment compensation benefits. We affirm the judgment of the district court.
FACTS
The claimant began working for Southern Gulf Trucking in October, 1982. He was employed as a cross-country truck driver and was assigned to drive one of Southern Gulf's trucks. The claimant's last day of work for Southern Gulf was December 22, 1989. When he reported for work on January 5, 1990, he was informed that his employment was terminated for altering equipment on his truck. The employer found out that in violation of previous instructions, and company policy, the claimant had removed the factory installed radio in his assigned truck and had installed his personal AM/FM radio and cassette player. Further, the claimant had added large spot mirrors to the original factory installed mirrors on the truck. It was also determined that in the past, the claimant had installed a radio and mirrors to a company truck and at that time, although not terminated, the claimant was instructed not to repeat his actions.
The claimant was told that his present actions violated company policy which prohibited removal or modification of factory installed equipment on his assigned truck. This policy was contained in the policy manual distributed to employees. According to Rule 3E of the policy manual:
The following violations will result in dismissal for the first offense:
E. Tampering with the engine, truck, or equipment.
Claimant's employment was terminated because he violated this company policy a second time, after previously being warned not to do so.
Following his termination, the claimant applied for and qualified for unemployment compensation benefits. Southern Gulf appealed to an appeals tribunal of the Office of Employment Security, arguing that the claimant had been terminated for misconduct which disqualified him from receiving unemployment compensation benefits.
A hearing was held before an administrative law judge (ALJ). The claimant appeared at the hearing and testified on his own behalf. Appearing on behalf of the employer were Richard Webb, safety director of Southern Gulf, and Neale Haynes, vice president of Southern Gulf.
At the hearing the claimant acknowledged that he had received a copy of the company policy. The claimant also admitted replacing the radio and mirrors on the truck. He testified that while in Orange, Texas, on December 17, 1989, the radio in the truck ceased working and the weather conditions were snowy with sleet and ice. He contended that he had to replace the radio to keep up with weather reports. He also stated that he added the spot mirrors on the truck in order to see better.
Apparently these were not the first incidents in which the claimant was involved in the installation of mirrors and radios in company trucks. The claimant had previously added spot mirrors in 1988. Southern Gulf removed the mirrors and the claimant was told not to repeat his actions. Approximately one month later, in violation of the previous instructions, the claimant put his mirrors back on the truck. In September 1989, Southern Gulf discovered that the claimant had put the mirrors back on the truck and claimant was again told to remove them. Southern Gulf did not follow up to see if the claimant complied with the order.
The witness from Southern Gulf also testified that several years prior to the present incident, the claimant replaced a radio in his assigned truck and was warned at that time against tampering with the vehicle's *673 original equipment. Southern Gulf prohibited such conduct to prevent tampering with the electrical system of the truck and possibly causing breakdowns or electrical fires.
In connection with the present incident, Southern Gulf's witnesses also testified that after claimant was terminated, the original radio, which claimant testified had been removed because it was inoperable, was reinstalled. The radio was in proper working order. Southern Gulf also noted that at the time the original radio allegedly failed, the claimant "just happened to have" his own replacement radio with him.
Southern Gulf also pointed out that on December 17, 1989, when the claimant contended his factory installed radio failed him, the company had dispatchers on duty twenty-four hours a day. The claimant could have contacted Southern Gulf for instructions or permission regarding installation of a new radio. The claimant did not attempt to contact his employer before taking action.
On February 23, 1990, the ALJ found that the evidence showed that a discharge had occurred but that the reasons for the discharge did not meet the statutory test for misconduct. The ALJ affirmed the original determination of the Office of Employment Security assessing no disqualification to the claimant and found that the claimant should be allowed to draw unemployment compensation benefits.
Southern Gulf appealed the decision to the Board of Review of the Office of Employment Security. The board of review reversed the decision of the ALJ and found that the claimant was discharged for violation of company policy and this constituted misconduct within the meaning of the statute.
The board found that the claimant failed to act in the best interest of protecting his employment pertaining to removal of the factory installed radio from his assigned truck and replacing it with his personal AM/FM radio and cassette player. The board of review found that this action constituted intentional misconduct connected with the employment, disqualifying the claimant from receiving unemployment compensation benefits.
However, the board found that Southern Gulf did not prove by a preponderance of the evidence that the claimant was discharged because of adding mirrors to the truck. The board found that the employer was aware of this action in September 1989, told the claimant to correct the situation, but never followed up to see if he did so.[1]
The claimant appealed the case to the district court. The court reviewed the record and found that there was sufficient evidence to support the board's finding that the claimant violated company policy in replacing the radio in the truck. The district court found that this was disqualifying misconduct precluding eligibility for unemployment compensation benefits and therefore the decision of the board of review was affirmed. The trial court also found that, pursuant to LSA-R.S. 23:1692, the costs of the proceeding are to be absorbed by the clerk of court.
The claimant appealed to this court. The claimant argues that the board of review and the district court erred as a matter of law in finding that the claimant violated company policy and that his violation constituted misconduct connected with his employment.
DISCUSSION
The scope of review in unemployment compensation cases is set forth in LSA-R.S. 23:1634 which provides in pertinent part:
In any proceedings under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive and the jurisdiction of the court shall be confined to questions of law.
*674 Under LSA-R.S. 23:1634, a reviewing court must determine (1) whether the findings of fact by the board of review are supported by sufficient evidence; and if so, (2) whether the decision of the board of review is correct, as a matter of law. Charbonnet v. Gerace, 457 So.2d 676 (La. 1984); Lexing v. Francis, 572 So.2d 295 (La.App.2d Cir.1990); Sledge v. Whitfield, 531 So.2d 291 (La.App.2d Cir.1988); Johnson v. Whitfield, 521 So.2d 641 (La.App. 1st Cir.1988); Cox v. Lockwood, 373 So.2d 246 (La.App. 4th Cir.1979).
LSA-R.S. 23:1601(2)(a) defines disqualifying misconduct. That statute provides in pertinent part:
Misconduct means mismanagement of a position of employment by action or inaction, neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of a law, or violation of a policy or rule adopted to insure orderly work or the safety of others. [Emphasis supplied.]
Misconduct connected with employment has been consistently interpreted to mean an act of willful or wanton disregard of the employer's interest; a deliberate violation of the employer's rules; a disregard of standards of behavior which the employer has a right to expect from his employee; or negligence in such degree or recurrence as to manifest culpability, wrongful interest, or evil design, or show an intentional or substantial disregard for the employer's interest or of the employee's duties and obligations to the employer. Settoon v. Berg, 577 So.2d 338 (La.App. 1st Cir.1991); Pixley v. Blache, 488 So.2d 1126 (La.App.2d Cir.1986); Charbonnet v. Gerace, supra.
The employer bears the burden of proving that a discharge resulted from disqualifying misconduct. Banks v. Administrator of Department of Employment, 393 So.2d 696 (La.1981); Dorsey v. Administrator, Louisiana Department of Employment Security, 353 So.2d 363 (La.App. 1st Cir.1977), writ denied 355 So.2d 549 (La.1978).
The issue is primarily a factual one to be determined by the board of review. There must be legal and competent evidence to support the factual findings upon which the administrative determination turns. Banks v. Administrator of Department of Employment, supra.
The general rule, as outlined by a long line of jurisprudence, is that an employee who deliberately violates a reasonable rule of his employer is guilty of misconduct under the provisions of LSA-R.S. 23:1601(2). Fouts v. Delta Southern Company, 273 So.2d 909 (La.App. 1st Cir.1973). In some instances, even a single violation can sustain a denial of benefits. Johnson v. Whitfield, supra. However, at other times the deliberate violation of a rule by an employee does not automatically classify the action as misconduct. Pixley v. Blache, supra. In determining whether the violation constitutes disqualifying misconduct, one must look to the nature of the violation with due consideration of the factors which enter into the proper conduct of the employer's business. Johnson v. Whitfield, supra.
The claimant in the present case argues that the board of review and the district court erred as a matter of law in finding that replacing the radio in the employer's truck constituted misconduct justifying disqualification of the claimant from receiving unemployment compensation benefits. The claimant argues that during inclement weather conditions the radio in the truck ceased to work and he had to make a choice to protect his safety and the safety of others or to take the risk of driving without a radio in unknown weather conditions. The claimant urges that his decision to change the radio was in his employer's interest, not only because the action was taken to protect the claimant's life and that of fellow motorists, but was also aimed at protecting the employer's truck which had been entrusted to him. The claimant's arguments are meritless.
The company operated a large fleet of trucks and could not allow individual modification of each truck by employees. The employer had a rule that prohibited tampering with or altering equipment on the truck. The rule was reasonable and was aimed at preventing damage that might *675 occur to the truck through such actions. Specifically, the company objected to the removal of factory installed radios and installation of personal equipment due to the risk of damage to the truck's electrical system if the installation was not properly performed. The claimant was aware of the rule and had violated the rule on one prior occasion by substituting his own radio in the employer's truck. At that time, the claimant was told not to repeat his actions.
The claimant asserts that in this situation he was faced with an emergency when the radio failed and the weather was bad. He claimed he needed a radio to keep track of weather conditions. The claimant stated that he "happened to have" another radio with him when this situation arose.
The claimant could have called the company and asked for permission or instructions before undertaking on his own to replace the radio. Further, the employer presented testimony which showed that when the original radio was reinstalled, it was in operating condition. In addition, the record reveals that the claimant had a history of ignoring company rules regarding the alteration of equipment on its trucks.
Based upon the record before us, we find that the board of review and the district court were correct as a matter of law in finding that claimant's violation of a company rule constituted misconduct disqualifying him from receiving unemployment compensation benefits.
CONCLUSION
The findings of the board of review and the district court are supported by sufficient evidence and are correct as a matter of law. We therefore affirm the decisions of the board of review and the district court denying unemployment compensation benefits to the claimant, Lemrell Hardeman, Jr.[2]
AFFIRMED.
BROWN, J., dissents with written reasons.
BROWN, Judge, Dissenting.
The evidence in this case was presented to an Administrative Law Judge (ALJ) who found that it did not meet the test for misconduct. The only evidence in the record to explain plaintiff's discharge in connection with the radio came from Neale Haynes as follows:
It wasn't the radio. It was the fact that you did it yourself without talking to anybody about it. And you didn't put in just a radio. You put in a stereo tape player.
I cannot characterize a statement by Haynes in argument that "he did it before" as adequate by itself to support the finding that plaintiff had violated this rule on a prior occasion.
It was the employer's burden to prove misconduct and I agree with the ALJ that what was shown falls far short of demonstrating "willful or wanton disregard of the employer's interest" or "a deliberate violation" or "negligence ... as to manifest culpability, wrongful interest or evil design...."
NOTES
[1] The finding of the board of review that the installation of mirrors by the claimant did not constitute misconduct was not appealed by either party. Therefore the board's decision regarding the mirrors is final and is not before this court on appeal.
[2] Costs in this court and in the court below are to be absorbed by the respective clerks of court. See LSA-R.S. 23:1692.
|
463 F.3d 518
Christopher SKINNER, Plaintiff-Appellant,v.A. Peter GOVORCHIN, et al., Defendants-Appellees.
No. 05-2458.
United States Court of Appeals, Sixth Circuit.
Submitted: July 18, 2006.
Decided and Filed: September 18, 2006.
ON BRIEF: Christopher Skinner, Adrian, Michigan, pro se.
Before: GILMAN and SUTTON, Circuit Judges; WISEMAN, Senior District Judge.*
OPINION
SUTTON, Circuit Judge.
1
While incarcerated at the Macomb Correctional Facility in New Haven, Michigan, Christopher Skinner filed a complaint against four state employees — Peter Govorchin, Hugh Wolfenbarger, Linda Wittman and Doug Ford—alleging that they had wrongfully garnished appeals costs charged against him from his prison account. The district court summarily dismissed the complaint, and Skinner, proceeding pro se, appeals. For the reasons that follow, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.
I.
2
In 2001, Skinner filed a § 1983 complaint alleging that the State had wrongfully taken several of his electronic and computer publications. The district court granted the defendants' motion for summary judgment, and a panel of our court affirmed on November 4, 2003. Skinner v. Jones, 79 Fed.Appx. 862 (6th Cir. Nov. 4, 2003). On November 12, 2003, Govorchin, an assistant attorney general, submitted a bill of appellate costs to the Sixth Circuit for $1,619.25 under 28 U.S.C. § 1920 and Rule 39 of the Federal Rules of Appellate Procedure. Skinner did not oppose the request.
3
On March 5, 2004, our court issued the mandate in Skinner v. Jones and awarded $1,619.25 in costs to the State. On March 8, 2004, Govorchin wrote a letter to Wittman, a litigation manager for the Michigan Department of Corrections, asking her to process the March 5 mandate. On March 25, 2004, Wittman asked Ford, an administrative officer at the Macomb prison, to collect the costs award from Skinner's prison trust account. And on April 8, 2004, Ford began withdrawing funds from Skinner's account, taking all but $10 from that account each month. After complaining about the removal of these funds from his account and after failing to obtain relief from Wolfenbarger (the prison warden) through the prison grievance process, Skinner filed this § 1983 complaint, alleging that the four defendants had wrongfully garnished funds from his prison account. Skinner sought relief under a wide variety of federal constitutional theories, the Federal Rules of Appellate Procedure, the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(f), and state law. The defendants filed a motion to dismiss or, in the alternative, for summary judgment. Relying on a magistrate judge's report and recommendation, the district court rejected each of Skinner's claims as a matter of law.
II.
4
Contrary to Skinner's claim against all four defendants, the award as an initial matter complied with Rule 39 of the Federal Rules of Appellate Procedure. That rule says that "unless the law provides or the court orders otherwise," costs may be "taxed against the appellant" when the appellee prevails (and vice versa when the appellant prevails). Fed. R.App. P. 39(a). The rule then lays out the procedure for assessing costs:
5
(1) A party who wants costs taxed must—within 14 days after entry of judgment—file with the circuit clerk, with proof of service, an itemized and verified bill of costs.
6
(2) Objections must be filed within 10 days after service of the bill of costs, unless the court extends the time.
7
(3) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate must not be delayed for taxing costs. If the mandate issues before costs are finally determined, the district clerk must—upon the circuit clerk's request—add the statement of costs, or any amendment of it, to the mandate.
8
Fed. R.App. P. 39(d).
9
Under the rule, the State as a prevailing appellee had a right to request costs. And the court's award of costs conformed in each particular with Rule 39(d). On November 4, 2003, the Skinner v. Jones panel issued an order rejecting Skinner's appellate arguments. On November 12, 2003, eight days after the court entered the order, the State filed with the circuit clerk, with proof of service, an itemized and verified bill of costs. Skinner did not object to the bill of costs within ten days (and indeed did not object to the bill until filing this complaint eleven months later), and the court at no point extended the time for objecting to the bill of costs. On March 5, 2004, eight days after the court denied Skinner's motion for rehearing en banc, the clerk's office issued the court's mandate, which included the itemized statement of costs imposed on Skinner.
10
Even if the court's award of costs did not violate Rule 39 of the Federal Rules of Appellate Procedure, Skinner contends that it violated the Prison Litigation Reform Act, which governs civil actions filed by prisoners. The applicable sections of the PLRA provide:
11
(f) (1) Judgment may be rendered for costs at the conclusion of the suit or action as in other proceedings ....
12
(2) (A) If the judgment against a prisoner includes the payment of costs under this subsection, the prisoner shall be required to pay the full amount of the costs ordered.
13
(B) The prisoner shall be required to make payments for costs under this subsection in the same manner as is provided for filing fees under subsection [(b)(2)].
14
(C) In no event shall the costs collected exceed the amount of the costs ordered by the court.
15
28 U.S.C. § 1915(f).
16
At first blush, it is difficult to see how this award of costs violated the PLRA. A review of the prior case shows that it involved a "judgment against a prisoner [that] include[d] the payment of costs," and the judgment "rendered for costs" came "at the conclusion of the suit."
17
Skinner maintains, however, that this award violates the PLRA because: (1) Rule 39 of the Federal Rules of Appellate Procedure applies "unless the law provides. . . otherwise"; (2) the PLRA is a law; (3) the PLRA provides otherwise by saying that the prisoner must pay the costs award only "[i]f the judgment against a prisoner includes the payment of costs," 28 U.S.C. § 1915(f)(2)(A) (emphasis added); and (4) the judgment entered against Skinner in this case did not "include[]" an award of costs because the costs award was entered later in connection with the issuance of the mandate. To his credit, Skinner has identified one case, Feliciano v. Selsky, 205 F.3d 568 (2d Cir.2000), that appears to embrace this line of analysis. There, an inmate lost a § 1983 action against prison officials and appealed to the Second Circuit, which affirmed. The State filed a bill of costs (totaling $54.32) within the time frame prescribed by Rule 39, and the prisoner timely objected. Id. at 569-70. In denying the request for costs, the court interpreted § 1915(f)(2)(A) as falling within the "law provides otherwise" language of Rule 39(a), noting that the appellate rule would allow for the traditional taxation of costs "but for the in forma pauperis status of [the appellant]." Id. at 570. The court then reasoned that its summary order affirming the district court's judgment had not "include[d]" a provision for the payment of costs by the inmate. "Unless there is a specific direction by the court for the payment of costs by a prisoner proceeding in forma pauperis," the court concluded that "no costs may be taxed by the prevailing party." Id. at 572.
18
We are not prepared to follow Skinner, accompanied by Feliciano, down this road. First, while Rule 39(a) acknowledges that another "law" could "provide[] otherwise" when it comes to the procedures for taxing costs established by Rule 39(d), the PLRA does not seem to be such a law. The operative section of the PLRA begins by saying, "Judgment may be rendered for costs at the conclusion of the suit or action as in other proceedings." 28 U.S.C. § 1915(f)(1) (emphasis added). The "as in other proceedings" language suggests that the PLRA does not mean to alter the traditional mechanics for awarding costs — set forth in Rule 39(d)—but to establish rules unique to indigent prisoners for paying such costs. See id. § 1915(b)(1) (requiring prisoners to pay the entire filing fee and providing a formula for calculating the amount of the initial filing fee payment when the prisoner does not have sufficient funds to pay the entire filing fee at once); id. § 1915(b)(2) (providing a formula for the monthly payment of any outstanding balance due after the partial payment of the filing fee); id. § 1915(b)(3) (mandating that the amount collected for the filing fee may not exceed the amount permitted by statute).
19
Second, once one accounts for the "as in other proceedings" phrase, the language upon which Skinner relies—"If the judgment against a prisoner includes the payment of costs under this subsection, the prisoner shall be required to pay the full amount of the costs ordered"—presents a weak foundation for altering the traditional Rule 39(d) procedure for awarding costs. Even the most literal reading of the sentence does not say that prisoners must pay costs only when the costs award appears in a court directive called a judgment, as opposed to say an order or mandate; it simply says that such costs awards must be paid by the prisoner when included in the judgment. And the context of the sentence offers no indication that Congress meant to use "judgment" in an exclusive sense. To be sure, one can imagine settings in which separate references to judgments and mandates might have distinct meanings. Compare BLACK'S LAW DICTIONARY 846 (7th ed.1999) (stating that "[t]he term `judgment' includes a decree and any order from which an appeal lies"), with id. at 973 (defining "mandate" as "[a]n order from an appellate court directing a lower court to take a specified action"). But that is not what the PLRA says. And it does no perceptible harm to the PLRA to conclude that a costs award may appear in a judgment or in an order or, as here, in conjunction with the issuance of the mandate when the inmate does not oppose the request for costs. Cf. 28 U.S.C. § 1920 ("A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree."). Nothing in the history of the passage of the PLRA suggests any reason why Congress would have wished to permit costs awards only when they appear in "judgments" and would have wished in the process to alter the traditional application of Rule 39(d) in this setting.
20
Third, Skinner's proposed interpretation makes little sense. It would force courts to decide whether to impose costs at the time they reject the losing party's claims on the merits rather than waiting, as Rule 39(d) contemplates, to see if the prevailing party chooses to seek costs. In the context of indigent prisoner claims, it is by no means obvious that the prevailing party against the inmate (usually the State) necessarily would seek costs. Under Skinner's proposed interpretation, indigent prisoners, and indigent prisoners alone, would face the risk of having costs entered against them even when the State would not have sought them in the first instance.
21
Nor is it apparent who would benefit from this rule. As shown, it would not necessarily benefit indigent prisoners in the long run, even if it would give Skinner a break here. And States, to our knowledge, do not reflexively seeks costs against inmate litigants, perhaps because they are frequently indigent or perhaps because the state resources needed to collect such awards frequently exceed the value of the awards. (Consider the $54 award in Feliciano.) At any rate, States, like all litigants, know how to seek costs when they want them.
22
Skinner's proposed rule also fails to benefit the courts. We can think of no benefit to courts (and clerks' offices) from being asked to vary the normal process for awarding costs under Rule 39(d) for one set of litigants. Courts are far better equipped to rule on contested motions (or even uncontested motions, as in this case) than they are to decide in the abstract whether a costs award might be appropriate. Every one of these problems is avoided if we construe the provision consistently with Rule 39(d) rather than inconsistently with it. See Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974) (noting that "when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective"); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984).
23
Fourth, while the brief analysis in Feliciano suggests that the Second Circuit might have taken a different route here, the court did not have occasion to consider the impact of its decision on Rule 39(d) or some of the unusual consequences of its interpretation. Because we construe § 1915(f) of the PLRA in harmony with Rule 39(d), we do not follow Feliciano here.
24
Under these circumstances, Skinner's challenge to the award of costs must fail. When the State sought costs in this case, Skinner failed to object to the request within 10 days, as Rule 39 requires, and as a result the court imposed them in connection with the issuance of the mandate. Had Skinner objected to the State's request (or to the amount of it), the panel would have ruled on the request and issued a separate order regarding costs. Because the State (and this court) complied with Rule 39, and because nothing in the PLRA requires a different procedure for awarding costs, we reject Skinner's argument.
III.
25
Although Skinner's challenge to the court's award of costs misses the mark, his challenge to the State's collection of those costs does not. With the passage of the PLRA, Congress created special payment procedures that apply to prisoners who appeal in forma pauperis. Under those payment procedures, which apparently were mislabeled, see In re Prison Litigation Reform Act, 105 F.3d 1131, 1138 (6th Cir.1997) ("Section 1915(f)(2)(B) mistakenly refers to § 1915(a)(2) as the authoritative subsection for the payment process.... The payment process is located in § 1915(b)(2)."), the State may collect costs awards in the same manner as it collects filing fees. The filing-fee provision says:
26
After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.
27
28 U.S.C. § 1915(b)(2).
28
With respect to collecting costs, as with collecting filing fees, then, the State may collect the award in monthly increments — by withdrawing 20% of the inmate's "preceding month's income credited" to his prisoner account until the full award has been paid so long as $10 remains in the account each month. The State in this instance, however, removed money from Skinner's trust account at the monthly rate of 100%. This the statute does not allow.
29
Nor, contrary to the State's suggestion, does Skinner's requested injunction asking the defendants prospectively to terminate this illegal practice violate the Tenth or Eleventh Amendments. See Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Supreme Ct. of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 736, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980); Gerstein v. Pugh, 420 U.S. 103, 108 n. 9, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). We thus remand the case to the district court to enter an injunction ordering defendants to conduct any further garnishment of Skinner's prison account, at least for purposes of paying this costs award, at the 20% rate per month contemplated by § 1915(b)(2). Cf. McGore v. Wrigglesworth, 114 F.3d 601, 606-07 (1997).
IV.
30
Contending that Govorchin (the assistant attorney general) was responsible for the improper garnishment of some of the money taken from his prison trust account, Skinner seeks monetary relief against him in his official and individual capacities under § 1983. As to the official-capacity claim, the Tenth and Eleventh Amendments bar suits in federal court when the action is "in essence one for the recovery of money from the state [and] the state is the real, substantial party in interest," which invariably will be the case when the claimant sues a state employee in his official capacity. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); see id. (noting "that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment"); Ernst v. Rising, 427 F.3d 351, 358 (6th Cir.2005) (en banc).
31
That Skinner seeks money damages in the form of a reimbursement of funds paid does not change things. In Ford Motor Company v. Indiana Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945), overruled on other grounds by Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 614, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002), a taxpayer who had paid taxes to Indiana under protest sought a refund of those taxes from the state officials who had collected them. Even though the taxpayer "at one time had the money, and paid it over to the State pursuant to an allegedly unconstitutional tax exaction," Edelman, 415 U.S. at 669, 94 S.Ct. 1347, the Court held that the Eleventh Amendment barred an action in federal court for reimbursement by the State of the taxes unless the State had consented to such a suit. Ford Motor Co., 323 U.S. at 464, 65 S.Ct. 347; see also Papasan v. Allain, 478 U.S. 265, 278, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (noting that relief should not be granted if "the relief is tantamount to an award of damages for a past violation of federal law, even though styled as something else").
32
As to Skinner's individual-capacity claim, sovereign immunity does not bar the suit, but prosecutorial immunity does. "Where relief is sought under general law from wrongful acts of state officials, the sovereign's immunity ... does not extend to wrongful individual action, and the citizen is allowed a remedy against the wrongdoer personally." Ford Motor Co., 323 U.S. at 462, 65 S.Ct. 347. Even though the State's sovereign immunity does not preclude suits against state officials in their individual capacities for damages under § 1983, the common-law doctrine of prosecutorial immunity still applies. In Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the Court held that state prosecuting attorneys generally are absolutely immune from § 1983 liability.
33
A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court. The public trust of the prosecutor's office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages. Such suits could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State's advocate.
34
Id. at 424-25, 96 S.Ct. 984. Since Imbler, courts have extended the immunity beyond "initiating a prosecution and ... presenting the State's case," id. at 431, 96 S.Ct. 984, to cover any activities undertaken "in connection with [one's] duties in functioning as a prosecutor," Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir.2002). The immunity also extends beyond the criminal process to conduct in civil proceedings where a government attorney is operating in an enforcement role in "initiating... judicial proceedings," Cooper v. Parrish, 203 F.3d 937, 947 (6th Cir.2000), or "undertak[ing] the defense of a civil suit," Al-Bari v. Winn, No. 89-5150, 1990 WL 94229, at *1 (6th Cir. July 9, 1990).
35
"The analytical key to prosecutorial immunity," we have explained, "is advocacy—whether the actions in question are those of an advocate." Spurlock v. Thompson, 330 F.3d 791, 798 (6th Cir. 2003), reh'g denied (2004) (emphasis omitted). If the challenged actions of the prosecutor were not performed in his role as advocate, if they "do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings," then only "[q]ualified immunity" applies. Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993).
36
In this instance, the district court correctly found that the challenged actions by Govorchin were all "intimately associated with the judicial phase" of the case and accordingly were entitled to absolute immunity. Govorchin's efforts to recover costs in Skinner v. Jones represented a paradigmatic act of advocacy on behalf of the State, as the pursuit of costs at the conclusion of litigation is a function ordinarily performed by an attorney acting on behalf of a client and thus is an integral part of the litigation itself.
V.
37
Skinner also challenges the district court's dismissal of his claims against Wolfenbarger. In his complaint, Skinner contended that Wolfenbarger (1) failed to respond appropriately to Skinner's grievance appeal and (2) failed to exercise appropriate supervisory control over the other prison-employee defendants, Wittman and Ford. The district court properly dismissed both claims as a matter of law.
38
Skinner's complaint regarding Wolfenbarger's denial of Skinner's grievance appeal, it is clear, fails to state a claim. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.1999) (reversing denial of summary judgment to prison officials whose only involvement was the denial of administrative remedies); Martin v. Harvey, 14 F. App'x 307, 309 (6th Cir. June 7, 2001) (affirming dismissal of the claims against a defendant whose only involvement in the matters giving rise to the § 1983 action was his denial of the appeal of the plaintiff-prisoner's grievance). And Skinner cannot premise a claim on Wolfenbarger's supervisory status because there is no respondeat superior liability under § 1983. See Shehee, 199 F.3d at 300 (noting that "§ 1983 liability must be based on more than respondeat superior, or the right to control employees").
VI.
39
For these reasons, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.
Notes:
*
The Honorable Thomas A. Wiseman, Jr., Senior United States District Judge for the Middle District of Tennessee, sitting by designation
|
73 So.3d 782 (2011)
MANFREDI
v.
DEPARTMENT OF REVENUE EX REL. RICH.
No. 5D11-269.
District Court of Appeal of Florida, Fifth District.
November 8, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
|
ILLINOIS OFFICIAL REPORTS
Supreme Court
People v. Rinehart, 2012 IL 111719
Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. THOMAS
Court: S. RINEHART, Appellee.
Docket No. 111719
Filed January 20, 2012
Held The 2005 statutory amendment stating that, for the offense of criminal
(Note: This syllabus sexual assault, “the term of mandatory supervised release shall range
constitutes no part of from a minimum of 3 years to a maximum of the natural life of the
the opinion of the court defendant” is properly construed to provide for an indeterminate parole
but has been prepared term which is under the control of the Department of Corrections and
by the Reporter of which a sentencing court need not specify in its judgment.
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Appellate Court for the Fourth District; heard in that
Review court on appeal from the Circuit Court of Coles County, the Hon. Gary
W. Jacobs, Judge, presiding.
Judgment Affirmed in part and vacated in part.
Counsel on Lisa Madigan, Attorney General, of Springfield, and C. Steve Ferguson,
Appeal State’s Attorney, of Charleston (Michael A. Scodro, Solicitor General,
and Michael M. Glick and Katherine D. Saunders, Assistant Attorneys
General, of Chicago, and Patrick Delfino, Robert J. Biderman and Luke
McNeill, of the Office of the State’s Attorneys Appellate Prosecutor, of
Springfield, of counsel), for the People.
Karen Munoz, Deputy Defender, and Colleen M. Morgan, Assistant
Appellate Defender, of the Office of the State Appellate Defender, of
Springfield, for appellee.
Justices JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier,
and Burke concurred in the judgment and opinion.
OPINION
¶1 In 2007, defendant Thomas Rinehart was convicted of criminal sexual assault and
sentenced to 28 years’ imprisonment. The defendant appealed, and the appellate court
affirmed his conviction and sentence, but remanded with instructions for the circuit court of
Coles County to select a term of mandatory supervised release (MSR) within the range of
three years to natural life contained in section 5-8-1(d)(4) of the Unified Code of Corrections
(730 ILCS 5/5-8-1(d)(4) (West 2006)). 406 Ill. App. 3d 272. The State appealed.
¶2 The central issue before us, then, is whether the appellate court erred in holding that
section 5-8-1(d)(4) requires the trial court to set a determinate MSR term within the statutory
range. In his request for cross-relief, the defendant raises the issue of whether the trial court
erred in allowing the State to pose various questions during voir dire. We affirm the
defendant’s conviction and sentence, and vacate the appellate court’s order on MSR.
¶3 BACKGROUND
¶4 In 2006, the defendant lived with his girlfriend, Hope Scott, and her children, one of
which was A.A., a then-17-year-old girl with developmental disabilities. Sometime in August
of that year, the defendant borrowed Scott’s minivan to help her friends move to Mattoon
from Charleston, Illinois. A.A. rode alone with the defendant on one trip. Several weeks
later, she told Scott’s friends’ daughters that the defendant had forced her to have sex in the
back of the minivan on the day they moved. Subsequently, the police arrested the defendant,
and charged him with criminal sexual assault.
¶5 The case proceeded to a jury trial. During jury selection, the parties were permitted to
-2-
question venire members pursuant to Supreme Court Rule 431 (Ill. S. Ct. R. 431 (eff. May
1, 2007)). The State asked 5 of the 25 potential jurors who were questioned why a sexual
assault victim might delay in reporting an incident. The exchanges between the prosecutor
and the jurors were short.
“MS. KIGER [Assistant State’s Attorney]: Can you think of some reasons why
a sexual assault victim might not immediately report an incident?
MR. WHITE [Prospective Juror]: Why they would not report an incident?
MS. KIGER: Right away.
MR. WHITE: The victim?
MS. KIGER: Correct.
MR. WHITE: Well, they probably may say it really didn’t happen, and then the
falling out with the parents. Maybe there was a relationship, you know, age
difference relationship. Then the parents found out about it, convinced, you know.
Children are children.
MS. KIGER: Can you think of a reason why a victim who had had some things
happen to them might not immediately go to an adult or report it?
MR. WHITE: Scared.
***
MS. KIGER: Can you think of some reasons why a victim of sexual assault might
not immediately report it to someone?
MS. FULLER [Prospective Juror]: Fear, shame.
***
MS. KIGER: Can you think of a reason why a victim might delay in reporting
being raped or being a victim of sexual assault?
MS. HANFT [Prospective Juror]: Shame, embarrassment, fear.
***
MS. KIGER: Can you think of some reasons why a sexual assault victim might
not automatically come forward?
MR. RALSTON [Prospective Juror]: Oh, I think maybe fear, and think you
would be a lesser person if something like that happened to you.
***
MS. KIGER: Can you think of some reasons why a sexual assault victim might
not immediately report that?
MR. AYERS [Prospective Juror]: Yeah.
MS. KIGER: Can you tell me what some of those reasons would be?
MR. AYERS: Same, fear and scared to come forward.”
Defense counsel did not object to any of these questions. The State and the defense each
excused one of these jurors, so only three of those five venire members ultimately served on
the jury.
-3-
¶6 At trial, A.A. testified for the State, and recounted the details of the attack. According to
A.A., while she and the defendant were between towns, he pulled the minivan off a familiar
state highway and onto an unfamiliar rural side road. He stopped the van and turned off its
engine. A.A. could see trees and a fence, and a distant house. She stated that the defendant
ordered her to get into the back of the van, where the rear seats had been removed, and take
off her clothes. She was scared and complied. She further stated that the defendant joined her
there and took off his clothes, then forced her to have sex. Afterwards, they got dressed, and
he instructed her not to tell anyone before resuming the trip to Charleston. A.A. identified
the defendant as the man who attacked her.
¶7 Detective James Hite of the Coles County sheriff’s department also testified for the State.
He stated that he received a call on August 27, 2006, to investigate a sexual assault by the
defendant against A.A. Detective Hite contacted the Department of Children and Family
Services, who arranged an interview between a child advocacy center staffer and A.A. He
watched the interview and observed A.A.’s demeanor. Detective Hite also took photographs
of the site of the attack, which were submitted into evidence by the State.
¶8 The defendant presented no evidence on his behalf. The jury found him guilty, and the
trial court sentenced him to 28 years’ imprisonment, but not to a specific MSR term. Instead,
the court stated:
“I further order that the defendant will serve a period of [MSR] after serving his
sentence as mandated by statute.
Counsel, [it is] a little bit unclear to me what that period would be. There’s been
some recent legislation that would suggest to me that the applicable time upon the
defendant for this offense is not less than three and could be up to natural life, as the
statute indicates, regarding the mandatory supervised release period. I don’t think I
have to make that as part of my finding. It’s what the Department of Corrections will
impose upon him, but there is a minimum three-year mandatory supervised release
period. As I understand the statute, it could be beyond that period.”
The written sentencing judgment also did not mention MSR. Thereafter, the Illinois
Department of Corrections calculated the defendant’s sentence to include an indeterminate
MSR term of three years to natural life. The defendant appealed.
¶9 The appellate court affirmed the defendant’s conviction, vacated his MSR term, and
remanded with directions to set an MSR term within the statutory range. 406 Ill. App. 3d
272. The appellate court first addressed the defendant’s argument that the State’s questions
for prospective jurors asked them to prejudge A.A.’s credibility and predisposed them to
believe her testimony, thus denying him a fair trial. The appellate court noted that the
defendant had forfeited review of that issue, but considered whether it was plain error. Id.
at 276. The court concluded that allowing the questions was, indeed, error. According to the
appellate court,
“[The questions were] designed to expose whether a juror would automatically
perceive a delay in reporting to mean the victim was lying about the incident. A
negative response to the State’s question could have indicated potential bias against
the veracity of the victim’s testimony. While questions designed to discover bias are
-4-
proper, these questions to prospective jurors asked jurors to speculate as to reasons
why a victim might not come forward. While the subject could be raised in voir dire
through artful questions, the questions asked by the prosecutor crossed the boundary
of acceptable voir dire.” Id.
¶ 10 The appellate court, however, refused to excuse the defendant’s procedural default. First,
the court held that the evidence in this case was not closely balanced. Id. at 277. The State,
through A.A.’s testimony, presented evidence of the attack and its location, while the
defendant presented no evidence. Id. Second, the court held that the error did not affect the
fairness of the trial. Id. The appellate court stated:
“[W]hile the voir dire questions crossed the line of propriety, they did not
indoctrinate the jury and deny defendant a fair trial. The State’s questions, though
improper, were not pervasive. In addition, the jurors, during the same questioning,
recognized defendant’s innocence until proved guilty and asserted they would be
impartial. During trial, the jurors heard the victim testify she was afraid to tell her
mother, who was defendant’s live-in paramour, because she feared her mother would
not believe her and would punish her. The jurors did not have to rely on speculation
for determining the reason for A.A.’s delay in reporting the offense.” Id.
The appellate court further held that the defendant did not receive ineffective assistance of
counsel because he could not show prejudice from his attorney’s failure to object to the
State’s questions. Id. at 278.
¶ 11 The appellate court then addressed the defendant’s argument that the trial court erred in
not sentencing him to an MSR term within the statutory range. The appellate court concluded
that the Unified Code of Corrections contains a determinate sentence structure, and an
indeterminate MSR term is inconsistent with that structure. Id. at 280-81. Additionally, the
court noted that the Code grants the trial court, not the Prisoner Review Board, the power to
impose an MSR term. Id. at 281. According to the appellate court, “Because section 5-8-
1(d)(4) contains an MSR term range for criminal sexual assault, the court also possesses the
duty to exercise its discretion and impose MSR within that range. The trial court, and not
DOC, is in the best position to assess and weigh the factors relevant to determine whether
a defendant should serve three years’ MSR, natural life, or a term in between.” Id. The
appellate court acknowledged that People v. Schneider, 403 Ill. App. 3d 301 (2010), reached
the opposite result, but declined to follow that case. Id. at 281-82.
¶ 12 This court granted the State’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Feb.
26, 2010). In his response brief, the defendant requested cross-relief, contending that the trial
court erred in allowing the State’s voir dire questions.
¶ 13 ANALYSIS
¶ 14 If the defendant succeeds on the issue raised in his request for cross-relief, he would be
entitled to a new trial. Thus, we will address that issue first. Because defense counsel did not
object to the State’s questions, our discussion begins with plain error.
¶ 15 The plain-error doctrine offers criminal defendants a narrow path to appellate review of
procedurally forfeited trial errors. People v. Walker, 232 Ill. 2d 113, 124 (2009). As a matter
-5-
of convention, a prerequisite–or as we have previously termed it, an initial or first step (see
People v. Hudson, 228 Ill. 2d 181, 191 (2008); People v. Kitch, 239 Ill. 2d 452, 462
(2011))–toward applying that doctrine is the existence of an error. People v. Sargent, 239 Ill.
2d 166, 189 (2010). Thus, we must determine whether the trial court erred in allowing the
State to ask certain venire members about their views on sexual assault allegations in which
there was a delay between an incident and the reporting of it.
¶ 16 The constitutional right to a jury trial encompasses the right to an impartial jury. See Irvin
v. Dowd, 366 U.S. 717, 721 (1961). The trial court is primarily responsible for initiating and
conducting voir dire (People v. Strain, 194 Ill. 2d 467, 476 (2000)), though it must permit
the parties to supplement its examination “by such direct inquiry as the court deems proper,”
pursuant to Rule 431 (Ill. S. Ct. R. 431 (eff. May 1, 2007)). Because there is no precise test
for determining which questions will filter out partial jurors (see People v. Washington, 104
Ill. App. 3d 386, 390 (1982)), the manner and scope of the examination rests within the
discretion of the trial court, and we review such decisions for an abuse of discretion. An
abuse of discretion occurs when the conduct of the trial court thwarts the purpose of voir dire
examination–namely, the selection of a jury free from bias or prejudice. People v. Williams,
164 Ill. 2d 1, 16 (1994); People v. Cloutier, 156 Ill. 2d 483, 495-96 (1993) (“[t]he purpose
of voir dire is to ascertain sufficient information about prospective jurors’ beliefs and
opinions so as to allow removal of those members of the venire whose minds are so closed
by bias and prejudice that they cannot apply the law as instructed in accordance with their
oath”); see also People v. Clark, 278 Ill. App. 3d 996, 1003 (1996) (“The purpose of voir
dire is to enable the trial court to select an impartial jury and to ensure that the attorneys have
an informed and intelligent basis on which to exercise peremptory challenges.”). Stated
differently, a trial court does not abuse its discretion during voir dire if the questions create
“a reasonable assurance that any prejudice or bias would be discovered.” People v. Dow, 240
Ill. App. 3d 392, 397 (1992).
¶ 17 Accordingly, voir dire questions, whether asked by the trial court or by the parties with
the sanction of the court, must not be “a means of indoctrinating a jury, or impaneling a jury
with a particular predisposition.” People v. Bowel, 111 Ill. 2d 58, 64 (1986). Rather than a
bright-line rule, this is a continuum. Broad questions are generally permissible. For example,
the State may ask potential jurors whether they would be disinclined to convict a defendant
based on circumstantial evidence. See People v. Freeman, 60 Ill. App. 3d 794, 799-800
(1978). Specific questions tailored to the facts of the case and intended to serve as
“preliminary final argument” (People v. Mapp, 283 Ill. App. 3d 979, 989-90 (1996)) are
generally impermissible. But see People v. Faulkner, 186 Ill. App. 3d 1013 (1989) (holding
that the State may inquire whether venire members have deep-seated beliefs that prevent
them from returning a guilty verdict in a murder case where the State cannot produce direct
evidence of the victim’s body).
¶ 18 The defendant argues, tracking the appellate court’s analysis below, that the State’s
questions did not seek to uncover bias but, rather, sought to preeducate potential jurors on
an aspect of A.A.’s expected testimony, and thereby bolster her credibility. According to the
defendant, the State encouraged potential jurors to imagine why A.A. would not have told
anyone about the incident when it happened, and thus empathize with her. The defendant
-6-
directs our attention to People v. Bell, 152 Ill. App. 3d 1007 (1987), and People v. Boston,
383 Ill. App. 3d 352 (2008).
¶ 19 In Bell, the defendant was charged with the murders of his parents. During voir dire, the
State asked a majority of the potential jurors whether they believed that people have a natural
impulse to confess their wrongdoings, and whether they believed that a person could carry
out a plan to murder a family member as a solution to problems in that relationship. The
defendant did not object to these questions. He was convicted. On appeal, the appellate court
chose to address the issue on the merits, and held that the questions were improper “because
they served primarily to indoctrinate the jurors as to the State’s theory at trial and asked them
to prejudge the facts of the case.” Bell, 152 Ill. App. 3d at 1017.
¶ 20 In Boston, the defendant was charged with criminal sexual assault of his girlfriend.
During voir dire, the State asked all of the potential jurors whether they believed that the
government should not become involved in domestic incidents; whether they believed that
a woman who obtains an order of protection against a man, and then invites that man to her
home, has given implied consent to a subsequent sex act with the man, and has made herself
responsible for any subsequent violence with the man; and whether they believed that a
woman consents to a sex act if she does not scream or fight while she is being assaulted. The
defendant did not object to these questions. He was convicted. On appeal, the appellate court
did not discuss forfeiture, and simply noted that the evidence was closely balanced. Boston,
383 Ill. App. 3d at 356. The court held that the questions were improper because they
“highlighted factual details about the case and asked prospective jurors to prejudge those
facts,” and concerned matters of law or instruction, which are not appropriate areas of inquiry
under Rule 431(a). Id. at 355.
¶ 21 The questions in this case differ from those in Bell and Boston. Unlike the questions in
those cases, the questions here were less fact-driven, and more focused on potential jurors’
preconceptions about sexual assault cases, in an effort to uncover any bias regarding delayed
reporting and the credibility of a victim who informed no one about the alleged attack when
it happened. An answer which indicated a juror was less likely to believe a victim who did
not immediately report an incident would have given the State grounds to exercise
intelligently its peremptory challenges. The questions were brief, and the State did not
elaborate on the subject, but instead accepted the answers it received and factored them into
the decision on which jurors to excuse. Further, unlike the State in Bell and Boston, the State
here did not ask every potential juror about this subject, and instead posed a question on it
to only five potential jurors, one-fifth of the venire. Although we agree with the appellate
court that the subject could have been raised more artfully (406 Ill. App. 3d at 276), and
perhaps phrased in terms of a venire member’s bias and ability to put any bias aside in
reaching a verdict, we cannot say that the trial court abused its discretion. Because there was
no error, the defendant’s procedural default must stand. Kitch, 239 Ill. 2d at 465.
¶ 22 Additionally, because there was no error, the defendant’s ineffective assistance of counsel
contention must fail. Defense counsel’s failure to object to voir dire questions which the trial
court did not abuse its discretion in allowing was not objectively unreasonable. People v.
Manning, 241 Ill. 2d 319, 326 (2011).
-7-
¶ 23 We turn to the issue raised by the State in its appeal, whether the appellate court erred
in holding that section 5-8-1(d)(4) of the Unified Code of Corrections requires the trial court
to set a determinate MSR term within the statutory range. Resolution of this issue is a matter
of statutory construction, and our review proceeds de novo. People v. Cordell, 223 Ill. 2d
380, 389 (2006).
¶ 24 The primary objective of statutory interpretation is to ascertain the intent of the
legislature. Brucker v. Mercola, 227 Ill. 2d 502, 513 (2007). The plain language of the statute
is the best indication of that intent, and if that language is clear and unambiguous, it must be
given effect. People v. Christopherson, 231 Ill. 2d 449, 454-55 (2008).
¶ 25 Section 5-8-1(d) of the Unified Code of Corrections requires that “every sentence shall
include as though written therein a term [of MSR] in addition to the term of imprisonment.”
730 ILCS 5/5-8-1(d) (West 2006). Section 5-8-1(d)(4) provides that the MSR term for
certain sex offenses, including criminal sexual assault, “shall range from a minimum of 3
years to a maximum of the natural life of the defendant.” 730 ILCS 5-8-1(d)(4) (West 2006).
That section does not indicate whether the trial court should choose a term within that range,
or whether the term is the range itself. The statute may be read either way, and its plain
language does not indicate the legislature’s intent.
¶ 26 If a statute’s language is unclear or ambiguous, if it is susceptible of more than one
reasonable reading, we must resort to other sources to aid our inquiry. See People ex rel.
Department of Professional Regulation v. Manos, 202 Ill. 2d 563, 571 (2002). Such sources
include the maxim of in pari materia, under which two statutes, or two parts of one statute,
concerning the same subject must be considered together in order to produce a “harmonious
whole.” Sulser v. Country Mutual Insurance Co., 147 Ill. 2d 548, 555 (1992). Words and
phrases should be construed, not in isolation, but in light of other relevant provisions. People
v. Beachem, 229 Ill. 2d 237, 243 (2008). “[W]e consider the statute in its entirety, keeping
in mind the subject it addresses and the legislature’s apparent objective in enacting it.”
People v. Cardamone, 232 Ill. 2d 504, 512 (2009); People ex rel. Sherman v. Cryns, 203 Ill.
2d 264, 280 (2003) (“in determining the intent of the General Assembly, we may properly
consider not only the language of the statute, but also the purpose and necessity for the law,
the evils sought to be remedied, and goals to be achieved”).
¶ 27 Section 5-8-1(d)(4) was part of Public Act 94-165 (eff. July 11, 2005), which amended
various sections of the Code, including section 3-3-2, and added section 3-14-2.5. Section
3-3-2(a)(3.5) provides that the Prisoner Review Board shall “hear *** and *** decide[ ] the
conditions of mandatory supervised release and the time of discharge from mandatory
supervised release, *** impose sanctions for violations of mandatory supervised release and
revoke mandatory supervised release for those serving extended supervised release terms
pursuant to paragraph (4) of subsection (d) of Section 5-8-1.” 730 ILCS 5/3-3-2(a)(3.5)
(West 2006).
¶ 28 Section 3-14-2.5, titled “Extended supervision of sex offenders,” provides:
“(a) The Department shall retain custody of all sex offenders placed on
mandatory supervised release pursuant to clause (d)(4) of Section 5-8-1 of this Code
and shall supervise such persons during their term of supervised release in accord
-8-
with the conditions set by the Prisoner Review Board pursuant to Section 3-3-7 of
this Code.
(b) A copy of the conditions of mandatory supervised release shall be signed by
the offender and given to him or her and to his or her supervising officer.
Commencing 180 days after the offender’s release date and continuing every 180
days thereafter for the duration of the supervision term, the supervising officer shall
prepare a progress report detailing the offender’s adjustment and compliance with the
conditions of mandatory supervised release including the offender’s participation and
progress in sex offender treatment. The progress report shall be submitted to the
Prisoner Review Board and copies provided to the chief of police and sheriff in the
municipality and county in which the offender resides and is registered.
(c) Supervising officers shall receive specialized training in the supervision of sex
offenders including the impact of sexual assault on its victims.
(d) Releasees serving extended mandatory supervised release terms pursuant to
subsection (d) of Section 5-8-1 of this Code may request discharge from supervision
as provided by subsection (b) of Section 3-3-8 of this Code. Requests for discharge
from extended mandatory supervised release shall be supported by a recommendation
by the releasee’s supervising agent and an evaluation of the releasee completed no
longer than 30 days prior to the request for discharge from supervision. The
evaluation shall be conducted by a Sex Offender Management Board approved sex
offender evaluator and shall be at the releasee’s expense.” 730 ILCS 5/3-14-2.5
(West 2006).
¶ 29 Public Act 94-165 created a comprehensive scheme regarding MSR for certain sex
offenses, which marked a philosophical and procedural change in how parole operates for
defendants convicted of such offenses. The appellate court here noted that the General
Assembly “carved out a limited exception for the crimes listed in section 5-8-1(d)[(4)]” (406
Ill. App. 3d at 280), but refused to give that decision any weight, and instead focused on a
purported inconsistency between section 5-8-1(d)(4) and the otherwise determinate sentence
structure of section 5-8-1(a). The Schneider court saw the impetus behind section 5-8-1(d)(4)
more clearly: “Presumably the legislature, in using indeterminate language with regard to the
MSR term long after it generally abolished indeterminate sentences, specifically intended
indeterminate MSR terms in sexual assault cases.” Schneider, 403 Ill. App. 3d at 308. The
legislature abandoned the structure of determinate MSR terms accompanying other offenses
and adopted a structure of indeterminate or “extended” MSR terms for sex offenses precisely
because it viewed sex offenses differently, due to the risk of recidivism. See 94th Ill. Gen.
Assem., House Proceedings, March 10, 2005, at 82-83 (statements of Representative
Gordon) (this legislation “creates lifetime supervision for high-risk sex offenders”).
¶ 30 Further, under section 3-14-2.5(b), a sex offender’s parole officer must prepare a progress
report every 180 days, and under section 3-14-2.5(d) the offender may request discharge from
MSR upon the recommendation of the officer. These provisions contemplate indeterminate
MSR terms, not determinate terms. The appellate court was incorrect in vacating the
defendant’s MSR term. We affirm the defendant’s conviction, and vacate the appellate
-9-
court’s order on the issue of MSR. The defendant’s MSR term is an indeterminate three years
to natural life.
¶ 31 CONCLUSION
¶ 32 For the reasons that we have stated, the judgment of the appellate court is affirmed in part
and vacated in part.
¶ 33 Affirmed in part and vacated in part.
-10-
|
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 15-1814
________________
PATRICK KING,
Appellant
v.
MANSFIELD UNIVERSITY OF PENNSYLVANIA;
STATE SYSTEM OF HIGHER EDUCATION;
JOHN DOE; RICHARD ROE
________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D. C. Civil No. 1-11-cv-01112)
District Judge: Honorable Sylvia H. Rambo
________________
Submitted under Third Circuit LAR 34.1(a)
on February 12, 2016
Before: FUENTES, KRAUSE and ROTH, Circuit Judges
(Opinion filed: March 23, 2016)
________________
OPINION*
________________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
ROTH, Circuit Judge
Patrick King challenges the Clerk of the District Court’s jurisdiction to enter a
judgment of costs in favor of Mansfield University of Pennsylvania, the Pennsylvania
State System of Higher Education, and two unnamed individual defendants (collectively,
Mansfield). The Clerk had jurisdiction to enter the judgment and, therefore, we will
affirm the District Court’s order affirming it.
I.
King brought suit against Mansfield alleging various federal and state law claims
connected to an alleged incident of sexual harassment that occurred while he was
enrolled at, and employed by, Mansfield. The District Court granted summary judgment
to Mansfield on the federal claims, holding that they were not timely filed. The District
Court declined to exercise supplemental jurisdiction over King’s state law claims. King
does not challenge the summary judgment ruling.
Following the entry of judgment, Mansfield submitted to the Clerk of the Court for
the Middle District of Pennsylvania a bill of costs in the amount of $6,553.27. King
objected to the bill of costs and the Clerk overruled those objections. King appealed the
taxation of costs to the District Court, which denied the appeal and King’s subsequent
motion for reconsideration. King now appeals the Clerk’s taxation of costs and the
District Court’s affirmance of that taxation of costs.
2
II.1
Federal Rule of Civil Procedure 54(d) provides for the award of costs to the
prevailing party in federal litigation. King does not challenge Mansfield’s status as a
prevailing party or the reasonableness of those costs. Instead, King argues that the
District Court, in rejecting his federal claims under Title VII of the Civil Rights Act of
1964,2 the Americans with Disabilities Act of 1990 (ADA),3 and Section 504 of the
Rehabilitation Act of 1973,4 lacked subject matter jurisdiction over the case and,
consequently, the Clerk lacked jurisdiction to tax costs. King is incorrect.
The Supreme Court and this Court have held that the statute of limitations in Title
VII is not jurisdictional and, as is the case in many federal statutes, the time limits are
subject to equitable tolling.5 The ADA and the Rehabilitation Act each “incorporates by
reference Title VII’s ‘powers, remedies, and procedures,’”6 making each statute’s time
limits similarly non-jurisdictional and subject to equitable tolling. Thus, the District
Court’s grant of summary judgment to Mansfield was not, as King contends, a dismissal
for lack of subject matter jurisdiction but rather a decision on the merits. Consequently,
Rule 54(d)(1) applies and the Clerk of the Court had jurisdiction to tax costs against
1
The District Court had jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and
1343. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. “[W]e
exercise plenary review as to legal questions pertaining to Rule 54(d)(1).” In re Paoli
R.R. Yard Litig., 221 F.3d 449, 458 (3d Cir. 2000).
2
42 U.S.C. §§ 2000e et seq.
3
42 U.S.C. §§ 12101 et seq.
4
29 U.S.C. §§ 794.
5
See Irwin v. U.S. Dep’t of Veterans Affairs, 498 U.S. 89, 95–96 (1990); Podobnik v. U.S.
Postal Serv., 409 F.3d 584, 591 (3d Cir. 2005).
6
Ebbert v. DaimlerChrysler Corp., 319 F.3d 103, 108 n.4 (3d Cir. 2003) (quoting 42 U.S.C. §
12117)..
3
King. It is not necessary for us to reach King’s other arguments, based as they are on the
faulty premise that the Clerk of the Court lacked jurisdiction to tax costs.
III.
For the foregoing reasons, we will affirm the order of the District Court, affirming
the Clerk of the Court’s taxation of costs.
4
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6054
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERROL ANTHONY LLOYD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, District
Judge. (CR-96-463-A; CA-00-1176-AM)
Submitted: March 24, 2005 Decided: March 31, 2005
Before WIDENER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Errol Anthony Lloyd, Appellant Pro Se. Thomas More Hollenhorst,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Errol Anthony Lloyd, a federal prisoner, seeks to appeal
the district court’s order construing his Fed. R. Civ. P. 60(b)
motion as an unauthorized successive 28 U.S.C. § 2255 (2000) motion
and dismissing the motion. An appeal may not be taken from the
final order in a habeas corpus proceeding unless a circuit justice
or judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000). A certificate of appealability will not issue
absent “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this
standard by demonstrating that reasonable jurists would find that
his constitutional claims are debatable and that any dispositive
procedural rulings by the district court are also debatable or
wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). We have independently reviewed the
record and conclude that Lloyd has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss the
appeal. 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.
DISMISSED
- 2 -
|
764 P.2d 993 (1988)
Mario HERNANDEZ aka Reynaldo Garcia-Gonzales, Petitioner-Appellant,
v.
N.D. Pete HAYWARD, Salt Lake County Sheriff, Governor Norman Bangerter, Val Oveson, Lt. Governor, Defendants-Respondents.
No. 880299-CA.
Court of Appeals of Utah.
November 18, 1988.
*994 Charles F. Loyd, Jr., Salt Lake Legal Defender Ass'n, Salt Lake City, for petitioner-appellant.
Salt Lake County Atty. Salt Lake City, for defendants-respondents.
Before ORME, JACKSON and GREENWOOD, JJ. (On Law and Motion).
MEMORANDUM DECISION
PER CURIAM:
This is an appeal by a prisoner in the Salt Lake County jail from the district court's *995 denial of his petition for a writ of habeas corpus. Appellant is currently being held for extradition to the State of Idaho for alleged parole violations there. Respondents moved for summary affirmance of the order denying appellant a writ. Under R. Utah Ct.App. 10(a)(2) we conclude that summary disposition is appropriate because the arguments and issues raised on appeal by appellant are so insubstantial as to not merit further review. Accordingly, respondents' motion is granted and the denial of a writ is affirmed.
In reviewing the propriety of summary affirmance in this case we considered, sua sponte, whether this appeal is within the subject matter jurisdiction of this Court as arising out of an appeal from an order "on petitions for extraordinary writs involving a criminal conviction, except these involving a first degree or capital felony; ..." Utah Code Ann. § 78-2a-3(2)(g) (1988). This issue has not been addressed by either party. We conclude that we do have jurisdiction under section 78-2a-3(2)(g) because its language is deliberately and sufficiently broad to include those cases where a criminal conviction is involved in a habeas corpus proceeding to challenge extradition.
Appellant's involvement with the Idaho criminal justice system dates back to at least 1977 when he was convicted of a drug offense. Although appellant disputes a portion of that involvement, it is not disputed that on July 30, 1987, while imprisoned in Idaho, he was granted parole by Idaho authorities upon certain terms and conditions. After appellant violated those conditions and fled to Utah, an Idaho warrant was issued for his arrest. When he was arrested in Utah on charges of armed and aggravated robbery, extradition proceedings ensued and a warrant issued for his return to Idaho.
In his habeas corpus petition in the district court, appellant challenged his extradition, claimed a defect in the rendered warrant and disputed Idaho's determination of his alleged parole violation and underlying conviction. On appeal, appellant has apparently abandoned the first contention and, in Utah, only seeks to challenge the Idaho parole determination and his conviction.
Utah and Idaho have enacted provisions of the Uniform Criminal Extradition Act.[1] Regarding challenges to extradition proceedings under this act, Utah Code Ann. § 77-30-20 (1982) provides that
[t]he guilt or innocence of the accused as to the crime of which he is charged in another state may not be inquired into by the governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form ... shall have been presented to the governor, except as it may be involved in identifying the person held as the person charged with the crime.
Appellant contends his initial conviction was for "possession of heroin" and not "delivery of heroin," as stated in Idaho's request for extradition. Even assuming that the underlying conviction was imprecisely stated, the precise description of appellant's conviction is of small moment here because there is no dispute that, whatever his convicted offense, he was released on parole and the basis for extradition is the violation of the terms of that parole.
It is well settled that appellant's challenge of his Idaho conviction, the validity of his imprisonment there, or his alleged parole violation are not matters which will be considered by the courts of this state. Michigan v. Doran, 439 U.S. 282, 290, 99 S.Ct. 530, 536, 58 L.Ed.2d 521 (1978); Langley v. Hayward, 656 P.2d 1020, 1021 (Utah 1982). Although appellant may challenge his extradition proceeding in Utah by seeking a writ of habeas corpus, he may do so only on the grounds that (a) the extradition documents are fatally deficient; (b) appellant has not been charged with a crime in the Idaho; (c) appellant is not the same person as named in the extradition request; or (d) appellant is not a fugitive from Idaho. California v. Superior Court, ___ U.S. ___, 107 S.Ct. 2433, 2438-39, 96 L.Ed.2d 332 (1987); Michigan v. Doran, 439 U.S. at 289, 99 S.Ct. at 535. *996 Appellant's contentions on appeal in this case are more properly left for consideration by the Idaho courts. California v. Superior Court, 107 S.Ct. at 2438; accord Burnham v. Hayward, 663 P.2d 65, 67 (Utah 1983).
In his own memorandum, appellant argues that his constitutional right to appeal is denied if summary disposition is granted. See Utah Constitution article VIII, section 5. We may summarily affirm the trial court when the issues presented on appeal are so insubstantial as to not merit further review. R. Utah Ct.App. 10(e). In other words, after allowing appellant an opportunity to be heard, either by written or oral argument, summary affirmance is appropriate when the issues raised may be properly and justly decided based upon settled principles of law. In such cases, the appellate claims are "so clear as to justify the expedited action." Martin-Trigona v. Smith, 712 F.2d 1421, 1424 (D.C. Cir.1983). See also Groendyke Transport, Inc. v. Davis, 406 F.2d 1158, 1162-63 (5th Cir.1969). Summary affirmance under Rule 10 is a determination of the appeal on its merits, after a full and adequate opportunity is afforded all parties to present the arguments and authorities which, based upon the record below, are relevant to the issues and determinative of the appeal. Simply because an appellate court rejects appellant's contentions as unmeritorious does not deny him his right of appeal.
It is clear that appellant's issues are wholly without merit. Full briefing and oral argument could not materially aid this Court in their resolution. R. Utah Ct.App. 29(a). Accordingly, based upon well-settled principles of law, we conclude that respondents are entitled to summary affirmance.
The denial of appellant's petition for habeas corpus is affirmed.
JACKSON and GREENWOOD, JJ., concur.
ORME, Judge (dissenting):
I cannot agree that this court has jurisdiction over the instant appeal. I do not view this as an appeal from an order on petition for extraordinary writ "involving a criminal conviction," Utah Code Ann. § 78-2a-3(2)(g) (1988), but rather an appeal from an order on petition for extraordinary writ involving an extradition proceeding growing out of a parole violation which in turn involves a criminal conviction. These extra steps, in my mind, greatly strain the limit of the admittedly broad term "involve" as used in our jurisdictional statute.
Moreover, extradition is a unique enough procedure in the law that I assume the Legislature would have referred to it specifically if it intended that this court have any role in extradition proceedings. Absent such a reference in our jurisdictional statute, see Utah Code Ann. § 78-2a-3 (1988), and given its historical status as a constitutional matter involving the governors of states, it seems entirely likely the Legislature intended extradition to be within the original appellate jurisdiction of the Utah Supreme Court. See Utah Code Ann. § 78-2-2(j) (1988).
Finally, this court's jurisdiction over "appeals from orders on petitions for extraordinary writs involving a criminal conviction" is limited to those which are not convictions "involving a first degree or capital felony." Utah Code Ann. § 78-2a-3(2)(g) (1988). The latter terms refer to the scheme for classifying criminal offenses committed in Utah. See Utah Code Ann. § 76-3-102, -103 (1988). I fail to see how an Idaho offense can be considered under this classification scheme.
I would transfer this appeal to the Utah Supreme Court for lack of jurisdiction in this court. See R. Utah Ct.App. 4C.
NOTES
[1] See Utah Code Ann. §§ 77-30-1-28 (1982) and Idaho Code § 19-4501 et seq. (1987).
|
640 F.2d 938
7 Fed. R. Evid. Serv. 1181, 7 Fed. R. Evid.Serv. 1543UNITED STATES of America, Plaintiff-Appellee,v.Manuel Chavez LARIOS, Defendant-Appellant.
No. 80-1039.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Jan. 6, 1981.Decided Jan. 28, 1981.
Appeal from the United States District Court for the Eastern District of Washington.
Before WRIGHT, NELSON and NORRIS, Circuit Judges.
NELSON, Circuit Judge.
1
Appellant, Manuel Chavez Larios, appeals his conviction for unlawfully conspiring to distribute heroin in violation of 21 U.S.C. § 846.
2
Larios was found guilty by a jury in a trial presided over by The Honorable Thomas J. MacBride. He was initially sentenced by a different judge, The Honorable Jack E. Tanner, to the statute's maximum term of 15 years, ordered to pay the maximum fine of $25,000, and given a special 3-year parole term. Judge Tanner then ordered a study of the appellant made, pursuant to 18 U.S.C. § 4205(d). After the completion of the study, Judge Tanner affirmed the original sentence.
3
The appellant makes a number of claims which, with one exception, we find unpersuasive.
4
First, the appellant claims that the evidence was insufficient to support a verdict of guilty. The standard of review for the sufficiency of the evidence is an inquiry into whether, based on the evidence presented, the jurors could reasonably arrive at their conclusion. United States v. Espinoza, 578 F.2d 224, 228 (9th Cir.), cert. denied, 439 U.S. 849, 99 S.Ct. 151, 58 L.Ed.2d 151 (1978) (per curiam); Sablan v. People of Territory of Guam, 434 F.2d 837, 839 (9th Cir. 1970); United States v. Nelson, 419 F.2d 1237, 1243 (9th Cir. 1969). And, this inquiry must be done by considering the evidence in the light most favorable to the verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Paduano, 549 F.2d 145, 149 (9th Cir.), cert. denied, 434 U.S. 838, 98 S.Ct. 129, 54 L.Ed.2d 100 (1977); United States v. Robinson, 546 F.2d 309, 314 (9th Cir. 1976), cert. denied, 430 U.S. 918, 97 S.Ct. 1333, 51 L.Ed.2d 596 (1977).
5
While this is a close case, we find the evidence sufficient to uphold the jury's verdict. There was one witness, the Drug Enforcement Administration informant, Baldamar Trevino, whose testimony supported the verdict. The testimony of one witness, even that of an informant, is sufficient to uphold a conviction. Paduano, 549 F.2d at 150; Proffit v. United States, 316 F.2d 705, 707 (9th Cir. 1963); see Audett v. United States, 265 F.2d 837, 847 (9th Cir. 1959).
6
The appellant also claims that because a note written by Larios while in jail referred to guns found in an illegal search of his home, the note was the direct product of an illegal search and seizure and thus an excludable "fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We find, however, that this note is not an excludable "fruit," but is independent evidence admissible at trial. See id. at 485, 487, 83 S.Ct. at 416, 417; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920).
7
Clearly, the connection between the illegal search and the note is "so attenuated as to dissipate the taint" of the illegality. Wong Sun, 371 U.S. at 487, 83 S.Ct. at 417, quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 267, 84 L.Ed. 307 (1939). The government did not use the illegally seized evidence to find the note, see Wong Sun, 371 U.S. at 485, 83 S.Ct. at 416; Silverthorne Lumber Co., 251 U.S. at 392, 40 S.Ct. at 183. It was written weeks after the search occurred. The mere fact that the note mentioned evidence found illegally is not enough to warrant exclusion. To uphold the appellant's claim would require adopting a "but for" test and that has been rejected. Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417; see Nardone, 308 U.S. at 341, 60 S.Ct. at 267.
8
The appellant claims further that this note should not have been allowed into evidence because its prejudicial effect outweighed its probative value. Under the Federal Rules of Evidence trial judges are given discretion to exclude relevant evidence if the court determines that its probative value is substantially outweighed by its potential for unfair prejudice. Fed.R.Evid. 403. The judge's determination of this balance is given great deference and this court will reverse it only when there is an abuse of discretion. United States v. Cassasa, 588 F.2d 282, 285 (9th Cir. 1978), cert. denied, 441 U.S. 909, 99 S.Ct. 2003, 60 L.Ed.2d 379 (1979); United States v. Moore, 522 F.2d 1068, 1079 (9th Cir. 1975), cert. denied, 423 U.S. 1049, 96 S.Ct. 775, 46 L.Ed.2d 637 (1976); United States v. Hobson, 519 F.2d 765, 771 (9th Cir.), cert. denied, 423 U.S. 931, 96 S.Ct. 283, 46 L.Ed.2d 261 (1975).
9
There is no question that this note was highly probative evidence, indicating the appellant's knowledge and state of mind, and tending to discredit his defense that Amador and not he was the drug supplier. Therefore, we find that the trial judge did not abuse his discretion in deciding that whatever prejudicial effect this evidence might have had did not substantially outweigh its probative value. See United States v. Batts, 573 F.2d 599, 603 (9th Cir.), cert. denied, 439 U.S. 859, 99 S.Ct. 178, 58 L.Ed.2d 168 (1978); United States v. Sangrey, 586 F.2d 1312, 1315 (9th Cir. 1978); Hobson, 519 F.2d at 771.
10
Appellant also argues that he was denied effective assistance of counsel in violation of his sixth amendment rights, claiming that his counsel should have made the motion to suppress the illegally found evidence earlier than he did. Attorneys, however, are allowed a great deal of discretion in the tactics they use when handling a trial. See Ewing v. Williams, 596 F.2d 391, 396 (9th Cir. 1979). Moreover, it is clear that the fact that counsel might have made mistakes in the trial is not determinative. Instead, the errors made must be those a reasonably competent attorney would not have made. Cooper v. Fitzharris, 586 F.2d 1325, 1330 (9th Cir. 1978), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979) (en banc); United States v. Moore, 599 F.2d 310, 314 (9th Cir. 1979), cert. denied, 444 U.S. 1024, 100 S.Ct. 687, 62 L.Ed.2d 658 (1980).
11
After a review of the record in this case, we find that the appellant was afforded "reasonably competent and effective representation," Cooper, 586 F.2d at 1328, and that he acted " 'within the range of competence demanded of attorneys in criminal cases.' " Id. at 1329 & 1330, quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). Thus, Larios' sixth amendment rights have not been violated.
12
Another issue presented is whether it was reversible error for the sentencing judge to consider evidence found through an illegal search and seizure when deciding the appropriate sentence for the appellant. It is clear that the appropriate inquiry when determining whether the exclusionary rule should apply in a particular circumstance is to decide whether the rule's purpose of deterring unlawful police conduct would be sufficiently furthered by exclusion to outweigh any detrimental effects of excluding the evidence. United States v. Calandra, 414 U.S. 338, 348-50, 94 S.Ct. 613, 621, 38 L.Ed.2d 561 (1974); United States v. Vandemark, 522 F.2d 1019, 1021 (9th Cir. 1975); United States v. Winsett, 518 F.2d 51, 54 (9th Cir. 1975).
13
We hold that under the circumstances of this case it would not. The police officers obtained a search warrant before the search, and there is no indication that the search was overextensive in scope or conducted inappropriately. Its illegality was caused by a technical error in the affidavit in support of the warrant. This police misconduct is not sufficient to justify interfering with individualized sentencing. See Vandemark, 522 F.2d at 1021-22. Cf. Verdugo v. United States, 402 F.2d 599, 611-13 (9th Cir. 1968), cert. denied, 397 U.S. 925, 90 S.Ct. 931, 25 L.Ed.2d 105 (1970) (evidence excluded from sentencing consideration when search was conducted without a warrant, was "blatantly illegal," and the court found that the police needed to be deterred from making illegal searches under the circumstances involved).
14
In addition, Judge Tanner did not abuse his discretion by considering this information. Judges are given very broad discretion to consider information from a wide variety of sources when sentencing because it is important for the sentencing judge to be able to fashion sentences properly in tune with individual defendants. United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); Gregg v. United States, 394 U.S. 489, 492, 89 S.Ct. 1134, 1136, 22 L.Ed.2d 442 (1969); Williams v. New York, 337 U.S. 241, 246-52, 69 S.Ct. 1079, 1082-85, 93 L.Ed. 1337 (1959).
15
Another error alleged by the appellant is that the informant's testimony that co-conspirator Salinas identified Larios to him as being "Pasqualito" and "the source of the supply of heroin," was inadmissible hearsay and should have been excluded from the trial. The appellant, however, did not object to this testimony when it was given during the trial. It has long been settled that, absent exceptional circumstances, Hormel v. Helvering, 312 U.S. 552, 556-60, 61 S.Ct. 719, 721-23, 85 L.Ed. 1037 (1941), this court will not consider issues raised for the first time on appeal. United States v. Murray, 492 F.2d 178, 193 (9th Cir. 1973), cert. denied, 419 U.S. 854, 95 S.Ct. 98, 42 L.Ed.2d 87 (1974); United States v. Tanks, 464 F.2d 547, 548 (9th Cir. 1972) (per curiam); Yeater v. United States, 397 F.2d 975, 976 (9th Cir. 1968) (per curiam). We find no exceptional circumstance in this case warranting our consideration of this issue at this level, and thus need not consider the merits of the appellant's claim.
16
The final issue presented on appeal is whether the sentencing judge, Judge Tanner, abused his discretion when passing sentence. The Federal Rules of Criminal Procedure allow a judge other than the trial judge to do the sentencing, as occurred here, but require the new judge to use his discretion to determine if he is competent to take over those duties. Fed.R.Crim.Proc. 25(b). This means that the sentencing judge must be familiar enough with the case to be able to assign the appropriate sentence within the statutory guidelines. United States v. Ortiz, 603 F.2d 76, 81 (9th Cir. 1979), cert. denied, 444 U.S. 1020, 100 S.Ct. 678, 62 L.Ed.2d 652 (1980); Carbo v. United States, 314 F.2d 718, 749-50 (9th Cir. 1963).
17
While appellate courts give great deference to the district judge's decision to proceed with sentencing, we find that under the circumstances presented here, Judge Tanner did abuse his discretion by not becoming adequately familiar with the case, and thus hold that Larios must be resentenced.
18
First, although the appellant requested that Judge Tanner wait for a transcript of the trial to be prepared so that he could better understand the evidence presented, Judge Tanner refused to wait. He continually stated that he was not the finder of facts as to the credibility of the witnesses and that he could not go behind the jury's guilty verdict, even though counsel stressed that he was not asking the court to do so, but only that it understand the nature and weakness of the case against Larios so the judge could sentence appropriately.
19
In addition, Judge Tanner said he had a seven-page report from the probation officer to depend on, and that on the basis of that report determined that Larios was the "ringleader of this whole operation." We have reviewed this report, however, and it simply does not support this conclusion. The report even specifically stated that the evidence as to Larios's possibly being the source of the drugs was inconclusive. Indeed, at one point in the first sentencing hearing, Judge Tanner himself said, "I don't know who Pasqualito (the ringleader) is," and yet later in the same hearing, without having received any further incriminating evidence, the judge concluded that Larios was the ringleader. Moreover, there was no evidence presented at the trial that Larios was the ringleader and the study for the second sentencing hearing also does not support this conclusion.
20
Judge Tanner further displayed his lack of familiarity with the case at this second hearing when he replied to a point made by appellant's counsel by stating that he had not heard evidence of that point during the trial. Counsel noted that Judge Tanner had not heard the trial. The judge queried, "I didn't hear the trial?" Counsel replied "No, you didn't sit at the trial, your Honor," and the court asked, "Who did?"
21
We find that under the circumstances, Judge Tanner abused his discretion by not becoming properly familiar with the case. While what is necessary varies with the facts of each case, the more the case depends on the credibility, and especially the demeanor, of the witnesses, the more a judge needs to do to become adequately familiar with it. Carbo, 314 F.2d at 749-50. In this trial, the government's case rested almost entirely on the testimony of one witness, the informant. For Judge Tanner to be able to assess the appellant's culpability adequately, and thus the sentence he should receive, the judge needed to have a better understanding of the testimony presented than he did.
22
Becoming adequately familiar does not always require the reading of a transcript, although a transcript will often be helpful, and sometimes essential. See Carbo, 314 F.2d at 749-50; United States v. Bryant, 430 F.2d 237, 241 (8th Cir. 1970). As stated by the Fourth Circuit Court of Appeals: "When there are questions of fact as to degree and extent of culpability in participating in the substantive crime, it would seem essential that the sentencing judge should await preparation of the transcript and review it before imposing sentence." United States v. Bowser, 497 F.2d 1017, 1019 n.2a (4th Cir.), cert. denied, 419 U.S. 857, 95 S.Ct. 105, 42 L.Ed.2d 91 (1974), citing as comparison, Carbo. What clearly is always required, however, is a thorough understanding of the case, which requires more familiarity with the facts than Judge Tanner had in this instance.
23
Because we hold that Judge Tanner abused his discretion in passing sentence, Larios must be resentenced. Although resentencing is usually done by the original sentencing judge, this court has recognized "unusual circumstances" wherein remand to a different judge is appropriate. Three criteria must be considered in making this determination: (1) whether the original judge could reasonably by expected to put out of his mind previously expressed views or findings that were subsequently found to be erroneous; (2) whether reassignment is advisable to preserve the appearance of justice; and (3) whether reassignment would entail waste or duplication of effort out of proportion to the gain realized in preserving the appearance of fairness. United States v. Ferguson, 624 F.2d 81, 83 (9th Cir. 1980); United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir. 1979).
24
Under the circumstances of this case, we find that a different judge should do the resentencing. Judge Tanner was unreasonable in his initial refusal to wait for a transcript and adamant in his belief that Larios was the ringleader, even in the face of little, if any, evidence to that effect. We, therefore, believe that he could not reasonably be expected to ignore his conclusion when faced with the question again. Further, we conclude that this would best serve to preserve the appearance of justice and outweighs any duplication of effort that would result.
25
The conviction of the appellant is affirmed. The sentence is vacated, and the case is remanded to the district court for resentencing by a new judge.
|
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 11-10540
Plaintiff-Appellant,
D.C. No.
v. 3:10-cr-00859-
RS-1
GARY HARDEMAN ,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Argued and Submitted
September 14, 2012—San Francisco, California
Filed January 14, 2013
Before: Arthur L. Alarcón, Susan P. Graber,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Graber
2 UNITED STATES V . HARDEMAN
SUMMARY*
Criminal Law
The panel reversed the district court’s order dismissing on
ex post facto grounds a count charging the defendant with
committing an offense involving a minor while under a duty
to register as a sex offender, in violation of 18 U.S.C.
§ 2260A.
The district court held that the § 2260A count violated the
Ex Post Facto Clause because the defendant’s duty to register
arose through retroactive state laws.
The panel disagreed. The panel wrote that even accepting
the defendant’s argument that the state laws applied the
registration requirement to him retroactively, the additional
punishment under § 2260A is not for his earlier crimes, and
the § 2260A count therefore does not violate ex post facto
principles.
COUNSEL
Owen P. Martikan and J. Douglas Wilson, Assistant United
States Attorneys, San Francisco, California, for Plaintiff-
Appellant.
Daniel P. Blank, Assistant Federal Public Defender, San
Francisco, California, for Defendant-Appellee.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V . HARDEMAN 3
OPINION
GRABER, Circuit Judge:
Title 18 U.S.C. § 2260A criminalizes the commission of
certain federal offenses involving a minor while the
perpetrator is under a legal duty to register as a sex offender.
After Defendant Gary Hardeman allegedly traveled to
Mexico and engaged in illicit sexual conduct involving a
minor, the government indicted Defendant on one count of
violating 18 U.S.C. § 2423(c) and, because he was under a
state-law duty to register as a sex offender, one count of
violating § 2260A. The district court held that, because
Defendant’s duty to register arose through retroactive state
laws, the § 2260A count violated the Ex Post Facto Clause,
and the court dismissed that count. Reviewing de novo the
constitutional question in this interlocutory appeal by the
government, United States v. Begay, 622 F.3d 1187, 1193
(9th Cir. 2010), cert. denied, 132 S. Ct. 3026 (2011), we hold
that § 2260A does not violate the Ex Post Facto Clause.
Accordingly, we reverse.
In 1980, Defendant pleaded guilty in California state
court to the felony of committing lewd and lascivious acts
upon a child under the age of 14, in violation of California
Penal Code section 288. At that time, California law required
Defendant to register as a sex offender—but only until
expungement (if any) of the conviction. Cal. Penal Code
§§ 290, 1203.4 (1980). In 1982, before Defendant’s felony
conviction had been expunged, the California legislature
amended its laws so that a felony sex conviction required
ongoing registration, regardless of expungement. Cal. Penal
Code § 290.1 (1982). In 1983, Defendant successfully sought
4 UNITED STATES V . HARDEMAN
expungement of his felony conviction, but he remained under
an ongoing state-law duty to register.
In 1986, Defendant was convicted in state court of
annoying a child, a misdemeanor under California Penal
Code section 647a. At the time, California law required a
misdemeanor sex offender to register as a sex offender—but
only until expungement (if any) of the conviction. Cal. Penal
Code §§ 290, 1203.4 (1986). In 1991, Defendant successfully
sought expungement of his misdemeanor conviction. In
1994, the California legislature amended its laws so that any
sex conviction—felony or misdemeanor—required
continuous registration, regardless of expungement. Cal.
Penal Code § 290.1 (1994).
In 2010, a grand jury indicted Defendant on two counts:
one count of engaging in illicit sexual conduct in a foreign
place, in violation of 18 U.S.C. § 2423(c); and one count of
committing that offense while under a duty to register as a
sex offender, in violation of 18 U.S.C. § 2260A. Defendant
moved to dismiss the § 2260A count on the ground, among
others, that the count violated the Ex Post Facto Clause. The
district court agreed, and it dismissed that count. The
government timely appeals pursuant to 18 U.S.C. § 3731.
Title 18 U.S.C. § 2260A states:
Whoever, being required by Federal or
other law to register as a sex offender,
commits a felony offense involving a minor
under [specified sections, including section
2423], shall be sentenced to a term of
imprisonment of 10 years in addition to the
imprisonment imposed for the offense under
UNITED STATES V . HARDEMAN 5
that provision. The sentence imposed under
this section shall be consecutive to any
sentence imposed for the offense under that
provision.
In effect, § 2260A provides that, if the government proves
that a defendant was subject to a sex-offender registration
requirement at the time he or she committed certain sex
crimes involving a minor, he or she will receive an additional
10 years of imprisonment. The § 2260A count against
Defendant violates ex post facto principles1 only if it: (1) is
“retrospective, that is, it must apply to events occurring
before its enactment,” Weaver v. Graham, 450 U.S. 24, 29
(1981); and (2) “increases the penalty by which a crime is
punishable,” Cal. Dep’t of Corr. v. Morales, 514 U.S. 499,
507 n.3 (1995).2
Defendant argues that the combination of § 2260A and
California’s registration laws—which he asserts applied
retroactively to him—violates ex post facto principles. He
acknowledges that the application of California’s registration
laws to him, standing alone, is constitutional. See People v.
1
Defendant also urges us to affirm on the alternative ground that the
§ 2260A count violates the Due Process Clause. To the extent that
Defendant’s due process argument depends on a determination that the
§ 2260A count violates the Ex Post Facto Clause, we reject that argument
for the same reasons that we reject his ex post facto challenge. T o the
extent that Defendant’s due process arguments in the district court
concerned other issues, those issues are not before us, and we do not
resolve them in this appeal, which concerns only the dismissal of the
indictment.
2
The other type of ex post facto laws concerns a criminal statute that
retroactively forbids conduct that used to be permissible. Here, Defendant
claims only a retroactive increase in punishment.
6 UNITED STATES V . HARDEMAN
Fioretti, 63 Cal. Rptr. 2d 367, 370–71 (Ct. App. 1997)
(holding that retroactive application of the state sex offender
registration laws does not violate the Ex Post Facto Clause);
see also People v. Castellanos, 982 P.2d 211, 217–18 (Cal.
1999) (holding that a similar California retrospective
registration requirement does not violate the Ex Post Facto
Clause); Smith v. Doe I, 538 U.S. 84 (2003) (holding that
retrospective application of an Alaska sex-offender
registration statute does not violate the Ex Post Facto Clause);
Hatton v. Bonner, 356 F.3d 955 (9th Cir. 2004) (holding,
under AEDPA review, that retroactive application of
California Penal Code section 290 does not violate the Ex
Post Facto Clause). The reason why those laws, standing
alone, do not violate ex post facto principles is that
registration itself is not considered punitive. Fioretti, 63 Cal.
Rptr. 2d at 370. In Defendant’s view, § 2260A provides the
missing element of additional punishment for his 1980s
crimes. We disagree.
Even accepting Defendant’s argument that the state laws
applied the registration requirement to him retroactively, an
issue we need not decide, the additional punishment under
§ 2260A is not for his earlier crimes. In this regard, we see
no material difference between § 2260A and ordinary
recidivism statutes—statutes that provide enhanced penalties
for previously convicted persons. The Supreme Court has
long held that recidivism statutes do not violate the Ex Post
Facto Clause because the enhanced penalty punishes only the
latest crime and is not retrospective additional punishment for
the original crimes. “When a defendant is given a higher
sentence under a recidivism statute[,] . . . 100% of the
punishment is for the offense of conviction. None is for the
prior convictions or the defendant’s ‘status as a recidivist.’”
United States v. Rodriquez, 553 U.S. 377, 386 (2008); see
UNITED STATES V . HARDEMAN 7
also Nichols v. United States, 511 U.S. 738, 747 (1994)
(“[T]his Court consistently has sustained repeat-offender laws
as penalizing only the last offense committed by the
defendant.” (internal quotation marks omitted)); Gryger v.
Burke, 334 U.S. 728, 732 (1948) (“The sentence as a [repeat
offender] is not to be viewed as [an] . . . additional penalty for
the earlier crimes. It is a stiffened penalty for the latest
crime, which is considered to be an aggravated offense
because a repetitive one.”). Similarly, if Defendant is
convicted, 100% of the punishment provided by § 2260A will
be for Defendant’s recent alleged conduct in Mexico. None
will be for his prior convictions or for his resultant status as
a sex offender.
We also see no material difference between § 2260A and
the provision of the Sex Offender Registration and
Notification Act (“SORNA”) that criminalizes failing to
register as a sex offender when under a SORNA registration
duty. SORNA criminalizes certain conduct—failing to
register—if under a duty to register, even if that duty arose
retroactively. 18 U.S.C. § 2250(a). Similarly, § 2260A
criminalizes certain conduct—illicit sexual conduct involving
a minor—if under a duty to register, even if that duty arose
retroactively. In United States v. Elkins, 683 F.3d 1039, 1045
(9th Cir. 2012), we joined our sister circuits in holding that
SORNA does not violate the Ex Post Facto Clause, even
where the registration duty arose retroactively. “SORNA
provides for a conviction for failing to register; it does not
increase the punishment for the past conviction.” Id.
Similarly, § 2260A provides for a conviction for committing
certain crimes while under a duty to register; it does not
increase the punishment for the past conviction. See also
United States v. Arzate-Nunez, 18 F.3d 730, 734–35 (9th Cir.
1994) (holding that a sentencing enhancement for a prior
8 UNITED STATES V . HARDEMAN
aggravated felony conviction did not violate the Ex Post
Facto Clause even though, at the time the defendant
committed the previous offense, the conviction did not
qualify as an aggravated felony).
Had Congress expressly specified that enhanced penalties
would apply to persons—like Defendant—who have been
convicted of violating California Penal Code section 288 in
1980, regardless of expungement, the Ex Post Facto Clause
plainly would not be implicated. That Congress chose instead
to use a shorthand method that achieves the same thing in this
case does not change the result: The § 2260A count against
Defendant does not violate ex post facto principles.
Accordingly, we reverse the district court’s dismissal of that
count and remand for further proceedings.
REVERSED and REMANDED.
|
12/14/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 11, 2018
JOHN DOE BY HIS NEXT FRIEND JANE DOE, ET AL v. BRENTWOOD
ACADEMY INC., ET AL
Appeal from the Circuit Court for Williamson County
No. 2017-435, 2017-472 Deanna B. Johnson, Judge
___________________________________
No. M2018-02059-COA-R9-CV
___________________________________
This Tenn. R. App. P. 9 application for permission to appeal concerns whether
portions of a trial court order and a transcript, both of which reference Plaintiff Jane
Doe’s medical history, should be placed under seal. Pursuant to an October 2, 2018 order
of remand from this court in Appeal No. M2018-01611-COA-R10-CV1, the trial court
determined that portions of the documents should be redacted but that certain portions of
the transcript and order which include references to Jane Doe’s medical history should
not be placed under seal. The trial court subsequently granted Jane Doe and John Doe
permission to appeal under Tenn. R. App. P. 9. We concur with the trial court that this is
an appropriate case for an interlocutory appeal. Furthermore, because the application and
answer fully set forth the parties’ positions and the material facts, we dispense with
further briefing and oral argument and proceed to the merits of the appeal in order to save
the parties additional time and expense.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT and RICHARD H. DINKINS, JJ., joined.
Justin S. Gilbert, Chattanooga, Tennessee, for the appellants, John Doe and Jane Doe.
Thomas A. Swafford, Nashville, Tennessee, Elizabeth G. Hart and Tara L. Swafford,
Franklin, Tennessee, and Lucian T. Pera, Memphis, Tennessee, for the appellees, Buddy
Alexander, Nancy Brasher, Brentwood Academy, Inc., Lyle Husband, Curt Masters, and
Mike Vazquez.
1
This court denied the Tenn. R. App. P. 10 application for an extraordinary appeal in Appeal No.
M2018-01611-COA-R10-CV on October 4, 2018, and mandate issued on November 5, 2018. Despite the
denial of the application, the issues concerning which documents held by the clerk should be placed under
seal remains a live controversy over which this court has jurisdiction.
OPINION
This case arises out of an alleged sexual assault of a minor, John Doe, in a middle
school locker room. John Doe by his next friend Jane Doe filed a complaint against the
school and several individual defendants. Although the plaintiffs voluntarily dismissed
their complaint without prejudice under Tenn. R. Civ. P. 41.01 in June of 2018, ancillary
matters remained pending before the trial court. On September 4, 2018, the plaintiffs filed
an application for an extraordinary appeal under Tenn. R. App. P. 10. No. M2018-01611-
COA-R10-CV. In connection with the application, the parties filed several exhibits that
had been placed under seal in the trial court pursuant to the trial court’s blanket order
entered on November 15, 2017. The November 15, 2017 order reads in pertinent part,
“the Court hereby requires that all documents filed in this case initially be placed under
seal. The Court will then do an in camera inspection of each document and decide
whether or not to unseal the document.” No such in camera inspection of the relevant
documents had occurred at the time the Tenn. R. App. P. 10 application was filed.
Documents previously filed under seal in the trial court pursuant to a specific
order of the trial court remain under seal in this court. Tenn. Ct. App. R. 15(b)(i).
However, “[f]or a document to be filed under seal in the appellate court pursuant to
subdivision (b), the trial court must have made an individualized determination that the
particular document should be filed under seal.” Tenn. Ct. App. R. 15(b)(ii). Because the
November 15, 2017 order did not include the individualized determination required by
Tenn. Ct. App. R. 15, we remanded the matter to the trial court with instructions to make
specific findings and conclusions needed to justify sealing any specifically identified
documents or portions of documents.
On November 1, 2018, the trial court entered an order placing several documents,
or portions thereof, under seal and removing the seal from several other documents. At
issue in this appeal is the trial court’s determination that certain portions of a February 5,
2018 order and a November 9, 2017 transcript, both of which reference Jane Doe’s
medical history, should not be placed under seal. The trial court found that the plaintiffs
had failed to show a “compelling reason” to justify sealing these portions of the record
because they contained a discussion about Jane Doe’s medical information, not of Jane
Doe’s actual medical records. The trial court subsequently granted the plaintiffs
permission to appeal under Tenn. R. App. P. 9. The plaintiffs timely filed a Tenn. R. App.
P. 9 application in this court, and the defendants filed an answer in opposition to the
application. In addition, the plaintiffs have filed a motion to file portions of their
application and supporting documents under seal pursuant to Tenn. Ct. App. R. 15. We
emphasize at this point that the only issue before us in this Tenn. R. App. P. 9 appeal is
public access to the two documents in question. Neither the defendants’ access to the
documents nor the documents’ admissibility is at issue.
-2-
We review the trial court’s orders to seal its records under an abuse of discretion
standard. However, “‘[i]n light of the important rights involved, the district court’s
decision is not accorded’ the deference that standard normally brings.” Shane Group, Inc.
v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 306 (6th Cir. 2016). (quoting In re
Knoxville News–Sentinel Co., 723 F.2d 470, 476 (6th Cir. 1983)). Having reviewed the
relevant documents, we conclude the trial court interpreted the protection for the
plaintiff’s medical history too narrowly.
ANALYSIS
“The courts of this country recognize a general right to inspect and copy public
records and documents, including judicial records and documents.” Nixon v. Warner
Commc’ns, Inc., 435 U.S. 589, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570 (1978). This public
access doctrine is codified in the Tennessee Public Records Act. Tenn. Code Ann. §§ 10-
7-101 to -702. The definition of “public records” that are subject to public access include
the following court records: “the pleadings, documents, and other papers filed with the
Clerk[s] of…all courts.” In re NHC - Nashville Fire Litigation, 293 S.W.3d 547, 564
(Tenn. Ct. App. 2008) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)
(emphasis in Ballard ) (quoting Tenn. Code Ann. § 10-7-403)). Thus, all documents filed
with the trial court clerk are public records and are open to the public unless they are
protected from disclosure by a statute, rule, or court order. See Tenn. Sup. Ct. R. 34.
There is a “strong presumption in favor of openness” regarding court records.
Shane Grp., Inc., 825 F.3d at 305 (citing Brown & Williamson Tobacco Corp. v. FTC,
710 F.2d 1165, 1179 (6th Cir. 1983)). Unlike discovery information merely exchanged
between the parties, “[t]he public has a strong interest in obtaining the information
contained in the court record.” Brown & Williamson Tobacco Corp., 710 F.2d at 1180.
As this court has reasoned, “[t]he public’s right to access provides public scrutiny over
the court system which serves to (1) promote community respect for the rule of law, (2)
provide a check on the activities of judges and litigants, and (3) foster more accurate fact
finding.” In re NHC, 293 S.W.3d at 561 (quoting Ballard, 924 S.W.2d at 661).
There are, however, numerous exceptions to the Public Records Act and the
openness of court records that are provided by statute, the Tennessee Constitution, the
common law, rules of court, and administrative rules and regulations. Tennessean v.
Metro. Gov’t of Nashville, 485 S.W.3d 857, 865 (Tenn. 2016) (“When the [Public
Records] Act was adopted in 1957, only two categories of records were excepted from
disclosure—medical records of patients in state hospitals and military records involving
the security of the nation and state. However, over the years, the General Assembly has
added over forty categories of records specifically excepted from the Act.”). In fact,
medical records enjoy broad protection from public disclosure, and the courts of this state
have long recognized the importance of keeping a patient’s medical records confidential.
Hall v. Crenshaw, 449 S.W.3d 463, 469 (Tenn. Ct. App. 2014): Stevens ex rel. Stevens v.
-3-
Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 558 (Tenn. 2013); McNiel v.
Cooper, 241 S.W.3d 886, 896 (Tenn. Ct. App. 2007) Alsip v. Johnson City Med. Ctr., 197
S.W.3d 722, 725 (Tenn. 2006); Givens v. Mullikin ex rel. Estate of McElwaney, 75
S.W.3d 383, 407 (Tenn. 2002).
As explained in McNiel, “[m]aintaining the confidentiality of patient records is for
the protection of the patient[.]” 241 S.W.3d at 896 (citation omitted). Moreover, as
discussed in Hall and emphasized in Alsip:
medical confidentiality arose from both the patient’s understanding of the
covenant between physician and patient and the policy concerns about
keeping private and potentially embarrassing information private, adding,
“The relationship of patient to physician is a particularly intimate one
[because] [t]o the physician we bare our bodies ... in confidence that what is
seen and heard will remain unknown to others.”
Hall, 449 S.W.3d at 469 (quoting Alsip, 197 S.W.3d at 726).
The privacy of such records is also protected by both federal and state statutes.
Medical records are deemed confidential pursuant to the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”). Tennessee statutes also protect the
confidentiality of medical records. As we noted in Givens, “the General Assembly has
enacted several statutes that expressly require a physician and others to keep a patient’s
medical records and identifying information confidential.” 75 S.W.3d at 407. One such
statute, Tenn. Code Ann. § 63–2–101(b)(1) states that medical records provided to state
agencies by medical providers “shall not constitute public records, and nothing contained
in this part shall be deemed to impair any privilege of confidentiality conferred by law on
patients, their personal representatives or heirs.”). Another, Tenn. Code Ann. § 10-7-
504(a)(1)(A), provides:
The medical records of patients in state, county, and municipal hospitals
and medical facilities, and the medical records of persons receiving medical
treatment, in whole or in part, at the expense of the state, county, or
municipality, shall be treated as confidential and shall not be open for
inspection by members of the public.
Because medical records are universally recognized as confidential and they are
exempted from the definition of public records, medical records and the information
contained therein do not lose their confidentiality merely because a party files another’s
records in a civil action or reads from them during a legal proceeding. See Stevens, 418
S.W.3d at 558 (“In determining whether medical records are relevant for purposes of
litigation, defendants should continue to adhere to the “minimum necessary” standard
that traditionally applies to a provider’s use and disclosure of a patient’s private health
-4-
records under 45 C.F.R. § 164.502(b)(1)”). Nevertheless, a party may waive the
confidentiality of medical information by putting the party’s physical or mental condition
at issue. See Bray v. Khuri, 523 S.W.3d 619, 622 (Tenn. 2017) (“Tennessee Code
Annotated section 29-26-121(a)(2)(E) states that the notice shall include “[a] HIPAA
compliant medical authorization permitting the provider receiving the notice to obtain
complete medical records from each other provider being sent a notice.”). However, such
medical information should be made public only when it forms the basis of the trial
court’s decision or is otherwise relevant to the issues in the case. See Stevens, 418 S.W.3d
at 558 (citing Givens, 75 S.W.3d at 408; Tenn. R. Civ. P. 26.02 (“providing that parties
can obtain a wide range of materials if they are ‘relevant to the subject matter involved in
the pending action’”)). Thus, even where access is specifically permitted, public access
should be limited to those medical records that are relevant to the particular claim at
issue, not a plaintiff’s entire medical history. Id. at 558.
The foregoing reasoning also comports with a fundamental reason for open courts,
which is “the public is entitled to assess for itself the merits of judicial decisions.” Shane
Grp., Inc., 825 F.3d at 305. As our courts have explained, “[t]he public has an interest in
ascertaining what evidence and records the District Court and this Court have relied upon
in reaching our decisions.” Id. (quoting Brown & Williamson Tobacco Corp., 710 F.2d at
1181). Conversely, if the information is both confidential and was not relied on by the
court to make a judicial decision, then the public’s right to such information is greatly
diminished.
While Jane Doe is a plaintiff, she is acting primarily as next friend for her son,
John Doe, and her only claim is for reimbursement of tuition, not for any personal
injuries to her. This is significant because in determining whether records or information
in a court file should be sealed, one of the important factors is whether the court relied on
such information in reaching its decisions. See Shane Grp., Inc., 825 F.3d at 305. The
documents before us fail to establish that the medical records of Jane Doe pertain to any
claim she filed. They also fail to establish that the trial court relied on the medical records
of Jane Doe in making any decision. Moreover, this action was voluntarily dismissed
months ago and the only matters remaining before the trial court pertain to the alleged
contemptuous conduct of an attorney, which issue has no relevance to the medical
records of Jane Doe.
While the information at issue here is not a medical record, it is information that
was obtained from Jane Doe’s medical records. Protecting the medical records
themselves but allowing public disclosure of their contents would provide no protection
for confidential information. Therefore, medical information obtained from a confidential
medical record retains its confidentiality unless and until the patient puts his or her
medical history at issue in a civil action or waives the confidentiality.
-5-
Because Jane Doe’s medical records and her medical history derived therefrom
constitutes confidential information and because that confidential information is not
relevant to Jane Doe’s claims and was not relied on by the trial court to make a decision
in this case, Jane Doe has established a compelling reason for sealing her medical records
and the confidential information derived therefrom. Further, the redaction of only those
few lines which reveal the confidential information is narrowly tailored to serve that
compelling reason.
The foregoing notwithstanding, defendants assert that the application of the
plaintiffs to seal Jane Doe’s medical records and information derived therefrom should be
denied because the plaintiffs publicly disclosed in their application the very medical
history they seek to have sealed. In the original public version of their Tenn. R. App. P. 9
application, filed in accordance with Tenn. Ct. App. R. 15(d), the plaintiffs failed to
redact two key lines which reveal information about Jane Doe’s medical history.
Thereafter, the plaintiffs filed an amended public version correcting the error. Although
not initially placed under seal, we decline to disregard the confidentiality of the
information based on what amounts to a typographical error or oversight of an intended
redaction. Therefore, the clerk is directed to file the amended public version as the public
version and place the original public version under seal.
CONCLUSION
The application for permission to appeal is hereby granted.2 The portions of the
trial court’s November 1, 2018 order denying the plaintiffs’ request to seal the portions of
the February 5, 2018 order and November 9, 2017 transcript which reference Jane Doe’s
medical history are reversed and those portions of the February 5, 2018 order and
November 9, 2017 transcript shall be placed under seal. All other provisions of the
November 1, 2018 order remain in full effect.
The plaintiffs’ motion to file portions of their application and exhibits under seal is
also granted. The unredacted documents that were filed under conditional seal in
accordance with Tenn. Ct. App. R. 15 shall remain under seal. Likewise, the original
public version of the application shall be placed under seal due to the inadvertent failure
to redact all the necessary information. The clerk shall file the amended public version of
the application as the public version under Tenn. Ct. App. R. 15(d).
2
Contemporaneously with this opinion, this court is also filing orders in Appeal Nos. M2018-
01611-COA-R10-CV and M2018-01975-COA-R10-CV which arise out of the same case.
-6-
The costs of this appeal are taxed to the defendants/appellees, jointly and
severally.
_________________________________
FRANK G. CLEMENT JR., P.J., M.S.
-7-
|
600 N.E.2d 117 (1992)
Roland E. WERNKE, Appellant-Defendant,
v.
John HALAS and Karen Halas and James R. Peacock and Geraldine Peacock, d/b/a Roger's Landscape & Gift Shop, Appellee-Plaintiffs.
No. 32A01-9112-CV-369.
Court of Appeals of Indiana, First District.
September 28, 1992.
*119 Jeffrey K. Baldwin, Baldwin & Baldwin, Danville, for Roland E. Wernke.
Robert A. Wood, Kendall, Wood, Lowry & Kessinger, Danville, for John Halas and Karen Halas.
BAKER, Judge.
America's wise and thoughtful poet laureate, Robert Frost, once wrote that "good fences make good neighbors."[1] Lamentably, not everyone has read Frost.
In this private nuisance action, defendant-appellant Roland Wernke challenges the trial court's grant of summary judgment in favor of Wernke's neighbors, plaintiff-appellees John and Karen Halas. Wernke also appeals the trial court's subsequent award of compensatory damages, punitive damages, and attorney fees.
FACTS
The facts taken in the light most favorable to the non-movant, Wernke, reveal he and the Halases are next door neighbors, with abutting side yards. The Peacock family owns the other lot abutting Wernke's property. In 1990, after a period of mounting neighborhood tension over the fate of a tree growing astride the common Wernke-Halas-Peacock boundary, and during which the parties complained about the appearance and maintenance of each other's land, Wernke built a privacy fence facing the Halas property. The fence is constructed of vertically placed boards, and the parties agree it is no more than six feet tall. On the side of the fence facing the Halases, Wernke placed some vinyl strips and a license plate over some of the cracks between the boards. He also attached a section of orange plastic construction fencing to the Halas side of the fence. The orange fencing ran almost the length of the board fence and was approximately five feet tall.
Wernke placed support posts sunken in concrete at regular intervals along the fence line. One day, as Wernke's work on the fence was progressing, vandals scrawled "Fuck J.H.," "Fuck R.P.," and "D. Head" into the wet concrete of a support post. No part of the concrete, the post, or the fence as a whole encroached upon any of Wernke's neighbors' property.
Prior to Wernke's erection of the fence, the Peacocks nailed a toilet seat to a tree facing Wernke's yard. The Peacocks removed the seat after several months, and Wernke, in a display of equal taste, set up his own toilet seat, mounting the seat and its lid on a piece of plywood placed atop a post overlooking his neighbors' land. A brown spot, alleged by the Halases to represent human excrement, was painted on the plywood within the ring inscribed by the seat. Like the fence, the toilet rested entirely on Wernke's property.
The Halases filed suit in September 1990, alleging the toilet and the fence with all its accoutrements, including the graffiti, constituted nuisances. On the advice of his attorney, Wernke removed the license plate from the fence, and the toilet and graffiti prior to the hearing on the Halases' motion for summary judgment. After the summary judgment hearing, the judge found as a matter of law that the toilet, the graffiti, and the fence constituted a nuisance. He therefore ordered the orange fencing and the vinyl strips removed, and Wernke complied.
Several weeks after summary judgment was entered, the court held a damages hearing. The Halases were awarded $5,600 for the loss in the rental value of their property during the period the graffiti, the toilet and the objectionable portions of the fence were visible, $2,400 for the discomfort and annoyance they suffered, $5,000 in punitive damages, and $3,937.50 in attorney fees. Additional facts will be supplied as necessary.
DISCUSSION AND DECISION
I
STANDARD OF REVIEW
In reviewing a trial court's decision on a motion for summary judgment, we *120 apply the same standards as the trial court and review all the pleadings, depositions, answers to interrogatories, affidavits, and admissions in the light most favorable to the non-movant. Tucher v. Brothers Auto Salvage Yard, Inc. (1991), Ind. App., 564 N.E.2d 560, 562, trans. denied. Summary judgment is appropriate only if no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Id.; Hupp v. Hill (1991), Ind. App., 576 N.E.2d 1320, 1323. Summary judgment proceedings are not to be used as an abbreviated trial. Young v. City of Franklin (1986), Ind., 494 N.E.2d 316. Moreover, they are not the proper forum to weigh disputed evidence relating to material factual issues. Jarrell v. Monsanto Co. (1988), Ind. App., 528 N.E.2d 1158, 1161, trans. denied. If, however, there are no disputed material facts, our task on review is to determine whether the trial court correctly applied the law. Fox v. Hawkins (1992), Ind. App., 594 N.E.2d 493, 495.
II
EXISTENCE OF NUISANCE
In Indiana, nuisances are defined by statute. IND. CODE 34-1-52-1 provides:
Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action.
"There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word `nuisance'." W. Prosser and W. Keeton, Prosser and Keeton on Torts, § 86, p. 616 (5th ed. 3rd printing 1989). Our statutory language is therefore necessarily broad,[2] but the general tenets of nuisance law are clear.
Nuisances may be either public or private. A public nuisance is one which affects an entire neighborhood or community, while a private nuisance affects only an single person or a determinate number of people. Wendt v. Kerkhof (1992), Ind. App., 594 N.E.2d 795, 797; Blair v. Anderson (1991), Ind. App., 570 N.E.2d 1337. The essence of a private nuisance is the use of property to the detriment of the use and enjoyment of another's property. Cox v. Schlachter (1970), 147 Ind. App. 530, 534, 262 N.E.2d 550, 553.
Both public and private nuisances are further subdivided into nuisances per se, or nuisances at law, and nuisances per accidens, or nuisances in fact. "A nuisance per se, as the term implies, is that which is a nuisance in itself, and which, therefore, cannot be so conducted or maintained as to be lawfully carried on or permitted to exist." The Windfall Manufacturing Co. v. Patterson (1897), 148 Ind. 414, 420, 47 N.E.2d 4. Thus, for example, a house of prostitution and an obstruction that encroaches on the right-of-way of a public highway are nuisances per se. Id. See also Town of Rome City v. King (1983), Ind. App., 450 N.E.2d 72 (blocked highway). On the other hand, an otherwise lawful use may become a nuisance per accidens by virtue of the circumstances surrounding the use. See Yeager and Sullivan, Inc. v. O'Neill. (1975), 163 Ind. App. 466, 474, 324 N.E.2d 846, 852 and cases cited therein; Dammeyer v. Vorhis (1916), 63 Ind. App. 427, 431, 113 N.E. 764, 766.
Logically, therefore, the determination that something is a nuisance per se is a question of law for the court, 66 C.J.S. Nuisances § 153 (1950), and the determination of "whether that which is not in itself a nuisance is a nuisance in fact" is a question for the jury or the judge as trier of fact. Shatto v. McNulty (1987), Ind. App., 509 N.E.2d 897, 899. The latter determination is to be made by the trier of fact in light of all the surrounding facts and circumstances. Yeager and Sullivan, Inc., supra; Davoust v. Mitchell (1970), 146 Ind. *121 App. 536, 540, 257 N.E.2d 332, 335; Meeks v. Wood (1918), 66 Ind. App. 594, 597, 118 N.E. 591, 592. The dispositive question "is whether the thing complained of produces such a condition as in the judgment of reasonable persons is naturally productive of actual physical discomfort to persons of ordinary sensibility, tastes, and habits." Wendt, supra, 594 N.E.2d at 797.
The essence of these holdings is unmistakable and straightforward. The conclusion that something is a per accidens nuisance is a conclusion to be reached only after a full review of the material facts. Summary judgment, which by definition is meant to resolve only with those cases lacking material factual disputes, is therefore rarely appropriate in per accidens nuisance cases. Bearing this proposition in mind, we turn to the alleged nuisances here.
The Fence[3]
In Indiana, at common law, a landowner had no nuisance claim against an adjacent landowner for erection of a fence that did not encroach on the landowner's property. Giller v. West (1904), 162 Ind. 17, 20-21, 69 N.E. 548, 549-50. The rule applied regardless of the adjacent landowner's motive in erecting the fence and regardless of the ugliness of the fence. Id. "The law does not require that ... fences shall be constructed of fine materials, or that they shall be attractive in appearance." Id. at 21, 69 N.E. at 549.
Five years after Giller, in 1909, the legislature modified the common law. IND. CODE 32-10-10-1[4] provides "[a]ny fence or other structure in the nature of a fence unnecessarily exceeding six feet (6') in height, maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a nuisance." IND. CODE 32-10-10-2 provides affected landowners with a cause of action for damages and abatement as for any other nuisance.
Although these statutes provide a landowner aggrieved by an alleged spite fence with the full range of nuisance actions and remedies, they are in derogation of the common law, and must therefore be strictly construed. See Fox, supra. Accordingly, the first predicate to a nuisance action for an alleged spite fence is that the fence exceed six feet in height. If the fence is above six feet in height, the inquiry proceeds to the questions of the necessity for the fence's height, and the defendant's intent in erecting the fence. Because the legislature framed the statute to exclude fences six feet in height or less from its ambit, however, the common law rule of Giller still controls in cases involving those fences.
The fence here, as the parties agree, is no more than six feet tall. Therefore, regardless of how unsightly the fence may be, with its attached vinyl strips, license plate, and orange construction site fencing, it cannot be a nuisance. Giller, supra. Therefore, the trial court improperly applied the law in determining the fence was a nuisance. Indeed, because the height of the fence is undisputedly less than the statutory minimum, Wernke is entitled to judgment as a matter of law. Id.; Fox, supra.
The Toilet
In Indiana, a plaintiff who has proved a per accidens nuisance may recover aesthetic damages. Blair, supra, at 1341 (Robertson, J., concurring and dissenting) (citing Rust v. Guinn (1981), Ind. App., 429 N.E.2d 299). These are damages for the "annoyance, discomfort, and inconvenience" caused by the nuisance. Rust v. Guinn (1981), Ind. App., 429 N.E.2d 299, 304. It does not follow, however, that a use or structure may constitute a nuisance merely on the basis of displeasing aesthetics.
On the contrary, it is well-settled throughout this country that, standing *122 alone, unsightliness, or lack of aesthetic virtue, does not constitute a private nuisance.[5]Haehlen v. Wilson (1936), 11 Cal. App.2d 437, 54 P.2d 62; Allison v. Smith (1984), Colo. App., 695 P.2d 791; B & W Management, Inc. v. Tasea Investment Co. (1982), D.C.App., 451 A.2d 879; Jillson v. Barton (1975), 139 Ga. App. 767, 229 S.E.2d 476; Bader v. Iowa Metro. Sewer Co. (1970), Iowa, 178 N.W.2d 305; Mahlstadt v. City of Indianola (1959), 251 Iowa 222, 100 N.W.2d 189; Ness v. Albert (1983), Mo. App., 665 S.W.2d 1, trans. denied; Crabtree v. City Auto Salvage Co. (1960), 47 Tenn. App. 616, 340 S.W.2d 940; Vermont Salvage Corp. v. Village of St. Johnsbury (1943), 113 Vt. 341, 34 A.2d 188; Mathewson v. Primeau (1964), 64 Wash.2d 929, 395 P.2d 183.[6] Instead, aesthetics are the province of restrictive covenants, See Adult Group Properties, Ltd. v. Imler (1987), Ind. App., 505 N.E.2d 459, trans. denied (upholding architectural restrictive covenants), and this is as it should be.
Aesthetic values are inherently subjective; if landowners in a given neighborhood or development wish to contract among themselves for the appearance of their homes, the courts stand ready, within well-settled limits, to provide enforcement. It would require a great leap of logic, however, to say that courts themselves should be the arbiters of proper aesthetics and good taste, and it is a leap we are unwilling to make. As the Colorado Supreme Court eloquently stated, "[i]n our populous society, the courts cannot be available to enjoin an activity solely because it causes some aesthetic discomfort or annoyance. Given our myriad and disparate tastes, life styles, mores, and attitudes, the availability of a judicial remedy for such complaints would cause inexorable confusion." Green v. Castle Concrete Co. (1973), 181 Colo. 309, 316, 509 P.2d 588, 591.
In the present case, the evidence concerning the toilet seat is undisputed. The seat and lid are affixed to a piece of blue plywood with a painted brown spot. The plywood is framed and attached to a pole roughly 10 feet tall facing out of Wernke's yard. Wernke claimed the entire contraption was a bird house, and indeed, three small boxes with holes suitable for birds surround the frame. It may be the ugliest bird house in Indiana, or it may merely be a toilet seat on a post. The distinction is irrelevant, however; Wernke's tasteless decoration is merely an aesthetic annoyance, and we are not engaged in the incommodious task of judging aesthetics. The trial court erroneously entered summary judgment for the Halases on this issue, and again, because the evidence is undisputed, Wernke, not the Halases, is entitled to judgment as a matter of law.
The Graffiti
Like the toilet, the graffiti is unattractive and vulgar. Nonetheless, it is not a nuisance. The law, especially in nuisance cases, when rights to the free use of property are concerned, does not deal in trifles, and "mere annoyance or inconvenience will not support an action for a nuisance because the damages resulting therefrom are deemed damnum absque injuria in recognition of the fact life is not perfect." Sherk v. Indiana Waste Systems, Inc. (1986), Ind. App., 495 N.E.2d 815, 818.
Here, even if we were to ignore our summary judgment standard and view the evidence in the light most favorable to the Halases, the graffiti is a non-actionable trifle. The inscriptions "Fuck J.H.," "Fuck *123 R.P.," and "D. Head"[7] are engraved in areas of concrete, no more than two feet in diameter, which surround the ground level bases of two of Wernke's fenceposts. The fenceposts themselves are located at least several inches over the property line onto Wernke's property beyond the Halases' own chain link fence, and the letters comprising the inscriptions are only three to four inches tall. In short, the graffiti is almost invisible from the Halases' yard, and it is not the appearance of the graffiti, but rather knowledge of its presence, that causes annoyance. Annoyance does not constitute a nuisance, id., and the Halases can no more claim nuisance because they know Wernke has offensive inscriptions in his yard than they could if they knew Wernke had an offensive color scheme in his bathroom.
Moreover, freedom of expression is at issue here, and although the language is offensive and vulgar, it is a "bedrock principle underlying the First Amendment that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson (1989), 491 U.S. 397, 414, 109 S.Ct. 2533, 2544, 105 L.Ed.2d 342.[8] The graffiti simply is not a nuisance. The trial court erred in granting summary judgment on this issue.[9]
III
DAMAGES & ATTORNEY FEES
Because we have reversed the trial court's grant of summary judgment on all counts, the damage awards are necessarily reversed, as well. As for the award of attorney fees, it is well-settled that Indiana adheres to the American Rule, which requires parties to pay their own attorney fees absent a statute, rule, or agreement to the contrary. Dotlich v. Dotlich (1985), Ind. App., 475 N.E.2d 331, 347, trans. denied. There are exceptions for obdurate behavior, a common fund situation, and private attorney general situations. Id. The obdurate behavior exception, upon which the Halases rely, is inapplicable here.
*124 In Kikkert v. Krumm (1985), Ind., 474 N.E.2d 503, our supreme court said this exception provides a remedy for defendants who are dragged into baseless litigation. Moreover, the type of behavior which may be characterized as obdurate is a party's failure to dismiss the suit once its baseless nature is discovered. Id.
Id., at 348.
Here, the Halases instituted the litigation, and even if the obdurate behavior exception applied to Wernke as a defendant, by no means is his continued defense against the Halases' action baseless, as our disposition of all three alleged nuisances makes clear. The attorney fee award was improper.
CONCLUSION
The trial court erred in granting summary judgment to the Halases for all three alleged nuisances. Because there is no genuine issue of material fact, the summary judgment in favor of the Halases on all counts is reversed, and summary judgment is ordered for Wernke. The award of attorney fees was error, and is therefore also reversed.
ROBERTSON and MILLER, JJ., concur.
NOTES
[1] R. Frost, "Mending Wall" (1914), in E. Lathem, Poetry of Robert Frost 33-34 (1979).
[2] "It is indeed impossible, having regard to the wide range of subject-matter embraced under the term nuisance, to frame any general definition." W. Prosser and W. Keeton, Prosser and Keeton on Torts § 86, p. 616 n. 4 (5th ed. 3rd printing 1989) (quoting Garrett and Garrett, Law of Nuisances, 3d Ed. 1908, 4; Winfied, Law of Tort, 1937, 462; Cooley, Torts, 2d ed. 1888 672; Terry, Leading Principles of Anglo-American Law, 2884 § 434).
[3] Although all the items the Halases complained of have been abated, we refer to them in the present tense for clarity.
[4] Originally promulgated by Acts 1909, ch. 26, § 1, p. 70.
[5] The rule may well be different for public nuisances. See, e.g., State, ex rel. Dresser Indus., Inc. v. Ruddy (1980), Mo., 592 S.W.2d 789, 793 (quoting Restatement (Second) of Torts § 821B, Comment e at 91 (1977)).
[6] If unsightliness is coupled with additional harms, however, such as pollution or a physical invasion, a private nuisance may be established. See Griffin v. Northridge (1944), 67 Cal. App.2d 69, 153 P.2d 800; Allison, supra; Statler v. Catalano (1988), 167 Ill. App.3d 397, 118 Ill.Dec. 283, 521 N.E.2d 565, appeal denied, 122 Ill.2d 595, 125 Ill.Dec. 237, 530 N.E.2d 265.
Moreover, even without additional harms, a large amount of refuse, such as that associated with junkyards and salvage operations, may so essentially interfere with the comfortable enjoyment of life and property that it constitutes a nuisance. See, e.g., Allison, supra, at 794, and cases cited therein.
[7] The record does not reveal the meaning of "D. Head," but the context of the phrase and the posture of the case leave little doubt it is not a complimentary phrase.
[8] We are not confronted with, and therefore leave for another day, the question of whether some language may be presented so invasively to the privacy of the home that it could constitute an abatable nuisance within the confines of the First Amendment to the United States Constitution. See, e.g., Frisby v. Schultz (1988), 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (upholding ban on targeted residential picketing that intruded upon residential privacy); F.C.C. v. Pacifica Foundation (1978), 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (upholding ban on offensive radio broadcasts that invade the privacy of the home); Rowan v. Post Office Dep't (1970), 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (upholding ban on offensive mailings); Kovacs v. Cooper (1949), 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (upholding ban on noisy sound trucks that could be heard within homes).
[9] In rendering judgment, the trial court entered thoughtful findings and conclusions. In a summary judgment case, however, these serve only to illustrate the trial court's reasons for its decision. P.M.S., Inc. v. Jakubowski (1992), Ind. App., 585 N.E.2d 1380, 1381, n. 1. On the issue of the graffiti, the findings and conclusions reveal the trial judge weighed disputed testimony and made express credibility determinations. This is inappropriate in rendering a decision on a summary judgment motion. HCA Health Services of Indiana, Inc. v. Gregory (1992), Ind. App., 596 N.E.2d 974; Jarrell, supra.
Moreover, the judge stated he did not believe Wernke's testimony that vandals scrawled the graffiti in the concrete, and the Halases place great faith in this finding in their appellee's brief. It does not matter whether Wernke or vandals wrote the words; the question of their character as a per accidens nuisance is not resolved by who wrote them. See Restatement (Second) of Torts § 839 (1979). If the graffiti were a nuisance, however, the question whether Wernke created or merely maintained that nuisance would go to the punitive damages the trial court awarded.
Punitive damages, although available in private nuisance actions under certain circumstances, see Annotation, Punitive Damages in Actions Based on Nuisance, 31 A.L.R.3d 1346 (1970), have been rejected as inapplicable to the facts in both of the two reported Indiana cases in which they were sought. Weddell v. Harner (1890), 124 Ind. 315, 24 N.E. 368; Morford v. Woodworth (1855), 7 Ind. 83. They have not, however, been rejected outright, and because we have reversed the judgment in favor of the plaintiffs on all counts, we have no occasion to determine their availability today.
|
2019 WI 93
SUPREME COURT OF WISCONSIN
CASE NO.: 19AP543-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Courtney Kathleen Kelbel, Attorney at
Law:
Office of Lawyer Regulation,
Complainant,
v.
Courtney Kathleen Kelbel,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST KELBEL
OPINION FILED: October 22, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2019 WI 93
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP543-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Courtney Kathleen Kelbel,
Attorney at Law:
Office of Lawyer Regulation,
FILED
Complainant, OCT 22, 2019
v. Sheila T. Reiff
Clerk of Supreme Court
Courtney Kathleen Kelbel,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review Referee James W. Mohr, Jr.'s,
recommendation that the court declare Attorney Courtney Kathleen
Kelbel in default and suspend her license to practice law in
Wisconsin for a period of six months for professional misconduct
in connection with her representation of five clients. The
referee also recommended that Attorney Kelbel make restitution
to the Wisconsin Lawyers' Fund for Client Protection (the Fund)
No. 2019AP543-D
and that she pay the full costs of this proceeding, which are
$1,037.25 as of July 24, 2019.
¶2 Since no appeal has been filed, we review the
referee's report pursuant to Supreme Court Rule (SCR) 22.17(2).
After review of the matter, we agree with the referee that,
based on Attorney Kelbel's failure to answer the Office of
Lawyer Regulation's (OLR) complaint, the OLR is entitled to a
default judgment. We further agree with the referee that a six-
month suspension of Attorney Kelbel's license is an appropriate
sanction for her professional misconduct. Finally, we agree
that Attorney Kelbel should be required to make restitution to
the Fund and that she should be assessed the full costs of this
proceeding.
¶3 Attorney Kelbel was admitted to practice law in
Wisconsin in 2009. Her last known address is in Milwaukee. On
October 9, 2018, Attorney Kelbel's Wisconsin law license was
temporarily suspended by this court for non-cooperation with the
OLR's investigations. Her license is also administratively
suspended for failure to pay state bar dues and failure to file
a trust account certification.
¶4 The OLR filed a complaint against Attorney Kelbel on
March 19, 2019. The first client matter detailed in the
complaint concerned Attorney Kelbel's representation of D.U.,
who hired Attorney Kelbel to assist him with the short sale of
his home. The short sale was completed on or around October 20,
2017.
2
No. 2019AP543-D
¶5 In February of 2018, D.U.'s mortgage lender sent him a
1099-C (cancellation of debt) form related to the short sale.
D.U. believed the 1099-C listed the wrong amount of mortgage
relief. He sent Attorney Kelbel multiple emails requesting her
to contact him. Attorney Kelbel called D.U. in late February
2018 and agreed to write to D.U's lender requesting a breakdown
of the amount shown on the 1099-C.
¶6 D.U. sent three emails to Attorney Kelbel in early
March 2018 asking if and when the letter had been sent and how
long the mortgage lender had to respond to the letter. Attorney
Kelbel wrote to D.U. on April 2, 2018, claiming she had sent a
letter to the lender on March 9, 2018. D.U. asked Attorney
Kelbel for a copy of the letter, but he never received one.
D.U.'s lender denied receiving a letter from Attorney Kelbel.
¶7 D.U. filed a grievance with the OLR against Attorney
Kelbel on April 2, 2018. On May 10, 2018, the OLR wrote to
Attorney Kelbel via regular and certified mail, asking her to
respond to D.U.'s grievance by June 4, 2018. Attorney Kelbel
did not respond. The letter sent by regular mail was not
returned.
¶8 On June 22, 2018, the OLR moved this court for an
order to show cause as to why Attorney Kelbel's license should
not be suspended for failing to cooperate in three
investigations, including D.U.'s. On August 1, 2018, this court
ordered Attorney Kelbel to show cause, in writing, to the court
within 20 days as to why the OLR's motion should not be granted.
Attorney Kelbel failed to respond. On October 9, 2018, this
3
No. 2019AP543-D
court temporarily suspended Attorney Kelbel's Wisconsin law
license for her willful failure to cooperate in the OLR's
grievance investigations.
¶9 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Kelbel's representation of
D.U.:
Count 1: By failing to act on D.U.'s behalf in
seeking clarification of the amount of mortgage relief
obtained from his mortgage lender, Attorney Kelbel
violated SCR 20:1.3.1
Count 2: By willfully failing to timely provide the
OLR with a written response to the grievance in the
D.U. matter, Attorney Kelbel violated SCR 22.03(2)2 and
SCR 22.03(6),3 enforceable via SCR 20:8.4(h).4
1 SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
2 SCR 22.03(2) provides:
Upon commencing an investigation, the director
shall notify the respondent of the matter being
investigated unless in the opinion of the director the
investigation of the matter requires otherwise. The
respondent shall fully and fairly disclose all facts
and circumstances pertaining to the alleged misconduct
within 20 days after being served by ordinary mail a
request for a written response. The director may
allow additional time to respond. Following receipt
of the response, the director may conduct further
investigation and may compel the respondent to answer
questions, furnish documents, and present any
information deemed relevant to the investigation.
3 SCR 22.03(6) provides: "In the course of the
investigation, the respondent's wilful failure to provide
relevant information, to answer questions fully, or to furnish
documents and the respondent's misrepresentation in a disclosure
are misconduct, regardless of the merits of the matters asserted
in the grievance."
4
No. 2019AP543-D
¶10 The second client matter detailed in the OLR's
complaint involved Attorney Kelbel's representation of V.L-C.,
who hired Attorney Kelbel to defend against the foreclosure of a
Milwaukee condominium. As part of the representation, Attorney
Kelbel agreed to work with the Wisconsin Housing and Economic
Development Authority (WHEDA) to arrange for approval of a short
sale of the property including listing, showing, and selling the
property. Attorney Kelbel requested V.L-C. to provide her with
specific financial documents which Attorney Kelbel would then
submit to WHEDA as part of a short sale package.
¶11 On September 11, 2017, V.L-C.'s condominium
association filed a foreclosure action against her. Attorney
Kelbel had agreed to defend V.L-C. in the foreclosure case;
however, Attorney Kelbel never filed a notice of appearance in
the case.
¶12 In late October or early November 2017, V.L-C.
provided Attorney Kelbel with the documents needed for WHEDA,
but Attorney Kelbel never sent a short sale package to WHEDA.
In December 2017, V.L-C. paid Attorney Kelbel the agreed upon
advanced fee of $1,250. In early January 2018, V.L-C. sent
Attorney Kelbel documents allowing Attorney Kelbel to list the
condominium for sale.
4 SCR 20:8.4(h) provides: "It is professional misconduct
for a lawyer to fail to cooperate in the investigation of a
grievance filed with the office of lawyer regulation as required
by SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6),
or SCR 22.04(1)."
5
No. 2019AP543-D
¶13 On February 12, 2018, the attorney for the condominium
association moved for default judgment against V.L-C. and sent
notice of the motion to both V.L-C. and Attorney Kelbel. When
V.L-C received notice of the default motion, she asked Attorney
Kelbel to contact the association's attorney. Attorney Kelbel
apparently did not do so.
¶14 A hearing on the default motion was held on February
19, 2018. Neither V.L-C. nor Attorney Kelbel appeared at the
hearing, and V.L-C. was found to be in default.
¶15 In June 2018, V.L-C. met with Attorney Kelbel at a
library and signed new listing documents. After that meeting,
Attorney Kelbel did not list V.L-C.'s condominium for sale and
never communicated with V.L-C. again. Attorney Kelbel never
gave V.L-C. an itemized statement documenting any work she had
performed on V.L-C.'s behalf, nor did she refund any fees.
¶16 V.L-C. filed a grievance with the OLR against Attorney
Kelbel on June 27, 2018. On August 28, 2018, the OLR wrote to
Attorney Kelbel asking her to respond to the grievance, sending
the letter to Attorney Kelbel's last known address via regular
mail. The OLR also asked a process server to serve the letter
on Attorney Kelbel. The OLR asked Attorney Kelbel to respond to
V.L-C.'s grievance by September 20, 2018. The post office
returned the OLR's letter and the process server was unable to
effect service on Attorney Kelbel. On September 18, 2018, the
OLR emailed its August 28, 2018 letter and enclosures to
Attorney Kelbel's email address listed with the State Bar of
Wisconsin. Attorney Kelbel failed to respond.
6
No. 2019AP543-D
¶17 In January 2019, the Fund approved payment of a
portion ($625) of V.L-C.'s reimbursement request and indicated
it may further review V.L-C.'s claim for additional
reimbursement.
¶18 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Kelbel's representation
V.L-C.:
Count 3: By failing to submit a complete short sale
package to WHEDA, and by failing to represent V.L-C.
in the foreclosure matter, Attorney Kelbel violated
SCR 20:1.3.
Count 4: By failing to refund any unearned portion of
V.L-C.'s advanced fee payment of $1,250, Attorney
Kelbel violated SCR 20:1.16(d).5
Count 5: By failing to provide the OLR with a written
response to the grievance in the V.L-C. matter,
Attorney Kelbel violated SCR 22.03(2), enforceable via
SCR 20:8.4(h).
¶19 The third client matter detailed in the OLR's
complaint arose out of Attorney Kelbel's representation of K.H.
and R.S., an unmarried couple who hired Attorney Kelbel to file
5 SCR 20:1.16(d) provides:
Upon termination of representation, a lawyer
shall take steps to the extent reasonably practicable
to protect a client's interests, such as giving
reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and
property to which the client is entitled and refunding
any advance payment of fee or expense that has not
been earned or incurred. The lawyer may retain papers
relating to the client to the extent permitted by
other law.
7
No. 2019AP543-D
individual Chapter 7 or Chapter 13 bankruptcies. K.H. and R.S.
agreed to pay Attorney Kelbel $3,000 in legal fees for the
bankruptcies, as well as the filing fees. In November 2017,
K.H. and R.S. emailed Attorney Kelbel financial information that
she had requested. By December 22, 2017, K.H. and R.S. had paid
Attorney Kelbel the $3,000 in legal fees.
¶20 On March 10, 2018, K.H. and R.S. mailed updated
financial information needed to draft bankruptcy petitions to
Attorney Kelbel's office. The post office returned their letter
as undeliverable in late March 2018. Attorney Kelbel has not
communicated with K.H. or R.S. since March 19, 2018.
¶21 Attorney Kelbel never filed bankruptcy petitions for
K.H. or R.S. and would not have been able to draft bankruptcy
petitions without the updated financial information. Attorney
Kelbel never notified K.H. or R.S. that she was terminating the
representation. She did not provide them with an itemized
statement documenting any work performed on their behalf, nor
did she refund any unearned fees.
¶22 On June 11, 2018, K.H. and R.S. filed a claim with the
Fund asking for the reimbursement of their $3,000 advanced fee.
The Fund approved the claim on October 4, 2018.
¶23 On July 28, 2018, K.H. and R.S. filed a grievance with
the OLR against Attorney Kelbel. On September 14, 2018, the OLR
mailed certified and first class letters to Attorney Kelbel,
requiring her to respond to the grievance by October 10, 2018.
The letters were mailed to the address on file with the State
8
No. 2019AP543-D
Bar as well as Attorney Kelbel's last known residential address.
The post office returned the letters as undeliverable.
¶24 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Kelbel's representation of
K.H. and R.S.:
Count 6: By failing to advance the interests of K.H.
and R.S., Attorney Kelbel violated SCR 20:1.3.
Count 7: By failing to refund the entire unearned fee
of $3,000, Attorney Kelbel violated SCR 20:1.16(d).
Count 8: By failing to provide the OLR with a written
response to the grievance in the K.H. and R.S. matter,
Attorney Kelbel violated SCR 22.03(2), via
SCR 20:8.4(h).
¶25 The fourth client matter detailed in the OLR's
complaint arose out of Attorney Kelbel's representation of L.W.,
who hired Attorney Kelbel to prepare a bankruptcy petition in
December 2017. L.W. paid Attorney Kelbel $1,835. In January
2018, Attorney Kelbel offered to refund $300 to L.W. but never
did so.
¶26 On January 30, 2018, L.W. sent Attorney Kelbel some
financial information, which Attorney Kelbel acknowledged
receiving the following day. On February 20, 2018, Attorney
Kelbel dropped L.W.'s file off at the offices of an unrelated
law firm.
¶27 L.W. filed a grievance with the OLR against Attorney
Kelbel on March 7, 2018. On March 9, 2018, Attorney Kelbel paid
$835 to the unrelated law firm for L.W.'s representation.
9
No. 2019AP543-D
¶28 On March 12, 2018, an attorney at the unrelated law
firm informed L.W. of Attorney Kelbel's actions and offered to
continue the representation. L.W. agreed. Attorney Kelbel
never provided L.W. with any statement or documentation of work
she had performed on L.W.'s behalf.
¶29 On April 4, 2018, the OLR mailed certified and first
class letters to Attorney Kelbel requiring her to respond to
L.W.'s grievance by April 27, 2018. The post office did not
return either letter. Attorney Kelbel did not respond.
¶30 On May 10, 2018, the OLR mailed certified and first
class letters to Attorney Kelbel requiring her to respond to
L.W.'s grievance by May 21, 2018. The post office did not
return the letter sent via regular mail. Attorney Kelbel did
not respond. L.W.'s grievance was one of the three matters that
formed the basis of this court's October 9, 2018 temporary
suspension of Attorney Kelbel's Wisconsin law license, due to
her willful failure to cooperate with the OLR's investigations.
¶31 On October 4, 2018, the Fund approved payment of
$1,000 to L.W. for Attorney Kelbel's actions.
¶32 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Kelbel's representation of
L.W.:
Count 9: By retaining $1,000 of L.W.'s advanced but
unearned fee on termination of the representation,
Attorney Kelbel violated SCR 20:1.16(d).
Count 10: By willfully failing to timely provide the
OLR with a written response to the grievance in the
L.W. matter, Attorney Kelbel violated SCR 22.03(2) and
SCR 22.03(6), via SCR 20:8.4(h).
10
No. 2019AP543-D
¶33 The final client matter detailed in the OLR's
complaint concerned Attorney Kelbel's representation of S.Z. On
September 25, 2017, S.Z. filed a grievance with the OLR against
Attorney Kelbel related to her representation of him in a real
estate matter. Attorney Kelbel communicated with the OLR
several times via email in January of 2018 about S.Z.'s
grievance.
¶34 On March 7, 2018, the OLR wrote to Attorney Kelbel
requiring her to respond to questions about the grievance by
March 30, 2018. Attorney Kelbel did not respond.
¶35 On April 2, 2018, the OLR mailed certified and first
class letters to Attorney Kelbel requiring her to respond to
S.Z.'s grievance by April 12, 2018. Neither letter was
returned, but Attorney Kelbel did not respond.
¶36 In May 2018, the OLR attempted to personally serve
Attorney Kelbel with copies of its previous letters at her last
known office and personal addresses, without success. Attorney
Kelbel's failure to cooperate with the OLR's investigation of
S.Z.'s grievance was one of the matters forming the basis for
this court's October 9, 2018 temporary suspension of Attorney
Kelbel's Wisconsin law license.
¶37 The OLR's complaint alleged the following count of
misconduct with respect to S.Z.'s grievance:
Count 11: By willfully failing to timely provide the
OLR with a written response to the grievance in the
S.Z. matter, Attorney Kelbel violated SCR 22.03(2) and
SCR 22.03(6), enforceable via SCR 20:8.4(h).
11
No. 2019AP543-D
¶38 The referee was appointed on May 9, 2019. On May 20,
2019, the referee notified Attorney Kelbel and counsel for the
OLR by email of a scheduling conference to be held on May 30,
2019 by telephone conference call. Neither that email nor any
subsequent emails from the referee to Attorney Kelbel were
rejected or returned to the referee or identified as being
undeliverable. Attorney Kelbel failed to appear or participate
in any fashion at the telephone scheduling conference.
¶39 On June 14, 2019, the OLR filed a notice of motion and
motion for default judgment, serving it upon Attorney Kelbel at
her last known addresses. On June 21, 2019, the referee
notified Attorney Kelbel via email and U.S. mail, at the same
addresses, that the motion for default judgment would be heard
at 10 a.m. on July 1, 2019 via telephone conference call.
Attorney Kelbel failed to file any written response to the
motion and did participate in the conference call.
¶40 On July 5, 2019, the referee issued a report
recommending that this court grant the OLR's motion for default
judgment. The referee noted that SCR 22.13(1) provides that
service of the complaint and order to answer shall be
accomplished "in the same manner as a summons under section
801.11(1) of the statutes." If, with reasonable diligence,
service cannot be made in that fashion, SCR 22.13 provides that
"service may be made by sending by certified mail an
authenticated copy of the complaint and order to answer to the
most recent address furnished by the respondent to the state
12
No. 2019AP543-D
bar." The referee found service in accordance with SCR 22.13
was accomplished in this case.
¶41 Based upon Attorney Kelbel's failure to file an answer
or appear in the proceeding, the referee recommended that she be
declared to be in default. The referee found that the factual
allegations of the OLR's complaint should be taken as true and
proven by clear, satisfactory, and convincing evidence. The
referee recommended a six-month suspension of Attorney Kelbel's
Wisconsin law license, the imposition of the full costs of the
proceeding, and the imposition of restitution to the Fund in the
amount of $4,625.
¶42 Attorney Kelbel did not appeal from the referee's
report and recommendation, so we proceed with our review of the
matter pursuant to SCR 22.17(2). We review a referee's findings
of fact subject to the clearly erroneous standard. See In re
Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269
Wis. 2d 43, 675 N.W.2d 747. We review the referee's conclusions
of law de novo. Id. We determine the appropriate level of
discipline independent of the referee's recommendation. See In
re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261
Wis. 2d 45, 660 N.W.2d 686.
¶43 We agree with the referee that Attorney Kelbel should
be declared in default. In addition, the referee properly
relied on the allegations of the complaint, which were deemed
admitted by Attorney Kelbel's failure to answer. We therefore
agree with the referee that the factual allegations of the OLR's
complaint may be taken as true and prove by clear, satisfactory,
13
No. 2019AP543-D
and convincing evidence that Attorney Kelbel committed all of
the counts of misconduct alleged in the complaint.
¶44 With respect to the appropriate level of discipline,
upon careful review of the matter, we agree with the referee's
recommendation for a six-month suspension of Attorney Kelbel's
license to practice law in Wisconsin. Although no two
disciplinary proceedings are identical, a six-month suspension
is generally consistent with the sanction imposed in In re
Disciplinary Proceedings Against Templin, 2016 WI 18, 367
Wis. 2d 351, 877 N.W.2d 107 (attorney's license suspended for
six months for multiple counts of misconduct involving four
clients. The misconduct in Templin included failing to provide
competent representation to a client, failing to respond to a
client's request for information, and failing to cooperate in
the investigation of grievances); and In re Disciplinary
Proceedings Against Hartigan 2005 WI 3, 277 Wis. 2d 341, 690
N.W.2d 831 (attorney's license suspended for six months for six
counts of misconduct involving two client matters. The
misconduct in Hartigan included failing to keep a client
reasonably informed about the status of a matter and promptly
comply with reasonable requests for information).
¶45 We further agree with the referee's recommendation
that Attorney Kelbel be required to make restitution to the Fund
in the amount of $4,625, and we agree that Attorney Kelbel
should be required to pay the full costs of this proceeding.
14
No. 2019AP543-D
¶46 IT IS ORDERED that the license of Courtney Kathleen
Kelbel to practice law in Wisconsin is suspended for a period of
six months, effective the date of this order.
¶47 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Courtney Kathleen Kelbel shall pay to the
Wisconsin Lawyers' Fund for Client Protection the amount of
$4,625.
¶48 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Courtney Kathleen Kelbel shall pay to the Office
of Lawyer Regulation the costs of this proceeding, which are
$1,037.25 as of July 24, 2019.
¶49 IT IS FURTHER ORDERED that, to the extent she has not
already done so, Courtney Kathleen Kelbel shall comply with the
provisions of SCR 22.26 concerning the duties of an attorney
whose license to practice law has been suspended.
¶50 IT IS FURTHER ORDERED that the restitution specified
above is to be completed prior to paying costs to the Office of
Lawyer Regulation.
¶51 IT IS FURTHER ORDERED that compliance with all
conditions with this order is required for reinstatement. See
SCR 22.29(4).
¶52 IT IS FURTHER ORDERED that the temporary suspension of
Courtney Kathleen Kelbel's Wisconsin law license imposed on
October 9, 2018, is hereby lifted.
15
No. 2019AP543-D
1
|
58 F.3d 637
McIntirev.Kimberly Clark Corp.
NO. 94-30437
United States Court of Appeals,Fifth Circuit.
June 08, 1995
Appeal From: E.D.La., No. CA-93-975-M
1
AFFIRMED.
|
32 Wn. App. 559 (1982)
648 P.2d 485
THE STATE OF WASHINGTON, Respondent,
v.
FRANCISCO E. CASTRO, Appellant.
No. 9736-9-I.
The Court of Appeals of Washington, Division One.
July 16, 1982.
Roderick M. Jones, for appellant (appointed counsel for appeal).
Norm Maleng, Prosecuting Attorney, and Margaret Fitzpatrick, Deputy, for respondent.
*561 CORBETT, J.
Francisco E. Castro appeals from his conviction of murder in the first degree, RCW 9A.32.040, while armed with a deadly weapon, RCW 9.95.040.
The victim's body was discovered in a broom closet on the second floor of a Seattle hotel on July 9, 1980. He had been stabbed over 21 times. Detectives questioned Betty Jean Haro, who arrived at the scene a short time after the body was discovered. She acknowledged living in an apartment down the hall from the broom closet, but denied knowing the victim. The next day police were informed by Ms. Haro that bloody blankets discovered in a nearby alley were from her apartment. However, Ms. Haro insisted that she had been in Wenatchee and knew nothing about the victim's death. She consented to a search of her apartment and police found several items of evidence. Later she disclosed to police that the victim had been killed in her apartment and described the events leading to his death.
According to her testimony, Ms. Haro left for Wenatchee on July 2, allowing the defendant, who was a friend of hers, to use her apartment. She returned on July 8, and was told by the defendant that he had gone to Everett for a couple of days because he had robbed a man in Seattle who could identify him. She testified that the defendant showed her a watch he had taken in the robbery. She further testified that due to this incident, the defendant wanted to avoid being seen by police. According to Ms. Haro, when police came to her apartment that evening to take away an uninvited visitor, the defendant hid in the bathroom down the hall. Later that same evening, Luis Lavaris and the victim came to her apartment to see the defendant, and all four drank wine. Lavaris and Castro spoke in English and Spanish, which Ms. Haro did not understand. They appeared hostile toward the victim and spoke of his money. She invited them to spend the night and the victim fell asleep on the floor. Ms. Haro then saw the defendant hand Lavaris a long knife.
She testified further that she fell asleep on the floor and when she awoke she saw Lavaris and the defendant standing *562 over the bloody body of the victim. She asked, "Is that man dead?" and the defendant said, "Yes." She testified that Lavaris went through the victim's pockets taking out money, and that both men had blood on their hands. Blood was found on the inside of the victim's pockets. She claimed that defendant told her never to mention his name, and she had lied to the police because she was afraid defendant would kill her.
Defendant was arrested in Portland on July 29, 1980, and charged with the murder. Lavaris was also charged with the murder but remained at large until after defendant was convicted and sentenced. Lavaris subsequently was taken into custody and made a statement accepting full responsibility for the crime. Upon discovery of the confession, defendant moved for a new trial, pursuant to CR 60(b)(11), on April 27, 1981. Appeal from denial of this motion has been consolidated with the appeal from the conviction.
[1] Defendant's first assignment of error is the trial court's refusal to exclude Ms. Haro's testimony that defendant
robbed a guy and took his watch. And the guy knew him, and he could put his finger on him with the police, so he had to get out of town.
Defendant argues that there is no connection between the prior robbery and the crime charged, and the evidence so prejudiced the jury that reversal of the conviction should be granted. Evidence of unrelated crimes may not be admitted except where such evidence shows motive, intent, absence of accident or mistake, a common scheme or plan, identity or is somehow relevant and necessary to prove an essential ingredient of the crime charged. State v. Mack, 80 Wn.2d 19, 21, 490 P.2d 1303 (1971). Here, the testimony concerned prior criminal conduct with the same motive, i.e., robbery, which occurred only a few days prior to the murder and was, therefore, relevant to show the defendant's motive or intent or absence of accident or mistake. ER 404(b). Although no direct evidence tied defendant to the commission of a prior robbery, he was connected to the crime by *563 Ms. Haro's testimony that he told her about it and showed her a watch he said he had taken. Evidence of other criminal activity need not be established beyond a reasonable doubt, but only by a preponderance of evidence. State v. Tharp, 96 Wn.2d 591, 594, 637 P.2d 961 (1981). The ultimate test of admissibility for this type of evidence is whether its relevance and necessity outweigh its prejudice to the defendant. State v. Fernandez, 28 Wn. App. 944, 951-52, 628 P.2d 818 (1980); State v. Goebel, 36 Wn.2d 367, 379, 218 P.2d 300 (1950). In admitting the evidence, the trial court commented: "It seems to me it clearly shows there was a scheme of thinking, of intent, of motive of the defendant, ..." The trial judge is vested with wide discretion in determining if the danger of unfair prejudice outweighs its probative value. State v. Tharp, 27 Wn. App. 198, 206, 616 P.2d 693 (1980); State v. Maesse, 29 Wn. App. 642, 648, 629 P.2d 1349 (1981). Viewed in the context of the grisly evidence relative to the murder, the evidence of the other crime did not overcome the defendant's presumption of innocence. The trial court did not abuse its discretion by its admission.
[2] The second assignment of error concerns the trial court's failure to caution the jury regarding Ms. Haro's testimony. Defendant contends that a cautionary instruction is mandatory where the prosecution relies solely upon the uncorroborated testimony of an accomplice, citing State v. Carothers, 84 Wn.2d 256, 269, 525 P.2d 731 (1974). However, the trial judge found as a matter of fact that Ms. Haro was not an accomplice to the murder, as defined in the criminal statutes. The test as to whether or not a witness is an accomplice is whether he could be indicted for the same crime for which the defendant is being tried. Seattle v. Edwards, 50 Wn.2d 735, 738, 314 P.2d 436 (1957). An accomplice must associate himself with the venture and participate in it as something he wishes to bring about and by action to make it succeed. State v. McKeown, 23 Wn. App. 582, 588, 596 P.2d 1100 (1979); State v. Boast, 87 Wn.2d 447, 456, 553 P.2d 1322 (1976). The witness' presence *564 at the commission of the crime, even if she had knowledge of commission of the crime, would not subject her to criminal liability unless she shared in the criminal intent of the principal, demonstrating a community of unlawful purpose at the time the act was committed. Boast, at 456. No evidence was presented to suggest that the witness possessed any criminal intent to harm the victim or participated in any phase of the crime as something she wished to bring about. Her testimony was that she was sleeping when the murder was committed and she refused to share in the proceeds of the robbery. The trial court did not err by refusing the requested accomplice instruction in the absence of evidence that she was an accomplice.
[3, 4] The defendant was charged with Lavaris as being an accomplice as well as principal in the murder.[1] No instruction defining "knowledge" or the required mental state was given or requested. The defendant contends that he was denied a fair trial by reason of the trial court's failure to define the knowledge element in the accomplice liability instruction. He argues that the jury should have been instructed to apply a subjective standard in deciding whether defendant had knowledge that his acts or statements would promote or facilitate premeditated murder, citing State v. Shipp, 93 Wn.2d 510, 610 P.2d 1322 (1980), and State v. Matthews, 28 Wn. App. 198, 624 P.2d 720 (1981), in which the statutory definition of knowledge, RCW 9A.08.010(1)(b), was criticized. The trial court in a criminal case is required to define technical words and expressions, but not words and expressions which are of common understanding. State v. Humphries, 21 Wn. App. 405, 411, 586 P.2d 130 (1978); State v. Hill, 10 Wn. App. *565 851, 854, 520 P.2d 946 (1974). Whether words used in an instruction require definition is necessarily a matter of judgment for the trial court. Seattle v. Richard Bockman Land Corp., 8 Wn. App. 214, 217, 505 P.2d 168 (1973). The word "knowledge" has an ordinary and accepted meaning. State v. Shipp, supra at 516. Here, use of the term "knowledge" in the context of the accomplice instruction was not misleading and the jury needed no further explanation.
The defendant assigns error to the failure of the trial court to grant his motion for a new trial based upon the newly discovered evidence of Lavaris' confession, which he argues, completely exonerates him. He contends that the confession would be admissible as a statement against interest, citing ER 804(b)(3), and its admission is constitutionally mandated by Chambers v. Mississippi, 410 U.S. 284, 35 L.Ed.2d 297, 93 S.Ct. 1038 (1973).
[5, 6] A new trial will be granted on the grounds of newly discovered evidence only if the following five requirements are met: (1) the evidence must be such that the results will probably change if a new trial were granted; (2) the evidence must have been discovered since the trial; (3) the evidence could not have been discovered before the trial by exercising due diligence; (4) the evidence must be material and admissible; and (5) the evidence cannot be merely cumulative or impeaching. State v. Williams, 96 Wn.2d 215, 223, 634 P.2d 868 (1981); State v. Davis, 25 Wn. App. 134, 138, 605 P.2d 359 (1980). The trial court is vested with broad discretion in ruling on a motion for a new trial based upon newly discovered evidence and a denial will not be reversed absent manifest abuse of that discretion. State v. Letellier, 16 Wn. App. 695, 700, 558 P.2d 838 (1977). State v. Hobbs, 13 Wn. App. 866, 869, 538 P.2d 838 (1975). CrR 7.6(a)(3). To determine whether the newly discovered evidence will probably result in a different outcome upon retrial, the trial court must determine the credibility, significance and cogency of the proffered evidence. State v. Barry, 25 Wn. App. 751, 758, 611 P.2d *566 1262 (1980). In Chambers v. Mississippi, supra at 300-02, the Supreme Court held that under certain circumstances declarations against penal interest cannot be excluded. The minimal evidentiary criteria which must be met before a declaration against penal interest is constitutionally mandated as admissible are: (1) the declarant's testimony is otherwise unavailable; (2) the declaration is an admission of an unlawful act; (3) the declaration is inherently inconsistent with the guilt of the accused; and (4) there are such corroborating facts and circumstances to indicate that it has a high probability of trustworthiness. State v. Russell, 27 Wn. App. 309, 314-15, 617 P.2d 467 (1980), citing State v. Gardner, 13 Wn. App. 194, 198-99, 534 P.2d 140 (1975).
The trial court was told by defense counsel at the time of motion for new trial that Lavaris had repudiated his statement and elected to not testify during his trial. The trial court ruled that Lavaris' statement did not have a high probability of trustworthiness by reason of its repudiation and its inconsistency with evidence received during the course of the trial. This lack of trustworthiness removes the mandate of its admissibility under the Chambers decision. In light of all the evidence, it is unlikely that a new trial would result in a different outcome. The trial court did not abuse its discretion in denying the motion for new trial based upon the statement of Lavaris.
[7] The defendant's final assignment of error is the court's denial of his posttrial motion for a new trial based upon the cumulative effect of errors during the course of trial. He first argues that Ms. Haro's testimony could not have been believed by a rational trier of fact and thus, the evidence was not sufficient to support the jury's verdict. The jury was instructed to weigh credibility of each witness "in light of all the evidence." It chose to believe her testimony despite her inconsistent stories to the police. These discrepancies were skillfully detailed by defense counsel upon cross examination and forcefully pointed out in closing argument. It is the function of the jury to weigh the evidence and it would have been an abuse of discretion for *567 the trial judge to grant a new trial on that ground. State v. Williams, supra.
The defendant also argues that it was error for the court to allow the prosecutor to vouch for Ms. Haro's credibility by remarking in her opening statement that Ms. Haro told "the truth" to police when she told them Castro committed the murder. Even if the jury could have taken the remark out of context, as is urged here, the court cautioned the jury to disregard any remark, statement or argument not supported by the evidence or the law. We find no prejudicial error committed by the trial court, which properly denied the motion for new trial.
Affirmed.
WILLIAMS and RINGOLD, JJ., concur.
Reconsideration denied September 14, 1982.
Review denied by Supreme Court December 3, 1982.
NOTES
[1] The jury was instructed on accomplice liability as follows:
"A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.
"A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he either: (1) solicits, commands, encourages, or requests another person to commit the crime; or (2) aids or agrees to aid another person in planning or committing the crime...."
|
551 F.2d 308
Randollv.Jones
No. 77-1196
United States Court of Appeals, Fourth Circuit
2/23/77
1
E.D.N.C.
AFFIRMED
|
509 F.Supp.2d 183 (2007)
James C. MAVEL, Plaintiff
v.
SCAN-OPTICS, INC. and Scan-Optics, LLC., Defendants.
No. 3:07-CV-352 (CFD).
United States District Court, D. Connecticut.
September 14, 2007.
*184 *185 Stephen J. Fitzgerald, Garrison Levin-Epstein Chimes & Richardson, New Haven, CT, for Plaintiff.
David A. Hill, Jr., Walter E. Paulekas, Ford & Paulekas LLP, Hartford, CT, for Defendants.
RULING ON MOTIONS FOR PREJUDGMENT REMEDY AND FOR DISCLOSURE OF ASSETS
SMITH, United States Magistrate Judge.
An evidentiary hearing was held on plaintiff's motion for a prejudgment remedy (Dkt.# 5) and for a disclosure of assets (Dkt.# 6) on August 27, 2007. Four witnesses testified, and numerous documents were received into evidence. Based on the credible evidence, the motion is granted. A writ of attachment shall issue permitting the plaintiff to attach assets of the defendants to the value of $1,800,000. The motion for disclosure of assets is also granted.
"In order to obtain a prejudgment remedy, the applicant need only establish the validity of [its] claim." Dunican v. Bernhard-Thomas Bldg. Sys., LLC, No. CV030568019S, 2004 WL 574724, at *1 (Conn.Super.Ct. March 10, 2004). "[I]f probable cause is established that judgment will be rendered in the applicant's favor in the amount sought, the prejudgment remedy should be granted." Id.
"Probable cause is nothing more than a bona fide belief of the existence of facts essential under the law for the action, such as would warrant a person of ordinary caution, prudence, and judgment, under the circumstances, to entertain it." Id. at *2. To be entitled to a prejudgment remedy, the applicant must establish probable cause as to both liability and damages. Neely v. The 36 Catoonah Street Co., No. 31 45 74 AC 13246, 1994 WL 131212, at *2 (Conn.Super.Ct. Apr.12, 1994) citing McCahill v. Town & Country Assocs., Ltd., 185 Conn. 37, 39, 440 A.2d 801 (1981). Although mathematical precision is not required in determining the amount of damages, Burkert v. Petrol Plus of Naugatuck, Inc., 5 Conn.App. 296, 301, 497 A.2d 1027 (1985), the record nevertheless must be such that the court can make a fair and reasonable estimate of probable damages. In doing so, the court must also take into account any likely defenses and reasonable set-offs which are shown by the opposing party.
The plaintiff has amply sustained his burden of proof.[1] The plaintiffs proposed *186 findings of fact (Dkt.# 29) are firmly grounded in the documentary evidence adduced at the hearing, and supported by the credible testimony of all the witnesses, even those called by the defendant. The undersigned adopts the plaintiffs proposed findings as if they were set out in detail herein.
The uncontroverted evidence establishes that the defendant Scan-Optics, Inc. ("SOI") entered into a written employment agreement with the plaintiff. The agreement was drafted entirely by SOI, without the plaintiffs having played any part in negotiating it. The agreement, which was entered into evidence as Exhibit 1, is among the more convoluted and detailed that the undersigned has seen.[2] Try though the defendants do to escape the contract's implications, they cannot. The language of the. contract supports the plaintiff, and, for present purposes, so too do the facts. Though defendants may regret the contract's scope or, in retrospect, believe that the benefits it confers on the plaintiff are undeservedly generous, the plaintiff has easily met his burden of showing probable cause that he is likely to prevail for the amount of the attachment he seeks.
Among other things, the agreement provides that the plaintiff would serve as SOI's President and Chief Executive Officer beginning December 21, 1996 and continuing thereafter until his employment was terminated by either party in accordance with the agreement. The agreement provided for certain severance payments if there were a change of control of SOI. It also provided that the plaintiff would receive a severance payment in certain other circumstances. These included adverse changes in the scope of plaintiffs duties, powers and responsibilities occurring in the aftermath of a "change of control" of SOI. The obligation to make a severance payment could also be triggered by the employer's taking of any action that adversely affected plaintiffs participation in any incentive pay, or employee benefit plan or program in which he was participating.
The evidence adduced at the hearing makes it clear that there was such a change of control of SOI, and that during the relevant period after that change of control, there were several actions taken that adversely affected, diminished, and reduced plaintiffs powers, duties, and responsibilities. The intricacies of these actions are set out accurately and in more detail in plaintiffs proposed findings. Generally, however, the court notes that in the immediate aftermath of the change of control, the new slate of directors (referred to hereafter as "Patriarch" Directors due to their association with an LLC of financiers which had bought from Fleet National Bank its credit agreement with SOI) began exercising control in areas that had been the plaintiffs responsibility and under his power and control. For example, Patriarch Director Schooley *187 directed plaintiff to hire a consulting firm to review the company's operations. A few months later, another Patriarch Director, Michael Scinto, ordered plaintiff to fire the consultant plaintiff had engaged and retain yet another independent consultant. Still later, plaintiff was ordered, over his objections, to create a new management position (Chief Operating Officer) and to fill that position on an interim basis with the Ocean Ridge consulting firm. Then, still later, Patriarch Director Kevin Flannery directly negotiated the compensation of Paul Yantus, who was to fill a newly-created position, and ordered Yantus to develop a new business plan for the Business Process Outsourcing unit. There was also unrefuted evidence that some members of the newly constituted Board of Directors made direct contact with members of the plaintiff's staff, directing those members to pay certain invoices, thus circumventing the plaintiff with respect to matters pertaining to cash flow. One cannot plausibly contend there was not a serious reduction in plaintiffs power, status, authority, and responsibility in the wake of the assumption of control by the newly constituted Board of Directors.
There were also adverse changes to the plaintiff's incentive pay and benefits following the change of control. In January 2005, Director Scott Schooley advised plaintiff that there would be a change in the way plaintiffs incentive pay would be calculated. This change in the way incentive pay was to be calculated made it more difficult for the plaintiff to earn a bonus. Whereas prior to the change of control, plaintiffs incentive pay was based solely on the company's earnings before interest, taxes, depreciation and amortization ("EBITDA"), under the new methodology, plaintiffs incentive pay now depended on satisfaction of a sales target for all divisions of the company, as well as EBITDA. Also in January 2005, SOI eliminated the benefit of the company's matching employee contributions to their 401(k) accounts, which constitutes a serious adverse change in plaintiffs benefits.
All the foregoing actions gave plaintiff good cause within the meaning of his employment contract to invoke his right to "Severance Compensation." On March 19, 2005 received a letter from plaintiffs counsel pursuant to Sections 19 and 25(h) of the employment agreement, expressing plaintiffs intent to resign and to receive severance compensation as provided pursuant to Section 13 of the employment agreement. That notice specifically referenced the adverse changes in plaintiffs duties, authorities, and responsibilities that followed in the wake of the change of control. It also referenced the adverse change in plaintiffs incentive pay calculation formula and the reduction in his 401(k) benefits. As required, the notice given by plaintiffs counsel expressed a willingness to enter into mediation. On receipt of the notice, Director Schooley called plaintiff, instructing him to turn in his keys and exit the premises. Thereafter, no one from SOI contacted plaintiff regarding his offer to mediate, nor has plaintiff been paid any severance.
Section 13 of the employment agreement sets forth a mechanism for calculating severance compensation. Under the terms of the contract, the plaintiff has shown probable cause to believe he will recover compensation, interest, and attorney's fees totaling $1,890,000 at present. Compensation, interest at a specified rate referenced in The Wall Street Journal, and attorney's fees are specifically addressed under the employment agreement. The court finds that the contemplated attorney's fee is reasonable for present purposes.
*188 Generally, when one corporation purchases the assets of another corporation, the successor corporation is not responsible for the debts and liabilities of the predecessor. Collins v. Olin Corp., 434 F.Supp.2d 97, 102 (D.Conn.2006). However, a successor corporation may be held liable for the debts and liabilities of a predecessor when the former's acquisition of the latter is a mere continuation of the seller. Ricciardello v. J.W. Gant & Co., 717 F.Supp. 56, 57-58 (D.Conn.1989)(Dorsey, J.)[3]
"Under the continuity of enterprise theory, a mere continuation exists if the successor maintains the same business, with the same employees doing the same jobs, under the same supervisors, working conditions, and production processes, and produces the same products for the same customers." Chamlink Corp. v. Merritt Extruder Corp., 96 Conn.App. 183, 188, 899 A.2d 90 (2006).
Factors relevant to the mere continuation exception include continuity of management; continuity of personnel; continuity of physical location, assets and general business operations; and cessation of the prior business shortly after the new entity is formed. [Citation omitted] Also relevant is the extent to which the successor intended to incorporate the predecessor into its system with as much the same structure and operation as possible. [Citation omitted] Thus the court should determine whether the purchaser holds itself out to the world as the effective continuation of the seller. [Citation omitted].
Bowen Engineering v. Estate of Reeve, 799 F.Supp. 467, 487-88 (D.N.J.1992); also see Southern Connecticut Gas Co. v. Waterview of Bridgeport Ass'n., Inc., 2006 WL 1681005 (Conn.Super.Ct. June 1, 2006). Although the proponent of successor liability need not establish all of these factors, the balance must tip in its favor.[4]Bowen, supra 799 F.Supp. at 488. For present purposes, the court finds that plaintiff has established probable cause with respect to most, if not all, of the foregoing factors.
On August 5, 2005, three days after plaintiff commenced an arbitration against SOI, SOI transferred all of its assets and business to SO Acquisition, LLC, an entity which is wholly owned by Patriarch. SO Acquisition LLC in turn transferred SOI's assets and business to Scan-Optics, LLC (hereafter "SOL"). Defendant's reply proposed findings of fact (Dkt.# 31) indicate that the majority of the stock of SOI had been held by ARK CLO 2000-1 Limited *189 ("ARK"), while the membership interests of SOL were owned by Zohar II 2005-1, Limited, and Zohar CDO 2003-1, Limited. Defendant LLC stresses that ARK does not hold any of the membership interests of SOL. While the court recognizes this contention, it is not sufficient to overcome a finding of probable cause with regard to corporate succession.
Under the continuity of enterprise theory, a finding of successor" liability is not dependent on an exchange of shares. See Miller v. Forge Mench P'ship, Ltd., 2005 WL 267551 *8 (S.D.N.Y. Feb.2, 2005) (mere continuation found when, the individual shareholders of the creditor company acquired a debtor company through foreclosure sale after default). The current rule requires a weighing of the following four factors:
(1) continuation of the enterprise of the seller corporation so that there is a continuity of management, personnel, physical location, assets and general business operations; (2) continuity of shareholders; (3) the seller corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practically possible; (4) the purchasing corporation assumes those liabilities and obligations of the seller ordinarily necessary for the uninterrupted continuation of normal business operations of the seller corporation.
Collins v. Olin Corp., 434 F.Supp.2d 97, 103 (D.Conn.2006). As this continuation test is a balancing test, it is not necessary for all of the factors to be met.
As part of the acquisition, it was agreed that SOI's employees would be hired by SOL and that the newly formed entity would hold the assets of, and operate the business formerly conducted by, SOI. SOL acquired the assets of SOI and assumed certain ordinary business liabilities. SOL also obtained from SOI the right to use the name "Scan-Optics" and a commitment that SOI would cease doing business and dissolve. SOI has since ceased doing business and has dissolved. Since August 5, 2005, SOL has continued to operate without interruption the same general business formerly operated by SOI. SOL hired approximately 75 employees of SOI who reported to the same business location on Progress Drive in Manchester the day after the acquisition.[5]
Two of SOI's managers were hired as managers at SOL. Those managers and employees continued to work at the same job, performing the same functions at the same computers, at the same desks they used when they worked for SOI. Although SOL sold off the manufacturing division it has continued to operate a business focused on managing documents using image "capture and recognitions solutions." SOL continued to hold itself out to the public as "Scan-Optics." SOL's web site claims a continuity of business from 1968 to 2006.
SOL has continued business alliances begun by SOI. SOL has continued to attend industry conferences that SOI had attended. SOL has adverstised awards that had been won by SOI. SOL continued to provide scanning services to the types of customers that had been serviced by SOI. SOL continued to structure the company just as SOI had, with a Professional Services component, a BPO Sevices component, and an Access Services component. Although SOL grew its BPO component, *190 plans for that growth were part of SDI's business plan.
The testimony of defense witness, Ramkumar Rajagopalan, SOL's former CEO, further assists plaintiff in establishing probable cause to support a determination that SOL has continued SOI's business with a continuity of management. The court, therefore, finds for present purposes that SOL is a continuation of SOT. There is likewise probable cause to support a determination that SOL has acquired SDI's liability to plaintiff under the employment agreement it entered into with with him.[6]
For all of the foregoing reasons, a writ of attachment in the amount of $1,800,000 should issue;
The plaintiff may attach or garnish to the value of $1,800,000 defendant Scan-Optics, LLC's interest in real or personal property, inventory, bank accounts, trust accounts, certificates of deposits, securities, bonds, debts owing, accounts receivable or other items of value, or in assets disclosed in response to plaintiff's motion for disclosure of assets, which is also granted;
A representative of the defendant, duly familiar with its assets will appear at a hearing at 2:00 p.m., September 24, 2007, before the undersigned to be examined under oath regarding those assets, unless counsel can agree to disclosure by deposition at some other convenient time and place. The parties will arrange for the presence and the payment of a stenographer irrespective of where or when the examination is held.
NOTES
[1] The magistrate judge has considered the arguments submitted in SQL's September 12, 2007 reply papers. (Dkt.# 31.) These papers mostly reiterate SOL's earlier arguments. Nothing therein changes the conclusions or analysis in the magistrate judge's ruling. Plaintiff's reply papers (Dkt.# 32) also basically reiterate his earlier arguments. Plaintiff has sustained his burden of showing probable cause on his contract claim and on the issue of successor liability.
[2] The papers submitted by Scan-Optics, LLC ("SOL") in opposition to the pending motion recognize that, if plaintiff properly terminated his employment agreement for good cause, he would be entitled to claim a severance payment from SOI. (Dkt. # 28 at ¶ 8). SOL's papers in opposition to the pending motion do not appear to contest the formula that plaintiff uses in calculating the amount of severance compensation, interest, or attorney's fees that plaintiff claims.
[3] The undersigned cannot agree with SOL's successor liability arguments on the present record. (Dkt. # 28 ¶¶ 24-50). This opinion, of course, is without prejudice to SOL's making the same or similar arguments in a motion for summary judgment on a more fully developed factual record.
Among other things, SOL stresses that SOI was not acquired directly by it pursuant to a traditional purchase agreement, but by a Foreclosure Agreement which specifically excludes liability for [a]ny employment agreements, severance agreements or retention agreements." (Dkt. 28 ¶¶ 55-57). The court understands SOL's argument, but does not agree with it. That SOL attempted to expressly exclude liability under the agreement does not insulate it from a finding of probable cause under a continuing enterprise theory in the preliminary context of a prejudgment remedy hearing.
[4] In an effort to focus the court on the equities (as SOL perceives them), the opposing papers stress that SOI did poorly under plaintiff's leadership; that it incurred heavy debt; and that plaintiff was part of the team that voted to incur SOI's heavy debt. (Dkt. # 28 10-12, 28, 54). The employment contract which SOI entered into with the plaintiff, however, does not tie the plaintiff's salary, benefits, or severance to his performance. SOL is, therefore, hard pressed to argue that plaintiff is not worth what SOI agreed to pay him.
[5] It is true that SOL significantly downsized the operations of SOL "[A]pproximately 30-40 former employees of Defendant SOI" lost their jobs. (Dkt. # 28 ¶¶ 61-62). SOL also took steps to completely outsource the assembly of its scanning products, and began to dedicate significant resources to developing the company's BPO line of business.
[6] The court finds that plaintiff has sustained his burden of showing probable cause. The undersigned specifically rejects SOL's Proposed Conclusions of Law 9-17, 19-23. (Dkt.# 28).
SOL attempts to raise the defense of "unclean hands." There is no evidence that plaintiff has "unclean hands." In reality, what SOL is attempting to do under the guise of an unclean hands defense is capitalize on what it perceives to be generalized public resentment of highly-paid executives. This is unfair.
Similarly, there is no credible evidence that plaintiff engineered his own undoing in order to claim severance. Rather, the evidence is clear that after the change of control there were significant adverse changes in the scope and nature of plaintiff's power, responsibility, authority, and duties. The evidence is also clear that there were adverse changes to plaintiff's benefits and compensation after the change of control.
|
132 B.R. 127 (1991)
In re MANUFACTURER'S SUPPLY COMPANY, Debtor.
Bankruptcy No. B88-2213.
United States Bankruptcy Court, N.D. Ohio, E.D.
September 5, 1991.
Howard Sokolsky, Benesch, Friedlander, Coplan & Aronoff, Cleveland, Ohio, for debtor.
Thomas Pavlik, Cleveland, Ohio, for Trustee.
Brian A. Bash, Cleveland, Ohio, Trustee.
MEMORANDUM OF OPINION AND ORDER
RANDOLPH BAXTER, Bankruptcy Judge.
I.
The matter before the Court is the application of Michael Clark (Applicant) for a refund of Two Thousand Dollars ($2,000.00) advanced to Manufacturer's Supply Company (Debtor) to pay a retainer to Benesch, Friedlander, Coplan & Aronoff (Benesch). Upon review of the pleadings, *128 arguments of counsel and the record, generally, the following constitutes the Court's findings and conclusions:
II.
On June 16, 1988, an involuntary Chapter 7 petition was filed against the Debtor. In order to facilitate the Debtor's representation, it was necessary for the Debtor to pay a retainer of $2,000.00 (Two Thousand Dollars) to Benesch. The Debtor apparently was unable to pay the retainer from its own assets, the Applicant, President of the Debtor corporation, personally paid the necessary retainer to Benesch. Pursuant to a fully disclosed agreement between the Applicant and Benesch, in the event that this Court awarded Benesch full payment for its fees and expenses, the $2,000.00 retainer would be refunded to the Applicant.
Subsequently, an order for relief under Chapter 7 of the Bankruptcy Code was issued on the involuntary petition on July 19, 1988. Benesch filed an application for allowance of compensation for services rendered and reimbursement for expenses on February 22, 1991. The Court on March 6, 1991, approved the application in the amount requested, reduced by the $2,000.00 retainer previously received by Benesch. The Applicant now seeks a reimbursement from the Debtor's estate of the $2,000.00 which he advanced. The Applicant contends that the $2,000.00 advance should be afforded an administrative expense priority as the advance was necessary and beneficial for the estate's retainment of counsel. The case trustee contends that the advance should be treated as a general unsecured claim.
III.
The principle dispositive issue is whether a payment made to the legal counsel of an involuntary debtor by a third party during the "gap period" is entitled to an administrative expense priority.
IV.
Section 503 of the Bankruptcy Code establishes criteria for the allowance of administrative expense claims:
§ 503. Allowance of administrative expenses.
(a) An entity may file a request for payment of an administrative expense.
(b) After notice and a hearing, there shall be allowed administrative expenses, other than claims allowed under section 502(f) of this title, including
(1)(A) the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case:......[11 U.S.C. 503(b)(1)(A)]
Only debts that arise after the filing of the bankruptcy petition may be accorded administrative expense status. In re Baldwin-United Corp., 43 B.R. 443, 453 (S.D.Ohio 1984). In order to qualify a claim for payment as an administrative expense the claimant must prove that the claim arose from a transaction with the debtor as opposed to the preceding entity and that such claim directly and substantially benefitted debtor's the estate. In re United Trucking Service, Inc., 851 F.2d 159, 160 (6th Cir.1988). As noted above, Section 503 specifically excepts Section 502(f) involuntary "gap creditors" from administrative priority status. See, 11 U.S.C. 503(b); In re Hanson Industries, Inc., 90 B.R. 405, 413 (Bankr.D.Minn.1988); In re Dakota Lay'd Eggs, 68 B.R. 975, 977 (Bankr.D.N.D.1987). Gap creditors are those who extend credit, lend money, or generally have claims which arise during the gap period between the filing of the involuntary petition and the entry of an order for relief. 2 Collier On Bankruptcy, P303.36, at 303-127 (15th ed. 1990).
Once an involuntary petition is filed, an estate is thereby created. See, 11 U.S.C. 541(a). Until the order for relief is actually entered, a debtor may continue to operate and use property as if no case has been commenced. See, 11 U.S.C. 303(f). The ultimate effect is that while the case has been commenced, the estate does not pass from the debtor to the trustee's administrative control until the order for relief is granted. See, In re Andreotti, 16 *129 B.R. 28 (Bankr.E.D.Cal.1981). Since the estate does not pass to the trustee's hand during this interim period, no administrative expenses can begin to accrue. Such gap claims, if allowed, are entitled to treatment as if they were claims which had arisen before the filing of the petition. H.R.Rep. No. 595, 95th Cong., 1st Sess. 354, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5963, 6310.
While section 503 of the Bankruptcy Code excepts gap creditors from administrative status, such creditors may receive a second priority status under section 502(f) of the Bankruptcy Code.
This section provides:
(f) In an involuntary case, a claim arising in the ordinary course of the debtor's business or financial affairs after the commencement of the case but before the earlier of the appointment of a trustee and the order for relief shall be determined as of the date such claim arises, and shall be allowed under subsection (a), (b), or (c) of this section or disallowed under subsection (d) or (e) of this section, the same as if such claim had arisen before the date of the filing of the petition. [11 U.S.C. 502(f)].
Section 502(f) is intended to protect creditors who deal with an involuntary debtor during the gap period, such as lessors, trade creditors and similar parties, consistent with section 303(f)'s specific authority allowing an involuntary debtor to conduct its business in an ordinary manner while its ultimate status is adjudicated. See, S.Rep. No. 95-989, 95th Cong., 2d Sess. 65, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5851. Section 507(a)(2) of the reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5851. Section 507(a)(2) of the Bankruptcy Code provides a second priority status to 502(f) gap creditors. See, 11 U.S.C. 507(a)(2).
V.
This Court is mindful of the equitable concerns raised by the applicant. Nevertheless, the clear language of the Bankruptcy Code cannot be ignored. A gap creditor cannot avoid the preclusionary effect that section 503(b) has on gap claims regarding the allowance of administrative expenses. Section 503(b) of the Code provides the requirements for the treatment of administrative expense claims. This same section expressly prevents a gap creditor's claim from being regarded as an administrative expense. Regardless of the motivating reasons for advancing the Debtor the subject funds during the gap period, a gap creditor's claim cannot be accorded an administrative priority. Dakota Lay'd Eggs, supra, at 978. The claims of gap creditors are regarded as having accrued prior to the date of the filing of the petition and cannot be deemed as having occurred during the administration of the estate. Id.; 11 U.S.C. 502(f). Furthermore, since the $2,000.00 advance was not made in the ordinary course of the Debtor's business or financial affairs, the Applicant is not entitled to a second priority status pursuant to sections 502(f) and 507(a)(2) of the Bankruptcy Code. The Applicant's claim is nothing more than a general unsecured claim. See, 11 U.S.C. 502(f); 11 U.S.C. 507(a)(2).
VI.
Accordingly, the Applicant's request for a refund of $2,000.00 advanced to the Debtor to pay a retainer to Benesch is hereby denied.
IT IS SO ORDERED.
|
249 S.W.2d 373 (1952)
STATE
v.
CUEZZE et al.
No. 42557.
Supreme Court of Missouri, Division No. 2.
June 9, 1952.
*374 Carl L. Anderson, John J. Cosgrove, Kansas City, for appellants.
J. E. Taylor, Atty. Gen., Robert L. Hyder, Asst. Atty Gen., for respondent.
TIPTON, Judge.
This case comes to the writer on reassignment.
In the circuit court of Clay County the defendants were convicted of the offense of carrying concealed weapons. The jury returned separate verdicts, assessing the punishment of each defendant at two years' imprisonment in the state penitentiary. From this judgment these defendants have duly appealed.
The defendants' first assignment of error is: "The court erred in refusing to sustain defendants' motion to suppress evidence for the reason that the defendants' arrest was unlawful and the search of the automobile and the seizure of the pistols was in violation of their rights guaranteed by article 1, section 15 of the Constitution of Missouri, 1945, and by the fourth amendment of the Constitution of the United States."
The statement concerning defendants' arrest as set out in their brief accurately portrays the evidence that was heard by the trial court on this motion. We will, therefore, adopt defendants' statement as the statement of the court. It is as follows:
"Cuezze and DeLuna filed separate motions to suppress evidence procured by unlawful search and seizure. On the hearing of said motions the evidence disclosed that when officers Habert and Powers arrested defendants and their companion Trombina they had no warrant for their arrest; the officers knew of no felony that had been committed, nor were they in pursuit of a felon. Neither of the defendants committed any violation of the law in their presence. They first saw the motor car in which the defendants were riding pull on to Highway 169 off Hill Street, which is in Evans Hills Addition in Clay County. It was a 1947 Chevrolet sedan, maroon color. The officers had received a call from the police dispatcher in Kansas City to investigate three men who were seen in an automobile believed to be a dark Pontiac sedan, which was parked on Hill Street. The officers followed this car from the time it turned on to Highway 169 to a point in Burlington Street in North Kansas City, at which time they made the arrests.
"Defendant Cuezze was driving the car and DeLuna was sitting in the front seat to his right. Upon order, the defendants got out of the car and Officer Habert felt of their persons for weapons, found none and conducted them back to the police car, a distance of about twenty-five feet. Officer Powers searched the automobile and found two pistols under the right front seat. There was a clearance between the floor boards of the car and the bottom of the seat of about four inches. The officers had no report of a Chevrolet being involved in any law violation nor did they have an order to pick up a *375 Chevrolet. They had received no report of a felony having been committed in this district nor were they investigating a felony at the time they stopped the car. The defendants did nothing to indicate they were fleeing from a felony nor anything to indicate they were about to commit a felony. No traffic violations were observed. Information from the dispatcher was that a car, believed to be a Pontiac, had been seen around the vicinity of the Arrow Service Station, which was approximately twenty-five yards south of Hill Street on Highway 169. The men he had been sent to investigate, according to information received from the service station owner, had cashed a twenty dollar bill when they made a purchase of some gasoline, but the officers heard later that the three defendants had only $7.00 in their possession when they were arrested. The defendants were booked for investigation. They saw no other car with three men in it in the neighborhood.
"Trombino, who was acquitted, said the car belonged to a brother or some relative of his. The arrest was made about 10:15 P.M. The defendants said they had just been riding around in the neighborhood, had not stopped anywhere. The police car followed the defendants' car for a distance of about a half mile during which time there was no violation of the law. Powers recognized one of the men as having had a police record, but that had nothing to do with his stopping the car. He stopped the car because of the call he had received about a suspicious car, a car described as a dark Pontiac. There were two pistols under the right front seat of the car. In order to reach these pistols the defendant Cuezze would have had to stretch, but he did not know how far. He did not know about the guns until after he searched the car. When asked, `Well, suspicion was the only cause for the whole thing, is that correct?' he answered, `that is correct.' Powers suspected them of being about to commit a felony, not actually committing one; they had no report of a felony having been committed. His information from the dispatcher was that a suspicious acting car, believed to be a dark Pontiac, had been in the vicinity for some time. After the arrest he received information that one of the occupants of the car had walked behind the filling station. He had no other reason to suspect these three men of being about to commit a felony.
"Glen Goforth, operator of the filling station at the Skyline Courts, testified that he called the police station in reference to a car that was parked on Hill Street which he said was a Pontiac. He got his information about the car from a neighbor. He saw this car from a distance, but saw it do nothing illegal. He saw a man walk from this car down the driveway leading behind the cottages and then walk back up and across the street, but what happened then he couldn't say. He couldn't identify the man. `The officers are mistaken about three suspicious men coming to my station and cashing a twenty dollar bill. I didn't report anything like that.'
"The motion of the defendants to suppress evidence was by the court overruled and exceptions duly saved."
There is not the slightest evidence that these defendants had committed a crime. There is no evidence that these defendants had committed any misdemeanor in the presence of the police officers. There is no evidence that they had any suspicion that these defendants had committed a felony. There was no evidence that these police officers had any warrants for defendants' arrest. In fact, these officers did not know of any crime that had been committed. Under these circumstances, the arrest of these defendants was illegal. State v. Cushenberry, 157 Mo. 168, 56 S.W. 737; Wehmeyer v. Mulvihill, 150 Mo.App. 197, 130 S.W. 681; State v. Burnett, 354 Mo. 45, 188 S.W.2d 51.
*376 Since the arrest was unlawful, of course the search of the automobile in which the two guns were found was an unreasonable search and seizure and prohibited by article 1, section 15 of our 1945 Constitution, V.A.M.S. State v. Owens, 302 Mo. 348, 259 S.W. 100, 32 A.L.R. 383.
In the case of State v. Smith, 357 Mo. 467, 209 S.W.2d 138, we held that the seizure by state highway patrolmen, without benefit of a search warrant, of a jimmy and other tools, stolen typewriters, etc., from an automobile in which defendant was riding when arrested was unlawful and in violation of defendant's constitutional rights. However, defendant waived his rights upon trial.
"We see no distinction between personal property which defendant may have left in his home and personal property he may have left in his automobile." State v. Jones, 358 Mo. 398, 214 S.W.2d 705, loc. cit. 707. In that case we reversed the action of the trial court in failing to sustain defendant's motion to suppress evidence of the jimmy bar found in defendant's car.
In this case the revolvers could not be seen by merely looking into the car as was the case in State v. Hawkins, Mo.Sup., 240 S.W.2d 688, where the stolen property could be seen by anyone walking by the parked automobile.
Officer Powers testified that he did not know about the guns until after the arrest and the automobile was searched. In fact, defendants were arrested only after this witness recognized one of the men in the automobile and he knew this man had a police record. When asked, "Well, suspicion was the only cause for the whole thing, is that correct?" Powers answered, "That is correct."
The arrest of a person without a warrant cannot be justified on the ground that the arresting officer suspected the person arrested intended to commit a felony when he was doing nothing toward its commission. State v. McBride, 327 Mo. 184, 37 S.W.2d 423. There is nothing in the record that would lead any reasonable person to believe that these defendants were going to commit a crime, let alone any specific crime.
Nor would the fact that one of these defendants had a previous criminal conviction justify their arrest. In the case of McKeon v. National Casualty Co., 216 Mo.App. 507, 270 S.W. 707, loc. cit. 713, the St. Louis Court of Appeals said:
"What then is meant by the words `common fame'? May they be construed to mean that one may be arrested by officers merely because his reputation is bad? We think not. We agree with Macauley that common fame, however strong and general, should not be received as legal proof of guilt. While the question is not free from difficulty, we are of the opinion that common fame must connect the one to be arrested with a specific crime, otherwise one bearing an unsavory reputation would be subject to lawful arrest, no matter how unjustifiable his arrest or how righteous his acts in life. We do not wish to be understood as saying, however, that a bad reputation may not be considered by the police officers in determining whether the related information is credible. In determining whether the evidence tending to show probable cause, if any, is credible, a lesser weight of evidence may determine the credibility of the informant, and the information where the reputation of the accused is bad than where it is good."
Under the circumstances in this case, the search could not be upheld, this for the reason that the settled doctrine that a search of a person is justified only as an incident to a lawful arrest. Here the arrest was unlawful. The trial court erred in not sustaining defendants' motion to suppress the evidence in reference to the two guns.
There is no need to discuss other assignments of error because unless the State is able to produce other evidence not shown in this record to support the information, then of course no verdict of guilty can be obtained. Since there is no showing that the State may not be able to produce competent evidence to sustain a conviction under the information in this case, *377 we think we should not reverse the case but reverse and remand it.
The judgment, therefore, is reversed and remanded.
All concur.
|
MEMORANDUM OPINION
No. 04-08-00031-CR
Jacob SCHWEM-CASEY,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court
at Law No. 7, Bexar County, Texas
Trial Court No. 217032
Honorable Monica
Guerrero, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Karen
Angelini, Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and
Filed: December 3, 2008
AFFIRMED
After entering a plea of not guilty, on October 3, 2007, Appellant Jacob
Schwem-Casey was found guilty by a jury for the offense of family
violence-bodily injury. The trial court subsequently sentenced Schwem-Casey to
one year confinement in the Bexar County Jail, suspended and probated for a
term of two years and assessed a fine in the amount of $4,000.00, of which
$3,500.00 was probated.
Schwem-Casey’s court-appointed attorney filed a brief containing a
professional evaluation of the record in accordance with Anders v.
California, 386 U.S. 738 (1967). Counsel concludes that the appeal has no
merit. Counsel provided Schwem-Casey with a copy of the brief and informed him
of his right to review the record and file his own brief. See Nichols v.
State, 954 S.W.2d 83, 85-86 (Tex. App.—San Antonio 1997, no pet.); Bruns
v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.).
Schwem-Casey did not file a pro se brief.
After
reviewing the record and counsel’s brief, we agree that the appeal is frivolous
and without merit. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.
Crim. App. 2005) (noting court of appeals should not address merits of issues
raised in Anders brief or pro se response but should only determine if the
appeal is frivolous). The judgment of the trial court is affirmed. Appellate
counsel’s motion to withdraw is granted. Nichols, 954 S.W.2d at 86; Bruns,
924 S.W.2d at 177 n.1.
Rebecca Simmons, Justice
Do Not Publish
|
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-APR-2019
08:21 AM
|
THE THIRTEENTH COURT OF APPEALS
13-17-00510-CV
H & H Sand and Gravel, Inc., a Texas Corporation
v.
Suntide Sandpit, Inc., a Texas Corporation, Mike Hurst, Individually, Phil Hurst,
Individually, and Erma Stillwell, Deceased
On appeal from the
148th District Court of Nueces County, Texas
Trial Cause No. 02-3448-E
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be affirmed. The Court
orders the judgment of the trial court AFFIRMED. Costs of the appeal are adjudged
against appellant.
We further order this decision certified below for observance.
May 30, 2019
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